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Money Store Investment Corp. v. Summers2/9/2005
settlement agreement entered into by the parties on September 15, 1999), as well as "all reasonable and necessary collection and attorney fees associated with the foreclosure of her mortgages." (App. 363, 364). The order further held that Money Store's mortgage was "subject, subordinate and inferior to the lien of Phillips' Mortgage and judgment lien." (App. 367).
DECISION
On appeal from summary judgment, we face the same issues that were before the trial court and analyze them the same way, although the trial court's decision is clothed with the presumption of validity. Kennedy v. Guess, Inc., 806 N.E.2d 776, 779 (Ind. 2004). "Summary judgment should be granted only if the evidence authorized by Indiana Trial Rule 56(C) shows that there is no genuine issue of material fact and the moving party deserves judgment as a matter of law." Id. (citing Ind. T.R. 56(C)). Here, Money Store presses no material issues of fact, but states that the appellate review "must simply consider whether the record reveals an incorrect application of the law to the facts." Money Store's Br. at 9.
1. Phillips' Assigned Mortgage Interest
Money Store presents a series of arguments to support its claim that the trial court "erred in ruling that mortgages assigned to Phillips by National City secured payment of debts Summers owed Phillips before the assignment." Money Store's Br. at 1. We address each.
Money Store first contends that Phillips' rights as assignee are limited to those of National City, to wit: the overdraft claim. Money Store argues that Phillips could not "acquire any greater rights than those enjoyed by her assignor" because "one who receives assignment of a mortgage may use that mortgage only to enforce payment of debts owed to the original mortgage holder and secured by such mortgage." Money Store's Br. at 10. Money Store cites no authority for the latter proposition. Rather, it erroneously offers this as the "clear implication" of the legal principle that "the assignee of a mortgage has no greater rights than the original mortgage holder," citing Strafford v. Lane, 124 Ind. 592, 24 N.E. 683 (1890). Money Store's Br. at 10. Strafford held that the assignees "d not occupy any better position than their assignors." 24 N.E. at 685. Indeed, Indiana law in this regard provides that " he assignee of a mortgage obtains all rights the mortgage had, but no other or greater rights than the mortgage." 20 I.L.E. Mortgages ยง 72 (2001). However, such law does not address the affect of a dragnet clause in an assigned mortgage. Nor does it address the fact that Phillips' rights as to a recovery against Summers did not rely upon the assignment alone but also a pre-existing, court-ordered monetary judgment to which the parties had agreed.
Next, Money Store argues that the trial court erred because its finding that the dragnet clause of one of those mortgages secured Summers' property for his obligation to Phillips violates the intent of the parties to those mortgages - National City and Summers. However, we note that each of the mortgages containing dragnet clauses also contain references to "the Mortgagee and/or its assigns." (App. 115, 313, 315). Thus, it appears that an assignment was within the contemplation of the parties. Money Store concedes that Indiana law allows enforcement of dragnet clauses. See Merchants Nat'l Bank v. H.L.C. Enters., 441 N.E.2d 509, 513 (Ind. Ct. App. 1982) ("Indiana has long held that open-ended provisions in mortgages are valid."). But, Money Store then parses the language of the dragnet clause in each of the three assigned mortgages and urges that the language is not sufficiently broad to warrant including Summers' obligations to Phi
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