Court of Appeals of Indiana | Memorandum Decision 17A-PL-3058 | August 30, 2018 Page 1 of 13

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.

APPELLANT PRO SE

Mathis Franklin, Jr.

Lorain, Ohio

ATTORNEYS FOR APPELLEE BAYVIEW 

LOAN SERVICING, LLC

Marcel C. Duhamel

Vorys, Sater, Seymour and Pease LLP

Cleveland, Ohio

John S. (Jay) Mercer

Mercer Belanger, P.C.

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE M&M

MORTGAGE, INC.

Carly A. Brandenburg

Abigail Lambert

Eichhorn & Eichhorn, LLP

Hammond, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Mathis Franklin, Jr.,

Appellant-Plaintiff,

v.

Bayview Loan Servicing, LLC, 

and M&M Mortgage, Inc.,

Appellees-Defendants.

August 30, 2018

Court of Appeals Case No.

17A-PL-3058

Appeal from the Lake Superior

Court

The Honorable John M. Sedia, 

Judge

Trial Court Cause No.

45D01-1505-PL-42
Court of Appeals of Indiana | Memorandum Decision 17A-PL-3058 | August 30, 2018 Page 2 of 13

Bradford, Judge

Case Summary

[1] In 2005, Mathis Franklin, Jr., obtained a loan which was secured by real 

property he owned in Gary (“the Property”). Rights to collect the loan and the 

associated mortgage were eventually assigned to Bayview Loan Servicing, 

LLC. Bayview had a contract with M&M Mortgage, Inc., to inspect property 

and protect collateral. M&M subcontracted its obligations to Bayview to 

Advanced Property Preservation, Inc. In 2012, Franklin failed to make 

required loan payments, resulting in Bayview filing a foreclosure action in 

December of 2013. In February and March of 2014, Advanced entered the 

Property, either securing and winterizing it (according to Bayview and M&M) 

or causing significant damage (according to Franklin). 

[2] In May of 2005, Franklin filed suit against Bayview and eventually M&M, 

making several claims all based on Advanced’s alleged vandalism of the 

Property. Bayview and M&M moved for summary judgment contending, inter 

alia, that unrebutted designated evidence showed that Advanced was an 

independent contractor as to both of them, thereby shielding Bayview and 

M&M from liability. The trial court entered summary judgment in favor of 

Bayview and M&M, an entry that Franklin contends was erroneous. Because 

we disagree, we affirm. 

Facts and Procedural History
Court of Appeals of Indiana | Memorandum Decision 17A-PL-3058 | August 30, 2018 Page 3 of 13

[3] In 1976, Franklin purchased the Property, located at 801 East 49th Avenue in

Gary and obtained a license that allowed him to operate a retail establishment, 

a restaurant, and/or a bar and sell packaged liquor on the site. On August 23, 

2005, Franklin executed an adjustable rate promissory note (“the Note”) in 

favor of InterBay Funding, LLC, secured by a mortgage on the Property (“the 

Mortgage”). On August 28, 2006, InterBay assigned the Mortgage to Bayview, 

which currently has physical possession of the Note. The Mortgage authorizes 

Bayview to enter the Property and take any actions it deems necessary to 

protect its interest in the Property upon an event of default, which includes 

failing to make payments pursuant to the Note. 

[4] Bayview entered into a service agreement dated April 1, 2011 (“the Service 

Agreement”) with M&M, in which M&M agreed to inspect and take actions to 

protect Bayview’s interest in collateral. Franklin defaulted on the Note by 

failing to make the payment due November 1, 2012. On June 17, 2013, M&M 

subcontracted its obligations under the Service Agreement to Advanced

pursuant to a vendor contract (“the Vendor Contract”). Bayview has had no 

contractual relationship with Advanced at any point. 

[5] On December 20, 2013, Bayview filed a foreclosure action against Franklin. 

