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FOR PUBLICATION

APPELLANT PRO SE: ALAN PATRICK MCENTEE Knox, Indiana

ATTORNEYS FOR APPELLEE: TIMOTHY J. ABESKA EILEEN S. PRUITT Barnes & Thornburg LLP South Bend, Indiana

FILED
Jun 19 2012, 9:13 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
ALAN PATRICK MCENTEE, Appellant-Defendant, vs. WELLS FARGO BANK, N.A., Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

CLERK

No. 75A03-1106-MF-277

APPEAL FROM THE STARKE CIRCUIT COURT The Honorable Kim Hall, Judge Cause No. 75C01-1005-MF-71

June 19, 2012 OPINION - FOR PUBLICATION BAILEY, Judge

Case Summary Alan Patrick McEntee ("McEntee"), pro se, appeals from the denial of his motion to correct error, which challenged the trial court's entry of summary judgment, which granted Wells Fargo Bank N.A.'s ("Wells Fargo") foreclosure claim and denied McEntee's counterclaim for damages. We reverse and remand for further proceedings. Issue McEntee presents several issues for our review, which we reframe as whether the trial court abused its discretion when it denied McEntee's motion to correct error requesting the trial court to set aside its entry of summary judgment in favor of Wells Fargo and against him. Facts and Procedural History On August 4, 2003, McEntee borrowed $73,000 from USB Home Lending, a Division of Universal Savings Bank, F.A. ("USB Home Lending"). The note for the loan required that McEntee make monthly payments of $467.43.1 (Appellee's App. at 29.) The loan was secured by a mortgage, which McEntee executed on August 4, 2003. At some point prior to the relevant events of this case, Wells Fargo became the servicer on the loan for USB Home Lending. At some point, McEntee submitted a check to Wells Fargo for his January 2009

McEntee's required payments under the note were in excess of this amount due to a requirement in the mortgage that he include in his monthly payments amounts for escrow items, including taxes and other assessments, mortgage insurance, and other such amounts.
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mortgage payment. The check was postdated to the payment due date, but Wells Fargo negotiated the check before that date. While it does not appear that McEntee's check was returned for insufficient funds, payment of the check resulted in checking account overdraft fees to McEntee of $112.50. McEntee engaged in efforts to obtain compensation from Wells Fargo for the overdraft fees. This appears to have escalated into a dispute over the proper place for McEntee to make payments; whether certain payments were made late; and whether McEntee could deduct amounts for the overdraft fees, mileage to deliver a payment to a Wells Fargo bank branch, and a "premature check cashing" fee. Appellant's App. at 5. On June 10, 2009, McEntee sent a letter to Mark Oman, then an executive for Wells Fargo in Des Moines, Iowa, that included two checks to Wells Fargo for McEntee's May 2009 and July 2009 mortgage payments. From the July 2009 payment, which was to total $664.98, McEntee deducted his claimed expenses for travel ($11.50), overdraft fees ($112.50), and the overdraft fee associated with "premature check cashing" ($22.87). Thus, McEntee's check for his July 2009 payment was $518.11, which he postdated to July 1, 2009. By September 2009, McEntee's dispute with Wells Fargo remained unresolved. Thus, on September 23, 2009, McEntee sent a letter to Ben Windust, another executive for Wells Fargo. Stating that "[t]here has been no reply to date regarding the problems," McEntee submitted with the letter a check for his October 2009 payment in the amount of $700.00, which he specified was to cover the $664.98 monthly payment and additional principal of $35.02 "plus $0.02 from previous month not allocated." Appellant's App. at 7. The check

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was postdated to October 1, 2009, and McEntee indicated that he would assess a $100.00 fee "deductible from a future payment" if Wells Fargo "[p]remature[ly] deposit[ed]" the check. Appellant's App. at 7. McEntee's relationship with Wells Fargo continued to deteriorate. Eventually, Wells Fargo returned two of McEntee's checks (for the July 2009 and January 2010 payments) and informed McEntee that it planned to foreclose on the mortgage. On April 27, 2010, USB Home Lending assigned its interest in the mortgage and conveyed the promissory note for the loan to Wells Fargo. On May 13, 2010, Wells Fargo filed its Complaint to Foreclose Mortgage against McEntee. On June 7, 2010, McEntee answered the complaint, denying Wells Fargo's allegation that he had defaulted on the loan. McEntee also asserted several counterclaims. McEntee alleged that Wells Fargo failed to apply properly his payments, and requested damages "for all costs associated with this suit, plus all money not properly attributed by the Plaintiff." Appellee's App. at 35. McEntee also asserted a counterclaim for $73,000 "for emotional pain and suffering and all ancillary costs," claiming that Wells Fargo "has used its size and power in an effort to intimidate [McEntee] to accept extra costs that are not his responsibility." Appellee's App. at 35. McEntee's answer and counterclaims were

accompanied by a "Defense History" that set forth an alleged timeline of events. These included McEntee's recounting of the payment history and Wells Fargo's refusal to recognize certain payments as having been made, and McEntee's claim that Wells Fargo in August

