Court of Appeals of Indiana | Memorandum Decision 18A

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

A PPELLANT PRO SE Eric P. Mains Jeffersonville, Indiana A TTORNEY FOR C ITIBANK , N.A. , AND S ELECT P ORTFOLIO S ERVICING , I NC

. Anthony M. Zelli Dinsmore & Shohl LLP Louisville, Kentucky
A TTORNEY FOR JPM ORGAN C HASE B ANK , N.A

. , AND C YNTHIA R ILEY Jeffrey P. McSherry Bricker & Eckler LLP Cincinnati, Ohio
A TTORNEYS FOR N ELSON & F RANKENBERGER , P.C. Michael A. Dorelli Patrick A. Ziepolt Hoover Hull Turner LLP Indianapolis, Indiana
A TTORNEYS FOR B LACK K NIGHT I NFO S ERV , LLC, AND C HRISTINA A NNE S AURER Thomas E. Mixdorf Derek R. Molter Ice Miller LLP Indianapolis, Indiana Fred O. Goldberg Berger Singerman LLPCourt of Appeals of Indiana | Memorandum Decision 18A

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### I N T H E 

# COURT OF APPEALS OF INDIANA

Eric P. Mains , Appellant

- Plaintiff ,

v. 

### Citibank, N.A. as Trustee for the WAMU Series 2007 HE

- 2 Trust ; JPMorgan Chase Bank, N.A. ; Nelson & Frankenberger, P.C. ; Christina Anne Saurer ; Jodi Sobotta ; Select Portfolio Servicing, Inc. ; Black Knight InfoServ , LLC ; Gerner and Kearns Co., L.P.A. ; Cynthia Riley ; and Unknown John Does , Appellee s - Defendants

. Septembe r 24, 2019 Court of Appeals Ca se No. 18A

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- 3152 Appeal from the Clark Circuit Court The Honorable Andrew Adams, Judge Trial Court Cause No. 10C01

- 1804

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- 73

Friedlander , Senior Judge
.

[1] Eric P. Mains appeals the trial court’s dismissal of his amended complaint . We affirm in part, reverse in part, and remand

.

[2] In 2006, Mains executed a mortgage with Washington Mutual (W a M u ) for a house in Clark County, Indiana. W aMu closed in 2008 , and t h e FederalCourt of Appeals of Indiana | Memorandum Decision 18A

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Deposit Insurance Corporation (FDIC) took control of W a M u ’s assets and liabilities , including the mortgage

. Next , the FDIC assigned the mortgage to JPMorgan Chase Bank, N.A. (Chase) , and Chase subsequently assigned the mortgage to Citibank , N.A

. (Citibank). Chase continued to service the loan.

[3] Meanwhile, Mains experienced financial difficulties and default ed on the mortgage. In April 2010, Citibank , through attorneys Nelson & Frankenberger , P.C. (N&F) , filed a mortgage foreclosure action against Mains in the Clark Circuit Court

.

[4] Mains disputed Citibank’s foreclosure claim, contending that Citibank had failed to prove it had validly acquired an interest in the mortga ge. The parties held a n unsuccessful settlement conference , and Ma ins conducted discovery regarding Citibank’s standing and right to foreclose. Citibank filed a motion for summary judgment, which the trial court granted on May 3, 2013. Mains appealed , arguing that Citibank was not a real party in interest and lacked

st anding to bring the mortgage foreclosure action. A panel of this Court issued

a m emorandum d ecision affirming the trial court’s judgment. Mains v. Citibank,
NA , No. 10A04

- 1309

- MF

- 450 (Ind. Ct. App. August 4, 2014) , trans. denied , ( Mains I )

.