On February 10, 2014, Advanced retained an independent locksmith and 

entered and inspected the Property. Advanced allegedly performed work to 

winterize and preserve the Property on February 24, February 27, February 28, 

March 3, March 7, March 8, and March 11, 2014. On March 28, 2014, 

Franklin petitioned for Chapter 13 bankruptcy in the United States Bankruptcy 
Court of Appeals of Indiana | Memorandum Decision 17A-PL-3058 | August 30, 2018 Page 4 of 13

Court for the Northern District of Indiana. Advanced did not enter the 

Property after Franklin filed his bankruptcy petition. 

[6] On May 5, 2015, Franklin filed suit against Bayview. On November 6, 2015, 

Franklin filed an amended action adding M&M to the suit, alleging breach of 

contract by Bayview and violation of the Indiana Crime Victims Relief Act, 

negligence, conversion, and trespass to chattel by Bayview and M&M. All 

claims are based on the damage allegedly caused by Advanced when it entered 

the Property in February and March of 2014. On June 5, 2017, and July 27, 

2017, respectively, M&M and Bayview moved for summary judgment. 

[7] Bayview designated an affidavit from its Vice President of Litigation Jo Ann 

Snyder in which she averred, inter alia, that Bayview authorized M&M to 

secure the Property but exerted no control over its work and played no role in 

selecting, training, or supervising any of the persons M&M chose to engage. 

Bayview also designated the Service Agreement, which provides, in part, as 

follows: 

2. Services to Be Performed. The Service Provider shall perform 

the services described in Exhibit A (the “Services”) as an 

independent contractor on an exclusive basis. Unless stated 

explicitly, nothing contained herein shall be deemed to create 

any partnership, joint venture, or relationship of principal and 

agent between the Parties hereto or any of their affiliates or 

subsidiaries, or to provide either Party with any right, power 

or authority, whether express or implied to create any such 

duty or obligation on behalf of the other Party. Such Services 

shall be rendered in a professional manner and shall meet 

acceptable quality measurements, performance levels, and 
Court of Appeals of Indiana | Memorandum Decision 17A-PL-3058 | August 30, 2018 Page 5 of 13

other standards as the Parties may agree to in writing from 

time to time. 

Bayview’s App. Vol. II pp. 81–82. 

[8] M&M designated an affidavit from its Vice President of Operations Armando 

Sanz in which he averred, inter alia, that it hired Advanced as an independent 

contractor to perform property inspections, preservation, and winterization, and 

that M&M did not exert control over Advanced’s methods and played no role 

in selecting, training, supervising, inspecting, or otherwise managing the 

persons Advanced chose to engage for its work. M&M also designated an 

affidavit from Advanced’s co-owner Paul Strout,1in which he averred that 

Advanced was an independent contractor as to M&M and that M&M did not 

exert any control over Advanced’s methods of performing its work. 

[9] Finally, M&M designated the Vendor Contract, which provides, in part, as 

follows: 

1. INDEPENDENT CONTRACTOR. Vendor and M&M

agree that at all times Vendor is operating as an independent 

contractor. Nothing in this Agreement is intended, nor shall 

anything in this Agreement be construed, to create a joint 

venture, partnership, agency, or employment relationship 

between Vendor and M&M. Vendor shall conduct Vendor 

business under Vendor’s own name as an independent 

contractor, and shall not hold Vendor out as an agent, 

partner, or employee of M&M. Vendor shall have no right, 

power, or authority to create any contract or obligation, 

 

1

 Strout also averred that Advanced had closed its doors in October of 2016. 
Court of Appeals of Indiana | Memorandum Decision 17A-PL-3058 | August 30, 2018 Page 6 of 13

whether express or implied, on behalf of, in the name of, or 

binding upon us, our customer[s], their investor[s] and/or its 

agents and/or assigns.

