Court of Appeals of Indiana | Opinion 18A-CC-1087 | April 17, 2019 Page 1 of 14

ATTORNEY FOR APPELLANT

Charlie W. Gordon

Lloyd & McDaniel, PLC

Louisville, Kentucky

I N T H E

COURT OF APPEALS OF INDIANA

Bank of America, N.A.,

Appellant-Plaintiff,

v.

Kimberly A. Congress-Jones,

Appellee-Defendant.

April 17, 2019

Court of Appeals Case No.

18A-CC-1087

Appeal from the Lake Superior 

Court

The Honorable Calvin D. 

Hawkins, Judge

Trial Court Cause No.

45D02-1704-CC-212

Darden, Senior Judge.

Statement of the Case

[1] Bank of America, N.A. (“Bank”), appeals the trial court’s grant of Kimberly 

Congress-Jones’ (“Jones”) motion to dismiss for failure to prosecute and the 

trial court’s denial of the Bank’s motion to set aside the dismissal order. We 

affirm.
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Issues

[2] The Bank raises five issues, which we consolidate and restate as:

I. Whether the trial court erred in granting Jones’s motion to 

dismiss for failure to prosecute.

II. Whether the trial court erred in denying the Bank’s motion 

to set aside the dismissal.

Facts and Procedural History

[3] This case began on April 17, 2017, when the Bank filed a civil complaint 

against Jones, via, its attorney, Gerald E. Bowman of the law firm of Blatt, 

Hasenmiller, Leibsker, & Moore, LLC (“Blatt Hasenmiller”) in Merrillville, 

Lake County, Indiana. The Bank alleged Jones owed it $19,354.54 in unpaid 

credit card debt. Jones hired an attorney, and on May 10, 2017, Jones, by 

counsel, filed an appearance and an answer to the Bank’s complaint. The Bank 

has failed to provide us with a copy of the answer. The Bank took no further 

action in the court in 2017 to move the case forward to a resolution.

[4] However, on September 22, 2017, Jones served discovery requests, including 

requests for admissions, a request for production of documents, and 

interrogatories, upon the Bank. On September 28, 2017, the Bank, by an 

attorney named Thomas A. Burris of Blatt Hasenmiller, sent a letter to Jones’ 

attorney. Burris has never entered an appearance in this case, nor had he taken 

any action heretofore. In the letter, the Bank acknowledged having received the 
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discovery requests, but Burris asserted the Bank was “not obligated to respond 

due to improper service.” Appellant’s App. Vol. 2, p. 21.

[5] Apparently, Jones disputed the Bank’s letter in response, and on November 5, 

2017, asserted her requests for admissions had been deemed admitted due to the 

Bank’s failure to timely respond. Nevertheless, Jones stated she would email

copies of her discovery requests to the Bank again and requested the Bank’s 

responses on or before November 13, 2017. She asserted she would move for 

sanctions if the Bank did not provide a timely response.

[6] The law firm of Lloyd & McDaniel, PLC, which presently represents the Bank 

in this matter, later represented to the trial court that Blatt Hasenmiller ceased 

to operate at some point “in the later [sic] half of 2017.” Id. at 12. However, 

there is no evidence in the record before this Court to support this assertion, nor 

is there evidence that attorney Gerald Bowman or another attorney from Blatt 

Hasenmiller moved the trial court to withdraw from the case or notified Jones 

of its non-representation or that it was dissolving. Apparently, sometime in 

December of 2017, the Bank hired Lloyd & McDaniel to represent it in some 

capacity. However, no attorney from Lloyd & McDaniel filed an appearance 

with the trial court in this case indicating said representation.

[7] On or about December 21, 2017, it appears that someone from Lloyd & 

McDaniel sent an unsigned form letter to Jones’ attorney. The letter did not 

purport to be from any specific person or attorney and did not reference the 

instant pending lawsuit. Rather, the letter stated the following:
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We believe you are representing Kimberly A. Congress-Jones in 

regards to the debt owed to Bank of America. If we are mistaken 

in this regard, and you are not acting as an attorney for Kimberly 

A. Congress-Jones, please advise us of that immediately. If we 

do not hear from you within 30 days, we will assume that you do 

not represent Kimberly A. Congress-Jones.

