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: ATTORNEY FOR APPELLEE:

CHERYL E. WEBB PHILLIP A. NORMAN

G. CAMERON TAYLOR Valparaiso, Indiana

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

CHERYL E. WEBB F/K/A CHERYL E. WILDER )

and G. CAMERON TAYLOR, ) 

)

Appellants-Respondents. )

)

vs. ) No. 49A02-1112-MF-1142

)

THE BANK OF NEW YORK MELLON, )

)

Appellee-Petitioner. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable David J. Dreyer, Judge

Cause No. 49D10-1006-MF-24241

October 29, 2012

MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge 
2

Appellants-respondents Cheryl E. Webb, formerly Cheryl E. Wilder, and G. 

Cameron Taylor (collectively, “the Appellants”) appeal the trial court’s order denying 

their motion for summary judgment and granting summary judgment in favor of appelleepetitioner, The Bank of New York Mellon (Bank of New York). More particularly, the 

Appellants argue that the Bank of New York failed to show that it was the proper holder 

of the promissory note and assignee of the mortgage and that, consequently, foreclosure 

was improper. Finding no reversible error, we affirm and remand with instructions. 

FACTS

On July 28, 1995, Dennis Wilder and Cheryl Webb1executed a promissory note 

promising to pay M/I Financial Corporation (M/I Financial) $161,134. The interest rate 

on this note was 7.5%. This promissory note was secured by a mortgage on real property 

located in Marion County. M/I Financial endorsed the promissory note and mortgage to 

Countrywide Funding Corporation (Countrywide Funding) that same day. Although the 

reason is somewhat unclear, that same day, Cheryl signed an amended and restated note, 

promising to pay Countrywide Home Loans, Inc. (Countrywide Home Loans) 

$170,396.56 plus 7% interest. 

On September 2, 2003, Cheryl and Countrywide Home Loans executed a loan 

modification agreement, modifying the mortgage that she had executed on July 28, 1995. 

Specifically, the September 2 modification stated that Cheryl owed the lender 

 

1 Dennis and Cheryl were married; however, on October 11, 2000, their marriage was dissolved, and 

Cheryl was awarded the marital residence, which is the real property securing the loan at issue.

Appellee’s App. p. 152. At some point, Cheryl married G. Cameron Taylor, the second-named Appellant. 
3

$170,396.56 rather than $161,134 as stated in the original mortgage. On October 1, 

2008, Cheryl defaulted on making payments under the terms of the note and mortgage. 

At some point, Countrywide Home Loans executed a note allonge with a blank 

endorsement on Cheryl’s promissory note. See Black’s Law Dictionary 76 (7th ed. 1999) 

(defining an “allonge” as a paper “attached to a negotiable instrument for the purpose of 

receiving further indorsements when the original is filled”). The note allonge appears to 

refer to the same loan as the amended and restated promissory note.2 However, the note 

allonge stated the loan amount is for $161,134, while the amended and restated 

promissory note stated that the loan is for $170,396.56. The Bank of New York is now 

the holder of the amended and restated note and of the note allonge. On January 13, 

2010, two years after Cheryl defaulted, Countrywide Funding executed an assignment of 

the mortgage, transferring its interest in the mortgage to the Bank of New York. 

On May 26, 2010, the Bank of New York initiated foreclosure proceedings. On 

October 12, 2010, the Bank of New York filed a motion for summary judgment. In 

support of its motion, the Bank of New York designated the complaint, the affidavit of 

debt, and the affidavit of attorney fees. The trial court denied the motion without a 

hearing on December 3, 2010. 

On January 12, 2011, the Bank of New York filed an amended complaint for 

foreclosure. On January 25 and February 18, 2011, the Bank of New York responded to 

the Appellants’ first request for the production of documents. 

 

2 Specifically, the note allonge refers to loan number 4941358 and the amended and restated promissory 

note refers to number 06549413587105B. Appellee’s App. p. 526, 529 (emphasis added). 
4

On April 30, 2011, the Appellants filed a motion for summary judgment. 

Although the Appellants did not designate anything in support of their motion, they made 

reference to the Bank of New York’s response to the first request for the production of 

documents. In their motion, the Appellants argued that the Bank of New York did not 

have a legal interest in the note and mortgage at the time the foreclosure proceedings 

were initiated. 

On August 29, 2011, the Bank of New York served its response to the Appellants’ 

second request for the production of documents. The response stated, in part, that the 

original documents were in the possession of the Bank of New York’s attorney and that 

the Appellants could contact the attorney to schedule a time to inspect them. 