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2009 sent him a check for $125.00 to cover his overdraft fees. On June 10, 2010, Wells Fargo answered and moved to dismiss McEntee's counterclaims. On January 21, 2011, Wells Fargo filed its motion for summary judgment against McEntee as to its complaint and McEntee's counterclaims. On February 2, 2011, McEntee filed his response to Wells Fargo's motion for summary judgment. The trial court conducted a hearing on Wells Fargo's motion for summary judgment on April 25, 2011. On April 26, 2011, the trial court entered summary judgment in favor of Wells Fargo and against McEntee on Wells Fargo's complaint for foreclosure and McEntee's counterclaims. On May 20, 2011, McEntee filed his motion to correct error, subtitled as a motion to reconsider. Wells Fargo filed its response to the motion on May 31, 2011. The trial court denied McEntee's motion to correct error on June 10, 2011. This appeal followed. Discussion and Decision Standard of Review McEntee appeals from the trial court's denial of his motion to correct error. Our standard of review in such cases is well established. We review a trial court's ruling on a motion to correct error for an abuse of discretion. Town of Plainfield v. Paden Eng'g Co., 943 N.E.2d 904, 908 (Ind. Ct. App. 2011), trans. denied. An abuse of discretion occurs when the trial court's decision is contrary to the logic and effects of the facts and circumstances

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before it or the reasonable inferences there from. Carter-McMahon v. McMahon, 815 N.E.2d 170, 174 (Ind. Ct. App. 2004). Here, the motion to correct error sought to set aside the entry of summary judgment. We review a trial court's entry of summary judgment under the same standard as the trial court. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009). Summary judgment is appropriate only where "the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ind. Trial Rule 56(C). We construe all evidence in favor of the party opposing summary judgment, and we resolve all doubts as to the existence of a material issue against the moving party. Town of Plainfield, 943 N.E.2d at 908. At summary judgment, "[t]he moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law." Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270 (Ind. 2009). Once the moving party has carried its burden, "the burden then shifts to the non-moving party to designate and produce evidence of facts showing the existence of a genuine issue of material fact." Id. That is, there is no burden to produce evidence upon the non-movant until the moving party has established, based upon its own designated evidentiary matter, that it is entitled to summary judgment. See Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994) (holding that Indiana does not apply the federal summary judgment procedure as announced in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), and requiring that a moving party "support [its] motion for summary

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judgment with ... designated evidence to establish the absence of a question of fact on an outcome-determinative issue"). A trial court's entry of summary judgment "arrives on appeal `clothed with a presumption of validity,'" and thus the party challenging summary judgment must bear the burden of proving that the movant was not entitled to summary judgment. Williams, 914 N.E.2d at 762 (quoting Rosi v. Bus. Furniture Corp., 615 N.E.2d 431, 434 (Ind. 1993)). We will affirm a trial court's entry of summary judgment if the judgment can be sustained on any theory or basis in the record. Town of Plainfield, 943 N.E.2d at 908. We review a decision on summary judgment carefully, however, to ensure that a party was not properly denied his day in court. Haire v. Parker, 957 N.E.2d 190, 195 (Ind. Ct. App. 2011), trans. denied. The trial court's findings and conclusions upon entry of summary judgment are not binding upon our review, though they "offer valuable insight into the trial court's rationale for its review and thus facilitate appellate review." Raisor v. Jimmie's Raceway Pub, Inc., 946 N.E.2d 72, 75 (Ind. Ct. App. 2011). Summary Judgment on Wells Fargo's Claim for Foreclosure We turn first to McEntee's contention that Wells Fargo was not entitled to summary judgment on its complaint for foreclosure of the mortgage. The Indiana Code provides, "if a mortgagor defaults in the performance of any condition contained in a mortgage, the mortgagee or the mortgagee's assign may proceed in the circuit court of the county where the real estate is located to foreclose the equity of redemption contained in the mortgage." Ind. Code

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