FLORENCE R. LACY-MCKINNEY, Appellant-Defendant,
TAYLOR, BEAN & WHITAKER MORTGAGE CORP., Appellee-Plaintiff.
Court of Appeals of Indiana.
November 19, 2010.
JOSEPH F. ZIELINSKI Indiana Legal Services, Inc. South Bend, Indiana, ATTORNEY FOR APPELLANT.
CRAIG D. DOYLE, MARK R. GALLIHER AMANDA J. MAXWELL Doyle Legal Corporation, P.C. Indianapolis, Indiana, ATTORNEYS FOR APPELLEE.
Florence R. Lacy-McKinney (“Lacy-McKinney”) appeals the trial court`s entry of summary judgment in favor of Taylor, Bean & Whitaker Mortgage Corp. (“Taylor-Bean”) on Taylor-Bean`s action to foreclose on Lacy-McKinney`s mortgage that was insured by the Federal Housing Administration (“FHA”). On appeal, Lacy-McKinney raises two issues that we restate as:
I. Whether a mortgagee`s compliance with federal mortgage servicing responsibilities is a condition precedent that may be raised as an affirmative defense to the foreclosure of an FHA-insured mortgage; and
II. Whether the trial court erred when it entered summary judgment in favor of Taylor-Bean on its mortgage foreclosure action against Lacy-McKinney.
We reverse and remand.
At the time Taylor-Bean filed its complaint, the security interest in the subject mortgage was in the name of Mortgage Electronic Registration Systems, Inc. (“MERS”) “(solely as nominee for [Taylor-Bean] . . . and [Taylor-Bean`s] successors and assigns).” Appellant’s App. at 8. After MERS assigned the security interest to Taylor-Bean, Taylor-Bean filed an amended complaint. Lacy-McKinney initially argued that summary judgment in favor of Taylor-Bean must fail because Taylor-Bean had no interest in the Property at the time the original complaint was filed. Id. at 102-03. Lacy-McKinney does not raise this issue on appeal.
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