CRONE, Judge.
Berney W. Garlick and Laurie A. Garlick acquired three tracts of land in Marion County. The Garlicks sold a portion of two of those tracts, combined the remaining property, and recorded a three-lot subdivision plat that shows Lot 1's address as 8611 West 96th Street, Zionsville. The Garlicks sold Lot 3 and kept Lots 1 and 2. The Garlicks gave Saxon Mortgage, Inc. ("Saxon"), a mortgage to secure a loan ("the Saxon mortgage"). The Saxon mortgage was filed with the Marion County Recorder ("the Recorder") in August 2007 and gives a metes and bounds description of two adjacent tracts, commonly known as 8611 West 96th Street, Zionsville, that coincide with the western 155 feet of Lots 1 and 2 and extend past the southern boundary of Lot 2. The Saxon mortgage was assigned to Deutsche Bank National Trust Company, as Trustee for Saxon Asset-Securities Trust 2007-4 ("Deutsche Bank").
Three years later, the Garlicks gave Robert Samuels and Simon Lynes ("S & L") a mortgage to secure a second loan ("the S & L mortgage"). The S & L mortgage was filed with the Recorder in August 2010. It describes the mortgaged property as Lots 1 and 2 and states that Lot 1 is commonly known as 8611 West 96th Street, Zionsville. Both lots were sold at tax sale, and S & L redeemed only Lot 1.
S & L filed suit against the Garlicks to foreclose their mortgage. Deutsche Bank was also named as a defendant and asserted that the Saxon mortgage was prior and therefore superior to the S & L mortgage. S & L and Deutsche Bank filed cross-motions for partial summary judgment as to the priority of the mortgages. The trial court granted Deutsche Bank's motion and ruled that the Saxon mortgage is prior and therefore superior to the S & L mortgage as to the portion of Lot 1 that the Saxon mortgage describes.
On appeal, S & L argue that the Saxon mortgage is invalid because it does not sufficiently describe the mortgaged property. We disagree and therefore affirm the trial court.
The relevant facts are undisputed. Dale Craft conveyed two adjacent tracts in Marion County to the Garlicks via a warranty
In March 2004, Heritage Development of Indiana, LLC ("Heritage"), conveyed a roughly triangular tract ("Tract III") abutting the northern portion of Tract I's eastern boundary to the Garlicks via a quitclaim deed ("the Heritage deed") containing a metes and bounds description of the tract. Woodslake Drive bordered Tract III and the southern portion of Tract I on the east. The Heritage deed was filed with the Recorder in May 2004.
Also in March 2004, the Garlicks conveyed to Heritage the southern 193.55 feet of Tracts I and II via a warranty deed containing a metes and bounds description of the property. This deed was filed with the Recorder in May 2004. This property became known as Lot 25.
The Garlicks combined the remaining portion of Tracts I and II with Tract III and filed a retracement survey of that property with the Recorder in August 2006. The Garlicks then subdivided the property into three lots, with Lot 1 (containing most of Tract III) to the north, Lot 2 (containing the rest of Tract III) in the middle, and Lot 3 to the south. This subdivision was designated as the Copper Ridge Secondary Plat, which was filed with the Recorder in October 2006. The plat contains a metes and bounds description of the subdivision and shows Lot 1 as the Garlicks' property with an address of 8611 West 96th Street. West 96th Street borders Lot 1 on the north, and Woodslake Drive borders all three lots on the east. The Garlicks sold Lot 3 in February 2007 and kept Lots 1 and 2.
In July 2007, the Garlicks gave a mortgage to Saxon to secure a loan. The Saxon mortgage was filed with the Recorder in August 2007. The metes and bounds legal description of the mortgaged property mirrors that of the Craft deed, except for a scrivener's error regarding the western boundary of Tract I (969.96 feet vs. 696.96 feet). In other words, the Saxon mortgage describes property that the Garlicks no longer owned (Lots 3 and 25), does not describe any portion of Tract III, and describes only the western 155 feet of Lots 1 and 2. The Saxon mortgage also states that the property is commonly known as 8611 West 96th Street, Zionsville. In July 2007, Saxon assigned its mortgage to Deutsche Bank. The assignment was not filed with the Recorder until March 2013.
In July 2010, the Garlicks gave a mortgage to S & L to secure a loan. The S & L mortgage was filed with the Recorder in August 2010. The mortgaged property is described as Lots 1 and 2 in Copper Ridge Secondary Plat, with Lot 1 commonly known as 8611 West 96th Street, Zionsville, and Lot 2 commonly known as 9520 Woodslake Drive, Zionsville. Lot 2 was sold at a Marion County tax sale and was not redeemed. Lot 1 was sold at a tax sale in October 2010 and was redeemed by S & L, who have also paid property taxes to keep it from being sold again at tax sale.
