Catherine Blackwell, Appellant-Defendant v. The Bank of New York Mellon, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Catherine Blackwell appeals the trial court's order granting summary judgment in favor of The Bank of New York Mellon and denying her cross-motion for summary judgment. We affirm.

Facts and Procedural History

[2] Blackwell owned certain property in Hamilton County. In return for a home equity credit line with a credit limit of $27,450, Blackwell executed a Home Equity Credit Line Agreement and Disclosure Statement dated November 23, 2005 (the Note), in favor of Countrywide Home Loans, Inc. doing business as America's Wholesale Lender (Countrywide). That same day, Blackwell executed a mortgage in favor of Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for Countrywide (the Mortgage) securing the Note.¹

[3] The Note provides for a 240-month maturity date following a sixty-month draw period and a 180-month repayment period; the Note thus matures in December 2025 absent any acceleration. The Note further provides that Blackwell promises to pay all loans under the agreement when due in accordance with a periodic statement, which the lender was obligated to send at the end of each billing cycle. See Appellant's App. Vol. II p. 77. Finally, the Note includes an option to accelerate the Note's maturity date if, among other things, Blackwell fails to meet the repayment terms.

[4] Blackwell made payments on the Note from December 2005 through May 2009, then defaulted on the Note for the payment due on June 25, 2009. Blackwell made no further payments on the Note and has since failed to cure the default.

[5] On October 12, 2018, MERS executed an assignment of the Mortgage (the Assignment) in favor of the Bank of New York Mellon (the Bank). Id. at 94. At some point, the Bank also became the holder of the Note, which has been serviced on behalf of the Bank by Newrez LLC doing business as Shellpoint Mortgage Servicing, formerly known as Specialized Loan Servicing LLC (the Servicer). Id. at 72.

[6] The Servicer, on behalf of the Bank, sent Blackwell a “Notice of Default and Notice of Intent to Foreclose” dated December 19, 2021 (the 2021 Notice). Id. at 95-97. The 2021 Notice explained the nature of the default, including the amount due, and gave instructions and a timeline to cure the default. The 2021 Notice further explained that failure to cure the default “may result in acceleration of the entire balance outstanding under the Note ․ and commencement of foreclosure of the Trust Deed/Mortgage which is security for [the] Note.” Id. at 95.

[7] On February 24, 2023, the Bank filed an “In Rem Complaint on Note and to Foreclose Mortgage.” Id. at 15. Blackwell filed her initial answer in May. The court later granted her motion to file an amended answer, and Blackwell filed her amended answer in July. In her amended answer, Blackwell denied executing the Note but admitted to executing the Mortgage.² She further admitted that she did not make a payment due June 25, 2009, but alleged that she did not do so because she “never received a Periodic Statement from any holder” of the Note. Id. at 45. Blackwell also asserted several affirmative defenses.

[8] On June 27, 2024, the Bank filed a motion for summary judgment on its foreclosure claim. In support of this motion, the Bank designated as evidence its February 2023 unverified complaint and the attachments thereto, an affidavit from the Servicer's Second Assistant Vice President, Cynthia Wallace; the Note; the Mortgage; the Assignment of the Mortgage; the 2021 Notice; and the Servicer's “Account History” for the Note. Id. at 73; see id. at 53-54.

[9] On July 18, Blackwell filed a cross-motion for summary judgment and her response in opposition to the Bank's motion for summary judgment. Blackwell designated an affidavit from herself; portions of the Bank's evidence including the Note, the 2021 Notice, and the Servicer's Account History; “Rhetorical Paragraphs [six] and [nine] of Plaintiff's Complaint” Id. at 226; and her answer and affirmative defenses to the Bank's complaint. See id. Blackwell also filed a motion to strike Cynthia Wallace's affidavit and a motion for a hearing on the summary-judgment motions.

[10] The Bank filed a reply opposing Blackwell's cross-motion for summary judgment on July 29. The Bank also filed a motion to strike all of Blackwell's July 18 filings because they were unsigned by her counsel. Blackwell then refiled signed copies of those documents on August 9.

[11] On October 1, the trial court granted the Bank's motion for summary judgment and entered a decree of foreclosure.³ Blackwell filed a motion to correct errors on October 31, which the trial court denied on November 25. Blackwell now appeals. Additional information is provided as necessary.

