Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019 Page 1 of 14

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

APPELLANTS PRO SE

Michael Francis

Carmen Jay Francis

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

David J. Jurkiewicz

Christina M. Bruno

Bose McKinney & Evans LLP

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Michael Francis and Carmen Jay 

Francis,

Appellants-Defendants,

v.

EMC Mortgage, LLC,

Appellee-Plaintiff.

March 15, 2019

Court of Appeals Case No.

18A-MF-1493

Appeal from the Marion Superior 

Court

The Honorable Timothy W. Oakes, 

Judge 

Trial Court Cause No.

49D02-0706-MF-23133

Sharpnack, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-MF-1493 | March 15, 2019 Page 2 of 14

Statement of the Case

[1] Michael and Carmen Francis (collectively the Francises) appeal the trial court’s 

denial of their motion to correct error. We affirm.

Issue

[2] The Francises present three issues for our review, which we restate as one: 

whether the trial court erred by denying the Francises’ motion to correct error.

Facts and Procedural History

[3] In 1994, the Francises executed a promissory note and a mortgage on their 

home. When the note matured in 2001, the Francises failed to satisfy the 

outstanding balance. In 2007, EMC Mortgage, LLC (EMC) filed suit to 

foreclose on the mortgage. The trial court entered a foreclosure judgment in 

February 2016, which the Francises appealed. This Court affirmed the trial 

court’s judgment in a memorandum decision in April 2017, and our Supreme 

Court later denied transfer. See Francis v. EMC Mortg., LLC, No. 49A02-1604-

MF-830 (Ind. Ct. App. Apr. 19, 2017), trans. denied.

[4] In addition, 

[t]he Francises filed bankruptcy proceedings and initiated an 

adversary proceeding in the United States Bankruptcy Court for 

the Southern District of Indiana seeking almost $200,000 in 

damages from EMC Mortgage for an allegedly improper 

foreclosure. The Bankruptcy Court dismissed the adversary 

proceeding for lack of jurisdiction over a state foreclosure action. 

The Francises appealed the decision to the United States District 
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Court for the Southern District of Indiana, and the bankruptcy 

court’s decision was affirmed.

Francis v. Fannie Mae, et al., No. 18A-CT-8, slip op. at 2 (Ind. Ct. App. Nov. 26, 

2018).

[5] In August 2017 in state court, the Francises filed a “Complaint for Lack of 

Standing to Foreclose, Fraud in the Concealment, Fraud in the Inducement, 

Unconscionable Contract, Breach of Contract, Breach of Fiduciary Duty, Quiet 

Title, Slander of Title, Temporary Restraining Order/Injunctive Relief and Jury 

Demand” against EMC and several other defendants. Id. In October, EMC

and other defendants filed a motion to dismiss the complaint on grounds that 

the claims were barred under principles of res judicata. The trial court granted 

the motion to dismiss and ordered that the defendants be dismissed from the 

action with prejudice. The Francises then filed a motion to correct error, which 

was denied. The Francises appealed.

[6] In appealing the dismissal of their complaint and denial of their motion to 

correct error, the Francises argued that EMC could not participate in the action 

because it was “defunct” and not authorized to do business in Indiana. 

Concluding the Francises were barred by res judicata from raising these claims 

because they raised them in their prior appeal of the foreclosure judgment, a 

panel of this Court affirmed the dismissal of the Francises’ complaint. See id.

[7] Meanwhile, in the underlying action in the trial court, defendant PNC Bank 

filed a motion for judgment on the pleadings in December 2017, also 
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contending the Francises’ claims were barred by res judicata. The trial court 

granted PNC’s motion. The Francises filed with the Supreme Court a praecipe 

for withdrawal of the case, which the Court determined was unwarranted. The 

Francises then filed a motion to correct error in the trial court, which the trial 

court denied. The Francises appealed.

[8] In its decision on appeal, a panel of this Court noted that the Francises claimed 

to have uncovered evidence of fraud and multiple forgeries; made numerous 

factual allegations, including a now-defunct title company engineered a 

fraudulent mortgage agreement, the prior owner of the property failed to appear 

at closing and substituted his son to pose as the owner, and the sheriff’s eviction 

notice contained possibly forged signatures; and asserted instances of 

procedural error. Finding that the Francises waived the issues due to their 

failure to comply with the rules of appellate procedure by supporting their 

contentions with cogent reasoning and appropriate citations to the record, the 

Court determined they had not demonstrated the trial court abused its 

discretion in denying their motion to correct error. See Francis v. Accubanc Mortg.

Corp., No. 18A-CT-596 (Ind. Ct. App. Sept. 14, 2018).