[5] Next, Mains filed suit in the United States District Court for the Southern District of Indiana against Citibank ; Chase ; Cynthia Riley (a former W a M u employee) ; Black Knight InfoServ , LLC ( a computer software company) (Black Knight) ; N&F ; and two other law firms not participating in this case. HeCourt of Appeals of Indiana | Memorandum Decision 18A

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alleged the defendants had violated the federal Real Estate Settlement Procedures Act (RESPA), the federal Truth in Lending Act (TILA), the federal Fair Debt Collection Practices Act (FDCPA), the federal Racketeer Influenced and Corrupt Organizations Act (RICO) , and Indiana Code sections 32

- 30

- 10.5

- 1 (2009) et seq. (which govern settlement conference in residential foreclosure

cases ) . Mains also asserted claims under Indiana law for negligent or intentional infliction of emotional distress, negligent misrepresentation, fraud, and negligence.

[6] The federal district court dismissed Mains’ complaint for lack of subject matter jurisdiction

. Mains a ppealed to t he United States Court of Appeals for the Seventh Circui t, arguing that he had recently discovered evidence of fraudulent behavior by the defendants, and he concluded his claims were not bound by the judgment in Mains I

. The Seventh Circuit affirmed the dismissal of Mains’ complaint, determin ing that the federal courts lacked jurisdiction over several of his federal claims, and the remainder of his federal claims were barred by the doctrine of issue preclusion. Mains v. Citibank, NA , 852 F.3d 669 (7th Cir. 2017), cert. denied . As for Mains’ state law claims, the Seventh Circuit concluded it could not exercise supplemental jurisdiction over th em and directed the district court to dismiss them without prejudice

. Id.

[7] In June 2017, Chase notified Mains that Select Portfolio Servicing, Inc. (SPS) , would replace Chase as the servicer of the mortgage.Court of Appeals of Indiana | Memorandum Decision 18A

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[8] The current case began on April 17, 2018, when Mains sued Ci tibank, Chase, N&F , Black Knight, Riley, Christine Anne Saurer, Jodi Sobotta, SPS , and
several John Does. 1 A ll of the defend ants were i nvolved in either the execution of Mains’ mortgage , the reassignment of the mortgage, or the foreclosure case

. Mains stated ten counts against various defendants , including violations of RESPA , TILA , Indiana Code section s 32

- 30

- 10.5

- 1 et seq. , and the FDCPA

. Mains also accused the defendants of negligence, negligent or intentional infliction of emotional distress, negligent misrepresentation, fraud , and civil conversion

.

[9] Among other requested relief , Mains asked the trial court to issue a declarati on that the judgment of foreclosure was void, grant him relief from the judgment of foreclosure, and award him monetary damages, punitive damages (including double or treble damages) , repayment of costs and attorney’s fees , equitable remedies including dis gorgement and recoupment of unjust enrichment, preliminary injunctive relief, and a request for accounting.

[10] Mains filed an amended complaint on July 11, 2018 , add ing Gerner & Kearns Co., L.P.A. (G&K), as a defendant. G&K represented Citibank in the forecl osure action. Neither Sobotta nor G&K filed appearances in this case.

[11] O n July 26, 2018, Riley filed a motion to dismiss Mains’ amended complaint for lack of personal jurisdiction. Soon thereafter, Black Knight and Saurer

1 Mains also sued Manley, Deas, and Kochalski, LLC, but later agreed to that firm’s dismissal from the case.Court of Appeals of Indiana | Memorandum Decision 18A

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jointly filed a motion to dismiss the amended complaint for failure to state a claim upon which relief could be granted.

[12] Next, o n July 30, 2018, Mains filed a verified motion for a temporary restraining order , asking the court to restrain the defendants from evicting him from his home while th is case wa s pending. On July 31, 2018, Mains further filed a verified motion for a preliminary injunction, asking the trial court to enjoin the defendants from evicting him from his home while th is case wa s pending.

[13] Also, on July 31, 2018, Chase f iled its own motion to dismiss, followed on August 2, 2018, by Citibank and SPS’s joint motion to dismiss . On August 7, 2018, N&F also filed a motion to dismiss. All three motions asserted Mains ’ amended complaint should be dismissed because he had faile d to state claims upon which relief could be granted.

