Court of Appeals of Indiana | Opinion 18A-CC-1160 | December 6, 2018 Page 1 of 8

ATTORNEY FOR APPELLANT

Brad A. Council

Slovin & Associates Co., LPA

Cincinnati, Ohio

ATTORNEY FOR APPELLEE

Christopher J. McElwee

Monday McElwee Albright

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Collins Asset Group, LLC,

Appellant-Plaintiff,

v.

Alkhemer Alialy,

Appellee-Defendant.

December 6, 2018

Court of Appeals Case No.

18A-CC-1160

Appeal from the Hamilton 

Superior Court

The Honorable Steven R. Nation, 

Judge

The Honorable Darren J. Murphy, 

Magistrate

Trial Court Cause No.

29D01-1704-CC-3957

Riley, Judge.
Court of Appeals of Indiana | Opinion 18A-CC-1160 | December 6, 2018 Page 2 of 8

STATEMENT OF THE CASE

[1] Appellant-Plaintiff, Collins Asset Group, LLC (CAG), appeals the trial court’s 

dismissal of its foreclosure action against Appellee-Defendant, Alkhemer Alialy 

(Alialy). 

[2] We affirm.

ISSUE

[3] CAG presents us with one issue on appeal, which we restate as: Whether the 

trial court erred when it granted Alialy’s motion to dismiss, and concluded that 

CAG’s action was barred by the six-year statute of limitation pursuant to 

Indiana Code section 34-11-2-9. 

FACTS AND PROCEDURAL HISTORY

[4] On June 29, 2007, Alialy entered into a promissory note with GMAC Mortgage 

LLC (GMAC), whereby Alialy promised to pay GMAC the amount of 

$60,000, plus interest at the rate of 12% per annum, in monthly payments of 

$631.93 beginning on September 1, 2007, and continuing through August 1, 

2032. At the same time Alialy entered into a promissory note, Alialy also 

entered into a mortgage with Mortgage Electronic Registration Systems, Inc. 

(MERS), as the nominee of GMAC. The mortgage was incorporated into the 

note as security for the loan. Pursuant to the terms of the mortgage, a junior 

lien was placed on the property of Alialy. 
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[5] On June 9, 2008, Wells Fargo Bank, N.A. (Wells Fargo), as priority lien holder 

on the property, filed a foreclosure action on the mortgage against Alialy. On 

July 28, 2008, the Hancock Superior Court entered a default judgment against 

Alialy and a decree of foreclosure. Alialy made no further payments toward the 

GMAC note after July 28, 2008. 

[6] On June 17, 2016, Alialy was informed that the note had been transferred to 

CAG on December 31, 2014, and that he should begin making payments to 

CAG on the outstanding balance due on the loan starting September 1, 2016. 

Alialy did not make the payment, and on October 24, 2016, CAG sent its notice 

of acceleration to Alialy whereby it accelerated payments due from September 

1, 2016, to the maturity date of the loan. On April 26, 2017, CAG filed its 

Complaint upon the note. On June 23, 2017, Alialy filed his motion to dismiss 

the Complaint, contending that CAG’s claim was barred by the six-year statute 

of limitations, pursuant to Ind. Code § 34-11-2-9. On July 19, 2017, CAG filed 

its motion in opposition, claiming that the Complaint was not barred as the 

statute of limitations only began to run at the moment CAG accelerated the 

payment on the note. On April 16, 2018, after a hearing, the trial court 

summarily dismissed CAG’s Complaint for failure to state a claim upon which 

relief can be granted. 

[7] CAG now appeals. Additional facts will be provided as necessary.
Court of Appeals of Indiana | Opinion 18A-CC-1160 | December 6, 2018 Page 4 of 8

DISCUSSION AND DECISION

[8] CAG contends that the trial court erred in dismissing its Complaint against 

Alialy pursuant to T.R. 12(B)(6). The standard of review on appeal from a trial 

court’s grant of a motion to dismiss for failure to state a claim is de novo and 

requires no deference to the trial court’s decision. Arflack v. Town of Chandler, 27 

N.E.3d 297, 302 (Ind. Ct. App. 2015). The grant or denial of a motion to 

dismiss turns on the legal sufficiency of the claim and does not require 

determinations of fact. Id. Therefore, a motion to dismiss under Rule 12(B)(6) 

tests the legal sufficiency of a complaint: that is, whether the allegations in the 

complaint establish any set of circumstances under which a plaintiff would be 

entitled to relief. Id. Thus, while we do not test the sufficiency of the facts 

alleged with regard to their adequacy to provide recovery, we do test their 

sufficiency with regards to whether or not they have stated some factual 

scenario in which a legally actionable injury has occurred. Id. In determining 

whether any facts will support the claim, we look only to the complaint and 

may not resort to any other evidence in the record. Id.

[9] Here, the trial court dismissed CAG’s Complaint without a detailed written 

opinion as to its reasons for dismissal. When a court grants a motion to dismiss 

without reciting the grounds relied upon, it must be presumed on review that 

the court granted the motion to dismiss on all the grounds in the motion. Id. 

