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

Colin J. Koons

Cox & Koons Attorneys at Law

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Kurt V. Laker

Doyle Legal Corporation, P.C.

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Uree Kincaid, Mark E. Kincaid, 

Denise Elaine Bryant, and The 

Unknown Heirs, Devisees, 

Legatees of Garland E. Kincaid,

Appellants-Defendants,

v.

Nationstar Mortgage, LLC,

Appellee-Plaintiff

August 17, 2015

Court of Appeals Case No.

32A01-1407-MF-322

Appeal from the Hendricks Circuit 

Court

The Honorable Jeffrey V. Boles, 

Judge

Trial Court Cause No.

32C01-1302-MF-111

Crone, Judge.

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Case Summary

[1] Uree Kincaid, Mark E. Kincaid, and Denise Elaine Bryant (respectively, 

“Wife,” “Son,” and “Daughter”; collectively “the Kincaids”) appeal the trial 

court’s denial of their motion for relief from default judgment under Indiana 

Trial Rule 60(B). On appeal, they assert that the trial court erred in summarily 

entering default judgment against them and in favor of Nationstar Mortgage, 

LLC, under Trial Rule 55 without conducting a hearing. They also challenge

the trial court’s denial of their motion for relief from default judgment without 

affording them a hearing. Finding that Trial Rule 55(B) gives the trial court 

discretion in determining whether to conduct a hearing before entering a default 

judgment, we conclude that the Kincaids were not entitled to a hearing on 

Nationstar’s motion for default judgment as a matter of right. Nevertheless, 

because we also find that Indiana Trial Rule 60(D) requires the trial court to 

conduct a hearing before ruling on a Trial Rule 60(B) motion, we reverse and 

remand for a determination on the merits of the Kincaids’ Trial Rule 60(B) 

motion for relief from default judgment. 

Facts and Procedural History

[2] In 2001, Garland E. Kincaid (“Husband”) owned, individually in fee simple, a 

tract of land in Hendricks County (the property”). In 2003, he granted two 

mortgages on the property to Ameriana Bank and Trust to secure two loans 

totaling $94,000. 

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[3] In November 2005, Husband conveyed by warranty deed life estates in the 

property to himself and Wife, with remainder interests to Son and Daughter. 

The deed was recorded in December 2005.

[4] On October 13, 2006, Husband obtained a loan of $82,300 from Taylor Bean 

and Whitaker Mortgage Corporation (“TBW”), secured by a mortgage on the 

property. That same day, Wife quitclaimed her interest in the property to 

Husband. Husband used the proceeds of the TBW loan to pay off and 

extinguish his obligations to Ameriana. On March 13, 2008, both the TBW 

mortgage and Wife’s quitclaim deed to Husband were recorded. 

[5] Husband died on June 25, 2010. In 2011, TBW assigned the mortgage to 

Ocwen Loan Servicing, LLC. On February 22, 2013, Ocwen filed a complaint 

to foreclose the mortgage on the property, naming as defendants Wife, Son, 

Daughter, and any unknown heirs, devisees, and legatees of Husband. On 

April 12, 2013, Wife sought and was granted a change of judge, and the case 

was transferred from Hendricks Superior Court No. 2 to Hendricks Circuit 

Court and assigned a new cause number. The Kincaids sought and were 

granted extensions of time to file their responsive pleadings, and the trial court 

set a deadline of June 24, 2013. 

[6] In May 2013, Ocwen assigned its interest in Husband’s mortgage to Nationstar. 

In January 2014, the trial court granted a motion to substitute Nationstar as 

party plaintiff. On April 14, 2014, Nationstar sent notices to the Kincaids that 

it would file a motion for default judgment on or after April 18, 2014. 

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Nationstar filed a motion for default judgment on April 21, 2014. Wife and 

Son filed their responsive pleadings on April 22, 2014, and Daughter filed hers 

on April 29, 2014. 

