Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015 Page 1 of 30

ATTORNEYS FOR APPELLANT

U.S. BANK, NATIONAL 

ASSOCIATION, AS BAFC 2007-1

John S. (Jay) Mercer

Mercer Belanger, P.C.

Indianapolis, Indiana

Aaron J. Stucky

Vorys, Sater, Seymour, and Pease LLP

Cincinnati, Ohio

ATTORNEY FOR APPELLANTS

TRISTAN C. BRIONES II AND CHASE 

HOME FINANCING LLC

Gregory A. Kahre

Evansville, Indiana

ATTORNEYS FOR APPELLEE

GERMAN AMERICAN 

BANCORP, INC.

James D. Johnson

Kyle R. Rudolph

Jackson Kelly PLLC

Evansville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

U.S. Bank, National Association, 

as BAFC 2007-1, successor in 

interest to National City 

Mortgage Co.,

Appellant-Plaintiff,

v.

R. Glenn Miller, Jr. a/k/a R. 

Glenn Miller, Melinda F. Miller, 

German American Bankcorp, 

Inc., successor in interest to Bank 

September 22, 2015

Court of Appeals Case No.

87A01-1409-MF-366

Appeal from the Warrick Circuit 

Court

The Honorable Robert R. Aylsworth, 

Special Judge

Cause No. 87C01-0803-MF-125
Court of Appeals of Indiana | Opinion 87A01-1409-MF-366| September 22, 2015 Page 2 of 30

of Evansville, and United States 

of America,1

Appellees-Defendants.

German American Bankcorp, 

Inc., successor in interest to Bank 

of Evansville,

Cross-Claimant and Third-Party 

Plaintiff,

v.

R. Glenn Miller, Jr., a/k/a R. 

Glenn Miller, Melinda F. Miller, 

Tristan C. Briones, II, Chase 

Home Financing, LLC, 

successor in interest to Shelter 

Mortgage Company, LLC, and 

Republic Bank & Trust 

Company,

Cross-Claimants and Third-Party 

Defendants.

Kirsch, Judge.

 

1 The Millers, the United States of America, and Republic Bank & Trust Company do not participate in this 

appeal. However, pursuant to Indiana Appellate Rule 17(A), a party of record in the trial court is a party on 

appeal. 
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[1] In this action to foreclose a first priority mortgage against property previously 

owned by Melinda F. Miller and R. Glen Miller, Jr. (“the Millers”), U.S. Bank, 

National Association, as BAFC 2007-1 (“U.S. Bank”) (successor in interest to 

National City Mortgage Co. (“NCM”)),2 Tristan C. Briones II (“Briones”), and 

Chase Home Financing LLC (“Chase”) (collectively, “Appellants”) appeal the 

grant of summary judgment in favor of German American Bancorp, Inc. 

(“German American”) (formerly known as Bank of Evansville),3 granting 

German American’s previously-subordinate lien a first priority on the basis of 

the merger doctrine.4 On appeal, Appellants raise various issues, which we 

consolidate and restate as:

I. Whether the trial court erred when it set aside the default judgment 

entered against Bank of Evansville in NCM’s mortgage foreclosure, 

having found that the default judgment was void for lack of notice to 

Bank of Evansville, which prevented the trial court from obtaining 

personal jurisdiction; and

II. Whether the trial court erred when it entered summary judgment in 

favor of German American determining that German American’s 

 

2 On October 7, 2008, NCM assigned its interest in the judgment of foreclosure on the Millers’ property to 

U.S. Bank, who in turn bought the property at a sheriff’s sale and resold it to Briones in January 2009. We 

will refer to U.S. Bank, NCM, or both, as is applicable.

3

In January 2011, Bank of Evansville merged with German American, leaving German American as the

successor and surviving legal entity. In November 2011, the trial court granted Bank of Evansville’s motion 

to substitute German American as the real party in interest. We will refer to German American, Bank of 

Evansville, or both, as is applicable. 

4 Briones and Chase have, together, filed one appellants’ brief, one appendix, and one supplemental 

appendix. For ease of reference we will refer to those documents as “Briones’s Br.,” “Briones’s App.,” and 

“Briones’s Supp. App.” U.S. Bank has filed its own appellant’s brief and appendix, which we will refer to as 

“U.S. Bank’s Br.” and “U.S. Bank’s App.” In response to both appellants’ briefs, German American has filed 

one appellee’s brief and one appendix, which we will refer to as “Appellee’s Br.” and “Appellee’s App.” 
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junior mortgage was entitled to first priority because the common law 

doctrine of merger extinguished U.S. Bank’s priority interest.

[2] We affirm in part, reverse in part, and remand.5

Summary

[3] This case began more than seven years ago. What started as a simple 

foreclosure of NCM’s mortgage against the Millers’ Newburgh, Indiana 

property (“the Property”), became complicated when senior lienholder NCM 

named junior lienholder Bank of Evansville as a defendant in the foreclosure 

action, but failed to serve notice to the proper address. The trial court entered 

judgment of foreclosure in favor of NCM and against the Millers, and it entered 

judgment of default against Bank of Evansville. NCM assigned its foreclosure 

judgment to U.S. Bank, who purchased the Property at a sheriff’s sale and, in 

turn, resold the Property to Briones.

[4] Thereafter, Bank of Evansville filed a motion both to set aside the judgment of 

default and to add Briones as a necessary third-party defendant, which the trial 

court granted. About one month later, and as a separate action, NCM filed a 

complaint for strict foreclosure, claiming that Bank of Evansville’s interest was 

a cloud on the title and asking that its junior lien on the Property be 

 

5 U.S. Bank filed a motion for oral argument; however, we have determined that oral argument is not 

necessary for the resolution of the instant appeal. Accordingly, we deny U.S. Bank’s motion in a separate 

order issued contemporaneously with this opinion.
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extinguished. This strict foreclosure action was consolidated into the original 

foreclosure action by consent of the parties. 