Bank of America referred your client’s account to this firm for 

collection. We have taken over this file from Blatt, Hasenmiller, 

Leibsker & Moore LLC, who previously handled this account on 

behalf of Bank of America. If your client made payment 

arrangements with the prior servicer, please contact our office at 

your earliest convenience to discuss this matter. All future 

payments should be made to our office. As of the date of this 

letter, the amount of the debt your client owes on his/her 

account is $19,354.54. Payment may be made by check, payable 

to Lloyd & McDaniel and directed to use at [mailing address]. If 

your client chooses to do so, your client may make a payment 

online by visiting our website at [web address] at his/her 

convenience. Please contact our office should you wish to 

discuss payment arrangements on your client’s account. You can 

reach us on our toll-free number of [telephone number]. When 

contacting our office by phone or letter, please refer to our file 

number [number].

Unless you, or your client, within thirty (30) days after receipt of 

this notice, dispute the validity of this debt, or any portion 

thereof, we will assume this debt is valid. If you or your client 

notifies us in writing within the thirty-day period that the debt, or 

any portion thereof, is disputed, we will obtain verification of the 

debt or a copy of the judgment against your client and a copy of 

such verification or judgment will be mailed to you by us. Upon 

your or your client’s written request within the same thirty-day 

period, we will provide you with the name and address of the 

original creditor, if different from the current creditor.
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This communication is from a debt collector. This is an attempt 

to collect a debt and any information obtained will be used for 

that purpose.

Yours truly,

LLOYD & McDANIEL, PLC

Id. at 20. Sometime later in 2018, the Bank informed the trial court that the 

form letter was “an initial demand letter” to Jones. Id. at 12.

[8] In the meanwhile, on December 29, 2017, Jones filed a “Motion to Dismiss for 

Failure to Prosecute and as Discovery Sanction and to Compel Responses.” Id.

at 22. Among other relief sought, Jones asked the trial court to dismiss the 

Bank’s complaint. She served the motion upon attorney Bowman of Blatt 

Hasemiller, having not received official notification that the firm had dissolved 

or was no longer in operation. Jones did not send a copy of the motion to the 

law firm of Lloyd & McDaniel.

[9] On January 3, 2018, the trial court issued an order scheduling a hearing for 

February 16, 2018. The trial court stated in the order, “Should Plaintiff fail to 

show sufficient cause why this matter should not be dismissed, this action will 

be dismissed with prejudice.” Id. at 10. The court order was sent to Jones and 

to the Bank, via attorney Gerald Bowman of Blatt Hasemiller.

[10] On February 16, 2018, Jones appeared for the hearing, but the Bank did not. 

The Bank has not supplied this Court with a transcript of the hearing that took 
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place on February 16, 2018. At the conclusion of the hearing, the trial court 

issued an order stating the following: “The Court, being duly advised in the 

premises, now finds and orders that Defendant, KIMBERLY A. CONGRESSJONES’, Motion to Dismiss is hereby granted. This cause is ordered dismissed 

with prejudice.” Id. at 8.

[11] On February 20, 2018, attorney Katie Carbone of Lloyd & McDaniel filed an 

appearance and notice of substitution of counsel on behalf of the Bank. On 

March 2, 2018, the Bank filed a “motion to set aside order of dismissal and/or 

motion for clarification and/or withdrawal of admissions and extension of time 

and new hearing date.” Id. at 12. On March 12, 2018, Jones filed a response in 

opposition to the Bank’s motion. The Bank has not included Jones’s response 

in the record to this Court.

[12] The trial court scheduled a hearing for April 20, 2018. On March 28, 2018, the 

Bank, via attorneys, from Lloyd & McDaniel, provided late responses to Jones’ 

requests for admissions. The Bank filed with the trial court its notice of

response to Jones’ requests for admissions on April 2, 2018.

