SB v. LLC (2026)

MEMORANDUM DECISION

Case Summary

[1] Servbank, SB (“Bank”) appeals the denial of its motion for relief from judgment in its mortgage-foreclosure action against RP2Fish LLC (“Owner”). We affirm.

Facts and Procedural History

[2] We take the following facts from this Court's decision in the first appeal in this matter:

On October 27, 2021, Christopher Henley (“Borrower”) obtained a mortgage (“the Mortgage”) through Better Mortgage Corporation (“Original Lender”) for property on South East Street in Indianapolis (“the Property”). The Mortgage—which secured a loan in the principal amount of $251,000.00 for the Property—was recorded in the Property's chain of title on November 4, 2021. On April 26, 2022, a document titled “Mortgage Satisfaction Piece” (“the Release”) was also recorded in the Property's chain of title. The Release purported to reflect the satisfaction and release of the Mortgage. The Release referred to Better Mortgage Company instead of Better Mortgage Corporation, and it contained a signature associated with a “Relationship Manager” named Michael Johnson. The Release also included a notary page that appeared to be executed by a New York notary public with a stamp showing an active commission. The Release accurately identified the Property and the instrument number of the Mortgage, but contained inaccurate and inconsistent dates for the Mortgage, in one instance indicating the date of the Mortgage was November 4, 2021, and in another instance indicating the Mortgage was recorded on November 4, 2022.

On April 28, 2022, a quitclaim deed was recorded reflecting that Borrower conveyed his interest jointly to himself and James Henley of Marion County. On May 26, 2022, a document was recorded reflecting that Borrower and James Henley conveyed the property to M/E Renovations, LLC. On June 3, 2022, Owner acquired the Property from M/E Renovations, LLC for $285,000. On May 2, 2023—about one year after Owner acquired the Property—the Mortgage was assigned to Specialized Loan Servicing LLC (“SLS”).

On August 22, 2023, SLS filed the instant mortgage foreclosure action against Owner and other defendants. On November 9, 2023, the Mortgage was assigned to Bank. Shortly thereafter, Bank was substituted as the plaintiff in the action. Initially, the complaint incorrectly identified the Mortgage as being recorded on June 17, 2022, which was after Owner acquired the Property. On February 2, 2024, Owner moved to dismiss based on (1) the incorrect recording date set forth in the complaint and (2) Owner's contention that it was a bona fide purchaser without notice of any mortgage. Bank then sought leave to amend its complaint to identify the correct recording date. Bank also sought an enlargement of time to respond to Owner's motion to dismiss. Owner objected and attached the Release as an exhibit. In a supporting memorandum, Owner asked the trial court to take judicial notice of the Release. On March 13, 2024, the trial court entered an order indicating that, because Owner referred to matters outside the pleadings, the court was treating the motion to dismiss as a motion for summary judgment. A hearing was scheduled for May 15, 2024, where the trial court would consider both (1) Bank's motion for leave to amend the complaint and (2) the converted motion for summary judgment.

Prior to the hearing, Bank filed a response to Owner's motion and designated the Mortgage. In a footnote, Bank referred to the Release—which had not yet been designated as evidence in the proceedings—and argued the Release was suspicious, stating:

[Bank] is aware of a purported “Mortgage Satisfaction Piece” [(the Release)] that is recorded in the public record, supposedly pertaining to [the] Mortgage. This document has not been designated as evidence by [Owner]. [Owner] does not provide any designated evidence to prove that it relied upon the purported release. Accordingly, it is not relevant to these proceedings. Notably, the [Release] is not signed by the [Borrower] ․ or the [Original Lender], Better Mortgage Corporation. It purports to be signed by a different entity, “Better Mortgage Company.” The document is invalid on its face.

Owner subsequently filed a summary judgment memorandum designating, among other things, the Mortgage, the Release, and an affidavit from Owner's manager indicating that Owner (1) paid $285,000.00 for the Property, (2) received a title commitment showing no unreleased mortgages, and (3) had no notice of any outstanding rights of others.