[14] Mains responded to each motion to dismiss, and Citibank and S P S responded to Mains’ motion for a preliminary injunction. In addition, Black Knight and Saurer jointly filed a reply in support of their m otion to dismiss.

[15] On August 28, 2018, t he trial court held oral argument on the motions to dismiss. The court declined to address Mains’ verified motions for temporary restraining order and preliminary injunction. On October 3, 2018, the court issued fin dings of fact and conclusions thereon granting all defendants’ motions to dismiss. The court dismissed Mains’ amended complaint in its entirety. Mains filed a motion to correct error, to which several defendants filedCourt of Appeals of Indiana | Memorandum Decision 18A

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respon ses . On November 28, 2018, the trial court denied Mains’ motion to correct error. This appeal followed.



### 1. Defendants Sobotta and G&K

[16] W e note that although the trial court dismissed Mains’ amended complaint in its entirety , defendants Sobotta and G&K had not file d appearances , much less moved to dismiss Mains ’ claims against them

. In addition, none of the other defendants claimed authority to represent Sobotta and G&K. Finally, the court’s judgment does not discuss Mains’ claims against Sobotta and G&K. Indiana Rule 12 auth orizes defendants to move for dismissal of a complaint, but the rule does not authorize a trial court to dismiss a complaint sua sponte over the plaintiff’s objection. As a result, the trial court lacked any basis to dismiss Mains’ claims against those tw o defendants . We must reverse the trial court’s dismiss al of Mains’ complaint as to Sobotta and G&K and remand for further proceedings. See, e.g., State ex rel. Van Buskirk v. Wayne Twp. , 418 N.E.2d 234 (Ind. Ct. App. 1981) (reversing trial court’s sua s ponte grant of summary judgment on an issue; neither defendant requested that relief).



### 2. Procedural Default

[17] Next , the appellees argue that Mains has waived appellate review of his claims b ecause his Appellant’s Brief fails to comply with the Indiana Rules of Appellate Procedure. Mains responds that he provided adequate citations to the record and authorities

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[18] P ro se litigants are held to the same legal standards as licensed attorneys , including complying with the Indiana Rules of Appellate Pr ocedure (the Appellate Rules)

. Basic v. Amouri , 58 N .E.3d 980 (Ind. Ct. App. 2016). The purpose of the a ppellate r ules, especially Appellate Rule 46 ( which govern s briefs), is to aid and expedite review, as well as to relieve appellate courts of the burd en of searching the record and briefing the case. Shepherd v. Truex , 819 N.E.2d 457 (Ind. Ct. App. 2004). “We will not become an ‘advocate for a party, or address arguments that are inappropriate or too poorly developed or expressed to be understood.’” Basic, 58 N.E.3d at 9 8 4 (quoting Perry v. Anonymous Physician 1 , 25 N.E.3d 103, 105 n.1 (Ind. Ct. App. 2014) , trans. denied ). While we prefer to decide issues on the merits, where an appellant ’ s noncompliance with appellate rules is so substantial as to impede our consideration of the issues, we may deem the alleged errors waived

. Id.

[19] Appellate Rule 46(A)(8)(a) requires that the argument section of an appellant’s brief “must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts o f the Record on Appeal relied on, in accordance with Rule 22. ”

[20] Mains has filed a thirty

- eight

- page Appellant ’s Brief that includes a twenty

- page argument section

. He discusses the facts of the case in great detail in the argument se ction , and he also include s a discussion of foreclosure issues on a statewide and national basis, including mention of some of the appellees’ involvement in other foreclosure cases and consent judgments

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[21] The primary , fundamental defect in Mains’ brief is his failure to provide adequate citation s to legal authorities. Mains has accuse d the appellees of violating a wide array of federal and state statues, as well as committing

numerous torts. Further, during the trial court procee dings , the appellees presented defenses including lack of personal jurisdiction, res judicata, and standing, as well as respon ses to Mains’ statutory and tort claims. On appeal,
Ma ins has additionally accused the trial court of displaying bias against him

.