[9] In the meantime, in February 2017, Homesales, Inc. had purchased the real 

estate at a sheriff’s sale. In November, the real estate agent for Homesales and

other representatives went to the real estate to evict the Francises, but they 

discovered that the Francises had already vacated the premises. The real estate 

agent installed locks on the doors, and, in early February 2018, he listed the 

home for sale. A few weeks later the agent went to the home and discovered a 
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U-Haul truck in the driveway and the Francises and two other individuals 

unloading items from the truck into the home. Michael admitted that he had 

cut the lock on the door, and he indicated to the agent that he and Carmen were 

moving back into the home. The real estate agent called for police assistance,

and the Francises were directed to leave the premises.

[10] In April 2018, EMC and Homesales filed with the trial court a motion entitled

“Motion to Enforce Writ of Assistance, Motion for Order Barring Michael and 

Carmen Francis from the Real Estate, Motion for Sanctions, and Motion to 

Declare Michael and Carmen Francis Vexatious Litigants.” The trial court 

granted EMC and Homesales’ motion. The Francises then filed a motion 

entitled “Verified Motion to Correct Errors, Objections for Lack of Due Process 

for Order to EMC and Homesales,” which the trial court denied. This appeal 

followed.

Discussion and Decision

[11] The Francises appeal the denial of their motion to correct error. Trial courts

have broad discretion to determine whether they will grant or deny a motion to 

correct error. Luxury Townhomes, LLC v. McKinley Props., Inc., 992 N.E.2d 810, 

815 (Ind. Ct. App. 2013), trans. denied. A trial court abuses this discretion only 

if its decision is clearly against the logic and effect of the facts and 

circumstances before the court or the reasonable inferences to be drawn 

therefrom. Id. On appeal, the trial court’s decision is cloaked in a presumption 

of correctness, and the appellant has the burden of proving that the trial court 
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abused its discretion. Jones v. Jones, 866 N.E.2d 812, 814 (Ind. Ct. App. 2007).

The appellate court neither reweighs the evidence nor judges the credibility of 

witnesses. Id.

[12] Although this is an appeal from the denial of the Francises’ motion to correct 

error, the Francises appear to be raising the following claims: (1) the 

foreclosure action is barred by a “Satisfaction of Mortgage;” (2) EMC cannot be 

a party to this case because it is “defunct” and lacks standing; (3) signatures on 

sheriff’s documents were forged; (4) the trial court erred by not holding a 

hearing on EMC’s motion; (5) the trial court erred by allowing the Homesales 

real estate agent to file an affidavit with EMC’s motion; (6) the trial court erred 

by failing to rule on the Francises’ motion to correct error; and (7) counsel for 

EMC failed to appear in this appeal.

1

Res Judicata

[13] We address the Francises’ first three arguments under the doctrine of res 

judicata. The doctrine of res judicata serves to prevent repetitious litigation of 

disputes that are essentially the same. Hilliard v. Jacobs, 957 N.E.2d 1043, 1046 

(Ind. Ct. App. 2011), trans. denied. The doctrine has two components: claim 

 

1 EMC contends that we should decline to review the Francises’ claims because the Francises have hindered

this Court’s review of the issues, failed to follow the appellate rules, and failed to present a cogent argument. 

It is well established that we will not consider an appellant’s assertions upon which he or she has not 

presented cogent argument supported by authority and references to the record as required by the rules or 

address arguments that are either inappropriate, too poorly developed, or improperly expressed to be 

understood. Lasater v. Lasater, 809 N.E.2d 380, 389 (Ind. Ct. App. 2004). While the Francises’ arguments are 

not skillfully presented, we address what we understand to be their concerns.
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preclusion and issue preclusion. Id. Claim preclusion applies when a final 

judgment on the merits has been rendered in an action, and it acts to bar a 

subsequent action on the same claim between the same parties. Evergreen 

Shipping Agency Corp. v. Djuric Trucking, Inc., 996 N.E.2d 337, 340 (Ind. Ct. App. 

2013). More specifically, claim preclusion applies when the following four 

factors are satisfied: (1) the former judgment must have been rendered by a 

court of competent jurisdiction; (2) the former judgment must have been 

rendered on the merits; (3) the matter now in issue was, or could have been, 

determined in the prior action; and (4) the controversy adjudicated in the 

former action must have been between the parties to the present suit or their 

privies. Id.

1. Satisfaction of Mortgage

[14] The Francises allege they received a Satisfaction of Mortgage which discharges 

and releases them from the mortgage and bars all suits thereon. In support of 

this argument, they include a copy of a document entitled “Satisfaction of 

Mortgage” that names them and their property, acknowledges full payment of 

the mortgage, is signed by a representative of the Federal National Mortgage

Association (“Fannie Mae”) as “mortgagee,” and shows a file stamp from the 

county recorder’s office dated April 25, 2018. Appellants’ App. Vol. III, p. 111.