On August 31, 2011, pursuant to Indiana Trial Rule 56(B), the Bank of New York 

filed a cross-motion of summary judgment. In its cross-motion, the Bank of New York 

designated the complaint with amendments, the affidavit of debt, the affidavit in support 

of attorney fees, its response to the Appellants’ counterclaim, the second request for the 

production of documents, and the affidavit of the original note, mortgage, and title 

research which was not filed in the Bank of New York’s first motion for summary 

judgment. 

The trial court heard arguments on both motions on November 4, 2011. On 

November 30, 2011, the trial court granted the Bank of New York’s cross-motion for 

summary judgment and denied the Appellants’ motion for summary judgment. The 

Appellants now appeal. 
5

DISCUSSION AND DECISION

The Appellants argue that the Bank of New York’s cross-motion for summary 

judgment was improper because it failed to prove that the promissory note and mortgage 

had been properly assigned to it. The Appellants argue that for this reason, their motion

for summary judgment should have been granted. 

When reviewing a grant or denial of summary judgment, we apply the same 

standard as the trial court, namely, summary judgment should be granted only if the 

designated evidence demonstrates that there are no genuine issues of material fact and the 

moving party is entitled to judgment as a matter of law. Scribner v. Gibbs, 953 N.E.2d 

475, 479 (Ind. Ct. App. 2011); see also Ind. Trial Rule 56(C). Additionally, we must 

construe all factual inferences in favor of the nonmoving party, and all doubts as to the 

existence of a material issue must be resolved against the moving party. Scribner, 953 

N.E.2d at 479. 

Once the moving party has sustained its initial burden of proving the absence of a 

genuine issue of material fact, the party opposing summary judgment must respond by 

designating specific evidence establishing a genuine issue of material fact. Hays v. 

Harmon, 809 N.E.2d 460, 464 (Ind. Ct. App. 2004). The fact that the parties filed crossmotions for summary judgment does not alter the standard of review on appeal. Deckler 

v. Zengler, 883 N.E.2d 839, 842 (Ind. Ct. App. 2008). 

Indiana has adopted Article 3 of the Uniform Commercial Code (UCC), which 

governs negotiable instruments, and it is well-established that a promissory note secured 
6

by a mortgage is a negotiable instrument. First Valley Bank v. First Sav. & Loan Ass’n 

of Cent. Ind., 412 N.E.2d 1237, 1240-41 (Ind. Ct. App. 1980). Indeed, mortgage notes 

were considered negotiable instruments before the adoption of the UCC. Id.

Indiana Code section 26-1-3.1-301 provides that a negotiable instrument may be 

enforced by “the holder of the instrument.” The term “holder” includes the person in 

possession of a negotiable instrument that is payable to “bearer” or a person in possession 

of a negotiable instrument “payable to bearer or endorsed in blank.” Ind. Code § 26-1-1-

201(5), -201(20)(A). 

In this case, on July 28, 1995, Cheryl and her former husband, Dennis, executed a 

promissory note, promising to pay M/I Financial $161,134 and 7.5% interest. Appellee’s 

App. p. 524. This note was endorsed to Countrywide Funding on July 28, 1995. Id. at 

525. That same day, Cheryl executed an amended and restated promissory note, 

promising to pay Countrywide Home Loans $170,396.56 at 7% interest. Id. at 526. At 

some point, Countrywide Home Loans executed a blank endorsement on the note allonge

for $161,134. Id. at 529. The note allonge and the amended restated promissory note 

appear to be the same note, inasmuch as they are referenced by the same consecutive 

numbers. Id. at 526, 529. 

Likewise, on July 28, 1995, Cheryl and Dennis executed a mortgage, securing the 

promissory note to M/I Financial for $161,134. Appellee’s App. p. 530-35. That same 

day, M/I Financial assigned the mortgage to Countrywide Funding. Id. at 538. Then, on 

January 13, 2010, Countrywide Funding assigned the mortgage to the Bank of New York. 
7

Id. at 539. Thus, the Bank of New York is now the holder of a blank endorsement on the 

note allonge, the amended and restated note, and has been assigned the mortgage. 

Accordingly, this argument fails. 

Nevertheless, the Appellants argue that the mortgage should have been assigned to 

Bank of America before it was assigned to the Bank of New York and that the failure to 

do so renders the assignment from Countrywide Funding “a nullity and improper.” 

Appellants’ Br. p. 7, 10-11. The Appellants base their argument on what the Bank of 

New York acknowledges is “readily available public information that Bank of America 

purchased Countrywide Home Loans, Inc.” in 2008. Appellee’s Br. p. 6. 

