Ewing v. U.S. Bank (IN)

Summary: If a court does not order mediation, parties are free to shape a settlement agreement as they wish.


Ewing v. U.S. Bank, N.A., 5 N.E.3d 775, 2014 WL 904247 (Ind. Ct. App. 2014), rehearing denied, transfer denied.


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Facts: On February 7, 2005, Jeff and Renee Ewing executed a note to U.S. Bank in exchange for a home loan. The note was secured by a mortgage on the property. On March 21, 2011, U.S. Bank filed a complaint against the Ewings seeking foreclosure on the property because the Ewings defaulted on their payments. On August 30, 2011, U.S. Bank filed for summary judgment on their complaint. On November 22, 2011, the Ewings requested a settlement conference, which was scheduled and took place on February 17, 2012. After the conference, the parties filed a report stating that the requirements for a settlement conference pursuant to the Indiana Code were satisfied. On December 3, 2012, U.S. Bank motioned to proceed with its foreclosure action and the trial court granted their motion. On March 15, 2013 the Ewings filed a supplemental complaint alleging U.S. Bank failed to act in good faith during the parties’ settlement discussion pursuant to the A.D.R. Rules.

On March 19, 2013, the trial court conducted a hearing to address U.S. Bank’s August 2011 motion for summary judgment. The Ewings submitted an affidavit signed by Jeff Ewing in order to establish a genuine issue of material fact. The affidavit stated that he was unaware of who the servicer of the loan was, and since January 2010 he had been in contact with the wrong party during his efforts to modify the loan. On May 1, 2013, the trial court granted summary judgment in favor of U.S. Bank.  On May 31, 2013, U.S. Bank filed a motion Rule 12(B)(6) motion to dismiss Ewing’s supplemental complaint, and on August 14, 2013 the trial court granted U.S. Bank’s motion. The Ewings appealed.


Holding: Affirmed. On appeal, the court addressed whether the trial court erred in granting U.S. Bank summary judgment as well as its motion to dismiss. First, the court held that the trial court was correct in granting summary judgment for U.S. Bank because Jeff Ewing’s affidavit did not dispute the fact that the Ewings failed to tender the required monthly payments, but “merely outlines the Ewings’ past attempts to modify the loan, which, without more, does not establish a genuine issue of material fact…”. Second, the court held that the trial court was also correct in granting U.S. Bank’s motion to dismiss. The court’s reasoning was that the Ewings’ claim that U.S. Bank violated A.D.R. 2.1, which requires parties to mediate in good faith, was not applicable because the trial court did not order mediation pursuant to the A.D.R., and if a court does not order mediation, “the parties are free to shape a settlement agreement as they wish.”


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By: ATG Underwriting Department | Posted on: Mon, 03/16/2015 - 4:39pm