After a hearing, in August 2015 the trial court issued an order that reads in pertinent part as follows:
Id. at 8-10. S & L now appeal.
S & L appeal the trial court's entry of partial summary judgment in
"In reviewing cross-motions for summary judgment, we consider each motion separately." Id. (citation and quotation marks omitted). On appeal, the trial court's summary judgment ruling is cloaked with a presumption of validity. Id. at 763. "Where a trial court enters specific findings and conclusions, they offer insight into the rationale for the trial court's judgment and facilitate appellate review, but are not binding upon this court." Missler, 41 N.E.3d at 301. We are not limited to reviewing the trial court's reasons for its ruling and may affirm if it is sustainable on any theory found in the evidence designated to the trial court. Devereux, 30 N.E.3d at 763.
Indiana Code Section 32-21-4-1(a) provides that a mortgage of land "must be recorded in the recorder's office of the county where the land is situated[.]" A mortgage "takes priority according to the time of its filing." Ind.Code § 32-21-4-1(b). Indiana Code Section 36-2-11-12 provides,
In this case, it is undisputed that the Saxon mortgage was recorded three years before the S & L mortgage and therefore would take priority unless it is somehow invalid.
Bank of New York v. Nally, 820 N.E.2d 644, 649-50 (Ind.2005) (citations omitted). Also, "a recorded mortgage must be in the `chain of title.'" Id. at 650 (quoting Szakaly v. Smith, 544 N.E.2d 490, 492 (Ind. 1989)). "[A] prospective purchaser or mortgagee is on notice of outstanding mortgages for the period that the mortgagor held title of the real estate according to the chain of title." Id. at 651.
Via the affidavit of Daniel Christian, Deutsche Bank established that the Saxon mortgage is in the Garlicks' chain of title and can be found by using the Recorder's index of records listing Berney Garlick as a grantee from August 2010 (when the S & L mortgage was recorded) backward to June 2003 (when the Craft deed was recorded) and as a grantor from June 2003 forward to August 2010.
This Court has stated,
Keybank Nat'l Ass'n v. NBD Bank, 699 N.E.2d 322, 326 (Ind.Ct.App.1998) (citing, inter alia, Matter of Estate of Lawrence, 565 N.E.2d 357, 359 (Ind.Ct.App.1991)).
In Lawrence, a 6.85-acre tract was conveyed to Marc Lawrence and other family members via a deed containing a metes and bounds description of the property, commonly described as 228 Gilmore Road. As security for a loan, the Lawrences gave a bank a mortgage describing that tract as well as real estate that they did not own. The Lawrences then conveyed to Marc a 0.30-acre tract that was part of the 6.85-acre tract and commonly described as 227 Gilmore Road. Marc gave the same bank a mortgage on the 227 Gilmore Road tract stating that the tract was "`free and clear of all liens and encumbrances except for the lien of taxes and assessments not delinquent and [the] first mortgage[.]'" Lawrence, 565 N.E.2d at
On appeal, this Court concluded otherwise:
Id. at 359.
Here, S & L assert that the Saxon mortgage "both over- and under-describes the Mortgaged Property" and therefore "it is impossible to determine which property was intended to be mortgaged." Appellants' Br. at 9. We disagree. The Saxon mortgage, which is in the Garlicks' chain of title, put prospective purchasers or mortgagees on notice of an existing mortgage on property commonly known as 8611 West 96th Street, Zionsville — the same address shown on Lot 1 of the Copper Ridge Secondary Plat, which is also in the Garlicks' chain of title. The Saxon mortgage's metes and bounds description is a facially valid legal description, has the same geographic starting point as that of the Copper Ridge Secondary Plat, and encompasses the western 155 feet of that plat.
Consequently, we agree with the trial court that Deutsche Bank has a prior and therefore superior lien as to that part of Lot 1 in Copper Ridge Secondary Plat that is covered by the legal description in the Saxon mortgage.
Affirmed.
VAIDIK, C.J., and BAILEY, J., concur.
Id. at 96-97. Using the street address, legal description of Lot 1, parcel number, state parcel number, and names of the owners of record (i.e., the Garlicks) as search parameters, Royal Title found "only one recorded mortgage that is currently indexed against the Property," i.e., the S & L mortgage. Id. at 97. This case illustrates the perils of limiting a mortgage search by parcel number, given that the official mortgage records maintained by the county recorder are indexed by name pursuant to statute. Cf. Szakaly, 544 N.E.2d at 491-92 (describing process of determining chain of title by tracing grantor's name).