[5] Cross-claims and third-party complaints added Chase and Republic Bank & 

Trust Company (“Republic Bank”) as parties to Bank of Evansville’s action to 

foreclose on its junior mortgage. German American, who was substituted for 

Bank of Evansville as the real party in interest, filed a motion for summary 

judgment, and U.S. Bank filed a cross-motion asking that summary judgment 

be entered in its favor to allow an adjudication of German American’s rights 

and remedies pursuant to Indiana Code section 32-29-8-4 (“I.C. § 32-29-8-4”).

Following a hearing, the trial court, rejecting U.S. Bank’s argument that I.C. § 

32-29-8-4 should apply to the facts of the instant action, applied the common 

law merger doctrine from our Supreme Court’s decision in Citizens State Bank of 

New Castle v. Countrywide Home Loans, Inc., 949 N.E.2d 1195 (Ind. 2011). 

Finding that merger caused U.S. Bank’s priority interest to be extinguished, the 

trial court granted summary judgment and a priority interest to German 

American’s previously subordinate interest. 
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Facts and Procedural History

[6] The undisputed relevant facts are that, in October 2006, the Millers borrowed 

approximately $774,5006from NCM7to purchase the Property. To secure the 

loan, the Millers executed a promissory note and mortgage, pledging the 

Property as collateral. That same month, NCM’s mortgage was recorded as a 

first priority lien with the Warrick County Recorder. 

[7] One month later, the Millers obtained a home equity line of credit (“HELOC”) 

from Bank of Evansville. To secure the $25,000 line of credit, the Millers 

executed a second mortgage on the Property, which was recorded with the 

Warrick County Recorder in November 2006. This HELOC mortgage was 

second in priority and was recorded prior to a notice of federal tax lien in the 

amount of $168,382, which the United States of America filed against the 

Property in October 2007.

[8] After the Millers defaulted on their loan, NCM filed a complaint on the note 

and to foreclose the mortgage in March 2008, naming as defendants: (1) the 

Millers; (2) Bank of Evansville; and (3) the United States. The HELOC

mortgage reflected that Bank of Evansville’s address was 4424 Vogel Road; 

 

6

For the purposes of this decision, the exact dollar amounts are not important; therefore, we will generally 

refer only to the dollar amounts and will omit the change.

7 The Millers initially entered into the promissory note and mortgage with National City Bank, who assigned 

that mortgage to National City Mortgage Co. (“NCM”), a subsidiary of National City Bank. Briones’s App. at 

95, 112. Because NCM held the mortgage at the time the complaint for foreclosure was filed, we refer to 

NCM as the party in interest. 
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however, NCM mistakenly served the notice to 8121 Newbury Road. Bank of 

Evansville did not have an office on Newbury Road; instead, this address was 

listed with the Secretary of State on a form memorializing Bank of Evansville’s

corporate name reservation, which had expired in 1998. Bank of Evansville did 

not file a notice of appearance and later claimed it had not known about the 

foreclosure.

[9] NCM filed a motion for summary judgment on its foreclosure complaint in 

May 2008, to which neither the Millers nor Bank of Evansville responded. On 

July 2, 2008, the trial court, noting that all of the defendants were properly 

before the court by service of process, granted summary judgment in favor of 

NCM as to all defendants (“Decree of Foreclosure”). The trial court: (1) 

entered a default judgment against Bank of Evansville;

8

(2) awarded NCM a 

“personal summary judgment”9 against the Millers in the amount of 

$769,425.73;

10 and (3) determined that the United States had a valid judgment 

lien on the Property with a one-year right of redemption to satisfy its tax lien. 

 

8 The order itself provided, that “the defendant, Bank of America, not having appeared or filed a responsive 

pleading herein is in default.” Briones’s App. at 32 (emphasis added). “Bank of America” is not a party to this 

conflict; during the July 25, 2013 hearing, James Johnson, counsel for Bank of Evansville, stated, “[T]hey 

meant Bank of Evansville.” 2013 Hr’g Tr. at 44. 

9

Indiana Code section 32-30-10-5 in pertinent part provides that in rendering judgment of foreclosure, the 

courts shall “(1) give personal judgment against any party to the suit liable upon any agreement for the 

payment of any sum of money secured by the mortgage”; and “(2) order the mortgaged premises . . . to be 

sold first before the sale of other property of the defendant.”

10 This amount was calculated as follows: “the principal amount of $738,081.50, plus interest and late 

charges in the amount of $29,686.23 to March 25, 2008, plus the net sum of $658.00 expended by [NCM] for 

continuation of title necessary for these proceedings and for advances made by [NCM], plus attorney’s fees in 

the amount of $1,000.00, making this judgment a total amount of $769,425.73 . . . .” U.S. Bank App. at 47. 
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Briones’s App. at 32. The trial court ordered that the Property be sold at sheriff’s 

sale and foreclosed both NCM’s mortgage as a first priority lien and the equity 

of redemption of all defendants and all persons claiming under and through 

those defendants.

[10] NCM assigned its foreclosure judgment to U.S. Bank for an unknown value in 

October 2008, and U.S. Bank, in turn, purchased the Property at sheriff’s sale

for $528,500, approximately $240,000 less than the amount of NCM’s 

judgment. That same month, U.S. Bank recorded its sheriff’s deed with the 

Warrick County Recorder. In January 2009, U.S. Bank sold the Property to 

Briones by means of a special warranty deed, which was recorded in April 

2009. Briones paid about $450,000 for the Property, $220,000 of which he 

borrowed from, and was secured by a mortgage to, Chase.

11

 2013 Hr’g Tr. at 

27.12 Chase filed its mortgage lien against the Property, which was superior to a 

commercial real estate mortgage lien held by Republic Bank.

 

11 On or about March 18, 2009, the Property was sold by U.S. Bank to Briones; the sale was facilitated by a 

purchase money mortgage that Briones entered into with Shelter Mortgage Company. Both Briones’s

conveyance and Shelter’s mortgage were recorded with the Warrick County Recorder in April 2009. Chase 

Home Financing, LLC (“Chase”) is the assignee of all interest in and to Briones’s mortgage with Shelter. 