The Appellants fail to direct this Court to any designated evidence showing what 

type of transaction occurred when Bank of America “purchased” Countrywide Home 

Loans. Specifically, we do not know whether the purchase was a complete merger, 

purchase of assets, or some of other form of acquisition. See Sorenson v. Allied Products 

Corp., 706 N.E.2d 1097 (Ind. Ct. App. 1999) (discussing what distinguishes a corporate 

asset purchase from a de facto merger). Additionally, because of the fairly complex 

recordation requirements associated with mortgages, it is certainly possible that 

Countrywide Funding3 did not assign this particular asset to Bank of America.4 

 

3 The Appellants claim that Countrywide Funding was purchased; however, the Bank of New York 

asserts that Countrywide Home Loans was purchased. We observe that the mortgage was assigned to 

Countrywide Funding. Regardless, our conclusion would be the same. 

4 The dissent points out that “it is Bank of New York’s burden to show that it is the proper party to 

execute on the note and mortgage.” Dissent op. at 3 (emphasis in original). While this point is well-
8

In any event, as discussed above, the designated evidence shows that the mortgage 

was first assigned from M/I Financial to Countrywide Funding on July 28, 1995. No 

evidence exists that the mortgage was ever sold by Countrywide Funding to Bank of 

America. Then, on January 13, 2010, the mortgage was assigned from Countrywide 

Funding to the Bank of New York. Additionally, the Bank of New York is now the 

holder of the amended and restated promissory note and the note allonge containing the 

blank endorsement from Countrywide Homes. Consequently, this argument also fails. 

Finally, the Appellants argue that the Bank of New York claims that the 

Appellants promised to pay $179,070.62, when the note allonge states $161,134. As 

discussed above, the amended and restated note was for $170,396.56. Appellee’s App. p. 

526. While the amended complaint alleged that Cheryl executed a note promising to pay 

$179,070.62, id. at 99, the trial court’s order determined that the amount of principal and 

interest due pursuant to the debt affidavit is $176,993.87. Id. at 584. However, the debt 

affidavit lists the net principal as $176,993.87 and the accrued interest since the default 

separately. Id. at 580. Consequently, we remand with instructions to the trial court to 

recalculate the amount to award the Bank of New York, while being cognizant of the fact 

that the debt affidavit lists the principal and interest separately, and the principal amount

 

taken, as stated above, the Indiana Code provides that the holder of a negotiable instrument may enforce 

it. Regarding the mortgage, in light of the fact that the mortgage was assigned to the Bank of New York 

and the decreasing significance of mortgage assignment and recording as recently recounted by our 

Supreme Court, we do not think that there exists a genuine issue of material fact solely because the 

mortgage was not first assigned to the Bank of America. See Citimortgage, Inc., v. Barabas, No. 48S04-

1204-CC-00213, slip op. at 3-4 (Ind. Oct. 4, 2012) (giving a brief historical background of the mortgage 

industry including the creation of the Mortgage Electronic Registration Systems, Inc (MERS) to alleviate 

the inconvenience of multiple assignments and recordings after mortgages were “bundled” into shares by 

investment banks and sold to investors). 
9

listed in the affidavit does not appear to be supported by any documentation in the record. 

Thus, we affirm and remand with instructions that the trial court recalculate the amount 

to award to the Bank of New York consistent with this opinion. 

The judgment of the trial court is affirmed and remanded with instructions.

BRADFORD, J., concurs.

ROBB, C.J., dissents with opinion. 

 

 
10

IN THE

COURT OF APPEALS OF INDIANA

CHERYL E. WEBB F/K/A CHERYL E. )

WILDER and G. CAMERON TAYLOR )

)

Appellants-Respondents, )

 )

 vs. ) No. 49A02-1112-MF-1142

)

THE BANK OF NEW YORK MELLON, )

)

Appellee-Petitioner. )

ROBB, Chief Judge, dissenting

I respectfully dissent from the majority’s decision affirming the trial court’s grant 

of summary judgment to Bank of New York. 

I acknowledge the Appellants did not designate any evidence in opposition to 

Bank of New York’s motion for summary judgment. Nonetheless, as the Appellants 

point out, Bank of New York’s own summary judgment evidence demonstrates several 

genuine issues of material fact, and as the movant, Bank of New York had the initial 

burden of proving the absence of a genuine issue of material fact before the Appellants 

became obligated to respond with evidence establishing such an issue. See Monroe Guar. 

Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 975 (Ind. 2005) (“A party moving for 
11

summary judgment bears the initial burden of showing no genuine issue of material fact . 