[7] Meanwhile, on April 24, 2014, the trial court entered a default judgment against 

the Kincaids and a decree of foreclosure on the property without holding a 

hearing on Nationstar’s motion. The Kincaids subsequently filed motions to 

correct error as well as motions to set aside default judgment and to stay default 

judgment. No hearing was held on these motions. The chronological case 

summary (“CCS”) shows a June 30, 2014 entry denying all motions, and the 

trial court issued a signed order to that same effect on July 1, 2014. The 

Kincaids now appeal. 

Discussion and Decision

Section 1 – The trial court did not abuse its discretion 

in granting Nationstar’s motion for default judgment 

under Trial Rule 55 without a hearing.

[8] The Kincaids assert that the trial court erred in granting Nationstar’s motion for 

default judgment without first conducting a hearing. Indiana law strongly 

prefers disposition of cases on their merits, and as such, any doubt concerning 

the propriety of a default judgment should be resolved in favor of the defaulted 

party. Coslett v. Weddle Bros. Constr. Co., 798 N.E.2d 859, 861 (Ind. 2003). Trial 

Rule 55(A) authorizes the trial court to default a party when the “party against 

whom a judgment for affirmative relief is sought has failed to plead or 

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otherwise comply with [the trial] rules and that fact is made to appear by 

affidavit or otherwise.” With respect to whether Trial Rule 55 requires a 

hearing, section (B) states in pertinent part, 

If, in order to enable the court to enter judgment or to carry it 

into effect, it is necessary to take an account or to determine the 

amount of damages or to establish the truth of any averment by 

evidence or to make an investigation of any other matter, the court 

may conduct such hearing or order such references as it deems necessary 

and proper and shall accord a right of trial by jury to the parties 

when and as required.

(Emphases added.) 

[9] The rules of statutory construction also apply to the interpretation of trial rules. 

Dreyer & Reinbold, Inc. v. AutoXchange.com, Inc., 771 N.E.2d 764, 767 (Ind. Ct. 

App. 2002), trans. denied. Where the language of a trial rule is clear and 

unambiguous, it is not subject to judicial interpretation. Id. Trial Rule 55(B)

uses the discretionary term “may” in addressing the issue of a hearing on a 

motion for default judgment. Another panel of this Court has previously 

interpreted this portion of Rule 55(B) to “specifically permit[] the trial court to 

conduct a hearing” to order the moving party to present a factual basis 

establishing liability. Progressive Ins. Co. v. Harger, 777 N.E.2d 91, 96 (Ind. Ct. 

App. 2002) (emphasis added). Thus, under Trial Rule 55(B), the trial court’s 

decision to conduct or dispense with a hearing before ruling on a default 

judgment is discretionary rather than mandatory. 

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[10] As for whether the trial court abused its discretion by not conducting a hearing

in this case, we note that Nationstar’s motion for default judgment was 

accompanied by several supporting exhibits. The trial court found these 

exhibits sufficient to establish a factual basis for a default judgment. The

exhibits include a copy of Nationstar’s three-day letter of direct notice of intent 

to seek a default judgment, a notice by publication, and an affidavit of unpaid 

balance supported by documentation of Husband’s escrow balance, payment 

history, payoff quote, administrative expenses, and attorney fees. Appellant’s 

App. at 94-114. With these exhibits before it, we simply cannot say that the 

trial court abused its discretion in ruling on Nationstar’s motion for default 

judgment without a hearing. 

Section 2 – The trial court erred in failing to conduct a 

hearing on the Kincaids’ motion to set aside default 

judgment under Trial Rule 60.

[11] The Kincaids maintain that the trial court erred in denying their motion for 

relief from default judgment without a hearing. Trial Rule 60(B) provides a 

mechanism for obtaining relief from default judgment under certain limited 

circumstances, and the burden is on the movant to establish grounds for such 

relief. Seleme v. JP Morgan Chase Bank, 982 N.E.2d 299, 303 (Ind. Ct. App. 

