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Money Store Investment Corp. v. Summers2/9/2005
FOR PUBLICATION
STATEMENT OF THE CASE
The Money Store Investment Corporation, d/b/a/ First Union Small Business Capital, ("Money Store"), appeals the trial court's order that granted summary judgment in its foreclosure action to intervenor and third-party plaintiff Paula Phillips. The order also held that Phillips had an in rem judgment against the real estate of Neal A. Summers, ordered foreclosure of various mortgages, and found the mortgages on Summers' real estate that Phillips had obtained by assignment on February 14, 2002 were superior to earlier mortgages held by Money Store.
We affirm.
ISSUES
1. Whether the trial court erred in holding that mortgages assigned to Phillips secured payment of debts that Summers owed to Phillips before the date of the assignment.
2. Whether estoppel bars the grant of judgment to Phillips.
3. Whether the trial court committed reversible error when it failed to strike portions of affidavits submitted by Phillips.
4. Whether the trial court erred in finding Summers personally liable for the debts of Mangy Moose.
5. Whether the trial court erred in granting Phillips an award of attorney's fees.
FACTS
During the years between 1992 and 1996, Neal Summers ("Summers") negotiated various loans with Fort Wayne National Bank, which is now known as National City Bank ("National City"). As security therefor, Summers executed a series of mortgages encumbering several parcels of his real estate . The mortgages were recorded. Three of the mortgages contained terms that are commonly referred to as "dragnet clauses."
In 1998, Phillips brought a civil action against Summers and Mangy Moose Enterprises, Inc. The matter was dismissed after Summers and Mangy Moose entered into a written settlement agreement with Phillips on September 15, 1999. However, Summers and Mangy Moose subsequently failed to comply with the agreement.
During at least the years 1999-2000, Summers issued various checks on an open business account at Fort Wayne National, the predecessor to National City, for "Paula's Seafood and Mangy Moose Saloon." (App. 133 - 193). By August 31, 2000, there was a $4,770.16 overdraft in the "regular business checking" account of "Mangy Moose Enterprises Inc. DBA Mangy Moose Saloon DBA Paula's Seafood." (App. 288).
In August-September of 2000, Summers sought loans from Money Store. On September 11, 2000, Jeffrey Harlan, an agent of the title company acting for Money Store, sent to National City a request for confirmation that a list of ten mortgages would be released and satisfied upon satisfaction of the three loan payoff statements attached to the letter. The pay-off statements reflected various amounts due to National City as of August 24, 2000, with daily interest amounts thereon subsequent to that date. National City responded on September 14, 2000, that the mortgages would be released "upon proper payoff of the three loans." (App. 268). National City received three payments on September 15, 2000, but one payment was less than the amount indicated on the payoff statement. National City did not release its mortgages.
On September 15, 2000, Summers and Mangy Moose negotiated a loan from Money Store, also executing a promissory note and a mortgage on several parcels of Summers' real estate to secure the loan. On that same day, Mangy Moose - by Summers as president and secretary - executed an additional promissory note for another loan from Money Store, which note was also secured by a mortgage on Summers' real estate.
As noted above, Summers and Mangy Moose failed to co
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