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FOR PUBLICATION

FILED
Feb 24 2012, 8:46 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANTS: CHARLES BLACKWELDER Charles B. Blackwelder, P.C. Carmel, Indiana

ATTORNEY FOR APPELLEE: WESLEY N. STEURY Burt, Blee, Dixon, Sutton & Bloom, LLP Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA
CFS, LLC and CHARLES BLACKWELDER, Appellants, vs. BANK OF AMERICA, Successor in Interest to LaSalle Bank Midwest National Association, Appellee. ) ) ) ) ) ) ) ) ) )

No. 29A02-1105-MF-436

APPEAL FROM THE HAMILTON CIRCUIT COURT The Honorable Paul A. Felix, Judge Cause No. 29C01-0908-MF-1585

February 24, 2012

OPINION - FOR PUBLICATION

BAILEY, Judge

Case Summary CFS, LLC and Charles Blackwelder (collectively, "CFS") appeal a grant of summary judgment, upon motion to correct error, in favor of Bank of America, National Association ("the Bank") upon the Bank's foreclosure action. CFS presents a single, consolidated issue: whether summary judgment was improvidently granted. We affirm. Facts and Procedural History On June 13, 2007, CFS executed a promissory note and construction mortgage in exchange for a loan from LaSalle Bank Midwest National Association ("LaSalle") in the amount of $982,500. Blackwelder executed a personal guaranty of the debt. On August 24, 2009, the Bank, as successor in interest to LaSalle, filed a complaint to foreclose the mortgage and for judgment against the guarantor, alleging that the loan was in default. In the answer, CFS admitted the authenticity of signatures, the promise to pay, and the principal balance, but asserted a lack of knowledge as to the Bank's role as successor to LaSalle. On April 19, 2010, the Bank moved for summary judgment. CFS moved to file a late response but, following a bench conference, withdrew the submission as untimely.1 On December 13, 2010, the trial court conducted a hearing on the motion for summary judgment, at which CFS claimed that the Bank had not demonstrated its ownership of the LaSalle note and mortgage. At the conclusion of the hearing, the trial court took the motion under advisement, pending the provision of "case law that shows that the testimony of someone
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If a party fails to respond to a motion for summary judgment within thirty days, either by designating evidence demonstrating issues of material fact, filing an affidavit under Trial Rule 56(F) indicating why the facts necessary to justify opposition are unavailable, or requesting an extension of time under Trial Rule 56(I) in which to file a response, the trial court lacks discretion to permit that party to thereafter file a response. Desai v. Croy, 805 N.E.2d 844, 849 (Ind. Ct. App. 2004), trans. denied.

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saying they're a successor-in-interest is sufficient to prove ownership." (Tr. 37.) On December 27, 2010, the Bank filed a response advising the trial court that no such case law had been located. The motion for summary judgment was denied on January 19, 2011. On February 18, 2011, the Bank filed a motion to correct error. The Bank cited a federal statute for its claim that the Bank was entitled to enforce the LaSalle loan. The Bank claimed that it possessed a certificate of merger, but did not attach or designate a copy of the document. On March 16, 2011, the trial court granted the Bank's motion to correct error. On April 18, 2011, the trial court entered its judgment of foreclosure and decree of sale. CFS appeals. Discussion and Decision I. Standard of Review Summary judgment is appropriate only if the pleadings and designated materials considered by the trial court show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Yates v. Johnson County Bd. of Comm'rs., 888 N.E.2d 842, 846 (Ind. Ct. App. 2008). Our well-settled standard of review is the same as it was for the trial court. Landmark Health Care Assocs. L.P.

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