DEVA v. SECURITY FEDERAL SAVINGS BANK (2025)

MEMORANDUM DECISION

[1] Abhaya Deva, pro se, appeals the entry of summary judgment in favor of Security Federal Savings Bank in this mortgage foreclosure action. We affirm.

Facts and Procedural History

[2] Deva, as President of Bluelight, Inc, (“Bluelight”) executed a promissory note dated May 24, 2007, evidencing a loan from Security Federal Savings Bank (“Bank”) to Bluelight in the original principal amount of $213,300 (the “Note”). The Note provided that Bluelight agreed to make 120 monthly payments, that a payment of $1,441.36 was due monthly, and that a balloon payment was due on May 25, 2017, in the amount of $166,639.79 if payments were made as agreed. Deva executed a mortgage (the “Mortgage”) granting Bank a security interest in certain real property located in Cass County to secure repayment of the loan.

[3] On July 25, 2018, Deva and Bank signed a “Commercial Debt Modification Agreement” (the “Modification Agreement”) stating the amount remaining due including fees and accrued interest was $182,923.16 and indicating the parties agreed to certain modifications to the interest rate and payment terms of the loan. Appellant's Appendix Volume II at 62 (capitalization omitted). Specifically, the parties agreed that “the monthly payment amount will be $1,368.29 starting with 06/25/2018 payment,” “[t]he payment may change 05/25/2023, and every 60 months thereafter,” “the maturity date will be September 25, 2036,” and “the primary borrower will change to Abhaya Nand Deva since Bluelight, Inc has been dissolved.” Id. (capitalization omitted). Deva also executed a “Modification of Mortgage” providing “maturity date being modified to September 25, 2036.” Id. at 63-64 (capitalization omitted). Bank and Deva later entered deferral agreements providing that Deva was not required to make payments on the loan from February through May of 2023 with the next payment due on June 25, 2023.

[4] On November 29, 2023, Bank filed a complaint. On January 4, 2024, Bank filed an “(Amended) Complaint on Promissory Note and to Foreclose Mortgage” against Deva and Bluelight alleging that Bluelight was administratively dissolved and that Deva and Bluelight failed to make payments on the Note, failed to timely pay property taxes and maintain the property in good repair, and were in default under the terms of the Note, Mortgage, Modification Agreement, and Modification of Mortgage (collectively, the “Loan Documents”). Id. at 43. In February 2024, Deva filed an answer, affirmative defenses, and counterclaims alleging wrongful foreclosure, intentional infliction of emotional distress, and civil conversion.

[5] On June 19, 2024, Bank filed a Motion for Summary Judgment of Foreclosure arguing that Deva was in default under the terms of the Loan Documents, there was no genuine issue of material fact with respect to his counterclaims, and it was entitled to judgment as a matter of law. Deva filed a response and cross-motion for summary judgment arguing that the Modification Agreement and Modification of Mortgage (the “Modification Documents”) were the product of fraud and that Bank's claim was barred by the Statute of Limitations.

[6] On August 1, 2024, Deva submitted a notice that he had filed a petition for bankruptcy on July 31, 2024. On September 12, 2024, Bank filed a motion stating Deva's bankruptcy case had been dismissed and requesting a hearing on the parties’ summary judgment motions. On September 19, 2024, the court set a hearing for December 10, 2024. On December 9, 2024, Deva filed a “Motion to Continue, or Set Aside Summary Judgment Proceedings and Reset Matters for Jury Trial,” arguing in part that he was not able to inspect or have his expert inspect the original Modification Documents. Appellee's Appendix Volume II at 49. In particular, he argued:

Deva had [the Modification Documents] (copies) inspected by an expert of his choosing to whom had many concerns, notably, that these documents were clearly altered and doctored. The expert requested access to the originals to determine a live signature and when (as a matter of time) they were drafted and altered.

Mr. Deva issued a subpoena duces tecum to view the original documents which was set for Monday April 29, 2024 @ 9am. Appearing with the expert, the Bank searched for the originals for (45) minutes and could not produce same. Thereafter, Counsel for [Bank] filed notice with the Court that they had complied with the Court, which was untrue.