Discussion and Decision

[12] “We review 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) (internal quotations and citation omitted). “Summary judgment is improper if the moving party fails to carry its burden, but if it succeeds, then the non-moving party must come forward with evidence establishing the existence of a genuine issue of material fact.” Id. “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.” Hughley, 15 N.E.3d at 1003.

[13] 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. Manley, 992 N.E.2d at 673. Our review of a summary judgment is limited to those materials designated to the trial court. Id. “In reviewing a trial court's ruling on a motion for summary judgment, we may affirm on any grounds supported by the Indiana Trial Rule 56 materials.” Flannagan v. Lakeview Loan Servicing, LLC, 184 N.E.3d 691, 695-96 (Ind. Ct. App. 2022) (citation omitted). “The fact that the parties have filed cross-motions for summary judgment does not alter our standard for review, as we consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law.” Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012).

I. Statute of Limitations

[14] Blackwell moved for summary judgment in her favor asserting the Bank's complaint was time-barred. Blackwell specifically alleges that both the six-year limitation on actions on promissory notes, see Ind. Code §§ 34-11-2-9 (2021); 26-1-3.1-118 (1993), and the ten-year limitation on mortgage foreclosure actions, see Ind. Code §§ 34-11-2-11 (2000); 32-28-4-1 (2012), expired before the Bank filed its complaint in February 2023.⁴ In support, Blackwell cites Paragraph 13 of her designated affidavit wherein she swears that “in calendar year 2010 [Blackwell] received a notice from or on behalf of Countrywide stating that [her] loan was in default, that the loan was being accelerated, that the loan was now immediately due and payable, and that foreclosure proceedings would be instituted.”  ⁵ Appellant's App. Vol. III p. 7. She concludes that said notice advanced the Note's maturity date, triggering run of the limitation period. Blackwell correctly offers that a note's maturity date is fast-forwarded to the acceleration date when a lender exercises such an option. See Blair v. EMC Mortgage, LLC, 139 N.E.3d 705, 711 (Ind. 2020) (“[A] lender can exercise its option to accelerate and fast-forward to the note's maturity date, rendering the full balance immediately due.”). However, we disagree with Blackwell's contention that the Note was accelerated in 2010.

[15] Following her statement in Paragraph 13 of her affidavit, Blackwell immediately swears:

14. This was a dramatic moment and I was very upset. I had never received any notice like that. I had never been in default of any of my obligations. I clearly recall this event. The day of or the day after receipt of that notice, I spoke with the servicer for the Countrywide loan noted on the Periodic Statements that I had been regularly receiving and had been timely paying and inquired about the notice I had received, stating it had to be an error.

15. At the time of that call, Countrywide was the holder of both the Credit Line Agreement and the Note dated November 23, 2005 in the amount of $146,400.

16. I was informed by the servicer on behalf of Countrywide that my loan was not in default and that the notice was an error.

Appellant's App. Vol. III p. 7. Taken as a whole, Blackwell's affidavit makes her ultimate position clear: any acceleration notice she received in 2010 was an error. A reasonable factual inference can be made that the Note was not accelerated in 2010, which we construe in favor of the Bank. See Manley, 992 N.E.2d at 673 (we construe all factual inferences in favor of the nonmoving party).

[16] Further, in the 2021 Notice for default of the June 25, 2009 payment, the Bank noted that it “may” accelerate the entire balance on the loan. Appellant's App. Vol. II p. 95. Then, in its complaint filed in February 2023, the Bank asserted:

9. By reason of aforesaid defaults, the outstanding principal balance of $27,287.87 plus any and all deferred amounts together with all accrued interest thereon as provided in the note, and together with all late charges, expenses and advances, and any other further amounts due and owing thereunder, has been declared to be, and hereby is declared to be, immediately due and payable.

Id. at 16. Finally, in Paragraph 9 of her affidavit dated June 5, 2024, Cynthia Wallace swore that “[a]ccording to the records, Plaintiff has accelerated all sums due and owing under the promissory note pursuant to the terms of the promissory note and mortgage.” Id. at 73.

