FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BRIAN L. ENGLAND DOUGLAS J. HANNOY
Hunt Suedhoff Kalamaros BRYAN K. REDMOND
Indianapolis, Indiana Feiwell & Hannoy
Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
DREIBELBISS TITLE COMPANY, INC. )
d/b/a COMMONWEALTH/DREIBELBISS )
TITLE COMPANY, )
)
Appellant-Plaintiff, )
)
vs. ) No. 49A02-0309-CV-823
)
FIFTH THIRD BANK, AS SUCCESSOR )
IN INTEREST TO CIVITAS BANK, )
)
Appellee-Defendant. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Caryl Dill, Judge
Cause No. 49D12-0205-PL-786
April 20, 2004
OPINION - FOR PUBLICATION
SHARPNACK, Judge
Appellants Appendix at 21.
On September 23, 1999, Fifth Third provided Title Company with a Home Equity
Line of Credit Payoff form (Payoff Form) regarding Blevinss property. The Payoff
Form provided that the payoff amount was $21,779.10, which included the principal, interest,
and a release fee. The payoff amount was good through October 20,
1999. The Payoff Form also noted: Please have customer sign letter authorizing
[Fifth Third] to close [her] Home Equity Account and release [her] mortgage.
Id. at 5.
On October 15, 1999, Title Company sent Fifth Third a check in the
amount of $21,779.10 and the memo portion of the check noted, For: 2nd
Mortgage Payoff. Id. at 6. With the check, Title Company sent
a letter signed by Blevins entitled INSUFFICIENT MORTGAGE PAYOFF/SELLER that provided:
I UNDERSTAND THAT IT IS NECESSARY TO SATISFY THE EXISTING MORTGAGE HELD
BY [Fifth Third], AND THAT THERE HAS BEEN A DEDUCTION FROM MY PROCEEDS
IN THE SUM OF $21,779.10.
IN THE EVENT THAT THE ABOVE SUM IS INSUFFICIENT TO SATISFY THE EXISTING
MORTGAGE, WE WILL IMMEDIATELY FORWARD TO YOU ANY AND ALL ADDITIONAL SUMS AS
MAY BE REQUIRED BY EXISTING MORTGAGEE TO ISSUE A DISCHARGE OR SATISFACTION OF
SAID MORTGAGE.
Id. at 8. Fifth Third received the check and apparently paid off
the line of credit but did not close the account or release the
mortgage.
In 2000, Blevins took an advance of $20,000.00 from the line of credit
with Fifth Third. On April 1, 2002, Title Company demanded that Fifth
Third release the mortgage within fifteen days pursuant to Ind. Code § 32-8-1-1
and Ind. Code § 32-8-1-2 (repealed by Pub. L. No. 2-2002, § 128
(eff. July 1, 2002), see now Ind. Code § 32-28-1-1 (Supp. 2003), 32-28-1-2
(Supp. 2003)). Fifth Third did not release the mortgage, and Title Company
filed a complaint against Fifth Third to compel the release of the mortgage.
Fifth Third filed a motion for summary judgment, arguing that Blevins never specifically
requested that Fifth Third close the line of credit account or release the
mortgage. Title Company filed a cross-motion for summary judgment, arguing that Title
Company and Blevins complied with Fifth Thirds instructions and Fifth Third was put
on notice that Blevins wished to terminate her account. Alternatively, Title Company
argued that Fifth Thirds instructions were ambiguous and should be construed against the
drafter. The trial court granted Fifth Thirds motion for summary judgment and
denied Title Companys cross-motion for summary judgment. Title Company filed a motion
to correct error, which the trial court also denied.
Our standard of review for the grant of a motion for summary judgment
is well settled. Summary judgment is appropriate only where the evidence shows
that there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. Ind. Trial
Rule 56(C); Mangold ex rel. Mangold v. Ind. Dept of Natural Res., 756
N.E.2d 970, 973 (Ind. 2001). All facts and reasonable inferences drawn from
those facts are construed in favor of the nonmoving party. Id.
Review of a summary judgment motion is limited to those materials designated to
the trial court. Id. We must carefully review a decision
on a summary judgment motion to ensure that a party was not improperly
denied its day in court. Id. at 974. Additionally, when material
facts are not in dispute, our review is limited to determining whether the
trial court correctly applied the law to the undisputed facts. Burkett v.
Am. Family Ins. Group, 737 N.E.2d 447, 452 (Ind. Ct. App. 2000).
The fact that the parties made cross-motions for summary judgment does not alter
our standard of review. Hartford Acc. & Indem. Co. v. Dana Corp.,
690 N.E.2d 285, 291 (Ind. Ct. App. 1997), trans. denied. Instead, we
must consider each motion separately to determine whether the moving party is entitled
to judgment as a matter of law. Id.
The issue is whether Fifth Third was required to release the mortgage after
receiving payoff funds from Title Company accompanied by a letter signed by the
mortgagor. Ind. Code § 32-28-1-1(b) (formerly Ind. Code § 32-8-1-1) provides that
[w]hen the debt or obligation and the interest on the debt or obligation
that the mortgage . . . secures has been fully paid, lawfully tendered,
and discharged, the owner, holder, or custodian shall: (1) release; (2) discharge; and
(3) satisfy of record; the mortgage . . . . It is
undisputed that Title Company and Blevins fully paid and lawfully tendered the funds
owed to Fifth Third. The question here is whether Title Company and
Blevins discharged the obligation such that Fifth Third had an obligation to release,
discharge, and satisfy the mortgage of record. Title Company argues that it
properly requested Fifth Third to close Blevinss account and release the mortgage and
that Fifth Third erroneously failed to do so. Fifth Third argues that
Title Company and Blevins failed to properly request that Fifth Third close Blevinss
account and release the mortgage.
