Court of Appeals of Indiana | Memorandum Decision 71A05

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### 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.

A TTORNEY FOR A PPELLANT S Johnny W. Ulmer Cataldo Law Offices, Inc. Bristol, Indiana A TTORNEY FOR A PPELLEE W. Russell Sanford South Bend, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Mario L. Sims, Sr. , and Tiffiny Sims , Appellant s - Cross

- Claimants

,

v. 

### John Tiffany , Appellee

- Defendant. March 20, 2015 Court of Appeals Ca se No. 71A05

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- 283 Appeal from the St. Joseph Superior Court The Honorable Margot F. Reagan, Judge Cause No. 71 D04

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### Kirsch , Judge
.

[1] Mario Sims , Sr., and Tiffiny Sims (“ the Sim se s”) appeal the trial court’s denial of their m otion for s ummary j udgment and grant of John Tiffany’s (“Tiffany”)

m otion for s ummary j udgment

. On appeal, t he Sim se s raise sever al issues , of which we find the following dispositive : w hether John Tiffany’s debt arising from the Simes’s land contract was discharged in bankruptcy.Court of Appeals of Indiana | Memorandum Decision 71A05

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[2] We affirm. 

### Facts and Procedural History

[3] In 2008, t he Sim se s entered into a land

- sale contract with Tiffany , setting forth that the Sim se s 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 Sim se s could make mortgage payments directly to the B ank in lieu of the monthly payments under the contract if Tiffany was at any point unable to make the payments. In 2009 , the B ank filed a foreclosure proceeding against both Tiffany and the Sim se s. At tha t point, the Sim se s 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 B ank. Subsequently, the Simses f iled 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 B ank on the Simses ’ behalf and , thereafter, failing to do so.

[5] Tif

fany filed a petition in bankruptcy and was granted a discharge pursuant to Chapter 7 of the United States B ankruptcy C ode 1 . Following the discharge, the Simses filed an adversary proceeding in b ankruptcy c ourt , alleging that the

1 11 U.S.C. § 727(b)Court of Appeals of Indiana | Memorandum Decision 71A05

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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 t he 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 proceedin g was dismissed, Tiffany and the Simses filed cross motions for summary judgment

. T he 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 revie w 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 d id not include any exceptions for any debts owed to the Simses. The Sim s es 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

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[9] Section 523 of the Bankruptcy Act states that a discharge under Chapter 7 does not discharge an indiv idual 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 Sim s es ’ 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 t he Simses commenced an adver sary 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 b a nkruptcy c ourt and the debt w as discharged.

[11] Because the debt owed by Tiffany to the Simses was discharged , s ummary judgment in favor of Tiffany was proper ly entered.

[12] Affirmed.

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