[22] Despite the many complex issues Mains presents on appeal, his A ppellant’s
B rief cites to only t hree appellate cases . In addition, he provides cit ations to only one statute and to the Indiana Code of Judicial Conduct. After careful review, w e have deter mined that only one of Mains’ claims, the claim that the defendants violated Indiana’s statutes governing settlement conferences in residential foreclosure cases , is supported by adequate citation to authority. As for his remaining claims, w e will not conduct research on Mains’ behalf , and those claims are waived for failure to provide adequate citation to authority. See Vandenburgh v. Vandenburgh , 916 N.E.2d 723 (Ind. Ct. App. 2009) (claim waived for failure to cite adequate authority; appellant cited only two cases on child support claim, both addressing standard of review rather than the merits ).

[23] In addition , Mains’ a ppendix contains fundamental defects. “The purpose of an Appendix in civil appeals . . . is to present the Court with cop i es of only

t hose parts of the Record on Appeal that are necessary for the Court to decide the issues presented.” Ind. Appellate Rule 50(A)(1). An Appellant’s Appendix shall contain the chronological case summary and “pleadings and otherCourt of Appeals of Indiana | Memorandum Decision 18A

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documents from the Clerk’s Re cord in chronological order that are necessary for resolution of the issues raised on appeal.” App

. R

. 50( A)(2) (f)

.

[24] Mains’ appendix does not include the chronological case summary. In addition, he did not include in his appendix any of the defendants’ mo tion s to dismiss or their responses to his motion to correct error , even though th ose documents are by any reasonable definition “necessary for resolution of the issues” presented in this appeal. Id. It is well established that “[a]ny party’s failure to include any item in an Appendix shall not waive any issue or argument,” Appellate Rule 49(B), but the absence of those documents has hampered our review

. 2



### 3. Foreclosure Prevention Settlement Conference and Claim Preclusion

[25] We review de novo a trial court’s grant or denial of a motion to dismiss for failure to state a claim pursuant to Indiana Trial Rule 12(B)(6), giving no deference to the trial court’s decision. EngineAir, Inc. v. Centra Credit Union , 107 N.E.3d 1061 (Ind. Ct. App. 2018). When reviewing a motion to dismiss for failure to state a claim, “this [C] ourt accepts as true the facts alleged in the complaint.” Morgan Asset Holding Corp. v. CoBank, ACB , 736 N.E.2d 1268, 1271 (Ind. Ct. App. 2000) (quoting Monks v. P ina , 709 N.E.2d 379, 3 81 (Ind. Ct. App.

2 The Appellees jointly f iled a n a ppendix containing those documents, but their filing does not miti gate Mains’ failure to comply with the appellate rules

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1999), trans. denied

). Only well

- pleaded material facts must be taken as admitted. Id

. Under notice pleading, we review the granting of a motion to dismiss for failure to state a claim under a stringent standard and affirm the trial

court ’ s grant of the motion only when it is “apparent that the facts alleged in the challenged pleading are in capable of supporting relief under any set of circumstances.” Trail v. Boys & Girls Clubs of N w. Ind

. , 845 N.E.2d 130, 135 (Ind. 2006) (quoting McQueen v. Fayette Cty

. Sch. Corp ., 711 N.E.2d 62, 65 (Ind. Ct. App. 1999 ), trans. denied ).

[26] Indiana Code section s 32

- 30

- 10.5

- 1 et seq. govern foreclosure prevention agreements for residential mortgages. The Indiana General Assembly determined:
(b) The purpose of this chapter is to avoid unnecessary foreclosures of residential properties and thereby provide s tability to Indiana' ’ statewide and local economies by:
(1) requiring early contact and communications among creditors, their authorized agents, and debtors in order to engage in negotiations that could avoid foreclosure; and
(2) facilitating the modificat ion of residential mortgages in appropriate circumstances.

Ind. Code § 32

- 30

- 10 .5

- 1.