Shelter was named in German American’s motion to set aside. Thereafter, Chase was named as the true 

party in interest. To avoid confusion, we will refer to the entity that held Briones’s mortgage as Chase.

12 Judge David O. Kelley initially presided over the proceedings of this foreclosure action, but he withdrew in 

late 2012. Prior to withdrawing, Judge Kelley held a hearing, on June 19, 2012, to address the motions for 

summary judgment filed by German American and U.S. Bank to foreclosure the HELOC mortgage; 

however, no decision was made following this hearing. We will cite to Judge Kelley’s hearing as 2012 Hr’g

Tr. Judge Robert Aylsworth was appointed as a special judge to this case in December 2012 and held a 

hearing on the same motions for summary judgment on July 25, 2013. We will cite to Judge Aylsworth’s 

hearing as 2013 Hr’g Tr. 
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[11] Although the Millers stopped paying on the NCM mortgage in October 2007, 

they continued to make payments on the HELOC until September 2009. In 

October 2009, Bank of Evansville learned that a default judgment had been 

entered against it in NCM’s foreclosure and that the Property securing its 

mortgage had been sold to Briones. The next month, Bank of Evansville filed 

two motions. In the first, Bank of Evansville requested that the default 

judgment be set aside, claiming it was void pursuant to Trial Rule 60(B)(6) 

because it had not been properly served, and, therefore, the trial court did not 

have personal jurisdiction over it. Briones’s App. at 37-58. In connection with 

that motion, Bank of Evansville designated evidence, including an affidavit 

(“Sutton Affidavit”) of Mike Sutton, President and CEO of Bank of Evansville, 

in which Sutton stated that the Bank never received a copy of the summons or 

complaint and was not aware of the litigation or sheriff’s sale until October 

2009. Id. at 54. In the second motion, Bank of Evansville requested that 

Briones, be joined as a necessary third-party defendant pursuant to Trial Rule 

19(A), to ensure the just adjudication of the controversy. Id. at 59-62. The trial 

court held a hearing and granted both motions. Briones entered an appearance, 

as did Chase and Republic Bank, each of whom had liens to protect. 

[12] In January 2010, Bank of Evansville filed its answer and affirmative defenses to 

NCM’s original complaint to foreclose on the Property, as well as a cross-claim 

and third-party complaint against the Millers, Briones, Chase, and Republic 
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Bank, to foreclose on the mortgage securing the HELOC.13 Appellee’s App. at 

40-63. Briones filed an amended answer to German American’s third-party 

complaint in December 2011, as well as a third-party complaint against U.S. 

Bank. Id. at 127-44. In his amended pleading, Briones alleged that U.S Bank 

breached the terms of the special warranty deed because “[a]t the time of the 

execution and delivery of said warranty deed by U.S. Bank to Briones, [the 

Property] was not free and clear of all encumbrances, but was still subject to a 

mortgage given by the prior titleholders, [the Millers].” Id. at 134.

[13] Meanwhile, on January 29, 2010, having already transferred the judgment of 

foreclosure to U.S. Bank, NCM filed a separate complaint for strict foreclosure

(Cause No. 87C01-1001-MF-37), asking the trial court to extinguish Bank of 

Evansville’s junior lien on NCM’s original mortgage. Appellee’s App. at 64. In 

its complaint, NCM detailed the prior proceedings and noted that it had been 

granted the status of first lienholder by virtue of the Decree of Foreclosure. Id.

at 65. Bank of Evansville filed an answer and affirmative defenses to NCM’s 

complaint for strict foreclosure. Id. at 92. On May 28, 2010, the strict 

foreclosure action was consolidated into the instant action by consent of the 

parties.

 

13 The HELOC provided, and the mortgage secured, a line of credit to the Millers up to $25,000. There is no 

evidence how much the Millers borrowed from the HELOC. In the letter of default, however, Bank of 

Evansville set forth that, at the time of default, the Millers owed $25,000, plus accrued interest. Appellee’s 

App. at 60. The letter also provided that the Millers had thirty days to dispute the amount owed. Id. at 61. 

We find no evidence in the record before us that the Millers disputed that they owed the amount claimed.
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[14] While this instant action was pending in the trial court, the Indiana Supreme 

Court issued its Citizens decision in June 2011, a decision in which the Court 

applied the merger doctrine to land that was foreclosed and thereafter 

purchased by a mortgagee, thus, leaving the mortgagee with no seniority over a 

junior lienholder erroneously omitted from the foreclosure proceedings. In 

response to that decision, and less than nine months later, in March 2012, the 

Indiana General Assembly enacted I.C. § 32-29-8-4, which effectively overruled 

the portions of Citizens dealing with the merger doctrine. Specifically, this 

statute prevented a senior lienholder’s interest from being “extinguished by 

merger with the title to the property conveyed to a purchaser through a sheriff’s 

deed executed and delivered under IC 32-29-7-10 until the interest of any 

omitted party has been terminated.” Ind. Code § 32-29-8-4(h). Furthermore, it 

provided that “until an omitted party’s interest was terminated,” “any person 

claiming by, through, or under such an owner, is the equitable owner of the 

senior lien upon which the foreclosure action was based and has all rights 

against an omitted party as existed before the judicial sale.” Id. The instant 

case remained pending for more than one year after the enactment of I.C. § 32-

29-8-4. 

[15] German American was substituted for Bank of Evansville as the real party in 

interest in November 2011. Appellee’s App. at 125. One month later, German 

American filed a motion asking the trial court to enter summary judgment in its 

favor in an amount to cover monies due under its note and mortgage and to

declare that German American had a valid first lien with priority over all other 
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liens and defendants. German American also asked that the trial court 

foreclose the equity of redemption of the Millers and all defendants and persons 

claiming through them and under them and order that the Property, which had 

already been transferred from U.S. Bank to Briones, be sold to satisfy the 

amount of the Millers’ HELOC debt to German American. Although this 

motion was filed six months after our Supreme Court handed down its decision 

in Citizens, German American did not cite to that opinion.

