Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA request to reconsider a default judgment on a voided mortgage was denied after the Court of Appeals of Indiana concluded the appeal was untimely.
In June 2019, a mortgage was recorded in Madison County for real estate located in Pendleton. The mortgage was purportedly between Jamalee Investments LLC as mortgagor and Barclays Investment Funding LLC as mortgagee.
T. Tad Bohlsen, an investment manager for Barclays, was Jamalee’s signatory for the mortgage. But Jamalee filed a complaint in December 2019 to quiet title against Barclays and Bohlsen because Bohlsen wasn’t authorized to act on behalf of Jamalee or execute a mortgage in Jamalee’s name.
Barclays failed to file an answer or otherwise respond, so Jamalee filed a motion for default judgment, which the Madison Circuit Court granted, declaring the mortgage void. The trial court also declared Barclays didn’t have any estate, right, title or interest to the real estate in question.
In March 2021, Barclays filed a motion to set aside the default judgment. The motion was signed by an attorney and an appearance was filed the next day. However, on April 7, the attorney notified Jamalee that he had not filed either Barclays’ motion to set aside default judgment or the appearance.
Instead, the motion to set aside default judgment instead been electronically signed and filed by Barclays without his knowledge. The attorney filed a motion to withdraw because he was no longer under contract with Barclays.
Jamalee responded by moving to strike Barclays’ motion, which the trial court granted. Barclays filed a motion to reconsider, but the trial court denied the motion and awarded Jamalee attorney fees.
On appeal, Barclays argued the trial court abused its discretion by denying its motion to reconsider. But the COA determined Barclays’ motion to reconsider was actually a motion to correct error.
“As a result, the trial court’s April 13 order granting Jamalee’s motion to strike is a final judgment and we treat Barclays’ motion to reconsider as a motion to correct error,” Judge Margret Robb wrote. “… Barclays had thirty days from the entry of final judgment to file a motion to correct error or a notice of appeal with the trial court. … Final judgment was entered on April 13, 2021, and Barclays filed its motion to correct error on June 14, 2021, over one month beyond the thirty-day deadline. Accordingly, Barclays’ motion to correct error was untimely.”
As a result, the appeal in Barclays Investment Funding LLC & T. Tad Bohlsen v. Jamalee Investments, LLC, 21A-PL-2015, was dismissed.
In a footnote, the appellate judges noted that an award of attorney fees may be appealable as of right under Indiana Appellate Rule 14(A)(1).
“However, to be appealable as of right, an award of attorneys’ fees must be for a sum and time certain,” Robb wrote. “… Here, Barclays was ordered to pay Jamalee the sum of $1,749.50. … However, the trial court provided no date by which that same sum needed to be paid.
“As a result, the trial court’s award of attorneys’ fees is not appealable as of right and any appeal by Barclays from the trial court’s order denying Barclays’ motion to correct error and granting Jamalee’s request for attorneys’ fees is not properly before this court.”
Please enable JavaScript to view this content.