Philip R. Davis, Appellant-Defendant v. Alan Werner, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Philip Davis bought a Marion property from Alan Werner through a land contract. Davis missed payments and failed to maintain liability insurance as required by the contract, prompting Werner to file a foreclosure action against him. Months after the judgment of foreclosure was entered, on the eve of the sheriff's sale, Davis paid the judgment in full and later was ordered to pay Werner the $1,275 in post-judgment attorney fees incurred in enforcing the foreclosure judgment. Davis appeals, claiming the fees are unreasonable. We affirm.

Facts

[2] On December 31, 2020, Werner and Davis entered into a Contract for Conditional Sale of Real Estate (contract) for property located on South Washington Street in Marion. The contract required Davis to make monthly installment payments, maintain liability insurance, and pay property taxes and utility costs, among other obligations. The contract also specified that, in the event of a payment default, Davis would have five days to cure the default from the day he was served written notice by certified mail.

[3] In October 2023, Werner's attorney sent Davis an initial default notice by regular mail, rather than by certified mail as the contract required. Davis responded by certified mail on October 20, 2023, noting the contract's certified-mail requirement and requesting confirmation of the amount owed. Counsel sent a certified-mail default notice on October 25, 2023, identifying missed payments, late fees, lack of insurance, and an outstanding sewer bill.

[4] Werner filed his complaint for foreclosure in November 2023. The parties reached a partial agreement through mediation, but the remaining issues proceeded to a bench trial in January 2025. The trial court entered a Judgment and Order of Foreclosure on February 4, 2025. It directed the Grant County Sheriff to sell the real estate to satisfy the $31,864.55 judgment (consisting of principal and interest of $20,909.68, utility reimbursement of $2,230, property tax reimbursement of $1,849.65, and attorney fees and costs of $6,875.22). The sheriff's sale was scheduled for June 5, 2025.

[5] Ten days before that sale, Davis sent Werner and his counsel a certified letter requesting a total payoff amount. Davis also requested that Werner provide title insurance and a warranty deed, alleging that the contract required both upon payoff. Neither Werner nor his counsel responded. On June 3, 2025, Davis paid the judgment amount plus post-judgment interest—$32,695.64—to the Grant County Clerk. As a result, the sheriff's sale was canceled.

[6] On June 16, 2025, Davis again wrote to Werner and his counsel requesting title insurance and a warranty deed. Again, neither responded. A week later, Davis filed a Motion for Order to Provide Title Insurance and Deed. That same day, Werner filed a Notice of Partial Satisfaction of Judgment in which he claimed he was still owed additional post-judgment fees and costs totaling $1,625.36 consisting of $1,275 in attorney fees, $175 in publication fees, $19.36 in certified-mail costs, and $156 in utility charges. The trial court denied Davis's Motion for Order to Provide Title Insurance and Deed without a hearing, finding that “this cause of action and issues arising therefrom were closed upon the Court entering a judgment and order of foreclosure.” App. Vol. II, p. 9.

[7] At the next scheduled hearing, Davis appeared in person, but Werner and his counsel did not. Counsel's new assistant had failed to place the hearing on his calendar and could not reach him by phone during the hearing. The court continued the matter over Davis's objection.

[8] At the next hearing, Werner's counsel introduced Exhibit 1, an attorney fees invoice. Davis objected only to the $1,275 in post-judgment attorney fees reflected in the invoice. He challenged the fees as unreasonable on several bases, including that they were disproportionate to the amount actually in controversy and were the result of counsel's alleged procedural missteps. Counsel offered no response.

[9] In its Order on Plaintiff's Notice of Partial Satisfaction of Judgment, the court found that: (1) under Indiana law and the parties’ contract, reasonable post-judgment attorney fees and collection expenses are recoverable; and (2) Werner had demonstrated by a preponderance of the evidence that he was entitled to additional costs and attorney fees totaling $1,625.36. The court did not separately address Davis's arguments.

[10] Davis filed a motion to correct error, which the trial court denied. Davis appeals.