[16] One month after I.C. § 32-29-8-4 became effective, U.S. Bank filed a crossmotion for summary judgment arguing that it was “entitled to an adjudication 

of its rights pursuant to Ind. Code § 32-29-8-4 and summary judgment as a 

matter of law.” Briones App. at 69. Briones and Chase filed a brief in opposition 

to German American’s motion for summary judgment, arguing: (1) that 

German American’s designation of evidence was insufficient; and (2) that 

German American’s reliance on our Supreme Court’s decision in Citizens, as 

support for its motion for summary judgment, was misplaced. Appellee’s App. at 

178-84. Elaborating, Briones and Chase noted that German American had not 

even initially cited to Citizens. Id. at 180. Instead, German American’s 

December 2011 motion for summary judgment was solely directed at the 

liability of the Millers under German American’s 2006 loan documents. Id. It 

was only in a subsequent reply to the response of Republic Bank that German 

American cited to Citizens, questioning whether “it was still feasible under 

Indiana law to foreclose a subordinate lienholder that had been named as a 

defendant in the original foreclosure but apparently not served with process.” 
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Id. In June 2012, Judge David Kelley held a hearing on the parties’ motions for 

summary judgment, but did not decide the case prior to the time of his 

withdrawal. Thereafter, Judge Robert Aylsworth was appointed as special 

judge to the case. 

[17] On July 25, 2013 Judge Aylsworth held a hearing on German American’s 

motion for summary judgment. The trial court granted partial summary 

judgment (“Partial Judgment”) in favor of German American on August 21, 

2013. The court concluded that disposition of the “motions for summary 

judgment [was] controlled by the Indiana Supreme Court’s decision in Citizens . 

. . and, pursuant to that case the transfer of title by U.S. Bank to Briones by 

special warranty deed . . . merged U.S. Bank’s mortgage lien into the legal title, 

but did not affect German American’s subordinate mortgage when German 

American did not receive notice of the foreclosure.” Briones App. at 167 

(emphasis added). The Partial Judgment also provided that I.C. § 32-29-8-4 did 

“not apply retroactively to save U.S. Bank from the operation of case law, as 

the statute on its face was effective upon passage, [in March 2012,] long after 

the date of the execution of the U.S. Bank special warranty deed to transfer title 

to Briones.” Id. Accordingly, the trial court concluded “that statute has, in the 

court’s opinion, no applicability or relevance to the matters at issue before the 

court.” Id. The trial court did not specifically rule on, or even mention, the 

pending motion for strict foreclosure.

[18] U.S. Bank moved for an order certifying the Partial Judgment for interlocutory 

appeal. Briones and Chase joined that motion, which the trial court granted.
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U.S. Bank then moved for certification of the trial court’s Interlocutory Order;

our court denied the requested interlocutory appeal. Following an evidentiary 

hearing regarding German American’s attorney fees,

14 the trial court entered its 

final judgment on August 6, 2014, in which it: (1) granted German American a 

judgment against the Millers on the HELOC mortgage in the amount of more 

than $150,000 plus interest; (2) concluded that U.S. Bank’s, Chase’s, and 

Republic Bank’s interests were all “subordinate to German American’s 

interests”; and (3) foreclosed German American’s mortgage on the Property “as 

a first and prior lien subject only to any county real estate tax liens,” ordering

that “equity of redemption of all of the parties herein and all persons claiming 

under and through them is foreclosed.” U.S. Bank’s App. at 40, 41. Appellants 

now appeal.

Discussion and Decision

I. Setting Aside the Default Judgment

[19] In the July 2008 Decree of Foreclosure, the trial court granted summary 

judgment in favor of NCM, and entered a default judgment against Bank of 

Evansville. In November 2009, Bank of Evansville filed a motion to set aside 

the default judgment, claiming that lack of notice precluded the trial court from 

 

14 The evidentiary hearing was held on July 28, 2014, the transcript of which, if any, is not in the record 

before us.
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having personal jurisdiction over Bank of Evansville thus making the default 

judgment void. The trial court agreed and set aside the default judgment. 

[20] The decision to set aside the default judgment made it possible for Bank of 

Evansville to file its complaint to foreclose on its HELOC mortgage, a 

complaint upon which the trial court later entered summary judgment in favor 

of Bank of Evansville, granting it first priority over all other interests in the 

Property. Appellants contend that the trial court abused its discretion when it 

set aside the default judgment. With the goal of reversing summary judgment 

in favor of German American, Bank of Evansville’s successor in interest, 

Appellants insist that, but for the act of setting aside the default judgment, Bank 

of Evansville would have been bound by the Decree of Foreclosure and, thus, 

precluded from filing to foreclose on the HELOC mortgage. 

[21] Bank of Evansville brought its motion to set aside default judgment under Trial 

Rule 60(B)(6), alleging that the default judgment was void for lack of personal 

jurisdiction because it had no notice of NCM’s foreclosure proceedings. A 

motion made under Trial Rule 60(B) to set aside a judgment is addressed to the 

equitable discretion of the trial court. In re Paternity of P.S.S., 934 N.E.2d 737, 

740-41 (Ind. 2010). “Typically, we review a trial court’s ruling on a motion to 

set aside a judgment for an abuse of discretion, meaning that we must 

determine whether the trial court’s ruling is clearly against the logic and effect 

of the facts and inferences supporting the ruling.” Hair v. Deutsche Bank Nat’l

Trust Co., 18 N.E.3d 1019, 1022 (Ind. Ct. App. 2014) (citing Yoder v. Colonial 

Nat’l Mortg., 920 N.E.2d 798, 800-01 (Ind. Ct. App. 2010)). “However, whether 
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personal jurisdiction exists over a defendant is a question of law that we review 

de novo.” Id. “A judgment entered where there has been insufficient service of 

process is void for want of personal jurisdiction.” Id. (citing Front Row Motors, 

LLC v. Jones, 5 N.E.3d 753, 759 (Ind. 2014)).