[27] As a result, the General Assembly required creditors who fil e foreclosure actions after June 30, 2009, to notify debtors that they have the right to request a settlement c onference ( except in certain circumstances not at issue here) . Ind.Court of Appeals of Indiana | Memorandum Decision 18A

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Code § 32

- 30

- 10.5

- 8 (2009)

. If a debtor requests a settlement conference, and the court determines a conference is required, then the “court may not issue a judgment of foreclosure” unless the conference is held and the parties cannot reach agreement. Ind. Code § 32

- 30

- 10.5

- 9 (2009). If a settlement conference is scheduled, the creditor mu st be represented during the conference by a pe rson who is authorized to negotiate a foreclosure prevention agreement. Ind. Code § 32

- 30

- 10.5

- 10 (2009).

[28] There is no dispute that Mains requested a settlement conference in Mains I after Citibank filed the foreclosure case . There is also no dispute that a settlement conference was held in Mains I , but the attendees failed to reach an agreement. Mains instead argued in his amended complaint in the current case that the settlement conference , and by extension the judgment of foreclosure,

w ere invalid. He claimed the assignment of the mortgage to Citibank was fraudulent , and thus neither Citibank nor Chase had any authority to negotiate a foreclosure prevention agreement with him during the foreclosure case

.

[29] The appellees argue Mains’ claim und er the foreclosure prevention agreement statutes is barred by res judicata . W e agree , determining the doctrine of claim preclusion applies here. A panel of this Court has explained:
The doctrine of res judicata acts to prevent repetitious litigation of d isputes that are essentially the same. The principle of res judicata is divided into two branches: claim preclusion and issue preclusion.Court of Appeals of Indiana | Memorandum Decision 18A

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The first of these branches, claim preclusion, applies where a final judgment on the merits has been rendered and ac ts as a complete bar to a subsequent action on the same issue or claim between those parties and their privies. When claim preclusion applies, all matters that were or might have been litigated are deemed conclusively decided by the judgment in the prior action. The following four requirements must be satisfied for claim preclusion to apply as a bar to a subsequent action: (1) the former judgment must have been rendered by a court of competent jurisdiction; (2) the former judgment must have been rendered on the merits; (3) the matter now in issue was, or could have been, determined in the prior action; and (4) the controversy adjudicated in the former action must have been between the parties to the present suit or their privies.
Angelopolous v. Angelop olous , 2 N.E.3d 688, 696 (Ind. Ct. App. 2013), trans. denied (citations omitted).

[30] The Mains I trial court was a court of competent jurisdiction and rendered a judgment on the merits of the foreclosure claim . In addition, Chase and Citibank are the only de fendants to which Mains’ foreclosure prevention agreement statute claim rationally applies . Citibank was a party to Mains I , and Chase, as the loan servicer, was Citibank’s privy. See, e.g., Berry v. Wells Fargo Bank, N.A. , 8 65 F.3d 880 (7th Cir. 2017) (applying Illinois law and determining that a mortgagee and the mortgage servicer shared the same interests and were in privity).

[31] The final question is whether Mains’ settlement conference claim was or could have been determined i n Mains I

. During that case, Mains disputed Citibank was the real party in interest and further argued Citibank lacked standing toCourt of Appeals of Indiana | Memorandum Decision 18A

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pursue foreclosure . He thus could have also raised a claim that the settlement conference was invalid because the claimed c reditor was not a real party in interest . Mains argues he could not have raised this claim in Mains I because the defendants’ allegedly fraudulent activities prevented him from discovering the extent of their wrongdoing, but he had ample opportunity to pu rsue discovery in the foreclosure case. We conclude that the only claim Mains has preserved for appellate review is barred by claim preclusion. See Kalwitz v. Kalwitz , 934 N.E.2d 741 (Ind. Ct. App. 2010) (appellants’ claim of conversion of personal prope rty was barred by res judicata; claim was or could have been determined in prior estate proceeding, in which personal property was distributed).

[32] For the reasons stated above, we affirm the judgment of the trial court in part, reverse in part, and remand for further proceedings

.

[33] Judgment affirmed in part, reversed in part, and remanded

. Baker, J., and Altice, J., concur.