Discussion and Decision

[11] Davis challenges only the supplemental attorney fees award of $1,275 on appeal. Because Davis is appealing from a motion to correct error, our standard of review requires us to focus on the trial court's denial of that motion. Espinoza v. St. Mary Med. Ctr., 233 N.E.3d 1009, 1012 (Ind. Ct. App. 2024). We review such a ruling for an abuse of discretion, which occurs when “the trial court's judgment is clearly against the facts and circumstances before it or where the trial court errs on a matter of law.” Id. (quoting Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013)). We review issues of law de novo. Id.

[12] “But where, as here, no appellee's brief is filed, the appellant need only prove prima facie error to prevail on appeal.” T.J. v. J.J., 270 N.E.3d 979, 986 (Ind. Ct. App. 2025). In this context, prima facie error means “at first sight, on first appearance, or on the face of it.” Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014). “Although we will not undertake to make arguments on behalf of the absent appellee, we remain obligated to reach the correct result dictated by the law and facts.” T.J., 270 N.E.3d at 986. Under this standard, we conclude that Davis has not established prima facie error.

[13] “In Indiana, litigants are generally obligated to pay their own attorney fees in the absence of a statute, agreement, or stipulation authorizing such an award.” Dempsey v. Carter, 797 N.E.2d 268, 274-75 (Ind. Ct. App. 2003). “Accordingly, a contract allowing for recovery of attorney fees is enforceable, if the contract is not contrary to law or public policy.” Id. at 275. The amount of the recoverable attorney fees is left to the sound discretion of the trial court but must be supported by the evidence. Id.

[14] The contract between Davis and Werner specifically provided for an attorney fees award. It specified that, “[i]f either party is required to institute any legal actions against the other for any defaults in or breaches of the Contract herein, the successful party shall be entitled to collect reasonable attorney fees from the defaulting or breaching party.” Complaint, Exh. B, p. 4 (filed Nov. 14, 2023).

[15] Davis does not dispute that post-judgment fees are recoverable in principle, but he claims the post-judgment attorney fees are unreasonable for five reasons: (1) the attorney fees invoice was defective; (2) the fees are inappropriate under Indiana Code § 34-50-1-6, which limits attorney fees under certain circumstances when a settlement offer is rejected; (3) the fees are grossly disproportionate to the amount in controversy; (4) counsel's alleged missteps justified zero fees; and (5) the attorney fees award should be offset by a $100 liability under the Indiana Home Loan Practices Act for Werner's failure to respond within seven days to Davis's two payoff requests. We address each claim in turn.

I. Attorney Fees Invoice

[16] Davis contends the attorney fees invoice was defective because it: (1) describes charges without providing itemized time entries or an explicit hourly rate; and (2) includes a charge for a “conference with potential buyer” that he claims did not result from the foreclosure. However, he has waived this issue by failing to raise it at the hearing. Shepherd Props. Co. v. Int'l Union of Painters & Allied Trades, Dist. Council 91, 972 N.E.2d 845, 849 n.3 (Ind. 2012) (arguments raised for the first time in a motion to correct error are waived); Harris v. State, 211 N.E.3d 929, 935 (Ind. 2023) (issues raised for the first time on appeal are waived).

II. Settlement Offer

[17] Davis argues the attorney fees are inappropriate under Indiana Code § 34-50-1-6, which limits attorney fees under certain circumstances when a qualified settlement offer is rejected. But Indiana Code § 34-50-1-6 does not apply in this foreclosure action. See Ind. Code § 34-50-1-1 (limiting the scope of the chapter to certain actions in tort).

III. Alleged Gross Disproportionality of Fees

[18] Davis argues that the attorney fees are grossly disproportionate to the amount in controversy, citing Garber v. Blair, No. 23A-CT-953, 2023 WL 7173485 (Ind. Ct. App. Nov. 1, 2023) (mem.). In that case, this Court ruled that a trial court may consider the amount involved in determining the reasonableness of the requested fees. Id. at *6. The Court ultimately affirmed a trial court's ruling that more than $60,000 in attorney fees was grossly disproportionate to the $3,200 in dispute. Id.

[19] Davis defines the “amount in controversy” here as effectively zero. In his view, no dispute other than those arising from the post-judgment legal fees remained after the foreclosure judgment was entered. But Davis's perspective is too narrow.