Thereafter, Defendant filed a motion to compel inspection. The matter was argued in Court however, went without ruling. [Bank] then agreed to the inspection to take place at Counsel[’]s office. Deva appeared with his expert who was denied access to inspect the document[s]. Counsel's excuse was that the expert was “not a party” and “not an expert” which is not true. Again, [Bank] noticed the Court that they have complied with the request to produce when in fact, they had not.

Id. at 50-51.

[7] On December 10, 2024, the court held the scheduled hearing. The parties presented argument regarding Deva's motion to continue, and the court denied the motion. The court then heard argument on the parties’ summary judgment motions. The trial court issued an order finding Bank was entitled to summary judgment and ordering that the mortgage of Bank is foreclosed.

Discussion

[8] Deva, pro se, asserts that the trial court erred in denying his motion to continue and in entering summary judgment in favor of Bank. Pro se litigants are held to the same legal standards as licensed attorneys. Basic v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct. App. 2016), reh'g denied. “This means that pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so.” Id. at 983-984. “These consequences include waiver for failure to present cogent argument on appeal.” Id. at 984. “We will not become an advocate for a party, or address arguments that are inappropriate or too poorly developed or expressed to be understood.” Id. (citation and quotation marks omitted).

[9] To the extent Deva fails to cite relevant authority or relevant portions of the record or present cogent argument with respect to the issues he attempts to raise on appeal, those arguments are waived. See Loomis v. Ameritech Corp., 764 N.E.2d 658, 668 (Ind. Ct. App. 2002) (argument waived for failure to cite authority or provide cogent argument), reh'g denied, trans. denied.

A. Motion to Continue

[10] The decision to grant or deny a motion for a continuance is within the sound discretion of the trial court. Litherland v. McDonnell, 796 N.E.2d 1237, 1240 (Ind. Ct. App. 2003), trans. denied. We will reverse the trial court only for an abuse of that discretion. Id. “An abuse of discretion may be found on the denial of a motion for a continuance when the moving party has shown good cause for granting the motion.” Rowlett v. Vanderburgh County Office of Family & Children, 841 N.E.2d 615, 619 (Ind. Ct. App. 2006), trans. denied. No abuse of discretion will be found when the moving party has not shown that he was prejudiced by the denial. Id.

[11] Deva asserts he “issued a subpoena duces tecum to have the original [Modification Documents] inspected by an expert which was set for Monday April 29, 2024 @ 9am” and Bank “searched for the originals for (45) minutes and could not produce the same.”¹ Appellant's Brief at 21. He argues he “agreed to the inspection ‘by Agent’ to take place at Counsel's office” and that his “expert was denied access to inspect the document.” Id. at 22.

[12] At the December 10, 2024 hearing, Deva argued “I have a right ․ to inspect ․ those documents in question by an expert of my choosing, which has not been permitted yet.” Transcript Volume II at 30. Bank's counsel argued:

I will represent to you, as an officer of the court, on one of those occasions, Mr. [David] Nethercutt[2] showed up in this courtroom, with Mr. Deva, and [ ] in addition to that [ ] Mr. Deva made arrangements with my office to inspect, what he refers to as the original [ ] documents in this case, being a promissory note, mortgage and then loan modification agreement and mortgage modification agreement, that he made arrangement specifically with my office, I'm looking at the date, July 26th at 1:00 p.m. to stop by my office and inspect those documents and when he did that [ ] Mr. Nethercutt showed up. And I communicated with Mr. Nethercutt ․ Mr. Nethercutt was alleged to have been his handwriting expert and when I talked to Mr. Nethercutt, [ ] he indicated to me that he was a certified fraud examiner. I asked him for a copy of his license or his examiner number and he would not, could not offer up one to me. And I a politely suggested to him that he was not a party to this proceeding. That he did not present with the appropriate documents [ ] suggesting that we [sic] was working as an agent, [ ] as [ ] a handwriting expert on behalf of Mr. Deva and that I wasn't going to share confidential information with him.

Id. at 35-36. Deva responded:

First of all, Mr. Nethercutt, is fully qualified as a fraud examiner. He can produce all the documents indicating that he has full authority and segregation to all the procedures which are needed this in [sic] matter, which is the examination of these documents. I would be more than happy to have him produce, or I can bring the copies of the documents to substantiate that he's fully authorized to be a bonified [sic] fraud examiner. And he was just simply blocked because his evidence would have resulted in resolution of this case.

