Martha L. Bonner, Deceased; Gerald R. Bonner, Deceased; Unknown Heirs and/or Devisees of Martha L. Bonner, Deceased; Estate of Martha L. Bonner, Deceased; Boyd H. Gilbert; Sarah A. Gilbert; Michael Brooks Anderson; and Stephanie Anderson, Appellants-Defendants v. Fifth Third Bank, National Association, fka Fifth Third Bank Successor by Merger to Fifth Third Mortgage Company, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Michael Brooks Anderson and Stephanie Anderson, proceeding pro se, appeal the trial court's grant of summary judgment in favor of Fifth Third Bank, National Association (“Fifth Third”) in a mortgage foreclosure action.¹ The Andersons present five issues for our review, which we consolidate and restate as whether the trial court properly granted summary judgment to Fifth Third. On cross-appeal, Fifth Third argues the Andersons have waived their arguments by failing to comply with appellate procedural rules. We affirm.

Facts and Procedural History

[2] On March 25, 2002, Martha L. Bonner and Gerald R. Bonner executed a promissory note for $23,500 to Fifth Third Mortgage Company ² and secured that note with a mortgage on their real property at 1400 East Institute Street in Valparaiso, Indiana. The mortgage was recorded on April 2, 2002, as document number 2002-012003 in the Porter County Recorder's office. Gerald Bonner died on August 15, 2014.

[3] During those same years, Boyd and Sarah Gilbert owned the property at 1308 East Institute Street, which was adjacent to the Bonner property. In 2017, the Gilberts purchased the five-foot strip of the Bonner property that abutted the Gilbert property from Martha Bonner for $1,000 by quit claim deed. This transaction was properly recorded with the Porter County Recorder as document number 2017-018456 on July 25, 2017. In 2021, the Andersons, who are the Gilberts’ son and daughter-in-law, purchased the Gilberts’ property, including the five-foot strip acquired from Martha Bonner, through a land contract.³

[4] Martha died on August 10, 2023, and the loan secured by the 2002 mortgage fell into default due to non-payment. On September 21, 2023, Fifth Third filed a mortgage foreclosure action against Martha and “Gerald R. Bonner, deceased.” (Appellee's App. Vol. II at 20.) After discovering Martha had also died, Fifth Third filed an amended complaint on March 5, 2024, that named as defendants: Gerald, Martha, Martha's Estate, any “unknown heirs and/or devisees” of Martha, the Gilberts, and the Andersons. (Id. at 51.) The Andersons were the only defendants who answered, and their April 12, 2024, response provided no defense to the mortgage foreclosure, but it offered to “pay the entire amount in controversy in exchange for any right [Fifth Third] has in the property in question.” (Id. at 83.)

[5] On May 28, 2024, Fifth Third moved for summary judgment and designated the promissory note, the mortgage, and an affidavit demonstrating the loan was in default. The Andersons filed a “Brief” in opposition to summary judgment, but they did not designate any evidentiary materials or file supporting affidavits. The trial court granted summary judgment in favor of Fifth Third on September 9, 2024, and ordered foreclosure.

Discussion and Decision

[6] The Andersons argue the trial court improperly granted summary judgment to Fifth Third, but we must first address Fifth Third's argument on cross-appeal that we should dismiss the Andersons’ appeal because they failed to comply with our appellate rules. “It is well settled that pro se litigants are held to the same standards as licensed attorneys, and thus they are required to follow procedural rules.” Martin v. Brown, 129 N.E.3d 283, 284 (Ind. Ct. App. 2019) (italics in original). The failure to follow procedural rules can result in waiver of issues on appeal when the failure to follow rules impedes our ability to address the issues raised on appeal. See id. at 286 (waiving issues where violation of rules substantially impeded court's ability to address issues).

[7] As Fifth Third notes, the Andersons failed to file an Appendix on appeal, which is required by Indiana Appellate Rule 50.⁴ Because the Andersons did not file an Appendix, they were unable to comply with the requirements in Appellate Rule 46 to include citations to the Appendix to support factual statements in the Statement of the Case, Statement of the Facts, and Argument sections of their brief on appeal. See App. R. 46(A)(5) (Statement of Case), 46(A)(6)(a) (Statement of Facts), & 46(A)(8)(a) (Argument). These failures are significant. “A court which must search the record and make up its own arguments because a party has not adequately presented them runs the risk of becoming an advocate rather than an adjudicator.” Young v. Butts, 685 N.E.2d 147, 151 (Ind. Ct. App. 1997). Part of advocating for a position on appeal is directing the appellate tribunal to the relevant portions of the trial court record so that the tribunal may adequately evaluate the argument. See, e.g., In re Moeder, 27 N.E.3d 1089, 1097 n.4 (Ind. Ct. App. 2015) (noting the complaining party has a “duty” to point to the parts of the record that support an argument because appellate court will not undertake the task for the party), reh'g denied, trans. denied.

[8] Moreover, the appellant bears the burden of showing that the trial court erred when it granted summary judgment. Kramer v. Cath. Charities of Diocese of Fort Wayne-South Bend, Inc., 32 N.E.3d 227, 231 (Ind. 2015). Summary judgment is appropriate only if the moving party was entitled to judgment as a matter of law and there were no genuine issues of material fact ⁵ remaining for trial. See Ind. Trial Rule 56(C) (“The judgment sought shall be rendered forthwith if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”). Without providing an Appendix that contained their designation of evidence in opposition to summary judgment, the Andersons have rendered their arguments on appeal wholly unsupported. See, e.g., Yoquelet v. Marshall Cnty., 811 N.E.2d 826, 830 (Ind. Ct. App. 2004) (party could not overcome presumption that trial court properly granted summary judgment when party failed to file an appendix containing materials designated to trial court).