[22] In its motion to set aside, Bank of Evansville argued that the trial court did not 

obtain personal jurisdiction over it because NCM served the notice of 

foreclosure to the wrong address, and Bank of Evansville did not know it was 

named as a defendant in NCM’s foreclosure proceedings. Bank of Evansville

attached to its motion the Sutton Affidavit, in which Sutton stated that Bank of 

Evansville’s offices were located on Vogel Road and not Newbury Road, and 

that the Indiana Secretary of State records listed the correct Vogel Road 

address. Bank of Evansville maintained that it did not receive a copy of the 

summons or complaint and was not aware of the litigation or sheriff’s sale. The 

trial court agreed that Bank of Evansville did not have proper notice and set 

aside the default judgment on the basis that the trial court did not have personal 

jurisdiction over Bank of Evansville.

[23] Our court has recognized, “[j]unior lienholders and others having a junior claim 

or interest in mortgaged property are proper parties to a foreclosure action; 

necessary parties include those with an ownership interest in the property. Both 

proper and necessary parties must be joined in a foreclosure action before that 

action will be binding upon them.” Deutsche Bank Nat’l Trust Co. v. Mark Dill 

Plumbing Co., 903 N.E.2d 166, 169 (Ind. Ct. App. 2009) (emphasis in original) 

(quoting another source), clarified on reh’g, 908 N.E.2d 1272 (Ind. Ct. App. 
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2009). “The law in this jurisdiction is well settled that a junior lienholder who 

is not made a party to a foreclosure action is in no wise bound by such 

foreclosure and his situation after the foreclosure remained the same as it had 

been before.” Citizens, 949 N.E.2d at 1199; see also Catterlin v. Armstrong, 101 

Ind. 258, 264 (1885) (characterizing as “settled” the proposition “[t]hat the 

rights of a junior mortgagee, who was not made a party, are in no manner 

affected by the foreclosure of and sale on a senior mortgage”).

[24] “Rule 60(B)(6) provides for relief from judgments that are “void.” CitiMortgage, 

Inc. v. Barabas, 975 N.E.2d 805, 816 (Ind. 2012) (citing Shotwell v. Cliff Hagan 

Ribeye Franchise, Inc., 572 N.E.2d 487, 489-90 (Ind. 1991)). “A judgment issued 

without personal jurisdiction is void, and a court has no jurisdiction over a 

party unless that party receives notice of the proceeding.” Id. Bank of 

Evansville’s Vogel Road address was correctly listed on the HELOC mortgage. 

Whether due to oversight or mistakenly choosing the Newbury Road address 

from an expired name reservation form, NCM served the notice to the wrong 

address, and Bank of Evansville did not receive that notice or otherwise know 

about NCM’s action to foreclosure on the Property. Without proper notice, the 

trial court never had jurisdiction over German American. Accordingly, the 

default judgment was void as to German American, and the trial court did not 

abuse its discretion when it set aside the default judgment against Bank of 

Evansville. 
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[25] Furthermore, we reject any contention that the trial court set aside the entire 

judgment. Briones’s Br. at 24; U.S. Bank’s Br. at 13. In the Partial Judgment, the 

trial court made its position absolutely clear: 

Judge Kelley’s December 29, 2009 order granting the motion to set 

aside default judgment as to German American and to join Briones as 

a necessary party, expressly addressed “any judgment obtained by 

default,” and no more. This order did not vacate the prior judgment and

order for foreclosure in its entirety, but expressly set aside only the judgment 

obtained by default against German American. As such, the prior Sheriff’s 

sale and purchase by U.S. Bank, with the subsequent transfer to 

Briones are confirmed as valid in all respects, except as to German 

American, who is entitled to proceed toward a judgment of foreclosure 

. . . .” 

Briones’s App. at 167-68 (emphasis added). 

II. Summary Judgment

[26] Appellants next argue that the trial court erred in granting summary judgment

to German American, finding that German American had the right to foreclose 

on its HELOC mortgage as a first priority lienholder. We review a grant of 

summary judgment using the same standard as the trial court. Lacy-McKinney v. 

Taylor Bean & Whitaker Mortg. Corp., 937 N.E.2d 853, 858 (Ind. Ct. App. 2010). 

Summary judgment is proper “if the designated evidentiary matter shows that 

there is no genuine issue as to any material fact and that the moving party is 

entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). We must 

construe all facts and reasonable inferences drawn from them in favor of the 

nonmoving party. Auto-Owners Ins. Co. v. Harvey, 842 N.E.2d 1279, 1282 (Ind. 

2006). We may affirm a summary judgment ruling if it is sustainable on any 
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legal theory or basis found in the evidentiary matter designated to the trial 

court. W. Am. Ins. Co. v. Cates, 865 N.E.2d 1016, 1020 (Ind. Ct. App. 2007), 

trans. denied. 

[27] The facts are not in dispute. The parties agree that U.S. Bank (successor in 

interest to NCM)

15 and German American (successor in interest to Bank of 

Evansville)

16 each loaned money to the Millers, entered into mortgages with the 

Millers to secure those loans, and properly filed those mortgages with the 

Warrick County Recorder. U.S. Bank’s mortgage secured a loan to the Millers 

in the amount of $774,500, and German American’s mortgage, which was in a 

junior position, secured the Millers’ $25,000 HELOC. Because German 

American is not bound by the original Decree of Foreclosure, due to the default 

judgment being set aside, the question remains as to what rights, if any, 

Appellants have in the strict foreclosure action and what priority interest 

German American has in the foreclosure of its HELOC mortgage. 

[28] In granting summary judgment, the trial court stated:

5. The disposition of the parties’ motions for summary judgment is 

controlled by the Indiana Supreme Court’s decision in [Citizens] and,

pursuant to that case the transfer of title by U.S. Bank to Briones by 

the special warranty deed executed on January 27, 2009, after U.S. 