Bayview’s App. Vol. II pp. 92–93. On August 25, 2017, Franklin filed a motion 

in opposition to Bayview’s and M&M’s summary judgment motions. Although 

the record is not entirely clear, Franklin appears to have designated and 

attached to this motion an affidavit sworn by him on August 22, 2017, which 

included the following averments:

21. There is a genuine issue between the parties as to the 

following facts material to this action:

A. The “Vendor Contract and Master Agreement” 

executed between M&M and Advanced fails to show that 

M&M lacked the authority to control the details of 

Advanced’s work as said agreement is clearly redacted.

B. M&M exerted control over Advanced with respect to 

the details of performing this work. 

C. The Gary Property has been continually in business 

and never been vacant or abandoned.

D The electric water and gas utilities to the Gary Property 

have never been shut off.

E. The acts performed by Advanced caused injury to 

others because precautions were not taken.

F. The acts performed by Advanced constituted criminal 

mischief, violation of the automatic stay in my 

bankruptcy, breach of contract, negligence, and trespass to 

chattels.

G. Advanced’s actions were, at least for a time, 

authorized by M&M to preserve properties, related to the 

service for which it was employed in preserving properties, 
Court of Appeals of Indiana | Memorandum Decision 17A-PL-3058 | August 30, 2018 Page 7 of 13

and motivated to an extent by M&M[‘s] interests, and 

Bayview Loan Services’ interests. 

Appellant’s App. Vol. II p. 103. 

[10] On November 29, 2017, the trial court held a hearing on the summary 

judgment motions and granted them the next day in an order that provides, in 

part, as follows: 

Bayview and M&M have filed Motions for Summary Judgment 

against Franklin, arguing that any issues related to the [Property]

were brought about by Advanced, who as an independent 

contractor was solely liable for any trespass, theft or damage. 

....

M&M and Bayview have met the initial burden of demonstrating 

the absence of a genuine issue of material fact as their designated 

materials show that Advanced was, indeed, an independent 

contractor, had broad discretion to control the work it performed, 

and was not trained, selected nor supervised by M&M or 

Bayview. A principal cannot be held liable for the negligence or, 

for that matter, intentional acts of an independent contractor, 

Bagley v. Insight Communications Co., L.P., 658 N.E.2d 584 (Ind. 

1995); Prest-O-Lite Co. v. Skeel, 106 N.E. 365 (Ind. 1914); City of 

Logansport v. Dick, 70 Ond. 65 (Ind[.] 1880); Eagle Machine Co., 

Inc. v. American District Telegraph Co., 140 N.E.2d 756 (Ind. Ct. 

App. 1957). 

Having come forward and demonstrated the absence of a genuine 

issue of material fact that Advanced, as an independent 

contractor, is solely liable for any damages that Franklin may 

have suffered, Franklin must come forward with contrary 

evidence showing an issue for the trier of fact. 

He has come forward with argument as to applicability of the five 

exceptions to the general rule set forth in Bagley, id.: (1) where 

the contract requires the performance of intrinsically dangerous 
Court of Appeals of Indiana | Memorandum Decision 17A-PL-3058 | August 30, 2018 Page 8 of 13

work; (2) where the principal is by law or contract charged with 

performing the specific duty; (3) where the act will create a 

nuisance; (4) where the act to be performed will probably cause 

injury to others unless due precaution is taken; and (5) where the 

act to be performed is illegal, 658 N.E.2d at 586; and speculation 

over whether or not Advanced was merely deemed to be an 

independent contractor by M&M but, in reality, its employees 

were employees of M&M who were subject to M&M’s total 

control, thereby subjecting M&M to liability for their wrongful 

acts. 

However, Franklin offers no designated materials that would 

demonstrate that any of the Bagley exceptions apply or that 

Advanced’s status as an independent contractor was a subterfuge. 

Under the designated materials that have been provided, it is 

uncontroverted that Advanced was an independent contractor 

hired by M&M pursuant to its contract with Bayview to inspect 

and winterize the [Property] during the foreclosure process. This 

was not inherently dangerous work, M&M and Bayview were 

not charged by law or contract with Franklin to perform 

inspection and winterization, no nuisance would be created by 

performing inspection and winterization, the acts of inspection 

and winterization will not probably cause injury to others, and 

inspection and winterization of real estate is certainly not an 

illegal act.