Fifth Third argues that Liberty Mortgage Corp., Inc. v. Natl City Bank, 755
N.E.2d 639 (Ind. Ct. App. 2001), trans. denied, is instructive. There, homeowners
had an equity line of credit and a mortgage with National City.
Id. at 639-640. They later borrowed money from Liberty and secured the
loan with a mortgage on their property. Id. at 640. As
part of the closing on the new mortgage, the title company requested a
payoff amount for the line of credit from National City. Id. at
640. National City provided the information on a form that stated: A
signed statement from the customer requesting the account to be closed is also
required. Id. Although the title company sent a check to National
City paying off the line of credit, the title company did not send
a signed statement from the homeowners requesting that the line of credit account
be closed. Id. at 640-641. National City later brought an action
against Liberty and the homeowners, and the trial court granted summary judgment to
National City. Id. at 641.
On appeal, we held, in part, that:
Liberty, or at a minimum, its closing agent had actual knowledge of National
Citys prior-recorded mortgage lien and was notified that a signed statement from the
[homeowners] was necessary to close the account which the mortgage secured. Liberty
therefore had the ability to avert harm by simply procuring such a statement
from the [homeowners] when it submitted payment to pay off the account.
It failed to do so. Accordingly, Liberty acted with culpable negligence.
As a final matter, we note that National City was not itself culpably
negligent by allowing the [homeowners] to obtain further advances on their account after
receiving the payment from Liberty. As noted above, pursuant to the October
21, 1995 Equity Reserve Agreement, National City agreed to provide the [homeowners] an
open-end line of credit for ten years. We further note that National
City was not paid twice for the same indebtedness, was not unjustly enriched
by Libertys payment on the [homeowners] equity line of credit, and did not
receive a windfall. Rather, National City received only that to which it
was entitled: the recognition that its lien should be paid before that
of Liberty.
Id. at 643 (footnote omitted).
Similarly, here, the line of credit agreement provided that the account would expire
when Blevins notif[ied] Bank, in writing, that [she] wish[ed] to terminate the Account
and pay all sums due and owing hereunder together with official fees for
recording the cancellations of the mortgage executed contemporaneously herewith. Appellants Appendix at
21. In addition, the Payoff Form also noted: Please have customer sign
letter authorizing [Fifth Third] to close [her] Home Equity Account and release [her]
mortgage. Id. at 5. Both the line of credit agreement and
the Payoff Form clearly required that Blevins notify Fifth Third in writing that
she wished her account to be closed. The line of credit agreement
also required the payment of amounts due under the account plus fees for
recording the cancellation of the mortgage, while the Payoff Form also required that
Blevins authorize Fifth Third in writing to release the mortgage.
Title Company argues that these documents were inconsistent, ambiguous, and should be construed
against Fifth Third as the drafter of the documents. An agreement is
not ambiguous merely because the parties espouse differing interpretations of the terms.
Stout v. Kokomo Manor Apartments, 677 N.E.2d 1060, 1064 (Ind. Ct. App. 1997).
Rather, an agreement is ambiguous only if reasonable people reading the contract
would differ as to the meaning of the terms. Id. While
both the line of credit agreement and the Payoff Form placed different requirements
upon Blevins, one requirement is clear and unambiguous in both documents, Blevins was
required to submit a written request to close the line of credit account.
When Title Company submitted the check to Fifth Third for the payoff amount,
it also submitted a letter signed by Blevins entitled INSUFFICIENT MORTGAGE PAYOFF/SELLER that
provided:
I UNDERSTAND THAT IT IS NECESSARY TO SATISFY THE EXISTING MORTGAGE HELD
BY [Fifth Third], AND THAT THERE HAS BEEN A DEDUCTION FROM MY PROCEEDS
IN THE SUM OF $21,779.10.
IN THE EVENT THAT THE ABOVE SUM IS INSUFFICIENT TO SATISFY THE EXISTING
MORTGAGE, WE WILL IMMEDIATELY FORWARD TO YOU ANY AND ALL ADDITIONAL SUMS AS
MAY BE REQUIRED BY EXISTING MORTGAGEE TO ISSUE A DISCHARGE OR SATISFACTION OF
SAID MORTGAGE.
Appellants Appendix at 8. Although this letter sufficiently informs Fifth Third that
Blevins is submitting funds to satisfy the existing mortgage and informs Fifth Third
that she will forward additional sums necessary to issue a discharge or satisfaction
of the mortgage, the letter does not mention closing the line of credit
account. The mortgage is an integral part of the line of credit
agreement, and the release of the mortgage without closing the account would defeat
Fifth Thirds security for the line of credit. We conclude that Title
Company and Blevins failed to meet Fifth Thirds condition for release of the
mortgage; specifically, Blevins did not direct Fifth Third in writing to close the
account. As in Liberty, Title Company had the ability to avert harm
by simply procuring such a statement from [Blevins] when it submitted payment to
pay off the account. It failed to do so. Liberty, 755
N.E.2d at 643. Consequently, Fifth Third was not obligated to release the
mortgage. We conclude that there are no genuine issues of material fact
and Fifth Third was entitled to summary judgment as a matter of law.
Thus, the trial court did not err by granting Fifth Thirds motion
for summary judgment and denying Title Companys motion for summary judgment. See,
e.g., id.
For the foregoing reasons, we affirm the trial courts grant of summary judgment
to Fifth Third, the trial courts denial of Title Companys motion for summary
judgment, and the trial courts denial of Title Companys motion to correct error.
Affirmed.
MATHIAS, J. and VAIDIK, J. concur