Full Opinion (html_with_citations)

                                                                                   FILED
                                                                               Dec 13 2023, 9:41 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Duran L. Keller                                            Natasha A. Burkett
Keller Law                                                 Dykema Gossett PLLC
Lafayette, Indiana                                         Chicago, Illinois


                                            IN THE
    COURT OF APPEALS OF INDIANA

Damien Keller,                                             December 13, 2023
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           23A-CT-1407
        v.                                                 Appeal from the Marion Superior
                                                           Court
Nationstar Mortgage LLC d/b/a                              The Honorable Gary L. Miller,
Mr. Cooper,                                                Judge
Appellee-Defendant                                         Trial Court Cause No.
                                                           49D03-2212-CT-41690



                                  Opinion by Judge Crone
                              Judges Riley and Mathias concur.


Crone, Judge.




Court of Appeals of Indiana | Opinion 23A-CT-1407 | Decenber 13, 2023                       Page 1 of 5
      Case Summary
[1]   Nationstar Mortgage LLC d/b/a Mr. Cooper (Nationstar) filed a motion to

      dismiss a complaint for damages filed against it by Damien Keller. Nationstar

      raised three grounds supporting dismissal. The trial court granted the dismissal

      with prejudice but did not specify the grounds for dismissal. Keller now

      appeals, arguing that reversal and remand are appropriate so that the trial court

      can provide the rationale for dismissal. Under the specific circumstances

      presented, we agree and therefore reverse and remand.


      Facts and Procedural History
[2]   Keller filed a complaint against Nationstar that appears to allege multiple

      violations of the Real Estate Settlement Procedures Act (RESPA). In his

      complaint, Keller alleged that he sent a “Notice of Error” letter to Nationstar in

      January 2022. He alleges that the letter “claimed an error on the part” of

      Nationstar and “ask[ed] [Nationstar] for information and that [Nationstar]

      correct the errors claimed” in the letter. Appellant’s App. Vol. 2 at 8. He alleged

      that he also sent a “Request for Information” letter to Nationstar in January

      2022 containing essentially the same content. Keller further alleged that he sent

      a “Second Notice of Error” letter to Nationstar in February 2022. The second

      letter again allegedly “claimed an error on the part” of Nationstar and “ask[ed]

      [Nationstar] for information and that [Nationstar] correct the errors claimed in

      the letter.” Id. at 9. The complaint alleged that Nationstar’s failure to correct

      these “errors” resulted in it sharing “inaccurate and incomplete information

      with consumer reporting agencies” regarding “one or more allegedly overdue

      Court of Appeals of Indiana | Opinion 23A-CT-1407 | Decenber 13, 2023       Page 2 of 5
      payments[.]” Id. The complaint further alleged that Nationstar “removed Mr.

      Keller’s account from autopay” and that it “did not provide acknowledgment of

      receipt of Mr. Keller’s request for information within the time permitted.” Id.

      Based upon these allegations, Keller requested a money judgment against

      Nationstar.


[3]   In April 2023, Nationstar filed a motion to dismiss the complaint alleging three

      grounds for dismissal: (1) failure to state a claim upon which relief can be

      granted pursuant to Indiana Trial Rule 12(B)(6); (2) lack of subject matter

      jurisdiction pursuant to Indiana Trial Rule 12(B)(1) to the extent the complaint

      alleges federal causes of action; and (3) lack of written instruments upon which

      the claims are based pursuant to Indiana Trial Rule 9.2(A). The trial court

      granted the motion and dismissed Keller’s complaint with prejudice. The trial

      court’s order did not specify the basis for dismissal. Keller subsequently filed a

      motion to correct error and request for a hearing, both of which were denied by

      the trial court. This appeal ensued.


      Discussion and Decision
[4]   While Keller raises several claims of error, we find it dispositive that the trial

      court did not state the basis for dismissing Keller’s complaint in its dismissal

      order. As a general matter, when a trial court grants a motion to dismiss

      without reciting the grounds relied upon, it must be presumed upon review that

      the court granted the motion to dismiss on all the grounds in the motion. Godby

      v. Whitehead,
837 N.E.2d 146, 149
 (Ind. Ct. App. 2005), trans. denied (2006).