[15] However, in response to the Francises’ claims, EMC has submitted an affidavit 

from the representative at Fannie Mae who caused the Satisfaction of Mortgage 
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to be signed and sent to the Francises. In the affidavit, the representative sets 

forth events that occurred in March and April of 2018.

[16] We pause here to note the relevant timeline. The foreclosure judgment was 

issued by the trial court in February 2016 and states that EMC at that time was 

the holder of the note and the mortgage on the Francises’ property and was the 

party entitled to enforce those documents. Appellee’s App. Vol. II, p. 5. The 

order further states that EMC’s mortgage was at the time a valid lien on the 

property and ordered that the lien of the mortgage be foreclosed as first and 

prior lien. Id. at 7. That judgment was affirmed on appeal by this Court in 

April 2017.

[17] A year later, in March and April of 2018, the Fannie Mae representative began 

receiving emails from Michael Francis. Id. at 176. Attached to one of the 

emails was a document entitled Satisfaction of Mortgage, which the Francises 

requested Fannie Mae to execute. Id. at 177. Incorrectly understanding the 

document to disclaim any interest of Fannie Mae in the loan related to the 

Francises’ property, the representative caused the document to be executed. Id. 

The affiant representative sets forth that he did not realize: (1) the Satisfaction 

of Mortgage erroneously identified Fannie Mae as the present owner of the 

mortgage, and (2) the Satisfaction of Mortgage erroneously indicated that 

Fannie Mae acknowledged full payment and satisfaction of the mortgage. Id. 

Fannie Mae was neither the owner of the mortgage nor had it received full 

payment and satisfaction of the mortgage because the loan had been purchased 

from Fannie Mae by a different loan servicer in 2002. Id. On November 8, 
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2018, the affidavit of the Fannie Mae representative was filed with the county 

recorder referencing both the mortgage and the satisfaction and was entitled 

“Affidavit Regarding Erroneous Satisfaction of Mortgage.” Id. at 175.

[18] Not only is this a baseless claim, but also it is the Francises’ attempt to 

circumvent and relitigate the foreclosure proceeding, which has been fully 

litigated to a final determination. The judgment of foreclosure was rendered on 

the merits by the Marion County Superior Court, a court of competent 

jurisdiction, and that controversy involved the same parties. That judgment 

was affirmed on appeal. See Francis, 49A02-1604-MF-830. 

2. Defunct Company/Lacks Standing

[19] In addition, the Francises claim that EMC cannot be a party to this action 

because the company is “defunct” and lacks standing. Appellants’ Br. p. 46. 

This claim also relates to the foreclosure judgment. As we stated, that 

judgment was rendered on the merits by a court of competent jurisdiction and 

determined a controversy involving the same parties. Further, the Francises 

have previously raised the claims of defunct business and lack of standing in 

their appeal of the foreclosure judgment, see Francis, No. 49A02-1604-MF-830, 

slip op. at 3, as well as in their appeal of the dismissal of their August 2017 

lawsuit against EMC. See Francis, No. 18A-CT-8, slip op. at 3 (noting Francises 

are attempting to “rehash” same arguments Court addressed in prior appeal and 

applying res judicata to bar relitigation). 
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3. Forged Signatures

[20] As best we can discern, it appears the Francises are making broad allegations of 

forged signatures on sheriff’s documents. This claim, just as the two before it, 

relates to the 2016 foreclosure. That controversy involved the same parties, and 

a court of competent jurisdiction rendered a decision on the merits. 

Additionally, the Francises also previously raised this issue as part of their 

newly discovered evidence claim to support their motion to correct error in 

Francis, No. 18A-CT-596 (determining that alleged newly discovered evidence 

did not satisfy due diligence requirement, and trial court did not abuse its 

discretion by denying Francises’ motion to correct error based upon such).

[21] Consequently, claim preclusion bars the Francises from relitigating the 

foreclosure action by raising these arguments.

4. Hearing

[22] Next, the Francises contend the trial court erred by not holding a hearing on 

EMC’s motion requesting they be barred from the property and that sanctions 

and restrictions on their future filings be imposed.

[23] Trial Rule 73 gives courts flexibility to deal with hearings regarding motions. 

