WISE v. HOME BANK SB (2025)

MEMORANDUM DECISION

[1] Scott M. Wise and Amy L. Wise (together, “the Wises”) appeal the trial court's entry of summary judgment and decree of foreclosure granted in favor of Home Bank SB (“Home Bank”). The Wises raise the following restated issue:

I.  Whether the affidavit designated by Home Bank was sufficient to prove the Wises were in default of the terms of the Mortgage and the amount of damages requested by Home Bank.

Home Bank cross-appeals and raises the following restated issue:

II. Whether Home Bank is entitled to appellate attorney fees.

Concluding that Home Bank designated sufficient evidence in support of the judgment and is entitled to reasonable appellate attorney fees, we affirm the trial court's judgment and remand for a determination of reasonable appellate attorney fees.

Facts and Procedural History

[2] On April 14, 2017, Scott M. Wise executed a promissory note (“Note”) in the amount of $500,000.00 and pledged certain real estate owned by the Wises as security for the repayment of the Note. That same date, the Wises executed a Mortgage and Assignment of Rents on real property located in Marion County, Indiana (“the Real Estate”). Appellants’ App. Vol. II p. 71, 93. The Mortgage and Assignment of Rents were duly recorded in the Marion County Recorder's Office.

[3] On October 24, 2018, Scott M. Wise signed a Change In Terms Agreement to the Note. See id. at 90–92. Almost one year later, on October 11, 2019, the Wises “filed a voluntary petition under Chapter 13 of the United States Bankruptcy Code under Case No. 19-07632-JMC-13[.]” Id. at 56. This case was dismissed without discharge on November 9, 2020. See id. On December 31, 2020, Amy L. Wise entered into an Assumption Agreement, assuming the liability of Scott M. Wise to Home Bank under the Note and Change In Terms Agreement. See id. at 69–70.

[4] In January of 2021, Home Bank filed a complaint ¹ against the Wises alleging default under the terms of the Note and seeking to accelerate the balance due under the Note. Later that same month, the parties filed an Agreed Consent to Judgment, which was approved by the court and entered as a judgment on January 20, 2021, “in the amount of $228,464.94, plus post-judgment interest” and “reasonable attorney fees incurred[.]” Id. at 86. The Agreed Consent to Judgment provided that in the event the Wises failed to make certain payments to Home Bank, that Home Bank could pursue foreclosure of the Mortgage. Id. at 84.

[5] On October 5, 2022, the Wises “filed a voluntary petition under Chapter 7 of the United States Bankruptcy Code under Case No. 22-03993-RLM-7, which resulted in a discharge being entered on March 14, 2023.” Id. at 57. On October 27, 2023, Home Bank filed its in-rem complaint to foreclose on the Real Estate, alleging that the Wises were in default under the terms of the Note and Mortgage. See id. at 60–68.

[6] On May 31, 2024, Home Bank filed its Motion for Default and Summary Judgment (“Motion”) alleging the Wises were in default under the terms of the Note and Mortgage and “indebted to Home Bank pursuant to [the] Mortgage, exclusive of attorney fees, in the principal amount of $197,872.81, plus accrued interest in the amount of $29,928.73, plus late fees in the amount of $5,188.11, plus appraisal fees in the amount of $585.00.” Id. at 47. Home Bank's attorney also filed an affidavit stating that he incurred attorney fees in the amount of $10,450.00 “as of the date of filing this Memorandum[.]” Id. at 47, 134–35.² Home Bank acknowledged that its Mortgage was subordinate to the Mortgage of Fifth Third Bank. In support of its motion for summary judgment, Home Bank designated the following evidence:

1. Affidavit of Casey Johnson (“Johnson Affidavit”) and all exhibits attached thereto[.]

2. The Complaint filed by [Home Bank] and all exhibits attached thereto.

3. The Fifth Third Note and Mortgage attached to the Answer filed by Fifth Third Mortgage Company as Exhibits A and B.

4. Affidavit of Attorney Fees[.]

Id. at 53.

