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MERS LOSSES AGAIN ---APPEAL DECISION -- INDIANA MAY 2011 -CITIBANK V BARABAS

MERS LOSSES AGAIN ---APPEAL DECISION -- INDIANA MAY 2011 -CITIBANK V BARABAS

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Published by 83jjmack
MERS Losses AGAIN in Citibank (Mers) v Barabas Court of Appeals Indiana

INDIANA APPELATE DECISION ON CITIMORTGAGE, INC., Appellant-Intervenor/Cross-Claimaint,

vs.

SHANNON S. BARABAS A/K/A SHANNON )
SHEETS BARABAS,

Cross-Claim Defendant,

RECASA FINANCIAL GROUP, LLC,
Appellee-Plaintiff/Cross-Claim Defendant,
and
RICK A. SANDERS,
Appellee/Third-Party Defendant.

APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Fredrick R. Spencer, Judge
Cause No. 48C01-0806-CC-593

May 17, 2011

OPINION – FOR PUBLICATION
MERS loses once again. In this case, MERS assigned a property from Irwin Mortgage to Citi after a different lender (2 other mortgages) foreclosed on the property. Citi filed a motion to intervene more than a year later and have the foreclosure set aside because ReCasa failed to notify MERS of the foreclosure. The court, citing Landmark v. Kesler, opined s follows:

We choose to follow the persuasive reasoning of the Landmark case because it is factually similar to the present case. Like Landmark, Citi seeks to have the default judgment set aside based on the fact that it received its interest from MERS, which served as the mortgagee “solely as nominee” for Irwin Mortgage. (Appellant’s App. p. 88). Thus, when Irwin Mortgage filed a petition and disclaimed its interest in the foreclosure, MERS, as mere nominee and holder of nothing more than bare legal title to the mortgage, did not have an enforceable right under the mortgage separate from the interest held by Irwin Mortgage. With respect to notice, just as the mortgage in Landmark referenced all notice to be sent to the lender, here, too, the mortgage states that notice to the lender should be sent to the lender’s address, or “10500 Kincaid Drive, Fishers, IN 46038,” which is the address of Irwin Mortgage. (Appellant’s App. p. 88). Thus, we find that the trial court did not abuse its discretion when it declined to set aside ReCasa’s amended default judgment.
MERS Losses AGAIN in Citibank (Mers) v Barabas Court of Appeals Indiana

INDIANA APPELATE DECISION ON CITIMORTGAGE, INC., Appellant-Intervenor/Cross-Claimaint,

vs.

SHANNON S. BARABAS A/K/A SHANNON )
SHEETS BARABAS,

Cross-Claim Defendant,

RECASA FINANCIAL GROUP, LLC,
Appellee-Plaintiff/Cross-Claim Defendant,
and
RICK A. SANDERS,
Appellee/Third-Party Defendant.

APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Fredrick R. Spencer, Judge
Cause No. 48C01-0806-CC-593

May 17, 2011

OPINION – FOR PUBLICATION
MERS loses once again. In this case, MERS assigned a property from Irwin Mortgage to Citi after a different lender (2 other mortgages) foreclosed on the property. Citi filed a motion to intervene more than a year later and have the foreclosure set aside because ReCasa failed to notify MERS of the foreclosure. The court, citing Landmark v. Kesler, opined s follows:

We choose to follow the persuasive reasoning of the Landmark case because it is factually similar to the present case. Like Landmark, Citi seeks to have the default judgment set aside based on the fact that it received its interest from MERS, which served as the mortgagee “solely as nominee” for Irwin Mortgage. (Appellant’s App. p. 88). Thus, when Irwin Mortgage filed a petition and disclaimed its interest in the foreclosure, MERS, as mere nominee and holder of nothing more than bare legal title to the mortgage, did not have an enforceable right under the mortgage separate from the interest held by Irwin Mortgage. With respect to notice, just as the mortgage in Landmark referenced all notice to be sent to the lender, here, too, the mortgage states that notice to the lender should be sent to the lender’s address, or “10500 Kincaid Drive, Fishers, IN 46038,” which is the address of Irwin Mortgage. (Appellant’s App. p. 88). Thus, we find that the trial court did not abuse its discretion when it declined to set aside ReCasa’s amended default judgment.