Apple v. Hall, 412 N.E.2d 114, 117 (Ind. Ct. App. 1980). Indeed, Trial Rule 73 

allows the trial court to expedite its business by directing the submission and 

determination of motions without oral hearing. Where a trial rule requires the 

court to conduct a hearing before deciding a motion, that rule will trump Trial 

Rule 73, and the court must conduct a hearing; however, where the trial rule is 
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silent about a hearing requirement, Trial Rule 73 permits the trial court to rule 

on a motion without a hearing. Rumfelt v. Himes, 438 N.E.2d 980, 983-84 (Ind. 

1982) (determining that Trial Rule 41(E)’s hearing requirement controls over 

Trial Rule 73).

[24] Here, the trial rules do not indicate that a hearing was required on EMC’s 

motion, and the Francises cite to no authority that entitled them to such a 

hearing. Moreover, EMC’s motion was filed April 9, and the trial court did not 

rule upon the motion until May 2. Although they had plenty of time, the 

Francises failed to file anything in response to EMC’s motion or to request a 

hearing. Most telling is Judge Oakes’ notation on the order granting EMC’s 

motion: “Ct believes a hearing is unnecessary since the matter has been heard, 

appealed, and a[d]judicated fully. Therefore, Court is granting essentially what 

has already previously been granted.” Appellee’s App. Vol. II, p. 35. As Judge 

Oakes acknowledged, the basis of EMC’s motion is essentially the enforcement 

of things already determined, thus making a hearing futile. 

5. Affidavit

[25] The Francises also allege that the trial court erred by allowing the Homesales 

real estate agent to submit an affidavit without being a party in the original 

case.

[26] EMC submitted the affidavit of the Homesales real estate agent in support of its 

motion requesting the Francises be barred from the property and that sanctions 

and restrictions on their future filings be imposed. The affidavit set forth the 
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events witnessed by the agent that caused EMC to file its motion with the trial 

court, namely that the agent had installed locks on the doors of the property

and, in February 2018, had listed the home for sale. A few weeks later he went 

to the home and found the Francises moving items into the home. At that time, 

Michael admitted to the agent that he had cut the lock on the door, and he 

indicated that he and Carmen were moving back in—two years after the 

foreclosure judgment.

[27] A trial court may, in its discretion, accept affidavits supporting a motion. Ind. 

Trial Rule 6(D). “Good practice in all cases requires that where a motion is 

founded upon matters not within the judicial knowledge of the court, there 

should be an affidavit as to the existence of the facts upon which it is based, 

showing their materiality and the necessity for invoking the aid of the court 

with reference thereto.” Terre Haute Gas Corp. v. Johnson, 221 Ind. 499, 507-08, 

45 N.E.2d 484, 487 (1942), judgment modified on reh’g, 221 Ind. 499, 48 N.E.2d 

455 (1943). We are unaware of any requirement that an affiant be a party to the 

case, and the Francises cite to none. There was no error in allowing the filing 

of the agent’s affidavit in support of EMC’s motion.

6. Failure to Rule

[28] The Francises next make the specious argument that the trial court erred by 

failing to rule upon their motion to correct error. First, they know the trial 

court ruled on their motion because they are appealing its denial. Second, the 

motion is stamped “DENIED” with the date of May 29, 2018 and the judge’s 

signature, a copy of which the Francises included in their appendix. See
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Appellants’ App. Vol. II, p. 2. In addition, the CCS notations show the judge 

denied the Francises’ motion to correct error on May 29, 2018 and that notice 

was issued to the parties. See id. at 39.

7. Counsel’s Appearance

[29] Again, the Francises present a baseless argument by alleging that EMC’s 

counsel did not file an appearance in this appeal. In fact, the docket of this 

Court shows that David J. Jurkiewicz and Christina M. Bruno of Bose 

McKinney & Evans, LLP appeared in this action on behalf of EMC Mortgage, 

LLC on October 5, 2018. In addition, the appearance certifies it was served 

upon the Francises on the same date via the e-filing system at the email 

addresses they provided in their Notice of Appeal as well as being sent via firstclass U.S. mail to the address they listed in their Notice of Appeal.

Conclusion

[30] We have defined judicial discretion as “a privilege allowed a judge within the 

confines of justice to decide and act in accordance with what is fair and 

equitable.” Fulton v. Van Slyke, 447 N.E.2d 628, 636 (Ind. Ct. App. 1983). 

Review of an exercise of judicial discretion must be made in light of and 

confined to the facts and circumstances of a particular case, and an abuse of 

discretion occurs only when the result is clearly against the logic and effect of 

the facts and circumstances before the court or the reasonable, probable, and 

actual deductions flowing therefrom. Id. The Francises have not demonstrated 

that the trial court abused its discretion in denying their motion to correct error.
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[31] Affirmed.

Crone, J., and Brown, J., concur.