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Filed: 10/20/2023 1:02 PM
Clerk
Allen County, Indiana
ED
MDK # 23-007482
STATE OF INDIANA ) IN THE ALLEN SUPERIOR COURT
) SS:
COUNTY OF ALLEN ) CAUSE NO. 02D03-2307-MF-000213
Wintrust Mortgage, a division of Barrington
Bank & Trust Company, N.A.
Plaintiff,
vs.
John E. Fletcher, et al.
Defendants.
MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT
Statement of the Case:
Plaintiff brings this action as an entity entitled to enforce a Note under IC 26-1-3.1-301
for which John E. Fletcher remain obligated, the same having been designated Primary
Defendants in Plaintiff's Complaint. A copy of said Note, or in the case of its unavailability, a
Lost Note Affidavit, is attached as an exhibit to Plaintiff's Complaint.
A Mortgage was given by the property owners, securing the Note referenced above,
which is a valid first lien against said property and was recorded October 16, 2017 as
Instrument Number 2017054423, Allen County, Indiana records. A copy of said Mortgage is
attached as an exhibit to Plaintiff's Complaint.
As a result of the default of each Primary Defendant under the terms of the Note and
Mortgage, Plaintiff has declared the entire indebtedness due and payable and any and all
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E120
conditions precedent to bringing this action have been performed. As a result of this same
default by each Primary Defendant, Plaintiff is entitled to have its mortgage foreclosed.
Law and Analysis:
Plaintiff has, by its pleadings and affidavits, demonstrated its standing to pursue this
action pursuant to its qualification under the following statute:
26-1-3. 1-301 Person entitled to enforce instrument
Sec. 301. “Person entitled to enforce” an instrument means:
(1) the holder of the instrument;
(2) a nonholder in possession of the instrument who has the rights of a holder; or
(3) a person not in possession of the instrument who is entitled to enforce the
instrument under IC 26-1-3.1-309 or IC 26-1-3.1-418(d).
A person may be a person entitled to enforce the instrument even though the person is not
the owner of the instrument or is in wrongful possession of the instrument.
Further, by its pleadings and affidavits, Plaintiff has established the default of each
Primary Defendant under the terms of the Note and Mortgage, and therefore, Plaintiff is entitled
to have the equity of redemption of the Mortgagors foreclosed pursuant to IC § 32-30-10(3)(a).
Pursuant to Trial Rule 56(C), a party is entitled to judgment as a matter of law when the
designated evidentiary matters show that there is no genuine issue as to any material fact.
Additionally, a party may not rely on the pleadings alone to create an issue of fact but must
respond by setting forth specific facts showing that a genuine issue for trial. Stephenson v.
Ledbetter, 596 N.E.2d 1369, 1371 (Ind. 1992); Simms v. Schweiker, 651 N.E.2d 348,
349(Ind.App. 1995).
In the instant case, the Answer of Defendant, John E. Fletcher, is essentially a general
denial and fails to contain specific facts which would create a genuine issue for trial.
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The documents designated by Plaintiff clearly establish that there exists no genuine issue
of material fact and that Plaintiff is entitled to judgment as a matter of law pursuant to Trial Rule
56(C).
Conclusion:
There being no genuine issue of material fact and, pursuant to the materials designated to
the Court, Plaintiff is entitled to judgment as requested in the Complaint.