[13] On April 19, 2018, Jones’ attorney, Duran Keller, filed a motion to withdraw 

from the case. On April 20, 2018, Jones appeared pro se for the hearing as 

scheduled. The Bank has not supplied this Court with a transcript of the record 

of the hearing. At the time of the scheduled hearing, the trial court had not 

acted on attorney Keller’s motion to withdraw.
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[14] At the conclusion of the hearing, on April 20, 2018, the trial court issued an 

order stating the following: “The Court, being duly advised, now finds and 

orders that Plaintiff, BANK OF AMERICA, N.A.’s, Motion to Set Aside 

Order of Dismissal is hereby denied. The Court’s Order of February 16, 2018, 

remains in full force and effect with prejudice.” Id. at 9. This appeal followed.

Discussion and Decision

I. Rule 41 and Standard of Review

[15] Dismissals for failure to prosecute, and reinstatements after dismissal, are

governed by Indiana Trial Rule 41, which provides, in relevant part:

(E) Failure to Prosecute Civil Actions or Comply with Rules. 

Whenever there has been a failure to comply with these rules or 

when no action has been taken in a civil case for a period of sixty 

[60] days, the court, on motion of a party or on its own motion 

shall order a hearing for the purpose of dismissing such case. 

The court shall enter an order of dismissal at plaintiff’s costs if 

the plaintiff shall not show sufficient cause at or before such 

hearing. Dismissal may be withheld or reinstatement of 

dismissal may be made subject to the condition that the plaintiff 

comply with these rules and diligently prosecute the action and 

upon such terms that the court in its discretion determines to be 

necessary to assure such diligent prosecution.

(F) Reinstatement Following Dismissal. For good cause shown 

and within a reasonable time the court may set aside a dismissal 

without prejudice. A dismissal with prejudice may be set aside 

by the court for the grounds and in accordance with the 

provisions of Rule 60(B).

[16] As a panel of this Court has explained:
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The purpose of Rule 41(E) is to ensure that plaintiffs will 

diligently pursue their claims. The rule provides an enforcement 

mechanism whereby a defendant, or the court, can force a 

recalcitrant plaintiff to push his case to resolution. The plaintiff 

bears the burden of moving the litigation and the trial court has 

no duty to urge or require counsel to go to trial, even where it 

would be within the court’s power to do so. Courts cannot be 

asked to carry cases on their dockets indefinitely and the rights of 

the adverse party should also be considered. He should not be 

left with a lawsuit hanging over his head indefinitely.

Lee v. Pugh, 811 N.E.2d 881, 885 (Ind. Ct. App. 2004) (quotations and citations 

omitted).

[17] The trial court did not issue findings of fact or conclusions thereon in the course 

of dismissing the case or denying the Bank’s motion to set aside the dismissal. 

In general, we will reverse a Trial Rule 41(E) dismissal for failure to prosecute 

only in the event of a clear abuse of discretion, which occurs if the decision of 

the trial court is against the logic and effect of the facts and circumstances 

before it. Belcaster v. Miller, 785 N.E.2d 1164, 1167 (Ind. Ct. App. 2003), trans. 

denied. Similarly, a trial court’s ruling on a motion to reinstate an involuntary 

dismissal is generally reviewed for an abuse of discretion. Cloyd v. Pasternak, 

791 N.E.2d 757, 758 (Ind. Ct. App. 2003). The judgment below is presumed to 

be valid, and an appellant bears the burden of proving otherwise. Johnson v. 

Citizen’s State Bank, 57 Ind. App. 348, 352, 107 N.E. 35, 37 (Ind. Ct. App. 

1914). Consequently, the judgment will be affirmed if there is any evidence to 

support the trial court’s decision. Benton v. Moore, 622 N.E.2d 1002, 1005 (Ind. 
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Ct. App. 1993). Further, it is an appellant’s duty to provide an adequate record 

for review. Page v. Page, 849 N.E.2d 769, 771 (Ind. Ct. App. 2006).

[18] In this case, Jones did not file an appellee’s brief. When appellees do not 

submit an answer brief, we need not undertake the burden of developing an 

argument on their behalf. Howard v. Daugherty, 915 N.E.2d 998, 999 (Ind. Ct. 

App. 2009). Rather, we will reverse if the appellant’s brief presents a case of

prima facie error. Id. Prima facie error in this context is error at first sight, on 

first appearance, or on the face of it. Id. at 1000 (quotation omitted). 