Id. at 37.

[13] The court stated:

You're the person raising the issue. It's your burden to have that done. You had the opportunity to have that done, and didn't have that done, and you've had four (4) months to cure the issue with Mr. Nethercutt being certified or not, which apparently, he declined to be․ [Y]ou are not making availing argument that a certified specialist is unaware of the possibility that he might be asked to establish his credentials․ You had four (4) months to cure that and have not done that.

Id. at 37-38.

[14] The court's written order included the following findings:

10. While not relevant to the proceedings, [ ] Deva argued that he was prohibited from inspecting the original loan and mortgage documents in this case. However, the Court is aware of at least one occasion in this courtroom where [ ] Deva was allowed to inspect the original documents supporting the Complaint. The Court also finds that [ ] Deva was offered an opportunity to inspect the documents at the Office of [Bank's counsel]. Finally, [Bank] introduced video footage from the Security Federal Savings Bank lobby from April 29, 2024, at approximately 9:00 a.m. at which time Abhaya Deva claims that he appeared at the Bank with his handwriting expert requesting an inspection of the original documents which Deva claims were ultimately not found by the Bank․ However, the actual video footage shows only [ ] Deva entering the Bank and approaching the teller counter. During his exchange with the teller, he is accompanied by no other individual, nor is there any moment in the video when [ ] Deva is seen accompanied by any other individual while he is in the Bank;[3]

11. The Court finds [ ] Deva's Motion to Continue to be untimely, without any factual support, and an attempt to unnecessarily prolong the proceedings in this cause. The Court further finds that any representations by [ ] Deva in support of his Motion lack credibility and appear to be patently false as to his claim that he has been denied the opportunity to conduct discovery in this cause․

Appellant's Appendix Volume II at 38-39.

[15] The record reveals that Deva had ample opportunity prior to the December 10, 2024 summary judgment hearing to inspect the originally signed Modification Documents and that the court carefully considered his allegations and credibility with respect to his reasons for requesting a continuance.⁴ Based on our review of the record, we cannot say the trial court abused its discretion.

B. Summary Judgment

[16] We review an order for summary judgment de novo, applying the same standard as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). The moving party bears the initial burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). If the moving party carries its burden, then the nonmoving party must come forward with evidence establishing the existence of a genuine issue of material fact. Id. We construe all factual inferences in favor of the nonmoving party and resolve all doubts as to the existence of a material issue against the moving party. Id. We may affirm on any grounds supported by the Ind. Trial Rule 56 materials. Catt v. Bd. of Comm'rs of Knox Cty., 779 N.E.2d 1, 3 (Ind. 2002).

[17] Deva cites Ind. Code § 34-11-2-9, which provides in part that an action upon promissory notes or other written contracts for the payment of money must be commenced within six years after the cause of action accrues. He also cites Ind. Code § 26-1-3.1-118, which provides in part that “an action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six (6) years after the due date or dates stated in the note or, if a due date is accelerated, within six (6) years after the accelerated due date.”

[18] The Indiana Supreme Court has held:

Indiana's two applicable statutes of limitations recognize three events triggering the accrual of a cause of action for payment upon a promissory note containing an optional acceleration clause. First, a lender can sue for a missed payment within six years of a borrower's default. Second, a lender can exercise its option to accelerate and fast-forward to the note's maturity date, rendering the full balance immediately due. The lender must then bring a cause of action within six years of that acceleration date. Or, third, a lender can opt not to accelerate and sue for the entire amount owed within six years of the note's date of maturity.

Blair v. EMC Mortg., LLC, 139 N.E.3d 705, 711 (Ind. 2020).

[19] Deva argues that “[t]he 2007 [N]ote to [Bluelight] had (10) year maturity date of May 2017.” Appellant's Brief at 18. He argues, “[t]he account went into default on June 25, 2017 as both parties agree,” “the six year Statute of Limitations would require a foreclosure action to be filed on or before midnight, June 25, 2023,” Bank “did not file the instant case until November 29, 2023,” and “[t]he case was time-barred at its filing.” Id. at 19.