. . [i]f the movant fails to make this prima facie showing, then summary judgment is 

precluded regardless of whether the non-movant designates facts and evidence in 

response . . . .”). It is important to point out that this decision was made pursuant to a 

motion for summary judgment where we must not weigh facts or decide which ones we 

do or do not believe.

Bank of New York’s summary judgment evidence leaves a genuine issue as to the 

material fact of the amount Appellants owe on the note. The original note, dated July 28, 

1995, was for $161,134.00 plus 7.5% interest to M/I Financial. Appellee’s Appendix at 

524. An Amended and Restated Note of the same date to Countrywide Home Loans was 

for $170,396.56 plus 7% interest. Id. at 526. Countrywide Home Loans executed a blank 

endorsement on the note allonge for $161,134.00. Id. at 529. An affidavit of debt signed 

August 13, 2010 and submitted as part of Bank of New York’s Designation of Record in 

Support of Entry of Judgment shows the net principal balance as of July 9, 2010, as 

$176,993.87 plus interest. Id. at 580. And the complaint and amended complaint for 

foreclosure state that the principal amount is $179,070.62. Id. at 4, 99. No explanation is 

given for the varying amounts of principal shown on the documents designated in support 

of summary judgment. At the very least, there is a genuine issue regarding the material 

fact of the amount of the debt. The majority acknowledges these discrepancies, and 

remands to the trial court to recalculate the award to Bank of New York. This is not an 

appropriate remedy on summary judgment, as it requires a factual determination of which 
12

figure, if any, is the right figure. “[S]ummary judgment should not be granted when it is 

necessary to weigh the evidence.” Konrad Motor and Welder Serv., Inc. v. Magnetech 

Indus. Servs., Inc., 973 N.E.2d 1158, 1162 (Ind. Ct. App. 2012) (quotation omitted). 

Becauase the designated materials do not provide a clear and unequivocal answer to the 

question of the amount of the debt, I believe summary judgment is inappropriate.

Moreover, the Appellants executed the original promissory note and mortgage to 

M/I Financial and on the same day, M/I Financial endorsed the note and assigned the 

mortgage to Countrywide Funding. On January 13, 2010, Countrywide Funding assigned 

the mortgage to Bank of New York. See id. at 374. As the Appellants point out, and as 

Bank of New York acknowledges in its brief, Bank of America purchased Countrywide 

in 2008. See slip op. at 7. The majority states that the “Appellants fail to direct this 

Court to any designated evidence showing what type of transaction occurred when Bank 

of America ‘purchased’ Countrywide Home Loans [and] [n]o evidence exists that the 

mortgage was ever sold by Countrywide Funding to Bank of America.” Id. at 7-8. 

However, it is Bank of New York’s burden to show that it is the proper party to execute 

on the note and mortgage. The record does not contain an explanation of the relationship 

between Countrywide Funding and Countrywide Home Loans, and the parties disagree as 

to which entity was purchased by Bank of America. See slip op. at 7, n.3. Moreover, the 

record is silent as to what assets and/or liabilities Bank of America purchased from said 

entity. 
13

The majority cites Citimortgage, Inc. v. Barabas, slip op. at 8 n.4, to support the 

proposition that the Bank of America transaction is not a material fact. The use of 

Mortgage Electronic Registration Systems, Inc. (“MERS”) may “alleviate the 

inconvenience of multiple assignments and recordings” for investment banks, see id., but 

the banks at issue here were not using MERS as nominee for these instruments. Given

the Appellants’ raising the issue of Countrywide’s sale in 2008 and Bank of New York’s 

acknowledgement of the same as “readily available public information,” Appellee’s Brief 

at 6, I believe there is at least a genuine issue of material fact as to whether Countrywide 

Funding could have and should have assigned a mortgage to Bank of New York two 

years after the Bank of America transaction, and therefore, a genuine issue of material 

fact as to how Bank of New York came to have the note and mortgage in 2010. That 

multiple assignments require multiple recordings at “considerable inconvenience and 

expense,” Citimortgage, Inc., slip op. at *1, does not excuse the failure to do so if 

required. 

It may well be that in the end, Bank of New York is entitled to a judgment of 

foreclosure. However, based on what I believe to be genuine issues of material fact 

raised by the Appellants on the basis of Bank of New York’s designated materials, I do 

not believe Bank of New York is entitled to summary judgment as a matter of law and I 

would reverse the trial court’s entry of judgment in Bank of New York’s favor.5

 

5 The trial court also denied the Appellants’ motion for summary judgment. As the Appellants 

designated no evidence in support of their motion and therefore did not meet their burden as to their own 

motion, I agree that the trial court properly denied summary judgment to the Appellants.