J. Dustin SmithJ. Dustin Smith&&
March 14, 2023

Revisiting Judgment Affidavits in Indiana Mortgage Foreclosure Actions: A Summary Judgment Blueprint

In recent years, the Indiana Court of Appeals has been asked to review and confirm the evidence that is necessary for a plaintiff to obtain judgment in a mortgage foreclosure action. In response, the appellate court affirmed prior decisions that established a basic blueprint for presenting evidence. Before we revisit that blueprint in the context of these recent decisions, it’s worth reviewing the evidentiary standards at play.

As you may recall, Indiana's summary judgment standard is even more stringent than the federal standard used as its model. Specifically, in Indiana, the moving party must conclusively negate their opponent’s claim rather than just show that the party carrying the burden of proof lacks evidence on a necessary element. Despite the elevated standard, obtaining summary judgment in a mortgage foreclosure action can be a relatively straightforward proposition when the moving party is armed with the proper evidence.  

Back to the blueprint, the primary step towards obtaining summary judgment in a mortgage foreclosure action involves the moving party presenting a prima facie case for foreclosure. To do that, they must enter into evidence the note, mortgage, and proof of default. Once the movant establishes the prima facie case, the burden then shifts to the non-movant to present evidence establishing a genuine issue of fact.  

Evidence That Establishes Prima Facie Case

So, in the context of our discussion, the primary issue is: What evidence does the movant present to establish the prima facie case?

To begin answering that question, we need to look back about 10 years to an important Indiana Court of Appeals decision that provided the framework for the summary judgment blueprint we’re referring to.  

In the Seth case, the appellate court rejected the evidence presented that supported the plaintiff's prima facie case as insufficient. Specifically, the court determined the affidavits submitted were not based on personal knowledge because they relied solely on unspecified business records that were not attached to the affidavit.  

The blueprint, then, is to present an affidavit that is based on personal knowledge (not just "a review of the records") and includes copies of relevant loan documents that have been authenticated as business records pursuant to Rule of Evidence 803(6). At a minimum, those relevant loan documents include the note, mortgage, and payment history or other accounting that shows the account is in default. It’s also possible to establish personal knowledge of the affiant’s position and familiarity with the loan file.  

Decisions That Reinforce the Blueprint

Subsequent decisions from the Indiana Court of Appeals, including two recent cases, have repeatedly reinforced this blueprint.

In the Hallie case decided in 2020, the Indiana Court of Appeals overturned the trial court's judgment grant in favor of the borrower after the court determined the trial court improperly rejected evidence presented by the creditor – the recorded mortgage and business records authenticated according to Rule of Evidence 803(6). The court remanded the case back to the trial court with instructions that the creditor have an opportunity to present this evidence.

In the second, the 2020 Hussain case, the appellate court upheld the trial court's grant of summary judgment in favor of the creditor because the affidavit presented in support of the motion for summary judgment was made by the custodian of records who personally reviewed the loan account. In addition, the affidavit authenticated relevant loan documents under Rule of Evidence 803(6). The court essentially upheld the summary judgment because the creditor followed the blueprint we’re discussing here.

3 Essential Blueprint Specifics

This means that when seeking summary judgment in a mortgage foreclosure action, it is critical to follow the blueprint and present an affidavit that:

  1. Is based on personal knowledge gained from familiarity with the loan account and loan documents;  
  1. Lays a foundation for admitting business records pursuant to Rule of Evidence 803(6); and  
  1. Attaches copies of the relevant loan documents, such as the note, mortgage, and payment history.

This publication is for informational purposes only and does not constitute an opinion of MDK.
Do not rely on this publication without seeking legal counsel.