[17] It is thus reasonable to infer that as of 2021 the Bank had not exercised its option to accelerate. The only indication of acceleration in the record is the Bank's explicit assertion in its complaint, filed in 2023, declaring all “further amounts due and owing ․ to be, immediately due and payable.” Id. at 16. Hence, Cynthia Wallace's general statement made in 2024 that the records reflect an acceleration is supported by the evidence and the pleadings. Together with Blackwell's affidavit proclaiming that the alleged 2010 acceleration was an error, the designated evidence is clear that the Note was not accelerated in 2010. Blackwell, therefore, has not met her burden showing she is entitled to judgment as a matter of law on the basis that the statute of limitations ran before the complaint was filed.

II. First Material Breach

[18] Blackwell also moved for summary judgment on the basis that the Bank and its predecessor in interest breached the terms of the Note by failing to provide periodic loan statements. The terms of the Note required the Bank to send a periodic statement at the end of each billing cycle and required Blackwell to pay all loans under the Note when due in each cycle in the manner specified in the statement. Appellant's App. Vol. II p. 77. Blackwell aptly notes that “when a party to a contract commits the first material breach of that contract, it cannot seek to later enforce the contract against the other party, even if the other party breaches the contract at a later date.” Appellant's Br. p. 27 (citing Coates v. Heat Wagons, Inc., 942 N.E.2d 905, 917 (Ind. Ct. App. 2011)).

Whether a party has materially breached an agreement is a question of fact and is dependent upon several factors including:

(a) The extent to which the injured party will obtain the substantial benefit which he could have reasonably anticipated;

(b) The extent to which the injured party may be adequately compensated in damages for lack of complete performance;

(c) The extent to which the party failing to perform has already partly performed or made preparations for performance;

(d) The greater or less hardship on the party failing to perform in terminating the contract;

(e) The willful, negligent or innocent behavior of the party failing to perform;

(f) The greater or less uncertainty that the party failing to perform will perform the remainder of the contract.

Coates, N.E.2d at 917-18 (citation omitted). Here, contrary to Blackwell's arguments, the designated evidence demonstrates that Blackwell committed the first material breach by defaulting on her payment due June 25, 2009.

[19] Blackwell relies on portions of Paragraphs 18, 19, and 22 of her affidavit to form her argument. Those paragraphs state in full:

18. After the call with Countrywide's servicer, confirming that the 2010 notice that the Credit Line Agreement was in default, that the indebtedness had been accelerated, that the indebtedness was due and payable, and that a foreclosure proceeding was going to be instituted was an error, until the filing of Plaintiff's Complaint on February 24, 2023, I did not receive any periodic statement, notices of default, demands or any other communication indicating that I was in default under the Credit Line Agreement on which this suit has been brought.

19. Instead, after that call in 2010 I continued to receive monthly statements associated with the [November 23, 2005] transaction with Countrywide. These statements set forth a payment due and payment instructions and I have faithfully, timely paid each and every such monthly statement from Countrywide or its numerous servicers by the Payment Due Date.

***

22. I had no idea until after Plaintiff filed its complaint on February 24, 2023 and counsel had explained to me what had happened that the monthly statements I faithfully paid starting in December of 2005 from Countrywide were not correct. It never even occurred to me a lender would go from 2005 to 2023 without reaching out to me or sending me a statement for a loan for which it was contended I was responsible.

Appellant's App. Vol. III pp. 5-7.⁶

[20] From her statements, Blackwell's position is clear: the Bank breached the terms of the Note after the 2010 call with the Servicer. Blackwell then reaffirms that after the call, she continued to receive statements for her other Countrywide loan but not for the Note at issue in the instant case. Blackwell also swears that:

8. Consistent with the representation at closing that going forward I would receive monthly statements that would contain all of the information I needed to timely make my payments to Countrywide, I then began to receive such statements, commencing in December of 2005. The statements indicated they were from Countrywide. There was a payment due and payment instructions. Since the first payment in December of 2005 and continuing to the present I have faithfully timely paid each and every such monthly statement from Countrywide or its numerous servicers by the Payment Due Date.

Id. at 6. Further, Cynthia Wallace's affidavit and the 2021 Notice provide that Blackwell did not default until June 2009. And, although it is cloaked in her allegation that the Bank's predecessor breached the contract, Blackwell ultimately admits in her amended answer that she “did not make the payment due June 25, 2009.” Appellant's App. Vol. II p. 45.

