Court of Appeals of Indiana | Memorandum Decision 18A-CT-596 | September 14, 2018 Page 1 of 12

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

ATTORNEY FOR APPELLEE

Anthony M. Zelli

Dinsmore & Shohl LLP

Louisville, Kentucky

I N T H E

COURT OF APPEALS OF INDIANA

Michael Francis, et al.,

Appellants-Plaintiffs,

v.

Accubanc Mortgage 

Corporation,

Appellee-Defendant.

September 14, 2018

Court of Appeals Case No.

18A-CT-596

Appeal from the Marion Superior 

Court

The Honorable Gary L. Miller, 

Judge

Trial Court Cause No.

49D03-1708-CT-31921

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-596 | September 14, 2018 Page 2 of 12

Case Summary

[1] Pro-se Appellants Michael and Carmen Francis (collectively, “Francis”) appeal 

the denial of a motion to correct error, in which Francis asserted a claim that he 

had obtained newly-discovered evidence pertinent to his complaint to quiet 

title, as to Accubanc Mortgage Corporation (“Accubanc”), PNC Bank, N.A. 

(“PNC”),1 and other entities, to residential real estate that had been the subject 

of a mortgage foreclosure. Francis raises three issues, which we consolidate 

and restate as whether the trial court abused its discretion in denying the 

motion to correct error. We affirm. 

Facts and Procedural History

[2] Francis previously owned residential property in Marion County, subject to a 

real estate mortgage held by Accubanc (“the Property”). The facts underlying 

the disposition of the Property were related in a prior appeal:

On October 26, 1994, the Francises owned the property at 4904 

North Winston Drive in Indianapolis and executed, in 

Accubanc’s favor, the Note (in the amount of $113,200.00) and 

the Mortgage, granting Accubanc a security interest in the 

Property. Pursuant to the terms of the Note, the maturity date, 

on which all outstanding amounts became due and payable, was 

November 1, 2001. The Mortgage was recorded in the Marion 

 

1

Francis obtained a mortgage from Accubanc. PNC states, in its Appellee’s brief, that Accubanc no longer 

exists, that National City Mortgage Company acquired certain assets of Accubanc in 1999, and that, in 2008, 

PNC acquired National City Corporation and all its subsidiaries, including National City Mortgage 

Company. PNC admits that Francis served PNC in this matter but does not admit that PNC is a proper 

party to the action.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-596 | September 14, 2018 Page 3 of 12

County Recorder’s Office on November 1, 1994. Accubanc later 

assigned the Note to Bank United of Texas, FSB, and, on 

February 1, 1997, also assigned the Mortgage to Bank United. 

Washington Mutual Bank, FA, successor by merger to Bank 

United, assigned the Loan Documents to EMC Mortgage 

Corporation on December 22, 2003. On August 13, 2013, in 

response to the Francises’ claims that the Mortgage had been 

assigned to the Federal National Mortgage Association 

(“FNMA”), FNMA quit-claim assigned any interest it may have 

had in the Mortgage to EMC Mortgage Corporation (“the 2013 

Assignment”). At some point, EMC Mortgage Corporation was 

succeeded in merger by EMC, and the trial court granted EMC’s 

motion to substitute plaintiff on September 15, 2015.

Meanwhile, the Francises had failed to pay the outstanding 

balance on the Note when it came due on November 1, 2001. 

On May 29, 2007, EMC Mortgage Corporation filed a complaint 

to foreclose on the Mortgage due to the Francises’ failure to 

make payments pursuant to the Note. On September 17, 2007, 

the Francises filed their answer, affirmative defenses, and 

counterclaims. On April 9, 2012, EMC Mortgage Corporation 

filed a motion to strike or for partial summary judgment as to 

certain claims and a designation of evidence. On May 7, 2012, 

the Francises filed a praecipe for withdrawal pursuant to Indiana 

Trial Rule 53.1, and on May 25, 2012, the Indiana Supreme 

Court vested jurisdiction in Marion Superior Court Judge 

Timothy W. Oakes. On May 20, 2013, the trial court granted 

EMC Mortgage Corporation’s partial summary judgment 

motion.