[7] On August 22, 2024, the Wises filed their response in opposition to motion for summary judgment, arguing that there were material facts in dispute and that the designated material by Home Bank was “inadequate” to support summary judgment primarily because it consisted “almost entirely of conclusory statements rather than substantive evidence demonstrating the Wise Defendants’ alleged default.” Id. at 27. On November 13, 2024, a hearing was held on Home Bank's Motion. See Tr. Vol. II pp. 1–14.

[8] On December 18, 2024, the trial court granted Home Bank's summary judgment motion and entered judgment in favor of Home Bank and issued its Decree of Foreclosure. In its judgment and decree, the trial court entered an in rem judgment against the Real Estate in the principal sum of $197,872.81, together with “accrued interest in the amount of $29,928.73, plus late fees in the amount of $5,188.11, plus appraisal fees in the amount of $585.00, plus attorney fees in the amount of $10,450.00 as of May 31, 2024, plus interest after [May] 31, 2024[,]” foreclosed the mortgage, and ordered the Real Estate to be sold at Sheriff's Sale. Appellants’ App. Vol. II p. 19. The Wises now appeal.

Discussion and Decision

I. Designated Evidence Demonstrating Default

[9] The Wises contend that Home Bank was not entitled to summary judgment because the affidavit Home Bank designated in support of its Motion was insufficient to support a finding that the Wises were in default under the terms of the mortgage. “We review summary judgment decisions de novo, applying the same standard as the trial court.” Isgrig v. Trs. of Ind. Univ., 256 N.E.3d 1238, 1244 (Ind. 2025). “The movant 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.” Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 637 (Ind. 2012). However, “[o]nce these two requirements are met by the moving party, the burden then shifts to the non-moving party to come forward with evidence establishing the existence of a genuine issue of material fact.” Isgrig, 256 N.E.3d at 1244.

[10] “Summary judgment is proper only when the designated evidence shows no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.” Wohlt v. Wohlt, 245 N.E.3d 611, 615 (Ind. 2024) (citing Red Lobster Rests. LLC v. Fricke, 234 N.E.3d 159, 165 (Ind. 2024)). “We construe all facts and reasonable inferences in the nonmovant's favor.” Id. It is well established that “ ‘[c]onclusory statements are generally disregarded in determining whether to grant or deny a motion for summary judgment.’ ” McEntee v. Wells Fargo Bank, N.A., 970 N.E.2d 178, 183 (Ind. Ct. App. 2012) (quoting LaCava v. LaCava, 907 N.E.2d 154, 166 (Ind. Ct. App. 2009)).

[11] The Wises assert that the Johnson Affidavit “does not provide any concrete, non-conclusory evidence to demonstrate that a default actually occurred[,]” but rather, relies on [Johnson's] claim that the Wises “failed to make required payments under the terms of the Note and Mortgage.” Appellants’ Br. p. 8. The Wises contend that the Johnson Affidavit is “similarly conclusory” to the affidavit in McEntee, reasoning that the Johnson Affidavit failed to include, attach, or reference “any loan payment records, transaction histories, or financial statements that would substantiate this claim.” Id.

[12] In McEntee our court addressed a similar issue. There, the mortgagor (Wells Fargo Bank), designated certain evidence in support of its motion for summary judgment, including the affidavit of a bank vice president. The affidavit stated, “[a]ccording to [Wells Fargo's] records, the Mortgagors are in default and that said default has not been cured.” 970 N.E.2d at 182–83 (citation omitted). Our court concluded that Wells Fargo's affidavit only reflected the bank's opinion that the mortgagor was in default and was therefore insufficient to establish a prima facia showing of default.