On July 3, 2024, the trial court granted Owner's motion for summary judgment. The court also determined there was no just reason for delay and entered its judgment as a final appealable judgment under Trial Rule 54(B). In a separate order, the trial court remarked that the Release “had been recorded” and that the Release “release[ed] the ․ Mortgage[.]” The trial court said that, because of the Release, granting Bank's motion to amend the complaint would be “futile[.]”

On August 2, 2024, Bank filed a motion to correct error, arguing the Release was fraudulent. Bank presented evidence outside the record, which consisted of a link to a database of notaries in the State of New York and an online listing for a notary stamp at Amazon.com. Bank identified inconsistencies between the database and the notary information in the Release and claimed the stamp used in the Release “was obtained from Amazon and was used as a fake stamp on the [Release] prior to being recorded[.]” Owner filed a response arguing that the motion to correct error was improper because, among other things, Bank failed to comply with Trial Rule 59(H), which requires an affidavit to support the presentation of evidence outside the record. Owner moved to strike the evidence included with Bank's motion to correct error. Bank filed a response asking the trial court to take judicial notice of the proffered evidence.

On September 12, 2024, the trial court entered orders denying Bank's request to take judicial notice and Bank's motion to correct error.

Servbank, SB v. RP2Fish LLC, No. 24A-MF-2484, 2025 WL 1912094, at *1-2 (Ind. Ct. App. July 11, 2025) (mem.) (record citations omitted).

[3] Bank appealed. In July 2025, we affirmed the trial court's judgment:

At issue is the validity of the Release. First, Bank argues the Release did not function as an effective mortgage release, and Bank next claims that the Release was fraudulent. In support, Bank points to inaccuracies in the Release, such as the reference to Better Mortgage Company rather than Better Mortgage Corporation. We note, however, that although Bank questioned the validity of the Release in a footnote on summary judgment, the unsworn arguments of counsel did not amount to designated evidence. See [487 Broadway Co. v. Robinson, 147 N.E.3d 347, 353 (Ind. Ct. App. 2020)] (noting “neither arguments of counsel nor allegations in memoranda qualify as evidentiary material” on summary judgment). And although Bank has argued that inconsistencies or inaccuracies within the Release rendered the Release void or voidable—or otherwise compromised Owner's ability to rely on the Release as a bona fide purchaser—Bank has ultimately waived this contention by failing to cite any supporting authority. See Ind. Appellate Rule 46(A)(8)(a) (“Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on[.]”); Shields v. Town of Perrysville, 136 N.E.3d 309, 312 n.2 (Ind. Ct. App. 2019) (identifying appellate waiver due to the failure to cite supporting authority). Under the circumstances, we conclude that Owner made a prima facie showing of its entitlement to summary judgment, such that the burden shifted to Bank to designate evidence establishing that a factual issue remained in the case.

As to Bank's designated evidence, Bank designated the Mortgage itself—which was the subject of the Release—but ultimately failed to designate evidence regarding the validity of the Release. Rather, it was only after the trial court ruled in favor of Owner that Bank proffered evidence challenging the validity of the Release. On appeal, Bank maintains that the motion to correct error included evidence indicating that the Release was fraudulent. In other words, Bank essentially claims that—regardless of whether Owner met its burden on summary judgment—Bank eventually identified a genuine factual issue through the evidence tendered with the motion to correct error. But, as Owner points out, where—as here—a motion to correct error is premised on evidence outside the record, “the motion shall be supported by affidavits showing the truth of the grounds set out in the motion and the affidavits shall be served with the motion.” Indiana Trial Rule 59(H)(1) (emphases added). In this case, Bank failed to include an affidavit in support of its proffered evidence. Thus, Bank's motion to correct error did not comply with Trial Rule 59(H)(1), and therefore, the motion failed to supplement the evidentiary record on summary judgment. Further, to the extent Bank argues the court should have taken judicial notice of the proffered evidence, Bank fails to explain how—absent a compliant motion to correct error—the court could properly consider supplemental designations filed outside the summary judgment deadlines. See T.R. 56(H) (giving the non-movant thirty days to file a response and designate opposing evidence); Mitchell & 10th & The Bypass, LLC, 3 N.E.3d 967, 972 (Ind. 2014) (explaining Trial Rule 56 sets forth “a bright-line rule” that “precludes the late filing of responses”).