On October 23, 2013, EMC Mortgage Corporation moved for 

leave to amend its complaint, seeking to incorporate the 2013 

Assignment, which motion the trial court granted. On May 28, 

2015, EMC Mortgage Corporation filed a summary judgment 

motion on its complaint. On February 8, 2016, the trial court 

held a hearing on what was now EMC’s summary judgment 
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motion, at which EMC appeared through counsel and Carmen 

Jay Francis appeared in person. On February 17, 2016, the trial 

court granted EMC’s summary judgment motion, entered in rem

judgment against the Property in the sum of $248,709.74, ordered 

that the Property be sold to satisfy the judgment, and entered 

judgment in favor of EMC on all of the Francises’ remaining 

counterclaims.

Francis v. EMC Mortgage, LLC, No. 49A02-1604-MF-830, slip op. at 3-4 (Ind. Ct. 

App. Apr. 19, 2017), trans. denied.

2

[3] On August 18, 2017, Francis 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, and Jury Demand,” (Appellee’s App. Vol. II, pg. 12.) 

Francis named as defendants Accubanc, Fannie Mae, EMC Mortgage (a 

former subsidiary of JP Morgan Chase Bank, N.A.), and Homesales, LLC.3 

On October 10, 2017, Francis moved to file an amended complaint; the trial 

court denied the motion on October 16, 2017.4

 

2 The Property was sold, and a Sheriff’s Deed was issued on February 17, 2017. At some point, Francis 

became involved in bankruptcy proceedings in the United States Bankruptcy Court, Southern District of 

Indiana. According to Francis, “there are currently as many as four law firms in related cases all claiming 

they have authority and interest in Francis’ home.” Appellant’s Brief at 16.

3 These entities are not active parties to this appeal. 

4 The proposed amended complaint named as new defendants “Does 1 through 100 inclusive, et al” and 

Charles Nealy, a prior owner of the Property. App. Vol. III, pg. 2. 
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[4] On October 13, 2017, PNC filed an answer to Francis’ complaint and asserted 

that it claimed no interest in the Property. On October 30, 2017, Fannie Mae, 

JP Morgan Chase Bank, N.A., and Homesales, LLC (hereinafter “CoDefendants”) filed a motion to dismiss Francis’ complaint on grounds that the 

claims are barred under principles of res judicata. On October 31, 2017, the trial 

court granted the Co-Defendants’ motion to dismiss and ordered that each of 

the Co-Defendants be dismissed from the action, with prejudice.

[5] On November 29, 2017, Francis filed a motion to correct error claiming that the 

trial court erred in granting the motion to dismiss before Francis could respond. 

The motion to correct error was denied on December 4, 2017.

[6] On December 1, 2017, PNC filed a motion for judgment on the pleadings, 

contending that Francis’ claims are barred under principles of res judicata and 

are also time-barred. PNC again asserted that it claimed no interest in the 

Property. On December 28, 2017, Francis filed a document in opposition to 

PNC’s motion. The trial court granted PNC’s motion for judgment on the 

pleadings on January 8, 2018.

[7] On January 23, 2018, Francis filed a praecipe for withdrawal, seeking 

reassignment of the case on grounds that the trial court had failed to timely rule 

on the motion for judgment on the pleadings. On January 25, 2018, the Chief 

Administration Officer of the Indiana Supreme Court issued a notice to the 

Clerk of the Marion County Circuit and Superior Courts, notifying the clerk 

that withdrawal of the submission of the matter from the judge was not 
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warranted because the trial court had entered its judgment on the pleadings on 

January 8, 2018.

[8] On February 7, 2018, Francis filed a “Verified Motion to Correct Errors,” again 

claiming that the trial court had failed to timely rule on the motion for 

judgment on the pleadings and that the trial court had failed to allow 

appropriate time for Francis to respond to the Co-Defendants’ motion to 

dismiss. Francis also claimed that he had newly-discovered evidence based 

upon his call to the Marion County Recorder’s Office on January 26, 2018 and 

upon his re-examination of the Warranty Deed and release of mortgage 

pertaining to the Property. The trial court denied the motion to correct error on 

February 20, 2018. This appeal ensued. 