However, the proceedings during the hearing on the motion to dismiss clarify 

that the trial court not only relied on the allegations of the Complaint but also 
Court of Appeals of Indiana | Opinion 18A-CC-1160 | December 6, 2018 Page 5 of 8

considered the parties’ memoranda and an affidavit submitted by Alialy 

together with his motion. Accordingly,

If, on a motion, asserting the defense number (6), to dismiss for 

failure of the pleading to state a claim upon which relief can be 

granted, matters outside the pleading are presented to and not 

excluded by the court, the motion shall be treated as one for 

summary judgment and disposed of as provided in Rule 56. In 

such case, all parties shall be given reasonable opportunity to 

present all material made pertinent to such a motion by Rule 56.

T.R. 12(B). A trial court’s failure to give explicit notice of its intended 

conversion of a motion to dismiss to one for summary judgment is reversible 

error only if a reasonable opportunity to respond is not afforded a party and the 

party is thereby prejudiced. Doe v. Adams, 53 N.E.3d 483, 492 (Ind. Ct. App. 

2016), trans. denied. Because CAG filed its own motion in opposition in

response to Alialy’s motion to dismiss and Alialy’s reliance on documents 

outside the pleading was “readily apparent and unmistakable,” no reversible 

error occurred. See id. at 493. Accordingly, as Alialy’s motion to dismiss must 

be treated as one for summary judgment, we must determine whether there is a 

genuine issue as to any material fact and whether the moving party is entitled to 

judgment as a matter of law. Id. at 494.

[10] Relying on I.C. § 34-11-2-9, Alialy maintains that CAG’s cause of action 

accrued, and the statute of limitations began to run, on the date of the last 

payment, i.e., July 28, 2008. Thus, Alialy asserts, CAG’s Complaint, which 

was filed April 26, 2017, was not timely under the six-year statute of limitations 
Court of Appeals of Indiana | Opinion 18A-CC-1160 | December 6, 2018 Page 6 of 8

applicable to promissory notes. Indiana Code section 34-11-2-9 provides, in 

pertinent part, that “[a]n action upon promissory notes, bills of exchange, or 

other written contracts for the payment of money executed after August 31, 

1982, must be commenced within six (6) years after the cause of action 

accrues.” 

[11] Statutes of limitation seek to provide security against stale claims, which in turn 

promotes judicial efficiency and advances the peace and welfare of society. 

Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1279 (Ind. 2009). The 

determination of when a cause of action accrues is generally a question of law. 

Imbody v. Fifth Third Bank, 12 N.E.3d 943, 945 (Ind. Ct. App. 2014). Under 

Indiana’s discovery rule, a cause of action accrues, and the limitation period 

begins to run, when a claimant knows or in the exercise of ordinary diligence 

should have known of the injury. Cooper Indus., LLC, 899 N.E.2d at 1280. As 

such, “an action to recover a debt must be commenced within six years of the 

last payment.” Holt v. LVNV Funding, LLC, 147 F. Supp. 3d 756, 760 (S.D. Ind. 

2015) (applying Indiana law and referencing I.C. § 34-11-29). Therefore, as 

Alialy ceased payment on the note on July 28, 2008, any cause of action filed 

after July 28, 2014 would be barred by the statute of limitations. 

[12] However, where, as here, the installment contract contains an optional 

acceleration clause, by which the creditor may declare all installments of the 

loan due and payable after default, the statute of limitations to collect the debt 

does not begin to run immediately upon the debtor’s default. Smither v. Asset 

Acceptance, LLC, 919 N.E.2d 1153, 1160 (Ind. Ct. App. 2010). Instead, the 
Court of Appeals of Indiana | Opinion 18A-CC-1160 | December 6, 2018 Page 7 of 8

statute generally begins to run only when the creditor exercises the optional 

acceleration clause. Id. Nevertheless, the Smither court cautioned that, 

“Waiting until after the statute of limitations has passed following default 

before making demand for full and immediate payment of a debt is per se an 

unreasonable amount of time to invoke an optional acceleration clause and 

cannot be given effect.” Id. at 1161-62. The court also noted, “‘a party is not at 

liberty to stave off operation of the statute [of limitations] inordinately by failing 

to make demand.’” Id. at 1161 (quoting Curry v. United States, 679 F.Supp. 966, 

970 (N.D. Cal. 1987)).

[13] In the case at bar, CAG waited to accelerate the note until October 24, 2016, 

and did not filed its Complaint until April 26, 2017. Accordingly, CAG’s 

acceleration option was exercised a full two years after CAG’s cause of action 

was barred by the statute of limitation. As CAG’s attempt to exercise the 

acceleration clause did not prevent the six-year statute of limitation from taking 

effect and expiring, CAG’s acceleration clause cannot be given effect and its 

Complaint is barred.1

 

 

1 In an effort to circumvent the application of I.C. § 34-11-2-9, CAG asserts that I.C. § 26-1-3.1-118 governs 

the case at bar. However, as CAG failed to raise this issue before the trial court, it waived the argument for 

our review. See VanWinkle v. Nash, 761 N.E.2d 856, 859 (Ind. Ct. App. 2002) (Failure to raise an issue before 

the trial court will result in waiver of that issue).
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CONCLUSION

[14] Based on the foregoing, we hold that the trial court properly dismissed CAG’s 

cause of action.

[15] Affirmed.

[16] Vaidik, C. J. and Kirsch, J. concur