Court of Appeals of Indiana | Memorandum Decision 71A05-1406-MF-283 | March 20, 2015 Page 1 of 4

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.

ATTORNEY FOR APPELLANTS

Johnny W. Ulmer

Cataldo Law Offices, Inc.

Bristol, Indiana

ATTORNEY FOR APPELLEE

W. Russell Sanford

South Bend, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Mario L. Sims, Sr., and Tiffiny 

Sims,

Appellants-Cross-Claimants,

v.

John Tiffany,

Appellee-Defendant.

March 20, 2015

Court of Appeals Case No.

71A05-1406-MF-283

Appeal from the 

St. Joseph Superior Court

The Honorable Margot F. Reagan,

Judge

Cause No. 71D04-1001-MF-164

Kirsch, Judge.

[1] Mario Sims, Sr., and Tiffiny Sims (“the Simses”) appeal the trial court’s denial 

of their motion for summary judgment and grant of John Tiffany’s (“Tiffany”)

motion for summary judgment. On appeal, the Simses raise several issues, of 

which we find the following dispositive: whether John Tiffany’s debt arising 

from the Simes’s land contract was discharged in bankruptcy.
Court of Appeals of Indiana | Memorandum Decision 71A05-1406-MF-283 | March 20, 2015 Page 2 of 4

[2] We affirm. 

Facts and Procedural History

[3] In 2008, the Simses entered into a land-sale contract with Tiffany, setting forth

that the Simses would make monthly payments to Tiffany, who would in turn 

make mortgage payments to the bank that held the mortgage on the land (“the 

Bank”). The contract provided that the Simses could make mortgage payments 

directly to the Bank in lieu of the monthly payments under the contract if 

Tiffany was at any point unable to make the payments. In 2009, the Bank filed 

a foreclosure proceeding against both Tiffany and the Simses. At that point, the 

Simses had paid $26,000 in the form of a $12,000 down payment and ten

monthly payments of $1,400 each. 

[4] The Simses attempted to assume the mortgage from Tiffany, but were unable to 

reach an agreement with the Bank. Subsequently, the Simses filed a cross-claim 

against Tiffany in the Bank’s foreclosure proceeding against Tiffany alleging,

inter alia, that he had committed fraud by representing that he would make 

payments to the Bank on the Simses’ behalf and, thereafter, failing to do so. 

[5] Tiffany filed a petition in bankruptcy and was granted a discharge pursuant to 

Chapter 7 of the United States Bankruptcy Code1. Following the discharge, the 

Simses filed an adversary proceeding in bankruptcy court, alleging that the 

 

1

11 U.S.C. § 727(b)
Court of Appeals of Indiana | Memorandum Decision 71A05-1406-MF-283 | March 20, 2015 Page 3 of 4

amount for which they were suing Tiffany was a non-dischargeable debt under 

11 U.S.C. § 523 (“Section 523”) because it was acquired via fraud. Tiffany and 

the Simses reached an agreement to settle the adversary proceeding under 

which Tiffany would issue the Simses a quitclaim deed to the property in 

exchange for the Simses stipulating to drop the adversary proceeding with 

prejudice. The agreement was executed and the proceeding was dismissed with 

prejudice on March 13, 2012. 

[6] After the adversary proceeding was dismissed, Tiffany and the Simses filed 

cross motions for summary judgment. The trial court granted Tiffany’s motion 

for summary judgment and denied the Simses’ motion, citing Tiffany’s 

discharge in bankruptcy. The trial court reasoned that absent any specific 

exemptions, Tiffany’s discharge in bankruptcy included the debt claimed by the 

Simses. The Simses now appeal. 

Discussion and Decision

[7] Summary judgment is only proper where there is no genuine issue of material 

fact, and our standard of review is the same as it is for the trial court. Manley v. 

Sherer, 992 N.E.2d 670, 673 (Ind. 2013).

[8] Tiffany’s discharge under Chapter 7 did not include any exceptions for any 

debts owed to the Simses. The Simses contend that Tiffany’s alleged debt is 

non-dischargeable as a matter of law and is excluded from Tiffany’s discharge. 

The Simses’ claim is without merit.
Court of Appeals of Indiana | Memorandum Decision 71A05-1406-MF-283 | March 20, 2015 Page 4 of 4

[9] Section 523 of the Bankruptcy Act states that a discharge under Chapter 7 does 

not discharge an individual debtor from any debt to the extent that debt was 

obtained by “false pretenses, a false representation, or actual fraud, other than a 

statement respecting the debtor’s or an insider’s financial condition.” 11 U.S.C.

§ 523(a)(2)(A).

[10] Section 523 goes on to state that “the debtor shall be discharged from a debt of 

a kind specified in paragraph (2) . . . of subsection (a) . . . unless . . . the court 

determines such debt to be excepted from discharge.” 11 U.S.C. § 523(c)(1).

Contrary to the Simses’ claim that Tiffany’s debt was non-dischargeable as a 

matter of law, the Bankruptcy Act specifically requires that such debts are 

discharged unless the Bankruptcy Court determines that it is non-dischargeable. 

Here, although the Simses commenced an adversary proceeding to determine 

the issue, but they agreed to dismiss it in exchange for a quitclaim deed to the 

property. As a result, there was no non-dischargeability determination by the

bankruptcy court and the debt was discharged.

[11] Because the debt owed by Tiffany to the Simses was discharged, summary 

judgment in favor of Tiffany was properly entered.

[12] Affirmed.

Friedlander, J., and Crone, J., concur.