Discussion and Decision

[9] Indiana Trial Rule 59(A)(1) permits a party to file a motion to correct error to 

address “newly discovered material evidence ... capable of production within 

thirty (30) days of final judgment which, with reasonable diligence, could not 

have been discovered and produced at trial[.]” Indiana courts receive motions 

under Rule 59(A)(1) with “great caution” because a high value has long been 

placed on the finality of judicial resolutions. Faulkinbury v. Broshears, 28 N.E.3d 

1115, 1122 (Ind. Ct. App. 2015). 

[10] The decision concerning whether to grant a Trial Rule 59 motion to correct 

error based on newly discovered evidence is an equitable decision requiring the 
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court to balance the alleged injustice suffered by the party moving for relief 

against the interest of the prevailing party and society in the finality of 

litigation. Id. We review the denial of a motion to correct error based on newly 

discovered evidence for an abuse of discretion. Id. The trial court’s decision 

comes to us clothed with a presumption of correctness, and the appellant has 

the burden of showing an abuse of discretion. Id. An abuse of discretion will 

be found when the trial court’s decision is against the logic and effect of the 

facts and circumstances before it. Id.

[11] New evidence requires the trial court to grant a Trial Rule 59 motion to correct 

error only when the party seeking relief demonstrates that:

(1)the evidence has been discovered since the trial; (2) it is 

material and relevant; (3) it is not cumulative; (4) it is not merely 

impeaching; (5) it is not privileged or incompetent; (6) due 

diligence was used to discover it in time for trial; (7) the evidence 

is worthy of credit; (8) it can be produced upon a retrial of the 

case; and (9) it will probably produce a different result at retrial.

Id. at 1125.

[12] Francis claimed to have uncovered evidence of fraud and multiple forgeries. 

He made many factual allegations, including: a now-defunct title company 

engineered a fraudulent mortgage agreement in 1994, delinquent taxes were 

paid from Francis’ escrow account without his knowledge or consent, the prior 

owner of the Property failed to appear at closing and substituted his son to pose 

as the owner, the deed referenced a non-existent easement, the Sheriff’s eviction 

notice contained possibly forged signatures, Accubanc sold the Property 
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without proper notice and/or assigned a right to service Francis’ mortgage 

without proper notice, and pertinent chain-of-title records were missing.

[13] Francis claimed to have garnered new information from a Certified Forensic 

Loan Audit, a title report, and a corresponding examination of closing, preclosing, and post-closing documents. He also described having communicated 

with the personnel of the Marion County Recorder’s Office and the Marion 

County Sheriff’s records custodian regarding the Property. Francis did not 

assert facts to show that due diligence was used to discover the evidence prior to 

the judgment of foreclosure or that he was prevented from a thorough 

examination of the relevant documents before he initiated his complaint

attacking the foreclosure. Accordingly, the alleged newly-discovered evidence 

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

discretion by refusing to grant a motion to correct error based on newlydiscovered evidence.

[14] In addition to his claim of newly-discovered evidence, Francis has made some 

assertions of procedural error. First, he directs our attention to Indiana Trial 

Rule 53.1, which addresses a trial court’s failure to rule upon a motion. 

Subsection (A) provides:

In the event a court fails for thirty (30) days to set a motion for 

hearing or fails to rule on a motion within thirty (30) days after it 

was heard or thirty (30) days after it was filed, if no hearing is 

required, upon application by an interested party, the submission 

of the cause may be withdrawn from the trial judge and 

transferred to the Supreme Court for the appointment of a special 

judge.
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[15] Francis has also drawn attention to the fact that the trial court’s January 8, 2018 

entry of judgment upon a December 1, 2017 motion took place a few days 

outside the thirty-day window of time contemplated by the foregoing rule. As 

best we can discern, Francis takes the position that (1) the operation of Rule 

53.1(A) is not limited to a failure to rule, but also encompasses an untimely 

ruling, and (2) he has an affirmative right to withdrawal of the case and 

appointment of a new trial judge upon showing that an untimely ruling was 

made. He does not, however, provide reasoning to support the proposition that 

a litigant may await an unfavorable outcome and then seek withdrawal of the 

case.