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Published by: 83jjmack on May 20, 2011
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FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
MATTHEW S. LOVE MARY A. SLADE
Feiwell & Hannoy, P.C. Plunkett CooneyIndianapolis, Indiana Indianapolis, Indiana
CHRISTOPHER C. HAGENOWSARAH S. FANZINI
Hopper Blackwell, P.C.Indianapolis, Indiana
IN THECOURT OF APPEALS OF INDIANA
 CITIMORTGAGE, INC., )Appellant-Intervenor/Cross-Claimaint, ))vs. ) No. 48A04-1004-CC-232)SHANNON S. BARABAS A/K/A SHANNON )SHEETS BARABAS,
1
)Cross-Claim Defendant, ))RECASA FINANCIAL GROUP, LLC, )Appellee-Plaintiff/Cross-Claim Defendant, )and )RICK A. SANDERS, )Appellee/Third-Party Defendant. )APPEAL FROM THE MADISON CIRCUIT COURTThe Honorable Fredrick R. Spencer, JudgeCause No. 48C01-0806-CC-593
May 17, 2011
 
OPINION - FOR PUBLICATIONRILEY, Judge
1
Shannon S. Barabas does not participate in this appeal. However, pursuant to Indiana Appellate Rule 17(A), a party of record in the trial court is a party on appeal.
 
FILED
CLERK
of the supreme court,court of appeals andtax court
May 17 2011, 8:24 am
 
 2STATEMENT OF THE CASEAppellant-Intervener/Cross-Claimant, Citimortgage, Inc. (Citi), appeals the trial

-Plaintiff/Cross-ClaimDefendant, ReCasa Financial Group, Inc. LLC (ReCasa), and Appellee/Third-PartyDefendant, Rick A. Sanders (Sanders).We affirm.ISSUECiti raises one issue on appeal, which we restate as follows: Whether the trialcourt a
 
amended default judgment.FACTS AND PROCEDURAL HISTORYOn August 8, 2005, Shannon Barabas (Barabas) executed a $154,111 mortgagesecuring property commonly known as 8285 South Firefly Drive (the Property) inPendleton, Madison County, Indiana. The mortgage states in pertinent part:This Security Instrument is given to Mortgage Electronic Registration

organized and existing under the laws of Delaware, and has an address andtelephone number of P.O. Box 2026, Flint, MI 48501-2026, tel. (888) 679-MERS.
Irwin Mortgage Corporation.

t

and existing under the laws of [t]he State of Indiana, and has an address of 10500 Kincaid

ides that
 
 3

er 

 p. 88). Additionally, with respect to notice, the mortgage provides that:
Any notice to Lender 
shall be given by first class mail to
 
 stated herein or any address Lender designates by notice to Borrower. Anynotice provided for in this Security Instrument shall be deemed to have been given to Borrower or Lender when given as provided in this paragraph.

The mortgage was recorded on August 19,2005 in the

Office.On February 26, 2007, Barabas financed with ReCasa two additional mortgages: afirst mortgage on property in Marion County and a second mortgage on the Property inMadison County in the amount of $100,000.
2
The mortgage was recorded on May 11,2007,

Office. On July 23, 2007, Barabas increased the principal sum of the ReCasa mortgages to $129,600. Nearly a year later, Barabasdefaulted on the underlying loan to ReCasa and on June 13, 2008, ReCasa foreclosed onthe Property. ReCasa named Irwin Mortgage as a defendant; however, on June 23, 2008,Irwin Mortgage filed a disclaimer of interest, which states:COMES NOW the Defendant, Irwin Mortgage Corporation, by counsel,and hereby disclaims any interest in the real estate which is the subject of 

 WHEREFORE, the Defendant, Irwin Mortgage Corporation, prays that thePlaintiff take whatever relief it is entitled to by virtue of its Complaint andseeks all other relief proper in the premises.

 
2
The Marion County property is not subject to this appeal.

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