Appellee Bayview’s App. p 2. 

Discussion and Decision

Standard of Review

[11] When reviewing the grant or denial of a summary judgment motion, we apply 

the same standard as the trial court. Merchs. Nat’l Bank v. Simrell’s Sports Bar & 

Grill, Inc., 741 N.E.2d 383, 386 (Ind. Ct. App. 2000). Summary judgment is 
Court of Appeals of Indiana | Memorandum Decision 17A-PL-3058 | August 30, 2018 Page 9 of 13

appropriate only where the evidence shows there is no genuine issue of material 

fact and the moving party is entitled to a judgment as a matter of law. Id.; Ind. 

Trial Rule 56(C). All facts and reasonable inferences drawn from those facts 

are construed in favor of the nonmoving party. Merchs. Nat’l Bank, 741 N.E.2d 

at 386. To prevail on a motion for summary judgment, a party must 

demonstrate that the undisputed material facts negate at least one element of 

the other party’s claim. Id. Once the moving party has met this burden with a 

prima facie showing, the burden shifts to the nonmoving party to establish that a 

genuine issue does in fact exist. Id. The party appealing the summary 

judgment bears the burden of persuading us that the trial court erred. Id. 

[12] Franklin made several claims in the trial court, all of which were ultimately 

based on damage allegedly caused by Advanced when it entered the Property in 

February and March of 2014.2 Both Bayview and M&M contend that they are 

shielded from any possible liability in this case, however, because the 

designated evidence establishes that Advanced was an independent contractor 

with respect to both Appellees. 

The general rule is that one is not liable for the acts or negligence 

of another, unless the relation of master and servants exists 

between them; and that where an injury has been done by a party 

 

2

 Franklin also directly or impliedly alleges other improprieties which are not relevant to this appeal, such as 

an alleged failure to properly serve him in the foreclosure action against the Property and what we can only 

interpret as insinuations of insurance fraud committed by Bayview. We will not address these allegations

directly. Franklin makes other allegations of impropriety, including that Advanced illegally entered the 

Property in violation of a bankruptcy stay and that designated photographic evidence shows the appellees 

destroying the Property. While some of these allegations are, perhaps, marginally related to the claims raised 

in this appeal, there are wholly unsupported by the record and we will not address them further. 
Court of Appeals of Indiana | Memorandum Decision 17A-PL-3058 | August 30, 2018 Page 10 of 13

exercising an independent employment, the person employing 

him will not be liable in damages for injury or death resulting 

from the wrongful acts or omissions of such person, or of the 

servants of such party.

Allison v. Huber, Hunt & Nichols, Inc., 173 Ind. App. 41, 43, 362 N.E.2d 193, 195 

(1977). 

However, five exceptions [to the general rule] have been 

recognized for more than half a century. See, e.g., Bogard v. Mac’s 

Restaurant (1988), Ind. App., 530 N.E.2d 776; Denneau v. Indiana 

& Michigan Elec. Co. (1971), 150 Ind. App. 615, 277 N.E.2d 8; 

Scott Constr. Co. v. Cobb (1928), 86 Ind. App. 699, 703, 159 N.E. 

763. The exceptions are: (1) where the contract requires the 

performance of intrinsically dangerous work; (2) where the 

principal is by law or contract charged with performing the 

specific duty; (3) where the act will create a nuisance; (4) where 

the act to be performed will probably cause injury to others 

unless due precaution is taken; and (5) where the act to be 

performed is illegal. Perry v. Northern Ind. Pub. Serv. Co. (1982), 

Ind. App., 433 N.E.2d 44, 47. 

Bagley, 658 N.E.2d at 586. 

[13] Bayview designated evidence in the form of the Snyder affidavit and the Service 

Agreement that M&M was an independent contractor as to Bayview, and there 

is no dispute that Bayview never had a contractual relationship with Advanced. 

