Accordingly, FCS asked that the trial court order foreclosure, sale of the Tuckers' real estate by the sheriff, and the proceeds applied "to reduce the Tuckers' obligation to FCS before any sums are distributed to any other party." Id. FCS also argued that because Bank had failed to file a timely response to FCS' motion for summary judgment and there was no "evidence that FCS is not first in priority," the trial court should grant FCS' motion for summary judgment. FCS asked the trial court to strike Bank's designated evidence because the mortgages it submitted were neither sworn to by affidavit nor certified. On February 11, 2002, FCS filed a motion to strike and a memorandum opposing Bank's motion. Bank submitted as designated evidence copies of its recorded mortgages, the latest of which pre-dated the mortgage held by FCS by more than a year. On January 18, 2002, Bank filed a motion for summary judgment, asserting that its recorded liens were superior to that held by FCS. The trial court granted an extension until January 25, 2002. and Sauder Feeds, Inc., asked the trial court for an extension of time in which to respond to the FCS motion for summary judgment. In its accompanying memorandum in support of summary judgment, FCS argued that its mortgage was "superior to" that of any defendant and "t priority to all others of record absent any evidence to the contrary," noting that although Bank had "alleged a security interest superior to all others of record, it ha not come forward with any designated evidence" thereof. FCS designated as its evidence "all pleadings" and an affidavit from an FCS loan officer averring FCS' mortgage had been recorded on July 19, 1999. On December 7, 2001, FCS filed a motion for summary judgment, asserting "no genuine issues of material fact" existed and that it was entitled "to judgment as a matter of law" and "to an Order of Foreclosure" with respect to its mortgage. Thus, Bank asked that "its interests be recognized as superior to all claims of. 4, 5).īank responded in its answer that its security interests were "superior to all others of record," and specifically, "superior to that of " and FCS' claims were "inferior to those interests of. FCS asked the trial court to "determine the priority of the liens in interest of each of the parties in this action as to the real estate," to foreclose FCS' mortgage, and to order the real estate sold by the sheriff, with the proceeds distributed "to the parties in accordance with their priority as determined by this court." (Bank's App. ![]() The complaint named Bank as a defendant "to answer as to any interest claimed in the real estate." (Bank's App. According to the complaint, the FCS mortgage was executed June 30, 1999, and recorded on July 19, 1999. On May 24, 2001, FCS filed a complaint seeking a judgment against the Tuckers for their failure to pay a promissory note and to foreclose on a mortgage that the Tuckers executed to secure their obligations under the note. Whether the trial court erred in determining that FCS' secured lien on the Tucker real estate was inferior to and secondary to the recorded liens held by Bank. Whether the trial court erred when it allowed Bank to respond to FCS' motion for summary judgment when Bank had not requested an extension of time to respond and thirty days had passed since FCS filed that motion. FCS appeals the trial court's order allowing Bank to respond to FCS' motion for summary judgment and holding that Bank's recorded liens were superior to those of FCS. )įarm Credit Services of Mid-America, FLCA ("FCS") filed a complaint seeking a personal judgment against Jay and Julia Tucker and to foreclose a mortgage held by FCS against certain Tucker real estate it also named as a defendant State Bank of Markle ("Bank"), which also held mortgages on the Tucker real estate. IN THE COURT OF APPEALS OF INDIANA FARM CREDIT SERVICES OF ) MID-AMERICA, FLCA, ) ) Appellant-Plaintiff, ) ) vs. ![]() FRIEND Lautzenheiser, Myers & Holdman, PC ![]() ATTORNEYS FOR APPELLANT : ATTORNEY FOR APPELLEES:
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