[21] Taken together, the designated evidence demonstrates that: Blackwell paid the balance due each month from December 2005 through May 2009; Blackwell defaulted on the payment due June 25, 2009; and the failure to tender periodic statements began after the call with the Servicer in 2010. Any material breach of the Note for failing to send periodic statements after the call in 2010 occurred after Blackwell first materially breached the Note by defaulting in June 2009. Blackwell has failed to show she is entitled to summary judgment based on her first-material-breach argument. See Flannagan, 184 N.E.3d at 695-96 (we may affirm on any grounds supported by the Indiana Trial Rule 56 materials).⁷

III. Estoppel

[22] Next, Blackwell argues she is entitled to summary judgment under the doctrines of promissory and equitable estoppel. As to her equitable estoppel argument, Blackwell does not assert the legal framework for equitable estoppel to support her contention despite asserting that she would prevail “[r]egardless” of whether the issue is framed as promissory or equitable estoppel. Appellant's Br. p. 33. Instead, Blackwell merely quotes the Bank's trial court argument opposing her motion for summary judgment on this issue. Id. Because Blackwell does not develop an argument on a theory of equitable estoppel supported by appropriate authorities, this issue is waived for our review. Ind. Appellate Rule 46(A)(8) (“Each contention must be supported by citations to the authorities [and] statutes ․ relied on[.]); Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003) (assertions on appeal are waived when cogent argument supported by authorities and references to the record is not presented).

[23] As to promissory estoppel, Blackwell reasons that because she relied on the statement in 2010 that the default notice was sent in error, the Bank is now barred from enforcing the Mortgage based on her default on the Note. Blackwell relies on the following precedent to support her argument: “[a] promise which the promissor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” First Nat. Bank of Logansport v. Logan Mfg. Co., Inc., 577 N.E.2d 949, 954 (Ind. 1991); See Appellant's Br. p. 32. However, Blackwell ignores critical elements of promissory estoppel whose absence proves fatal to her argument.

In First National Bank of Logansport, our Supreme Court went on to provide the following elements encompassing the doctrine of promissory estoppel: “(1) a promise by the promissor (2) made with the expectation that the promisee will rely thereon (3) which induces reasonable reliance by the promisee (4) of a definite and substantial nature and (5) injustice can be avoided only by enforcement of the promise.” 577 N.E.2d at 954. Blackwell's estoppel argument rests entirely on the fact that she indeed “relied upon” the representation made in 2010 that her loan was not in default and she “changed her actions based on what she was told.” Appellant's Br. p. 34. In her reply brief, Blackwell asserts she “reasonably relied upon what she was told and undertook a course of action (by acting as if the Loan was not in default or accelerated) that ultimately led to her prejudice.” Appellant's Reply Br. p. 16. Yet, Blackwell fails to explain how her reliance on any alleged promise made in 2010—after her default—led to the default. She fails to show that any alleged promise was “made with the expectation that [she would] rely thereon” or that her reliance was “reasonable[.]” First Nat. Bank of Logansport, 577 N.E.2d at 954. Blackwell fails to prove she is entitled to summary judgment because the Bank is estopped from bringing its claim.

IV. Summary Judgment for the Bank

[24] The designated evidence shows Blackwell executed the Note and the Mortgage on November 23, 2005. The Note provided Blackwell was obligated to pay the Note as due and failure to do so may result in foreclosure of the Mortgage. The Bank alleged in its complaint that Blackwell defaulted on the payment due on June 25, 2009, and the Servicer's representative, Cynthia Wallace, swore the records reflect the last payment received on the Note was for payment due May 25, 2009. The Bank notified Blackwell of her default in December 2021 and accelerated the Note in its complaint filed on February 24, 2023.

[25] Blackwell reframes many of her arguments above as genuine issues of material fact precluding summary judgment for the Bank. Specifically, she reasserts her estoppel argument and raises the following alleged disputed facts: whether the Bank failed to send certain periodic statements; whether the Bank told her she was not in default in 2010; whether she relied upon the representation that she was not in default in 2010; and whether she received notice after the 2010 call that she was “in default or that [Blackwell] was required to make any payments on the [Note].” Appellant's Br. p. 37. Blackwell's arguments fail. Her own designated evidence shows: she made payments on the Note beginning in December 2005, and she did not make the payment due June 25, 2009. Blackwell has not raised a genuine issue of fact that affects the outcome and precludes summary judgment in favor of the Bank.