      Court of Appeals of Indiana | Opinion 23A-CT-1407 | Decenber 13, 2023        Page 3 of 5
      However, Nationstar concedes, either by its explicit arguments or by omission,

      that the only potentially viable ground alleged below for dismissing Keller’s

      complaint would have been pursuant to Indiana Trial Rule 12(B)(6) for failure

      to state a claim upon which relief could be granted. 1 Be that as it may, we must

      agree with Keller that the trial court’s failure to specify its reason for dismissal,

      coupled with the order providing that the dismissal was with prejudice,

      constitutes reversible error in this case.


[5]   Trial Rule 12(B) provides that “[w]hen a motion to dismiss is sustained for

      failure to state a claim under subdivision (B)(6) of this rule the pleading may be

      amended once as of right pursuant to Rule 15(A) within ten [10] days after

      service of notice of the court’s order sustaining the motion and thereafter with

      permission of the court pursuant to such rule.” Therefore, a Rule 12(B)(6)

      dismissal is typically without prejudice because the complaining party remains

      able to file an amended complaint. Baker v. Town of Middlebury,
753 N.E.2d 67, 74
 (Ind. Ct. App. 2001). Here, in failing to specify the rationale underlying the

      dismissal of Keller’s complaint, i.e., that the dismissal was in fact pursuant to

      Indiana Trial Rule 12(B)(6) as opposed to one of the other grounds advanced by




      1
        Nationstar appears to wholly abandon its Trial Rule 12(B)(1) claim and further concedes that its assertion
      below, that the complaint should be dismissed pursuant to Trial Rule 9.2(A) because Keller did not attach his
      RESPA letters to the complaint, is not a legitimate ground for dismissal. See Appellee’s Br. at 15
      (acknowledging that Keller’s failure to attach the writings “merely serves to reiterate [Nationstar’s] T.R.
      12(B)(6) argument that Keller has failed to state a claim.”). Although Nationstar attempts to raise lack of
      standing as a basis for dismissal on appeal, Nationstar did not argue this basis below and therefore the issue is
      waived. See First Chicago Ins. Co. v. Collins,
141 N.E.3d 54
, 61 (Ind. Ct. App. 2020) (an argument or issue
      raised for first time on appeal is waived).

      Court of Appeals of Indiana | Opinion 23A-CT-1407 | Decenber 13, 2023                                Page 4 of 5
      Nationstar, and in entering the dismissal with prejudice (which would have led

      Keller to believe that the dismissal was NOT pursuant to 12(B)(6)), the trial

      court essentially prevented Keller from exercising the opportunity to amend his

      complaint once as of right as permitted in the case of a 12(B)(6) dismissal. In

      short, had Keller been advised by the trial court that his complaint lacked the

      specificity required by Trial Rule 12(B)(6), Keller could have attempted to cure

      any deficiencies by filing an amended complaint. 2


[6]   Under the circumstances, we think Keller was prejudiced by the trial court’s

      failure to provide a rationale for granting a dismissal with prejudice. Therefore,

      we reverse and remand with instructions for the trial court to enter a revised

      order which includes its basis for dismissal. Depending on the rationale, Keller

      may then proceed accordingly.


[7]   Reversed and remanded.


      Riley, J., and Mathias, J., concur.




      2
        Nationstar urges that the trial court’s erroneous dismissal of Keller’s complaint with prejudice “did not
      preclude him from filing an amended complaint.” Appellee’s Br. at 14. Nationstar directs us to DeCola v.
      Steinhilber,
207 N.E.3d 440
, 447 (Ind. Ct. App. 2023), in which another panel of this Court observed that,
      “when a trial court rules that a complaint ought to be dismissed because it fails to state a claim upon which
      relief can be granted, it is essentially ruling that the claims asserted are, as presented, lacking in merit as a
      matter of law.” A plaintiff then “has two options: (1) determine that the claims only currently lack merit
      because of the way in which they are pleaded—a matter of form—and correct the pleadings; or (2) reject the
      trial court’s ruling and its implication and challenge the ruling on appeal.”
Id.
 The DeCola court noted that a
      plaintiff is not precluded from correcting the pleadings by amending the complaint even when a trial court
      erroneously enters a 12(B)(6) dismissal with prejudice. Id. at n.8. However, we find DeCola inapplicable, as
      the trial court here did not specifically enter a 12(B)(6) dismissal with prejudice. It simply entered a general
      dismissal with prejudice.

      Court of Appeals of Indiana | Opinion 23A-CT-1407 | Decenber 13, 2023                                  Page 5 of 5