[13] We find this case to be distinguishable from McEntee. Here, the Johnson Affidavit provided the specific factual basis for the conclusion that the Wises were in default, stating that “The Note, Mortgage and Agreed Consent to Judgment are in default because [the Wises have] failed to timely make payments when due under the Note and Mortgage.” Appellants’ App. Vol. II p. 57. In contrast, the deficient affidavit in McEntee failed to disclose the basis of the default, stating only that the mortgagee was in default. Although the Johnson Affidavit may have lacked specificity with respect to all of the details of the Wises’ default, it was sufficient to establish a prima facia case that the Wises failed to make timely payments as required under the terms of the Mortgage and were therefore in default. In response to this prima facie showing, the burden shifted to the Wises “to come forward with evidence establishing the existence of a genuine issue of material fact.” Isgrig, 256 N.E.3d at 1244. The Wises, in response to Home Bank's Motion, failed to designate evidence demonstrating an issue of fact. We conclude that Home Bank met its initial burden of making a prima facie showing that there were no genuine issues of material fact as to whether the Wises were in default and that Home Bank was therefore entitled to judgment as a matter of law.

[14] The Wises additionally argue that genuine issues of material fact exist regarding the amount owed to Home Bank as a result of the Wises’ default. Specifically, they contend that the Johnson Affidavit “does not explain how the alleged outstanding balance of $197,872.81 in principal, $29,928.73 in interest, and additional fees were calculated.” Appellants’ Br. p. 9. The Wises argue that absent a breakdown of specific payments missed, or “how the debt amount was computed[,]” the trial court is left with “nothing but bare assertions[.]” Id.

[15] Home Bank designated the Johnson Affidavit as evidence which explained that the “[Wises were] indebted to Home Bank pursuant to [the] Mortgage, exclusive of attorney fees, in the principal amount of $197,872.81, plus accrued interest in the amount of $29,928.73, plus late fees in the amount of $5,188.11, plus appraisal fees in the amount of $585.00.” Appellants’ App. Vol. II p. 58. The Wises cited to no legal authority nor designated any evidence in support of their argument that a genuine issue of material fact exists regarding the amount owed under default. Cf. Yuan v. Wells Fargo Bank, N.A., 162 N.E.3d 481, 487 (Ind. Ct. App. 2020) (explaining “[i]f [the defendant] had wished to demonstrate that was not the amount owed, she could have designated evidence in opposition, but she did not.”).

[16] We conclude that Home Bank designated sufficient evidence to support summary judgment, which shifted the burden to the Wises to establish an issue of material fact, which they did not do.

II. Appellate Attorney Fees

[17] On appeal, Home Bank argues that it is entitled to appellate attorney fees under the terms of the Mortgage. “It is well settled that a mortgage agreement is a contract.” Huntington Mortg. Co. v. DeBrota, 703 N.E.2d 160, 164 (Ind. Ct. App. 1998). “When a contract provision provides that attorney fees are recoverable, appellate attorney fees may also be awarded.” Kishpaugh v. Odegard, 17 N.E.3d 363, 377 (Ind. Ct. App. 2014) (quoting Humphries v. Ables, 789 N.E.2d 1025, 1036 (Ind. Ct. App. 2003)). Here, the terms of the Mortgage provided that “[i]f Lender institutes any suit or action to enforce any of the terms of this Mortgage, Lender shall be entitled to recover such sum as the court may adjudge reasonable as attorneys’ fees at trial and upon any appeal.” Appellants’ App. Vol. II p. 102. The Note similarly provided for an award of attorney fees. See id. at 88–89. Under the terms of the Mortgage and Note, Home Bank is entitled to recover reasonable attorney fees. Therefore, we remand to the trial court for a determination of reasonable appellate attorney fees.

Conclusion

[18] Based on the foregoing, the trial court did not err when it granted summary judgment in favor of Home Bank. Because Home Bank prevailed in this action against the Wises, and is entitled to recover reasonable attorney fees pursuant to the Note and Mortgage, we remand to the trial court for a determination of reasonable appellate attorney fees.

[19] Affirmed and remanded with instructions.

FOOTNOTES

1.   The complaint against the Wises was filed under Case No. 49D01-2101-CC-000792.

2.   We note that the pages in the appendix do not match the electronic page numbers. So, for ease of reference, we use the electronic page numbers.

Foley, Judge.

Kenworthy, J. and Scheele, J., concur.