In the end, the summary judgment burden had shifted to Bank, which failed to designate evidence identifying a factual issue precluding summary judgment. Furthermore, although Bank attempted to present evidence in connection with its motion to correct error, Bank's motion was procedurally defective, and the evidence was not properly before the trial court. For the foregoing reasons, we conclude Bank failed to demonstrate the trial court erred in granting Owner's motion for summary judgment or in denying Bank's motion to correct error.

Id. at *3-4. Bank didn't seek transfer to the Indiana Supreme Court, and our decision was certified in September 2025.

[4] In December 2025, back in the trial court, Bank moved for relief from judgment under Indiana Trial Rule 60(B)(8). Bank presented evidence that in January 2025—while the appeal was pending—James Henley pled guilty to a federal criminal charge for, among other things, fraudulently creating and recording the Release.¹ Bank argued that this new development justifies relief under Rule 60(B)(8) because it (1) proves that the Release was fraudulent and unenforceable, meaning that Bank has a meritorious foreclosure claim against Owner, and (2) constitutes an extraordinary circumstance. In response, Owner argued, among other things, that Bank's motion was merely an attempt to revive the fraud claim that it failed to adequately support in its summary-judgment opposition and its motion to correct error. After briefing and oral argument, the trial court denied Bank's motion.

[5] Bank now appeals.

Discussion and Decision

[6] Bank contends that the trial court erred by denying its motion for relief from judgment. Where, as here, a trial court decides a Trial Rule 60(B) motion without conducting an evidentiary hearing, our review is de novo. In re Adoption of C.B.M., 992 N.E.2d 687, 691 (Ind. 2013).

[7] Bank filed its motion under Rule 60(B)(8), which provides that a court may relieve a party from a judgment for “any reason justifying relief from the operation of the judgment, other than those reasons set forth in sub-paragraphs (1), (2), (3), and (4).” A movant under this rule must “allege a meritorious claim or defense” and “demonstrate some extraordinary or exceptional circumstances justifying equitable relief.” T.D. v. State, 219 N.E.3d 719, 727-28 (Ind. 2023). Bank argues that James Henley pleading guilty to fraudulently creating and recording the Release satisfies both requirements because it (1) establishes that the Release was fraudulent and unenforceable and (2) didn't occur until after the trial court's original judgment. We need not address whether Bank has adequately alleged a meritorious foreclosure claim against Owner because we conclude that Henley's guilty plea does not constitute an extraordinary circumstance.

[8] According to Bank, Henley's guilty plea is an extraordinary circumstance because it proves that the Release was fraudulent. But Bank already knew—or at least should have known, from a review of its own file—that the Release was fraudulent when it opposed Owner's motion for summary judgment and when it filed a motion to correct error. The problem for Bank at that stage of the case wasn't a lack of evidence; the problem was Bank's own failure to properly place evidence before the trial court in accordance with Indiana Trial Rules 56 (governing motions for summary judgment) and 59 (governing motions to correct error).