Respectfully submitted,
/s/ Stephanie A. Reinhart
Stephanie A. Reinhart (25071-06)
J. Dustin Smith (29493-06)
Nicholas M. Smith (31800-15)
Chris Wiley (26936-10)
Manley Deas Kochalski LLC
P.O. Box 165028
Columbus OH 43216-5028
Telephone: 614-220-5611
Fax: 614-220-5613
Email: sef-SAReinhart@manleydeas.com
Attorneys for Plaintiff
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CERTIFICATE OF SERVICE
The undersigned hereby certify that a copy of the foregoing Memorandum in Support of
Summary Judgment was sent upon the following parties by ordinary first class U.S. Mail,
postage prepaid, or electronic mail (e-mail) on the date indicated below:
First Class U.S. Mail:
John E. Fletcher, 14718 Ridgecrest Drive, Leo, IN 46765
John E. Fletcher, 13625 Ridgeview Court, Grabill, IN 46741
Tonner Lake Homeowners Association, Inc., c/o Rubyann L. Felger, as Registered Agent,
14811 Ridgecrest Drive, Leo, IN 46765
Electronic Mail (e-mail):
Adam M. Henry, Attorney for Leo Cedarville Regional Sewer District,
amhenry@beersmallers.com
/s/ Stephanie A. Reinhart
Stephanie A. Reinhart
J. Dustin Smith
Nicholas M. Smith
Chris Wiley
10-20-23
Date
23-007482_ RAK2
Preview
Filed: 10/20/2023 1:02 PM Clerk Allen County, Indiana ED MDK # 23-007482 STATE OF INDIANA ) IN THE ALLEN SUPERIOR COURT ) SS: COUNTY OF ALLEN ) CAUSE NO. 02D03-2307-MF-000213 Wintrust Mortgage, a division of Barrington Bank & Trust Company, N.A. Plaintiff, vs. John E. Fletcher, et al. Defendants. MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT Statement of the Case: Plaintiff brings this action as an entity entitled to enforce a Note under IC 26-1-3.1-301 for which John E. Fletcher remain obligated, the same having been designated Primary Defendants in Plaintiff's Complaint. A copy of said Note, or in the case of its unavailability, a Lost Note Affidavit, is attached as an exhibit to Plaintiff's Complaint. A Mortgage was given by the property owners, securing the Note referenced above, which is a valid first lien against said property and was recorded October 16, 2017 as Instrument Number 2017054423, Allen County, Indiana records. A copy of said Mortgage is attached as an exhibit to Plaintiff's Complaint. As a result of the default of each Primary Defendant under the terms of the Note and Mortgage, Plaintiff has declared the entire indebtedness due and payable and any and all 23-007482_ RAK2 E120 conditions precedent to bringing this action have been performed. As a result of this same default by each Primary Defendant, Plaintiff is entitled to have its mortgage foreclosed. Law and Analysis: Plaintiff has, by its pleadings and affidavits, demonstrated its standing to pursue this action pursuant to its qualification under the following statute: 26-1-3. 1-301 Person entitled to enforce instrument Sec. 301. “Person entitled to enforce” an instrument means: (1) the holder of the instrument; (2) a nonholder in possession of the instrument who has the rights of a holder; or (3) a person not in possession of the instrument who is entitled to enforce the instrument under IC 26-1-3.1-309 or IC 26-1-3.1-418(d). A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument. Further, by its pleadings and affidavits, Plaintiff has established the default of each Primary Defendant under the terms of the Note and Mortgage, and therefore, Plaintiff is entitled to have the equity of redemption of the Mortgagors foreclosed pursuant to IC § 32-30-10(3)(a). Pursuant to Trial Rule 56(C), a party is entitled to judgment as a matter of law when the designated evidentiary matters show that there is no genuine issue as to any material fact. Additionally, a party may not rely on the pleadings alone to create an issue of fact but must respond by setting forth specific facts showing that a genuine issue for trial. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind. 1992); Simms v. Schweiker, 651 N.E.2d 348, 349(Ind.App. 1995). In the instant case, the Answer of Defendant, John E. Fletcher, is essentially a general denial and fails to contain specific facts which would create a genuine issue for trial. 23-007482_ RAK2 The documents designated by Plaintiff clearly establish that there exists no genuine issue of material fact and that Plaintiff is entitled to judgment as a matter of law pursuant to Trial Rule 56(C). Conclusion: There being no genuine issue of material fact and, pursuant to the materials designated to the Court, Plaintiff is entitled to judgment as requested in the Complaint. Respectfully submitted, /s/ Stephanie A. Reinhart Stephanie A. Reinhart (25071-06) J. Dustin Smith (29493-06) Nicholas M. Smith (31800-15) Chris Wiley (26936-10) Manley Deas Kochalski LLC P.O. Box 165028 Columbus OH 43216-5028 Telephone: 614-220-5611 Fax: 614-220-5613 Email: sef-SAReinhart@manleydeas.com Attorneys for Plaintiff 23-007482_ RAK2 CERTIFICATE OF SERVICE The undersigned hereby certify that a copy of the foregoing Memorandum in Support of Summary Judgment was sent upon the following parties by ordinary first class U.S. Mail, postage prepaid, or electronic mail (e-mail) on the date indicated below: First Class U.S. Mail: John E. Fletcher, 14718 Ridgecrest Drive, Leo, IN 46765 John E. Fletcher, 13625 Ridgeview Court, Grabill, IN 46741 Tonner Lake Homeowners Association, Inc., c/o Rubyann L. Felger, as Registered Agent, 14811 Ridgecrest Drive, Leo, IN 46765 Electronic Mail (e-mail): Adam M. Henry, Attorney for Leo Cedarville Regional Sewer District, amhenry@beersmallers.com /s/ Stephanie A. Reinhart Stephanie A. Reinhart J. Dustin Smith Nicholas M. Smith Chris Wiley 10-20-23 Date 23-007482_ RAK2