[9] But perhaps the real crux of the problem is that the Andersons did not file any such designation of evidence, or any evidence at all, in the trial court in response to Fifth Third's motion for summary judgment. Cf. Ind. T.R. 56(C) (“A party opposing the motion shall also designate to the court each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto.”). When the party moving for summary judgment designates evidence to demonstrate entitlement to judgment as a matter of law, the burden shifts to the non-moving party to “ ‘come forward with contrary evidence’ ” creating a genuine issue of material fact to avoid summary judgment. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (quoting Williams v. Tharp, 914 N.E.2d 756, 762 (Ind. 2009)).

[10] Herein, Fifth Third sought to foreclose on the Bonner property because the Bonners had defaulted on their loan, which was secured by a mortgage on the property. Fifth Third designated the promissory note, the mortgage, and an affidavit indicating the loan was in default. (Appellee's App. Vol. II at 110-11) (sworn affidavit affirming default). These facts demonstrated Fifth Third was entitled to foreclosure. See Hussain v. Salin Bank & Trust Co., 143 N.E.3d 322, 328 (Ind. Ct. App. 2020) (prima facia case for mortgage foreclosure are note, mortgage, and default), trans denied. The burden then shifted to the defendants, collectively, to demonstrate a genuine issue of material fact that would preclude entry of judgment for Fifth Third. See id. (“Once the mortgagee establishes its prima facie case, the burden shifts to the mortgagor to show that the note has been paid in full or to establish any other defenses to the foreclosure.”). However, the Andersons did not submit or designate any evidence at all.

[11] In their reply brief on appeal, the Andersons claim they intentionally did not submit affidavits to the trial court:

[T]he Andersons did not submit affidavits because, as pro se defendants, they are also fact witnesses. When the Andersons submitted their brief and affixed their signatures to it, they swore that all representations in it were true, including statements of fact. Accordingly, in order to conserve the Court's time, the Andersons thought it better to simply rely on the statements of fact in their brief, as opposed to “copying and pasting” them into redundant affidavits.

(Reply Br. at 2.) The Andersons’ Brief in opposition to summary judgment, however, contains no affirmation that every factual statement therein is true and personally known to the Andersons. See T.R. 56(E) (“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”); and see Tannehill by Podgorski v. Reddy, 633 N.E.2d 318, 322 (Ind. Ct. App. 1994) (holding trial court properly struck purported affidavit in opposition to summary judgment because document contained no affirmation of truth of matters asserted therein as required by T.R. 56), reh'g denied, trans. denied; see also T.R. 11(B) (providing example language for affirmation). The Andersons’ Brief therefore could not create genuine issues of material fact that could preclude summary judgment. See Rood v. Mobile Lithotripter of Ind., Ltd., 844 N.E.2d 502, 508 (Ind. Ct. App. 2006) (“Because Rood did not specifically designate evidence in opposition to Union's motion for summary judgment, he has not satisfied the requirements of the [sic] Indiana Trial Rule 56 and not established that there are genuine issues of fact for trial.”).

[12] Accordingly, even if we were to look past the Andersons’ failure to file an Appendix or direct us to the portions of the Record that support the factual assertions in their appellate brief, the Andersons cannot demonstrate the trial court erred when it granted summary judgment to Fifth Third because the Andersons failed to file any admissible evidence at the trial court to support the factual assertions that supported their arguments to the trial court against enforcing the mortgage.⁶ We thus have no option but to affirm the trial court's judgment for Fifth Third.⁷

Conclusion

[13] The Andersons have failed to establish that the trial court erred when it granted summary judgment to Fifth Third. We accordingly affirm the trial court.

[14] Affirmed.

FOOTNOTES

1.   The Andersons are the only Appellants who appeared or filed a brief on appeal. We nevertheless name all of the parties from the trial court action on the cover page of our decision because “[a] party of record in the trial court ․ shall be a party on appeal.” Ind. Appellate Rule 17(A).

2.   Fifth Third Mortgage Company became Fifth Third through a subsequent corporate merger.

3.   Fifth Third's amended complaint indicates the Andersons’ purchase contract was “recorded July 20, 2021 as Number 2021-021911 in Porter County, Indiana.” (Appellees’ App. Vol. II at 53.) However, we cannot confirm the validity of that statement as no copy of that contract has been included in the record provided to us.

4.   The Andersons assert in their reply brief that they did not file an Appendix because they were “operating on the assumption that an electronic record of the case was available to this Court, and would be the Court's preferred way of looking at the record.” (Reply Br. at 2-3.) The Andersons’ assumption was incorrect.

5.   “A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of the truth or if the undisputed material facts support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (internal citations omitted).

6.   The arguments included the Bonners’ alleged incapacity to enter a contract with Fifth Third, the unclean hands of Fifth Third, the doctrine of laches, the unconscionability of foreclosure, and the doctrine of adverse possession.

7.   The Andersons have provided other legal arguments on appeal, but it is well-settled that a party cannot raise arguments on appeal that were not raised before the trial court. See Safeco Ins. Co. of Ind. v. Blue Sky Innovation Group, 230 N.E.3d 898, 907 (Ind. 2024) (“This issue was not presented before the trial court and is thus waived.”), reh'g denied. Accordingly, the additional arguments raised by the Andersons on appeal are waived. See id. (waiving argument not raised until appeal).

May, Judge.

Judges Weissmann and Scheele concur. Weissmann, J., and Scheele, J., concur.