[20] The Note provided for 120 monthly payments and a balloon payment due on May 25, 2017. The designated evidence establishes that, pursuant to the July 2018 Modification Documents, the parties agreed to certain revisions to the terms of the loan. In particular, the Modification Agreement provided:

I agree to pay interest on the outstanding principal balance at the rate of 6.00% per year until the first scheduled rate change on 06/25/2023. The future rate will be 4.50% above the weekly average yield on U.S. Treasury Securities adjusted to a constant maturity of 5 years as made available by the Federal Reserve Board. The rate on this note may change as often as every 60 months, with a rate floor of 6.00% at a rate ceiling of 12.00%. The rate may not change more than 3.00% each 60 months.

THE MONTHLY PAYMENT AMOUNT WILL BE $1,368.29 STARTING WITH 06/25/2018 PAYMENT. THE PAYMENT MAY CHANGE 05/25/2023, AND EVERY 60 MONTHS THEREAFTER. THE MATURITY DATE WILL BE SEPTEMBER 25, 2036.

The primary borrower will change to Abhaya Nand Deva since Bluelight, Inc has been dissolved.

․ Except as specifically amended in this Modification, all terms of the Prior Obligation remain in effect.

Appellant's Appendix Volume II at 62 (capitalization omitted). Also, Deva executed the Modification of Mortgage providing: “MATURITY DATE BEING MODIFIED TO SEPTEMBER 25, 2036.” Id. at 64. Deva made monthly payments consistent with the Modification Documents until January 2023. Bank granted deferrals providing that Deva was not required to make payments from February through May of 2023, with the next payment due in June 2023. Deva made no payments in or after June 2023. Given the Modification Documents amending the terms of the loan to include amended payment obligations and a revised maturity date, and Deva's missed payments beginning in June 2023 and continuing through the December 2024 hearing, Bank filed its action well before the expiration of the Statute of Limitations period.

[21] The record reveals that, pursuant to the Note, Bluelight promised to pay Bank the principal amount of the loan plus interest and that the recorded Mortgage granted a security interest in the property to secure repayment of the loan. The Modification Agreement signed by Deva provided for the amendment of certain terms of the loan including revision of the monthly payment amounts, modification so that Deva was the borrower, and amendment of the maturity date to September 25, 2036. The recorded Modification of Mortgage granted a security interest in the property to secure repayment of the loan as modified by the Modification Agreement. Deva defaulted pursuant to the terms of the Note as modified by the Modification Agreement by failing to tender monthly payments when due following the expiration of the deferral agreements. The designated evidence supports the court's determination that Deva was in default under the terms of the Loan Documents. We conclude the trial court did not err in entering summary judgment in favor of Bank.

[22] For the foregoing reasons, we affirm the trial court.

[23] Affirmed.

FOOTNOTES

1.   In his Statement of Case section of his appellant's brief, Deva states that he “appeared at the bank that morning and after a (45) minute search, the original documents could not be found. The Expert, a fraud examiner, waited outside to be less intimidating until the original documents could be located (App. V, ppg 76).” Appellant's Brief at 6.

2.   Deva identified Nethercutt as “the Bluelight secretary.” Transcript Volume II at 32.

3.   The video recording was admitted at the December 10, 2024 hearing. Brett Henderson, a vice president of lending and special assets at Bank, testified the recording depicted Deva inside the bank branch and at no time was Deva accompanied by another person. Henderson further testified that he was at the office of Bank's counsel when Deva appeared with Nethercutt, that Bank's counsel asked Nethercutt for his credentials and Nethercutt was unable to provide them, and that he and Bank's counsel allowed Deva to examine the documents in a conference room. Henderson also testified that he recalled offering Deva the opportunity to inspect the documents in the courtroom following a prior hearing.

4.   To the extent Deva claimed that his signature on the Modification Documents was the product of fraud, we observe the payment history shows that Deva made the monthly payments of $1,368.29 consistent with the Modification Agreement beginning in July 2018 until Bank granted him a deferral in February 2023.

Brown, Judge.

Bailey, J., and Weissmann, J., concur.