Therefore, if an appellant does not meet this burden, we will affirm. Id.

II. Dismissal for Failure to Prosecute

[19] Courts of review generally balance several factors when determining whether a 

trial court erred in dismissing a case for failure to prosecute. Belcaster, 785 

N.E.2d at 1167. These factors include: (1) the length of the delay; (2) the 

reason for the delay; (3) the degree of personal responsibility on the part of the 

plaintiff; (4) the degree to which the plaintiff will be charged for the acts of the

attorney; (5) the amount of prejudice to the defendant caused by the delay; (6) 

the presence or absence of a lengthy history of having deliberately proceeded in 

a dilatory fashion; (7) the existence and effectiveness of sanctions less drastic 

than dismissal which fulfill the purposes of the rules and the desire to avoid 

court congestion; (8) the desirability of deciding the case on the merits; and (9) 

the extent to which the plaintiff has been stirred into action by a threat of 

dismissal as opposed to diligence on the plaintiff’s part. Id.
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[20] The weight any particular factor has in a case depends upon the facts of that 

case. Id. Dismissals are generally viewed with disfavor and are considered 

extreme remedies that should be granted only under limited circumstances, but 

the court need not impose a sanction less severe than dismissal where the record 

of dilatory conduct is clear. United Bhd. of Carpenters and Joiners of Am., Local 

Union No. 2371 v. Merch. Equip. Grp., 963 N.E.2d 602, 607 (Ind. Ct. App. 2012).

[21] In this case, the Bank filed suit on April 17, 2017, and filed nothing else on the 

docket until after the trial court issued its dismissal order on February 16, 2018, 

a lengthy delay of ten months. Further, there is no evidence the Bank took any 

informal steps to move the case forward. The Bank, through Blatt Hasenmiller 

attorney Thomas A. Burris, sent Jones a letter on September 28, 2017 stating 

the Bank intended to ignore or not comply with Jones’ discovery requests due 

to alleged defects in service. It appears the Bank did not issue any discovery 

requests to Jones.

[22] Turning to the reason for the delay, it is unclear why attorney Gerald Bowman 

of the law firm Blatt Hasenmiller, located in Merrillville, Lake County, Indiana,

took no action on the case for ten months. That law firm may have dissolved at 

some point in late 2017 but there is insufficient evidence in the record to 

support it, as noted. At some point, the Bank hired Lloyd & McDaniel to 

represent it in some capacity, but there is insufficient evidence in the record to 

demonstrate: (1) when, if ever, Blatt Hasenmiller dissolved and/or withdrew 

representation of the Bank in this case; (2) when and how Blatt Hasenmiller 

informed the Bank and Jones of its nonrepresentation in the case; and (3) when 
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the Bank hired Lloyd & McDaniel to represent it in the instant pending lawsuit; 

and (4) why an attorney from Lloyd & McDaniel delayed entering an 

appearance in this pending lawsuit until February of 2018. None of the delay

can be attributed to Jones or reflected on her.

[23] The Bank argues the December 21, 2017 letter from Lloyd & McDaniel to 

Jones’ attorney was proof “that Lloyd was now representing [the Bank] and 

intend[ed] to proceed.” Appellant’s Br. p. 6. We disagree. The December 21, 

2017 unsigned form letter did not reference the pending lawsuit at all, much less 

express a willingness to move forward with it. Instead, the letter merely 

discussed Jones’ debt in general terms and indicated the Bank might seek a 

judgment against her if payment was not forthcoming. The Bank later 

characterized the letter as “an initial demand letter.” Appellant’s App. Vol. 2, 

p. 12. In addition, the Bank did not follow up the form letter with any other 

action, such as making personal contact with Jones’ counsel or having one of its 

attorneys file an appearance in this matter with the trial court. It is 

inconceivable that another law firm assuming representation for the Bank 

would wait several months before entering an appearance in this pending 

lawsuit.

[24] Further, it is unclear how much of the responsibility for the delay rests directly 

with the Bank and the degree to which the Bank will be charged for the acts of

its attorneys. We do not know from the record when the Bank learned that 

Blatt Hasenmiller may have dissolved and how much time elapsed before the 

Bank hired Lloyd & McDaniel as replacement counsel. The record also fails to 
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explain what the Bank told Lloyd & McDaniel about the status of the instant 

pending lawsuit and what steps needed to be taken.