[9] At the summary-judgment phase, Bank claimed that the Release was “invalid,” but it didn't designate any evidence in support of that claim, as required by Trial Rule 56. The trial court noted as much when it granted Owner's motion:

[Bank] in its Response to the Motion noted that it was aware of the recorded Release, but asserts that the Release looks suspicious and argues that this creates a genuine issue of material fact, which precludes summary judgment. However, the Release on its face was issued by [Bank] or its assignor; the party in the best position to determine its authenticity. Therefore, [Bank] had the opportunity to review its loan file to determine whether it believed it had issued the Release and whether the Release was authentic. Yet, [Bank] has put forth no affidavit in response challenging the validity or authenticity of the Release. Without more, a mere claim that the Release looks suspicious is insufficient to create a genuine issue of material fact.

Appellant's App. Vol. 2 pp. 28-29 (emphasis added).

[10] Then, at the motion-to-correct-error phase, Bank presented some evidence that the Release was fraudulent, but it didn't do so in accordance with Trial Rule 59. Specifically, Bank's new evidence wasn't accompanied by a supporting affidavit, as required by Rule 59(H). As noted above, this is why we affirmed the denial of Bank's motion. See Servbank, SB, 2025 WL 1912094, at *3-4.

[11] In short, Bank has always had access to evidence that the Release was fraudulent. It simply failed—repeatedly—to follow Indiana's well-established rules for placing that evidence before the trial court. So, while Henley's guilty plea was certainly further evidence that the Release was fraudulent, it did not, as Bank claims, represent “a seismic shift in the factual landscape of this case.” Appellant's Br. p. 17. In other words, the guilty plea was not an extraordinary circumstance justifying equitable relief. It was just a more recent development that Bank has latched on to hoping to salvage a case that faltered due to Bank's own procedural missteps.

[12] Bank equates its situation to Williams v. Tharp, 934 N.E.2d 1203 (Ind. Ct. App. 2010), trans. denied, but that case is distinguishable. There, a restaurant employee reported to police that two customers briefly pulled a gun while paying for their food. Police tracked down the customers at one of their houses, ordered them out of their car at gunpoint, ordered them to their knees, handcuffed them, and detained them for over an hour while family and neighbors looked on. But no gun was found, and the customers were released. The customers later sued the employee and his employer, alleging defamation and other claims. The trial court granted summary judgment to the defendants because the employee insisted that he saw or at least thought he saw a gun and the customers’ designated evidence was insufficient to create a genuine issue of material fact as to whether the employee was lying, i.e., whether he knowingly made a false report to police. The customers appealed, but our Supreme Court affirmed. Williams v. Tharp, 914 N.E.2d 756 (Ind. 2009).

[13] A week later, the customers moved for relief from judgment under Trial Rule 60(B)(8) based on the fact that, while their appeal was pending, the employee pled guilty to misdemeanor false reporting in relation to the incident. The employee and the employer opposed the motion, as the employee maintained that his guilty plea was a pragmatic decision, not a genuine acknowledgement that his statement to police was false. The trial court summarily denied the motion, and the customers again appealed. We reversed, explaining that the conflict between the employee's guilty plea and his denials “creates a paradigmatic genuine issue of material fact that a jury must resolve.” Williams, 934 N.E.2d at 1220.

[14] The distinction between the two cases is plain. In Williams, the customers didn't initially have sufficient evidence to create a genuine issue of material fact, and the subsequent guilty plea changed that. Here, Bank had sufficient evidence to create a genuine issue of material fact as to the validity of the Release—including the absence of the Release from Bank's own file and the obviously fabricated notary stamp—but it failed to properly present this evidence. Henley's subsequent guilty plea was new evidence, but it was entirely consistent with the earlier evidence, so it didn't fundamentally alter the case like the guilty plea in Williams. With no extraordinary circumstance, there can be no relief under Trial Rule 60(B)(8). T.D., 219 N.E.3d at 727-28.

[15] For these reasons, we affirm the trial court's denial of Bank's motion for relief from judgment.

[16] Affirmed.

FOOTNOTES

1.   In its motion, Bank didn't explain when or how it learned about Henley's guilty plea or why the motion wasn't filed until 11 months after the guilty plea.

Vaidik, Judge.

Altice, J., and Foley, J., concur.