 

15 Here, the interests, but not the names of the parties, are significant for our analysis. Therefore, in this 

section of the decision we will refer to any interest of NCM or U.S. Bank as being held by U.S. Bank, unless 

the facts otherwise require.

16 Here, again, the interests, but not the names of the parties, are significant for our analysis. Therefore, in 

this section of the decision we will refer to any interest of Bank of Evansville or German American as being 

held by German American, unless the facts otherwise require.
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Bank purchased the [Property] at Sheriff’s foreclosure sale by a credit 

bid on October 9, 2008, merged U.S. Banks’ mortgage lien into the 

legal title, but did not affect German American’s subordinate mortgage 

when German American did not receive notice of the foreclosure. As 

such, German American’s lien has priority.

6. Indiana Code 32-29-8-4 does not apply retroactively to save U.S. 

Bank from the operation of case law, as the statute on its face was 

effective upon passage, March 19, 2012, long after the date of the 

execution of the U.S. Bank special warranty deed to transfer title to 

Briones. Therefore, that statute has, in the court’s opinion, no 

applicability or relevance to the matters at issue before the court.

Briones’s App. at 167. The trial court did not specifically rule on NCM’s motion 

for strict foreclosure, which had been merged into the instant action. 

[29] “An action to foreclose a mortgage is essentially equitable in nature.” Mark Dill 

Plumbing Co., 903 N.E.2d at 168 (citing Centex Home Equity Corp. v. Robinson, 

776 N.E.2d 935, 942 (Ind. Ct. App. 2002), trans. denied). Notwithstanding 

equity’s influence, however, “rules of law obviously guide the foreclosure 

process.” First Fed. Sav. Bank v. Hartley, 799 N.E.2d 36, 40 (Ind. Ct. App. 2003)

(citing Ind. Code §§ 32-30-10-1 through -14 (setting out procedures for mortgage 

foreclosure actions)). Moreover, “where substantial justice can be 

accomplished by following the law, and the parties’ actions are clearly governed 

by rules of law, equity follows the law.” Id. 

[30] The parties recognize that Citizens was handed down in June 2011 and that I.C. 

§ 32-29-8-4 became effective nine months later before the trial court entered 

summary judgment. The parties disagree, however, regarding the applicable 

law to determine the priority of liens against the Property. Appellants contend 

that summary judgment in favor of German American was improper because 

the trial court erred in applying Citizens’ now-abrogated discussion of the merger 
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doctrine to conclude that German American’s junior mortgage was entitled to 

first priority. They maintain that the trial court should have applied I.C. § 32-

29-8-4.

17

 German American responds that in 2009, when U.S. Bank received 

title by sheriff’s deed and then transferred the Property to Briones, the merger 

doctrine—the common law in effect at the time—extinguished U.S. Bank’s 

mortgage lien and merged that interest into U.S. Bank’s ownership interest. 

German American asserts that, because that merger had already occurred in 

2009, I.C. § 32-29-8-4 could not be applied retroactively to resurrect U.S. Bank’s 

priority lien.

[31] A discussion of the doctrines of merger and strict foreclosure, concepts integral 

to our Supreme Court’s decision in Citizens and to the Indiana General 

Assembly’s enactment of I.C. § 32-29-8-4, is warranted and aids our analysis. 

The “merger [doctrine] traditionally applied to join two consecutive interests in 

land when both interests came into the hands of one person.” Citizens, 949 

N.E.2d at 1197. “The doctrine primarily operated to simplify real property 

titles in an era before land was conveyed by written instruments. Courts 

subsequently extended the merger doctrine to mortgages.” Id. Modern merger 

occurs: “When a person holds two estates in property in the same right and 

without an intervening estate, the two estates will coalesce to one estate unless a 

beneficial reason exists for keeping them distinct.” Ann M. Burkhart, Freeing 

 

17 Briones also claims that he should prevail on appeal pursuant to the statutory protections afforded a bona 

fide purchaser such as Briones. Our resolution of this issue makes a discussion of that issue unnecessary.
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Mortgages of Merger, 40 Vand. L. Rev. 283, 284 (1987). The “doctrine of merger 

operates in these cases as a technical, nonsubstantive rule concerning property 

titles. If the holder of the interests is not benefited in any way by keeping the 

estates distinct, they will merge to simplify the state of title.” Id. 

[32] Equity has never favored the rule of merger. 4 Richard R. Powell & Patrick J. 

Rohan, Powell on Real Property § 37.32[1] (Michael A. Wolf ed. 2000). “If there 

is any advantage to be gained by continuing the independent existence of the 

rights, such independent existence will be maintained. This equitable exception 

to the doctrine of merger is explained as a product of ‘intent,’ actual or 

presumed.” Id. (footnotes omitted).

[33] At English common law, “strict foreclosure” was a rare procedure that gave the 

mortgagee title to the mortgaged property—without first conducting a sale—

after a defaulting mortgagor failed to pay the mortgage debt within a courtspecified period. Mark Dill Plumbing Co., 903 N.E.2d at 168. In states like 

Indiana, however, where a mortgage is regarded as creating only an equitable 

lien,

18 and not as a conveyance of the legal estate, the remedy by strict 

foreclosure can only be resorted to under special and peculiar circumstances. 

 

18 “Indiana is unequivocally committed to the lien theory and the mortgagee has no title to the land 

mortgaged. The right to possession, use and enjoyment of the mortgaged property, as well as title, remains in 

the mortgagor, unless otherwise specifically provided, and the mortgage is a mere security for the debt.” In re 

Phillips, 368 B.R. 733, 743 (Bkrtcy. N.D. Ind. 2007) (quoting Kosciusko Cty. Rural Elec. Membership Corp. v. N.