[25] The amount of prejudice to Jones appears to be high. In comparison to the 

Bank, Jones appears to be unable to afford to hire another attorney to defend

her in this lengthy lawsuit. Her initial attorney had already sought to withdraw 

during trial court proceedings, and Jones was forced to appear pro se for the 

hearing on the Bank’s motion to set aside the dismissal.

[26] In addition, the ten-month delay provides evidence that the Bank has a lengthy 

history of having deliberately proceeded in a dilatory fashion. Now, the Bank 

asserts that, with its current attorneys, it is willing to move forward with the 

case and that it would be desirable to proceed with the case on the merits. 

Nevertheless, the Bank was simply not diligent in this action beforehand and 

was stirred into action only after the case was dismissed with prejudice. 

Apparently, the trial court believed that the damage had already been done to 

Jones by the time the trial court dismissed the Bank’s complaint.

[27] The Bank argues that Jones acted unfairly by not serving her motion to dismiss 

on Lloyd & McDaniel. We cannot agree. Although Jones was aware that 

Lloyd & McDaniel was involved in collecting a debt, no one from that firm had 

entered an appearance in the case or followed up with discussion of the instant 

case after having had more than sufficient time to do so. Further, no one from 

the Bank’s prior firm, Blatt Hasenmiller, had directly informed Jones or the trial 

court that it had ceased representing the Bank, and neither attorney Gerald 
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Bowman nor anyone else from the firm had filed a motion to withdraw from 

the case.

[28] Weighing the factors set forth in Belcaster, we conclude that the trial court did 

not abuse its discretion, and it had ample reason to grant Jones’ motion to 

dismiss for failure to prosecute. The Bank has failed to demonstrate prima facie 

error.

III. Motion to Set Aside Dismissal

[29] The Bank claims the trial court should have set aside the dismissal. “A 

dismissal with prejudice may be set aside by the court for the grounds and in 

accordance with the provisions of Rule 60(B).” Ind. Trial Rule 41(F). A 

motion made under Trial Rule 60(B) is addressed to the equitable discretion of 

the trial court, circumscribed by the eight categories listed in Rule 60(B). Lee, 

811 N.E.2d at 887.

[30] The Bank does not specify which category of Trial Rule 60(B) supports its claim 

to set aside the dismissal order. Instead, the Bank argues Jones’ requests for 

admissions and other discovery requests were unrelated to the facts of the case 

and served as an improper “gotcha device.” Appellant’s Br. p. 11. Specifically, 

the Bank argues this is an action on an “account stated,” Appellant’s Br. p. 11, 

and that Jones’ requests for admissions were instead directed to a breach of 

contract action. The Bank further claims, citing Auffenberg v. Bd. of Trustees of 

Columbus Reg’l Hosp., 646 N.E.2d 328 (Ind. Ct. App. 1995), that Jones did not 
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object to the unpaid balance prior to the suit being filed, which gives rise to an 

inference that the account balance is correct.

[31] The Bank’s argument is based upon facts not contained in the record. We do 

not know if Jones objected to the Bank’s demands for payment prior to filing 

suit. Further, because the Bank has not included Jones’ answer in the record, 

we do not know whether Jones denied or disputed the account balance after the 

suit was filed. Based on this incomplete record, it cannot be determined 

whether Jones’ discovery requests were improper.

[32] In addition, the Bank cites to no rule demonstrating that Jones was barred from 

serving her discovery requests upon the Bank, and its attorneys had ample 

opportunity to object to the timing or nature of the requests when they were 

served. The Bank also could have requested an extension of time to respond 

while it switched law firms. In any event, the Bank’s choice to ignore Jones’ 

discovery requests was merely one factor in the Bank’s inactivity in this case. 

The Bank has failed to demonstrate prima facie error in the denial of its motion 

to set aside the dismissal order.

Conclusion

[33] For the reasons stated above, we affirm the judgment of the trial court.

[34] Affirmed.

[35] Vaidik, C.J., and Mathias, J., concur.