[26] For all the foregoing reasons, we affirm.

[27] Affirmed.

FOOTNOTES

1.   In an affidavit designated as evidence in the instant case, Blackwell swears that her property was originally subject to a mortgage in favor of Chase Home Finance in the principal amount of $166,000. She further swears that in November 2005 she was given copies of two closing statements from Countrywide (one for a loan in the principal amount of $146,400 and a second for a loan of $27,450) and two mortgages in favor of Countrywide (one to secure each loan). Blackwell attached exhibits that she purports to be copies of the settlement statements and mortgages, but those documents are illegible. See Appellant's App. Vol. II pp. 174-92. In any event, the parties agree that only the home equity line in the maximum amount of $27,450 is the subject of the instant case. See Appellant's Br. p. 12; Appellee's Br. p. 7.

2.   Blackwell does not base any arguments on appeal on her allegation that she did not execute the Note.

3.   The court appears to have adopted the Bank's proposed order on summary judgment in full. The order and the record on appeal do not contain any entry as to the motions to strike. However, the motions to strike are not subjects of this appeal.

4.   Blackwell also apparently contends that our Supreme Court's opinion in Blair v. EMC Mortgage, LLC, 139 N.E.3d 705 (Ind. 2020), “did not limit itself to actions on promissory notes” creating “tension” between Blair and the ten-year statutes of limitation on mortgage foreclosures. Appellant's Br. pp. 22, 24. Although we need not resolve which statutes apply in the instant case to reach our result (either the six-year statutes on promissory notes or the ten-year statutes on mortgages), we note Blair does not create the confusion Blackwell construes. The issue header in Blair could not be clearer: “II. Two statutes of limitations apply to a cause of action upon a promissory note[,]” 139 N.E.3d at 710, i.e. Indiana Code sections 34-11-2-9 and 26-1-3.1-118(a). The Blair court later “appl[ied] this framework to determine whether EMC's claim for payment upon the promissory note is time-barred.” 139 N.E.3d at 711. Thus, the Blair opinion does not suggest that the six-year statutes of limitations on promissory notes applies to mortgage foreclosure actions instead of the ten-year statutes of limitations under Indiana Code sections 34-11-2-11 and 32-28-4-1.

5.   No copy of this notice exists in the record.

6.   In her brief, Blackwell notes that Paragraph 19 of her affidavit contains a typo and should read “November 23, 2005” instead of “November of 2023[.]” Appellant's Br. p. 16.

7.   In her reply brief, Blackwell notes the Bank did not respond to her breach-of-contract argument. Rather, the Bank responds to an unclean-hands argument Blackwell raised below but not on appeal. Relying on our well-settled rule that a party waives an issue for lack of a cogent argument, Blackwell asserts she is entitled to summary judgment because the Bank waived its defense on the first-material-breach issue. See Appellant's Br. p. 14. First, Blackwell misconstrues Appellate Rule 46(A)(8) which specifically applies to Appellant's Brief and requires cogent reasoning. Second, even when an appellee fails to file a brief, we are not obligated to reverse and an appellant is not presumed entitled to judgment in its favor due to the appellee's failure to respond. See Romero v. McVey, 167 N.E.3d 361, 365 (Ind. Ct. App. 2021) (we may reverse a judgment if the appellant's brief established prima facie error) (emphasis added). Finally, we review summary judgment de novo to determine if a party is entitled to judgment on the merits of the motion, not on technicalities. See Quirk v. Delaware Cnty., 91 N.E.3d 1008, 1014 (Ind. Ct. App. 2018) (“A trial court is not required to grant an unopposed motion for summary judgment; summary judgment is awarded on the merits of the motion, not on technicalities.”). Blackwell's assertion that she is entitled to summary judgment based on her breach argument due to the Bank's failure to respond to that argument fails.

Scheele, Judge.

Foley, J., and Kenworthy, J., concur.