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.

APPELLANTS PRO SE: ATTORNEY FOR APPELLEE:

KEITH A. FRY BRYAN K. REDMOND

Goshen, Indiana Feiwell & Hannoy, P.C.

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

TRACY K. FRY and KEITH A. FRY, )

)

Appellants, )

)

vs. ) No. 20A04-1212-MF-628

)

PHH MORTGAGE CORP., )

)

Appellee. )

APPEAL FROM THE ELKHART SUPERIOR COURT

The Honorable Stephen R. Bowers, Judge

Cause No. 20D02-1108-MF-188

November 27, 2013

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
2

Case Summary

Tracy and Keith Fry appeal the trial court’s grant of summary judgment in favor of 

PHH Mortgage Corporation (“PHH”). We affirm.

Issue

The Frys raise two issues, which we reorder and restate as:

I. whether the trial court lacked subject matter 

jurisdiction; and 

II. whether there were genuine issues of material fact

regarding the notification of default.

Facts

In 2004, the Frys executed a promissory note in favor of Century 21 Mortgage, 

and the note was secured by a mortgage. The Frys stopped making the required 

payments in 2009. 

On August 2, 2011, PHH filed a complaint to enforce the note and foreclose on the 

mortgage. In the complaint, PHH alleged that Century 21 Mortgage was an assumed 

business name for PHH and that it was entitled to enforce the promissory note. On 

January 3, 2012, the Frys filed a pro se answer, which apparently included counterclaims

and affirmative defenses. On March 1, 2012, PHH filed a motion for summary judgment. 

On March 27, 2012, Kenneth filed an affidavit with the trial court. That same day, an 

attorney entered an appearance on behalf of the Frys and filed a motion for an extension 

of time. The trial court allowed the Frys until May 27, 2012 to respond to the motion for 

summary judgment. On June 25, 2012, PHH filed a reply and designated additional 

evidence. On October 12, 2012, a hearing on the motion for summary judgment was 
3

held. On November 6, 2012, the trial court issued partial summary judgment granting 

PHH an in rem judgment against the property and ordering the sheriff to sell the property 

to satisfy the amount of the judgment. The Frys filed a motion to correct error, which the 

trial court denied. They now appeal.1

Analysis

I. Subject Matter Jurisdiction

The Frys argue that the trial court lacked subject matter jurisdiction. They assert 

that PHH acted with unclean hands because, in a prior 2008 action, the promissory note 

attached to the complaint was not endorsed and, in the 2011 action, the note attached to 

the complaint was endorsed. “‘The question of subject matter jurisdiction entails a 

determination of whether a court has jurisdiction over the general class of actions to 

which a particular case belongs.’” K.S. v. State, 849 N.E.2d 538, 542 (Ind. 2006)

(quoting Troxel v. Troxel, 737 N.E.2d 745, 749 (Ind. 2000)). “Real jurisdictional 

problems would be, say, a juvenile delinquency adjudication entered in a small claims 

court, or a judgment rendered without any service of process.” Id. at 542. The Frys cite 

no authority for the proposition that the trial court did not have the ability to hear cases 

where a party has allegedly acted with unclean hands. Without more, we are not 

convinced that the trial court lacked subject matter jurisdiction over PHH’s complaint.

II. Notice

 

1

 In their notice of appeal, the Frys indicate they are appealing a final judgment. It appears, however,

there are unresolved issues related to their counterclaims. As such, the partial summary judgment order is 

not final pursuant to Indiana Trial Rule 54(B). Nevertheless, we believe we have jurisdiction pursuant to 

Indiana Appellate Rule 14(A)(4), which allows an interlocutory appeal as of right of an order for the sale 

or delivery of possession of real property.
4

The Frys contend that PHH did not establish it notified them of their default as 

required in order to accelerate the amount due. In support of this argument, the Frys rely 

on Keith’s March 27, 2012 affidavit, in which, among other self-serving assertions, Keith 

claimed, “That the Plaintiff never gave notice, as required under the terms of the note, of 

its intent to accelerate the balance of the loan.” App. p. 19. 

Assuming the affidavit was procedurally proper,2it is insufficient to create a 

genuine issue of material fact because Keith did not have personal knowledge of whether 

PHH sent notice. See Ind. Trial Rule 56(E) (requiring supporting and opposing affidavits 

to be made on personal knowledge). Because the requirements of Trial Rule 56(E) are 

mandatory, a court considering a motion for summary judgment should disregard 

inadmissible information contained in supporting or opposing affidavits. Capital Drywall 

Supply, Inc. v. Jai Jagdish, Inc., 934 N.E.2d 1193, 1197 (Ind. Ct. App. 2010). 

Further, even if we construe this statement as establishing that Keith did not 

receive such notice, the mortgage only required that the lender “give notice to Borrower

prior to acceleration.” Appellee’s App. p. 24 (emphasis added). The giving and 

receiving of notice are distinct legal concepts. According to the Uniform Commercial 

Code:

A person “notifies” or “gives” a notice or notification to 

another by taking such steps as may be reasonably required to 

 

2

 The Frys’ Appendix includes only Keith’s affidavit and does not include a memorandum in opposition 

to summary judgment or other designated evidence showing that there are genuine issues of material fact. 

The Frys’ Appendix also includes only one page of their answer. “It is a cardinal rule of appellate review 

that the appellant bears the burden of showing reversible error by the record, as all presumptions are in 

favor of the trial court’s judgment.” Marion-Adams Sch. Corp. v. Boone, 840 N.E.2d 462, 468 (Ind. Ct. 

App. 2006).
5

inform the other in ordinary course whether or not such other 

actually comes to know of it. A person “receives” a notice or 

notification when:

(a) it comes to the person’s attention; or

(b) it is duly delivered at the place of business through 

which the contract was made or at any other place held 

out by the person as the place for receipt of such 

communications.

Ind. Code § 26-1-1-201(26). PHH designated evidence that, according to its records, 

“pursuant to the terms of the promissory note and mortgage, the plaintiff accelerated all 

sums due and owing under the promissory note.” Appellee’s App. p. 45. The Frys do 

not direct us to any admissible and properly designated evidence establishing that PHH 

did not give notice of default. Without more, the Frys have not established that there is a

genuine issue of material fact regarding whether PHH gave the required notice. 

Conclusion

The Frys have not established that the trial court lacked subject matter jurisdiction 

over PHH’s complaint or that there is a genuine issue of material fact regarding whether 

PHH gave notice of default. We affirm.

Affirmed.

CRONE, J., and PYLE, J., concur.