[16] Indiana Appellate Rule 46(A)(8)(a) requires:

The argument must contain the contentions of the appellant on 

the issues presented, supported by cogent reasoning. Each 

contention must be supported by citations to the authorities, 

statutes, and the Appendix or parts of the Record on Appeal 

relied on, in accordance with Rule 22.

Francis’s failure to comply with the foregoing waives his issue for appellate 

review. See Dickes v. Feiger, 981 N.E.2d 559, 562 (Ind. Ct. App. 2012). See also 

Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003) (clarifying that we 

will not become an advocate for a party and will not address arguments that are 

inappropriate, too poorly developed, or so improperly expressed that they 

cannot be understood).
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[17] Francis also asserts that he was deprived of a right to amend his complaint 

pursuant to Indiana Trial Rule 15(A). In relevant part, this rule provides:

A party may amend his pleading once as a matter of course at 

any time before a responsive pleading is served or, if the pleading 

is one to which no responsive pleading is permitted, and the 

action has not been placed upon the trial calendar, he may so 

amend it at any time within thirty [30] days after it is served.

[18] Francis observes that there is “powerful Indiana policy,” Appellant’s Brief at 

49, supporting amendment of pleadings so that matters at issue before the trial 

court may be developed. He cites to Huff v. Travelers Indemnity Co., 266 Ind. 

414, 363 N.E.2d 985 (1977) as a principal decision evincing the policy.5 

However, his attempt to direct our attention to reversible error in this case falls 

short. The entirety of his argument addressing the operation of the rule under 

the particular circumstances of his case is as follows:

The Trial Court sent no notices to parties nor were their [sic] 

timely entries for extension of time to rule on Appellee’s “Motion 

for Judgment on the Pleadings” made in the trial Court’s CSR. 

Judicial error is not grounds for equitable relief, but where a 

litigant’s right of appeal is hindered or destroyed through an error 

of an officer of the court, such destruction of the Trial Court, 

equity will grant relief.

 

5 The Huff Court observed: “a pleading may be amended once as a matter of course within thirty days after 

service of the pleading.” 266 Ind. at 419; 363 N.E.2d at 989.
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Appellant’s Brief at 50. Again, we conclude that Francis failed to comply with 

the requirements of Appellate Rule 46(A)(8)(a). He failed to support his 

contention of procedural error or deprivation of due process with cogent 

reasoning and appropriate citations to the record and has waived the issue for 

appellate review. Dickes, 981 N.E.2d at 562.

[19] Finally, Francis contends that the trial court erroneously denied his motion to 

correct error before PNC had an opportunity to respond. Again, his argument 

is concise, providing in its entirety:

Rule 6(C) in part said that a responsive pleading required under 

the rules shall be served within 20 days. It’s a reversible error for 

a trial court to enter a final order prior to the expiration of the 

twenty days allowed to the defendants [plaintiff] for filing an 

answer, . . . But the court does not lose jurisdiction to act, and it 

may enter a mandamus order before the twenty days have 

expired, when the facts show that defendants [plaintiff’s] attorney 

appeared and provided active representation for the defendants 

[plaintiffs] and its position. ... There is no proof Plaintiff 

requested an enlargement of time by court order or extension.

Appellant’s Brief at 50-51 (citations omitted).

[20] To the extent that Francis suggests that a responsive pleading to a motion to 

correct error is required and governed by the time limitations of Indiana Trial 
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Rule 6(C),

6 he has developed no corresponding argument with citation to 

relevant authority. We remain unconvinced that the trial court committed

procedural error in this regard. 

Conclusion

[21] Francis has not demonstrated that the trial court abused its discretion in 

denying the motion to correct error.

[22] Affirmed.

Mathias, J., and Bradford, J., concur.

 

6

Indiana Trial Rule 6(C) provides in part: “A responsive pleading required under these rules, shall be served 

within twenty [20] days after service of the prior pleading. Unless the court specifies otherwise, a reply shall 

be served within twenty [20] days after entry of an order requiring it.”