Ind. Pub. Serv. Co., 248 Ind. 482, 229 N.E.2d 811, 817 (1967)) (citations omitted).
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Id. Because it is a harsh remedy, strict foreclosure “should be pursued only in 

cases where a statutory foreclosure and sale would be inappropriate.” Id.

[34] Under strict foreclosure, “[t]he mortgagee, as owner of the legal interest, could 

seek an ascertainment of the amount due and a decree that the defendant pay 

this amount within a short period to be fixed by the court.” Powell & Rohan, 

supra, § 37.43. “If the defendant failed to pay, his equity of redemption in the 

mortgaged premises was absolutely foreclosed and he was debarred from all 

rights.” Id. Indiana recognizes strict foreclosure under limited circumstances, 

“where a foreclosure action has proceeded to conclusion and it is then 

discovered that a junior lienor has been omitted from the action, strict 

foreclosure is a normal method open to the purchaser to clear title.” Id. In a 

strict foreclosure action, “The prayer for relief does not include a request for a 

deficiency judgment since the mortgagee is seeking to perfect his title rather 

than apply security to a debt.” Id. Strict foreclosure has acknowledged 

usefulness “[a]s an ancillary device to extinguish an overlooked subordinate 

claim.” Id. 

[35] In Citizens, our Supreme Court applied the merger doctrine to the interests that 

existed in land that had been foreclosed upon and purchased by a mortgagee, 

the result of which was that the mortgagee had no seniority over a junior 

lienholder erroneously omitted from the foreclosure proceedings. 

[36] In the legislative session immediately following the Citizens decision, the 

General Assembly enacted I.C. § 32-29-8-4, declaring an emergency to allow the 
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statute to become effective upon passage.

19 This statute effectively “eliminated the 

doctrine of merger from Indiana foreclosure law and statutorily reinstated the 

strict foreclosure remedy to resolve claims of omitted parties following 

mortgage foreclosures.” Rory O’Bryan, Legislative Preemption of Merger, Prob. & 

Prop., May/June 2013 44, 45. I.C. § 32-29-8-4 defined the terms “interested 

person” and “omitted party” in the context of a foreclosure suit, and laid out 

the steps whereby either could file an action to determine the extent of an 

omitted party’s interest and terminate that interest subject to the right of the 

omitted party to redeem the property on terms as the court considers equitable 

under the circumstances. 

[37] I.C. § 32-29-8-4 provides that an “interested person,” like NCM, U.S. Bank, or 

Briones, or an “omitted party,” like German American or Bank of Evansville, 

can bring a civil action, “at any time after a judgment and decree of sale is 

entered in an action to foreclose a mortgage,” to determine the extent of and 

terminate the interest of an omitted party in the property subject to the sale. 

I.C. § 32-29-8-4(c). The court is then charged with determining the extent of the 

omitted party’s interest in the property, and “issue a decree terminating that 

interest, subject to the right of the omitted party to redeem the property on 

terms as the court considers equitable under the circumstances.” I.C. § 32-29-8-

4(d). If the court determines that the omitted party is entitled to redemption, 

 

19 We note that the Indiana General Assembly adjourns in the spring of each year and does not go into full 

session until January of the following year. Therefore, absent calling a special session, March 2012 was, 

likely, the soonest the legislature could have responded to the Citizens decision. 
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and after considering certain statutory factors, “the court shall grant redemption 

rights to the omitted party that the court considers equitable under the 

circumstances.” I.C. § 32-29-8-4(g). 

[38] The purpose of the statute is set forth in section (h), which provides: 

(h) The senior lien upon which the foreclosure action was based is not 

extinguished by merger with the title to the property conveyed to a 

purchaser through a sheriff’s deed executed and delivered under IC 32-

29-7-10 until the interest of any omitted party has been terminated:

(1) through an action brought under this section; or

(2) by operation of law.

Until an omitted party’s interest is terminated as described in this 

subsection, any owner of the property as a holder of a sheriff’s deed 

executed and delivered under IC 32-29-7-10, or any person claiming 

by, through, or under such an owner, is the equitable owner of the

senior lien upon which the foreclosure action was based and has all 

rights against an omitted party as existed before the judicial sale.

I.C. § 32-29-8-4(h).

[39] Appellants contend that the trial court erred when it applied the common law 

merger principles of Citizens, instead of applying I.C. § 32-29-8-4. We agree. 

[40] We reject German American’s argument that U.S. Bank’s interests were 

extinguished by operation of law in 2009. Even under the reasoning of Citizens, 

merger was not automatic. NCM filed its motion for strict foreclosure in 

January 2010, and that motion was consolidated into the instant action in May 

2010. Applying Citizens’ rationale, the motion for strict foreclosure would have 

acted “merely as a mechanism to place before the court the question of whether 
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the doctrine of merger should be enforced.” Citizens, 949 N.E.2d at 1200 (emphasis 

added). 

[41] Here, the doctrines of merger and strict foreclosure were of no import until the 

parties questioned the priority of their interests in the Property. German 

American did not file its motion to set aside the default judgment until 

November 2009, and the default judgment was not set aside until December 

2009. The question of priority did not arise until NCM filed its motion for strict 

foreclosure in January 2010; it was at that time that the doctrines of merger and 

strict foreclosure became issues. It would be another three years, in 2013 when 

this case was decided, before the trial court would have to determine whether 

merger had occurred.

[42] German American contends the application of I.C. § 32-29-8-4 to this case 

would be improper as retroactive. “Statutes are disfavored as retroactive when 

their application ‘would impair rights a party possessed when he acted, increase 

a party’s liability for past conduct, or impose new duties with respect to 

transactions already completed.’” Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37 

(2006) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994)). 

