ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
CLIFFORD W. SHEPARD
G. MARTIN COLE
JEREMY J. GROGG
Burt, Blee, Dixon, Sutton, & Bloom, LLP
Fort Wayne, Indiana
COURT OF APPEALS OF INDIANA
ATLANTIC MORTGAGE & INVESTMENT
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Dan E. Marshall, Special Judge
Cause No. 49D01-0307-MF-1284
June 29, 2006
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Appellant-Defendant, Dare Afolabi (Afolabi), appeals the trial court’s grant of
summary judgment in favor of Appellee-Plaintiff, Atlantic Mortgage & Investment Corp.
(Atlantic), on its Complaint to Foreclose Mortgage against Afolabi.
Afolabi raises one issue on appeal, which we restate as follows: Whether the trial
court erred in concluding that the doctrine of res judicata did not bar Atlantic, as
assignee of Afolabi’s note and mortgage, from bringing a foreclosure action where a
previous foreclosure action had been brought against Afolabi based upon the same note
and mortgage and that previous action had been dismissed with prejudice pursuant to
Indiana Trial Rule 41(E).
FACTS AND PROCEDURAL HISTORY
On February 16, 1990, Afolabi executed a promissory note (note) agreeing to pay
Kemper Mortgage Co., Inc., (Kemper) the sum of $52,800.00 with interest. At the same
time, Afolabi executed a mortgage in favor of Kemper for real estate located at 1736
Sanwella Drive, Indianapolis, Indiana to secure payment on the note. The mortgage was
duly recorded with the Marion County Recorder’s Office. That same day, Kemper
assigned and transferred all right, title, and interest in the note and mortgage to
Lambrecht Company (Lambrecht), which was also recorded with the Marion County
Recorder’s Office on February 21, 1990.