2012), trans. denied (2013). See also Ind. Trial Rule 55(C) (“A judgment by 

default which has been entered may be set aside by the court for the grounds 

and in accordance with the provisions of Rule 60(B).”). 

[12] Trial Rule 60(B) states in pertinent part, 

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(B) Mistake—Excusable neglect—Newly discovered evidence—

Fraud, etc. On motion and upon such terms as are just the court 

may relieve a party or his legal representative from a judgment, 

including a judgment by default, for the following reasons:

(1) mistake, surprise, or excusable neglect;

(2) any ground for a motion to correct error, including 

without limitation newly discovered evidence, which by 

due diligence could not have been discovered in time to 

move for a motion to correct errors under Rule 59;

(3) fraud (whether heretofore denominated intrinsic or 

extrinsic), or other misconduct of an adverse party;

.... or

(8) any reason justifying relief from the operation of the 

judgment, other than those reasons set forth in subparagraphs (1), (2), (3), and (4). 

.... A movant filing a motion for reasons (1), (2), (3), (4), and (8) 

must allege a meritorious claim or defense. A motion under this 

subdivision (B) does not affect the finality of a judgment or 

suspend its operation.

[13] When reviewing a trial court’s ruling on a Trial Rule 60(B) motion, we apply an 

abuse of discretion standard. Speedway SuperAmerica, LLC v. Holmes, 885 

N.E.2d 1265, 1270 (Ind. 2008). An abuse of discretion occurs where the trial 

court’s decision is clearly against the logic and effect of the facts and 

circumstances before it or if the trial court has misinterpreted the law or 

disregarded evidence of factors listed in the controlling statute. Love v. Love, 10 

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N.E.3d 1005, 1012 (Ind. Ct. App. 2014). When the Trial Rule 60(B) motion 

involves a request to set aside a default judgment, the trial court’s discretion 

should be exercised in light of the disfavor in which default judgments are 

generally held. Seleme, 982 N.E.2d at 303. 

[14] Here, we are not reviewing the merits of the trial court’s ruling, that is, whether 

the Kincaids had a meritorious defense.1

 Instead, we review the trial court’s 

decision to rule on the Kincaids’ Trial Rule 60 motion without first conducting 

a hearing. In so doing, we look to the plain language of the rule. Dreyer & 

Reinbold, Inc., 771 N.E.2d at 767. Trial Rule 60(D) states, 

(D) Hearing and relief granted. In passing upon a motion 

allowed by subdivision (B) of this rule the court shall hear any 

pertinent evidence, allow new parties to be served with 

summons, allow discovery, grant relief as provided under Rule 

59 or otherwise as permitted by subdivision (B) of this rule.

(Emphasis added.) 

[15] Subdivision (D) unambiguously requires the trial court to hold a hearing before 

ruling on a motion for relief from judgment. Our supreme court has interpreted 

its language as mandatory, not discretionary, holding that when a party files a 

Rule 60(B) motion, “notice to the opposing party and a hearing thereon is 

required before an order may be issued.” State ex rel. Heating & Air Conditioning 

1

 Because we hold that Trial Rule 60 mandates a hearing on the motion to examine its merits based on the 

evidence presented by both parties, we refrain from issuing an advisory opinion on the merits.

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Co. v. Lake Superior Court, 263 Ind. 233, 235, 328 N.E.2d 733, 734 (1975). Trial 

Rule 60(D) does not give the trial court discretion to simply dispense with the 

hearing before ruling on a Trial Rule 60(B) motion. As such, the trial court 

erred in failing to comply with the hearing requirement before denying the 

Kincaids’ motion. Accordingly, we reverse its order denying the Kincaids’ 

Trial Rule 60(B) motion and remand for a determination on the merits.

[16] Reversed and remanded.

May, J., and Bradford, J., concur.

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