M&M designated the Sanz and Strout affidavits and the Vendor Contract, all of 

which tend to show that Advanced was an independent contractor as to M&M. 

The burden therefore shifted to Franklin to establish that a genuine issue of 

material fact exists as to Advanced’s status as an independent contractor. This 

Franklin has failed to do. 
Court of Appeals of Indiana | Memorandum Decision 17A-PL-3058 | August 30, 2018 Page 11 of 13

[14] The only material designated by Franklin on this point is the conclusory 

statement in his affidavit that there is a genuine issue of material fact regarding 

whether M&M controlled Advanced’s work. This is a contention, however, 

not a fact, and it is well-settled that “[a]n affidavit submitted in support of a 

motion for summary judgment must contain facts that would be admissible in 

evidence.” Thomsen v. Musall, 713 N.E.2d 900, 900 (Ind. Ct. App. 1999) (citing 

Ind. Trial Rule 56(E)), opinion on reh’g, trans. denied. “‘Mere assertions of 

conclusions of law or opinions in an affidavit will not suffice.’” Id. (quoting 

Comfax Corp. v. N. Am. Van Lines, Inc., 638 N.E.2d 476, 481 (Ind. Ct. App.

1994)). Because Franklin’s statement is nothing more than an assertion of a 

legal conclusion, it fails to generate a genuine issue of material fact as to 

Advanced’s status as an independent contractor. See id. (concluding that 

“Thomsen’s personal averments that ‘I complied with the standard of care in 

representing Mr. and Mrs. Musall’ and that ‘I did not cause any harm to Mr. or 

Mrs. Musall’ are mere assertions of conclusions of law or opinions [that] will 

not suffice to support a motion for summary judgment”). 

[15] Franklin also attacks Bayview’s designated evidence, contending that the 

Service Agreement, which was redacted to some extent for designation, does 

not tend to show that M&M was an independent contractor as to Bayview and 

will therefore not support the entry of summary judgment on that basis. First, 

the unredacted provisions of the Service Agreement clearly indicate that M&M 

was an independent contractor, and Franklin can offer only speculation that 

any of the redacted portions provide otherwise. Second, this argument ignores 
Court of Appeals of Indiana | Memorandum Decision 17A-PL-3058 | August 30, 2018 Page 12 of 13

the Snyder affidavit, which clearly provides that M&M was an independent 

contractor over whose work Bayview had no control. Finally, even if Franklin 

is correct that M&M was not independent of Bayview, it would only get him 

halfway to the finish line, as it is Advanced’s alleged vandalism which is at the 

heart of his claims, not M&M’s. 

[16] Finally, Franklin argues that illegal acts allegedly performed by Advanced, 

namely vandalism and the violation of the automatic stay provisions of 

bankruptcy law, qualify for the fifth exception to the general rule that the 

principal is not liable for the acts of an independent contractor. Franklin 

somewhat misapprehends the operation of the exception, however. The 

exception only applies where the principal is attempting to isolate itself from the 

consequences of illegality by engaging an independent contractor to carry out 

the illegal activity on its behalf. Even if we assume, arguendo, that Advanced 

committed illegal acts, there is no designated evidence whatsoever that M&M 

or Bayview told Advanced to engage in any illegality. As the Bagley Court 

stated, “the five exceptions represent specific, limited situations in which the 

associated duties are considered non-delegable because public policy concerns 

militate against permitting an employer to absolve itself of all further 

responsibility by transferring its duties to an independent contractor.” 658 

N.E.2d at 588. Franklin has failed to establish that an exception to general rule 

of nonliability for the acts of an independent contractor applies in this case. 

Because we agree with the trial court that the designated evidence establishes 
Court of Appeals of Indiana | Memorandum Decision 17A-PL-3058 | August 30, 2018 Page 13 of 13

Advanced’s status as an independent contractor, we affirm its entry of summary 

judgment in favor of Bayview and M&M. 

[17] We affirm the judgment of the trial court. 

Vaidik, C.J., and Pyle, J., concur.