[20] The amount of the foreclosure judgment attributable to unpaid principal and unpaid utility costs and property taxes for which Davis was responsible under the contract totaled nearly $25,000. Additional costs were incurred post-judgment in enforcing the foreclosure judgment. Davis generally ignores that the $1,275 in attorney fees attributable to those post-judgment efforts arose from the work necessary to effect a sheriff's sale that Davis himself rendered unnecessary only the day before it was scheduled to occur and months after the foreclosure judgment was entered. Thus, much of the post-judgment collection effort was completed before Davis chose to pay the judgment.

[21] Overall, the legal proceedings in the trial court lasted nearly two years and included a partially successful mediation session. And unlike in Garber, the record here reflects no questionable efforts by the plaintiff to collect unavailable penalties from the defendant at a cost exceeding $50,000. Id. Davis was ordered to pay a total of less than $9,000 in attorney fees, of which $1,275 was attributable to post-judgment work over a period of months. Davis has failed to show any gross disproportionality of the fees to the amount in controversy.

IV. Counsel's Alleged Missteps

[22] Davis argues that a series of alleged errors and missteps by Werner's counsel throughout the litigation justified zero fees. Davis specifically highlights: the initial default notice sent by regular rather than certified mail; duplicated late fees in the certified notice; counsel's failure to respond to payoff inquiries; counsel's failure to appear at a hearing due to a new assistant's oversight; and various other alleged procedural shortcomings.

[23] Some of these alleged events occurred before the foreclosure judgment and, thus, before the attorney fees at issue arose. As to the remainder, Davis fails to establish that counsel's alleged actions or inactions contributed to the $1,275 in attorney fee charges. Even if such a connection to some of the charges existed, Davis does not cite any authority that would support rejecting all the post-judgment attorney fees based on irregularities in some of the charges.

[24] Ultimately, the trial court heard Davis's complaints about Werner's counsel and did not find that they justified a smaller attorney fees award. Davis has not shown that decision was clearly against the logic and effect of the facts and circumstances before the trial court.

V. Indiana Home Loan Practices Act

[25] Finally, Davis argues that Werner's failure to respond within seven days to his two payoff requests in May and June 2025 triggered a $100 liability under the Indiana Home Loan Practices Act (the Act). See Ind. Code § 24-4.4-2-201. Davis asserts the attorney fee award should be offset by that amount.

[26] At the hearing, Davis argued the Act applied “due to the nature of the foreclosure being similar to that of a mortgage.” Tr. Vol. II, p. 16. But whether the Act applies to a Contract for Conditional Sale of Real Estate—as opposed to a traditional mortgage—is a threshold question Davis did not address at the hearing and does not resolve in his brief.

[27] For instance, the Act imposes the $100 liability only on a “creditor” or “mortgage servicer.” Ind. Code § 24-4.4-2-201(1). For this purpose, “creditor” means a person:

(a) that regularly engages in the extension of first lien mortgage transactions that are subject to a credit service charge or loan finance charge, as applicable, or are payable by written agreement in more than four (4) installments (not including a down payment); and

(b) to which the obligation is initially payable, either on the face of the note or contract, or by agreement if there is not a note or contract.

Ind. Code § 24-4.4-1-301(7). Meanwhile, “mortgage servicer” means “the last person to whom a mortgagor or the mortgagor's successor in interest has been instructed by a mortgagee to send payments on a loan secured by a mortgage.” Ind. Code § 24-4.4-1-301(22). Davis does not address whether Werner qualifies as a “creditor” or “mortgage servicer,” and the record does not reveal that critical fact.

[28] As Davis has failed to establish the applicability of the Act, he has waived this issue by failing to provide cogent argument and appropriate citation to authority. See Lowrance v. State, 64 N.E.3d 935, 938 (Ind. Ct. App. 2016) (noting this Court may not become an advocate for pro se litigants or develop arguments on their behalf).

Conclusion

[29] Davis has not established prima facie error in the trial court's denial of his motion to correct error challenging the court's award of $1,275 in post-judgment attorney fees. As the court did not abuse its discretion in entering that order, we affirm the trial court's judgment.

Weissmann, Judge.

Bailey, J., and Brown, J., concur.