“Accordingly, it has become ‘a rule of general application’ that ‘a statute shall 

not be given retroactive effect unless such construction is required by explicit 

language or by necessary implication.’” Id.; see also Moore v. State, 30 N.E.3d 

1241, 1248 (Ind. Ct. App. 2015) (“A general rule of statutory construction is 

that, unless there are strong and compelling reasons, statutes will not be applied 

retroactively.”).
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[43] “[T]he presumption against retroactive legislation is deeply rooted in our 

jurisprudence, and embodies a legal doctrine centuries older than our 

Republic.” Landgraf, 511 U.S. at 265. “Elementary considerations of fairness 

dictate that individuals should have an opportunity to know what the law is and 

to conform their conduct accordingly; settled expectations should not be lightly 

disrupted.” Id. For that reason, the principle that the legal effect of conduct 

should ordinarily be assessed under the law that existed when the conduct took 

place has timeless and universal human appeal.” Id. (internal quotation marks 

omitted).

[44] That being said, “[a]lthough court opinions often designate statutes as either 

prospective or retrospective, the statutes in fact are often not susceptible to such 

clear characterization.” 2 Norman J. Singer & J.D. Shambie Singer, Sutherland 

Statutory Construction 383-85 (7th ed. 2009). “Many statutes are both 

prospective and retrospective. Id. at 385. “A statute does not operate 

‘retrospectively’ merely because it is applied in a case arising from conduct 

antedating the statute’s enactment, or upsets expectations based in prior law.” 

Landgraf, 511 U.S. at 269 (citation omitted). “The inquiry into whether a 

statute operates retroactively demands a commonsense, functional judgment 

about ‘whether the new provision attaches new legal consequences to events 

completed before its enactment.’” Martin v. Hadix, 527 U.S. 343, 357-58 (1999) 

(citing Landgraf, 511 U.S. at 270). “This judgment should be informed and 

guided by ‘familiar considerations of fair notice, reasonable reliance, and settled 

expectations.’” Id. (quoting Landgraf, 511 U.S. at 270).
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[45] In Landgraf, the United States Supreme Court offered, 

When a case implicates a federal statute enacted after the events in 

suit, the court’s first task is to determine whether Congress has 

expressly prescribed the statute’s proper reach. If Congress has done 

so, of course, there is no need to resort to judicial default rules. When, 

however, the statute contains no such express command, the court 

must determine whether the new statute would have retroactive effect, 

i.e., whether it would impair rights a party possessed when he acted, 

increase a party’s liability for past conduct, or impose new duties with 

respect to transactions already completed. If the statute would operate 

retroactively, our traditional presumption teaches that it does not 

govern absent clear congressional intent favoring such a result.

511 U.S. at 280. Although the Landgraf Court was addressing a federal statute, 

we find this procedure provides guidance regarding the application of I.C. § 32-

29-8-4 under the facts of this case. 

[46] The Indiana General Assembly in adopting I.C. § 32-29-8-4 provided evidence 

as to its scope. The language of subsection (c), a section that effectively codified 

a form of strict foreclosure, provides, “At any time after a judgment and decree 

of sale is entered in an action to foreclose a mortgage on an interest in real 

property in Indiana, an interested person or an omitted party may bring a civil 

action to: (1) determine the extent of; and (2) terminate the interest of; an 

omitted party in the property subject to the sale.” I.C. § 32-29-8-4(c) (emphasis 

added). The plain meaning of the “strict foreclosure” language shows that I.C. 

§ 32-29-8-4 can be applied any time after a judgment and decree of sale is 

entered. I.C. § 32-29-8-4. 

[47] The Millers obtained a $25,000 line of credit from German American on 

November 17, 2006, and executed a mortgage in favor of German American to 
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secure that loan. Prior to making that loan, German American should have 

engaged in due diligence. A review of the Warrick County Recorder records 

would have uncovered the existence of U.S. Bank’s mortgage, which was 

recorded on October 19, 2006 (Instrument No. 2006R-012338), as a first 

priority lien. Briones’s App. at 95-96; Appellee’s App. 189. The mortgage reflected 

that just one month prior, the Millers had borrowed almost $775,000 from U.S. 

Bank to finance the purchase of the Property. Appellee’s App. at 189-90. In other 

words, the Property, which was the collateral German American accepted in 

exchange for granting the loan, already had a first priority lien against it 

securing U.S. Bank’s loan, which was about thirty times larger than the line of 

credit that German American extended to the Millers. 

[48] The concepts of merger and strict foreclosure were in existence at the time the 

Millers borrowed money from both U.S. Bank and German American, and

German American’s interests would not have been substantively changed by a 

shift in those concepts during the pendency of the case. Considerations of the 

doctrines of merger and strict foreclosure played no part in the expectations that 

German American had when it granted the Millers their loan. 

[49] The application of I.C. § 32-29-8-4 to the instant facts will not impair any rights 

German American had when it acted, will not increase German American’s 

liability for past conduct, and will not impose new duties on German American 

with respect to completed transactions. Accordingly, the application of I.C. § 

32-29-8-4 to the facts of this case does not act as a retroactive application. In 
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fact, the application of this statute will return German American to the position

that it knew it occupied—that of a junior lienholder. 

[50] Pursuant to I.C. § 32-29-8-4, German American is not entitled to the priority 

lien it obtained from the trial court. This application of this statute is what our 

legislature intended and is consistent with an equitable result.20 

[51] The language of I.C. § 32-29-8-4 sets forth the specific procedure that an 

interested party or an omitted party must take regarding determining and 

terminating the interest of an omitted party. We remand this case to the trial 

court with instructions that the court treat the motion for strict foreclosure as a 

motion filed pursuant to I.C. § 32-29-8-4 and, thereafter, apply that section to 

resolve German American’s interest as an omitted party. 

[52] We affirm the trial court’s decision to set aside German American’s default 

judgment, we reverse the trial court’s grant of summary judgment in favor of 

German American, and we remand to the trial court to decide this case 

pursuant to I.C. § 32-29-8-4

[53] Affirmed in part, reversed in part, and remanded.

Vaidik, C.J., and Bradford, J., concur.

 

20 Indeed, in its Partial Judgment, the trial court made the same observation, noting that its judgment “seems 

to result in an inequitable and unjust result.” Briones’s App. at 167.