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Damon D. Clark v. First Merchants Bank - Foreclosure Appeal
Summary
The Indiana Court of Appeals affirmed a lower court's grant of summary judgment to First Merchants Bank in a foreclosure action against Damon D. Clark. The court found that Clark waived his appeal issues by not presenting them to the trial court and that the bank established a prima facie case for foreclosure.
What changed
The Indiana Court of Appeals, in case number 24A-MF-2831, affirmed the trial court's decision to grant summary judgment to First Merchants Bank in a foreclosure action against Damon D. Clark. The appellate court determined that Clark waived the issues he attempted to raise on appeal because they were not presented to the trial court. The court found that First Merchants Bank had established a prima facie case for foreclosure and that Clark failed to present evidence creating a genuine issue of material fact.
This ruling means the foreclosure action against Damon D. Clark will proceed as ordered by the trial court. For regulated entities, this case serves as a reminder of the importance of properly preserving issues for appeal by presenting them to the trial court. Failure to do so can result in waiver of those arguments, as demonstrated in this case.
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by Judge May](https://www.courtlistener.com/opinion/10807215/damon-d-clark-v-first-merchants-bank/about:blank#o1) The text of this document was obtained by analyzing a scanned document and may have typos.
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March 11, 2026 Get Citation Alerts Download PDF Add Note
Damon D. Clark v. First Merchants Bank
Indiana Court of Appeals
- Citations: None known
- Docket Number: 24A-MF-02831
- Judges: Altice, May, Foley
Disposition: Affirmed
Disposition
Affirmed
Combined Opinion
by Judge May
IN THE
Court of Appeals of Indiana
Damon D. Clark,
FILED
Appellant-Defendant Mar 11 2026, 8:41 am
CLERK
v. Indiana Supreme Court
Court of Appeals
and Tax Court
First Merchants Bank,
Appellee-Plaintiff
March 11, 2026
Court of Appeals Case No.
24A-MF-2831
Appeal from the Marion Superior Court
The Honorable Christina Klineman, Judge
The Honorable Ian Stewart, Magistrate
Trial Court Cause No.
49D01-2403-MF-10727
Opinion by Judge May
Judges Altice and Foley concur.
May, Judge.
Court of Appeals of Indiana | Opinion 24A-MF-2831 | March 11, 2026 Page 1 of 9
[1] Damon D. Clark appeals the trial court’s grant of summary judgment to First
Merchants Bank in First Merchants’ action for foreclosure. Clark attempts to
raise several issues on appeal, but those issues are waived because they were not
presented to the trial court. 1 See Safeco Ins. Co. of Ind. v. Blue Sky Innovation
Group, 230 N.E.3d 898, 907 (Ind. 2024) (“This issue was not presented before
the trial court and is thus waived.”), reh’g denied. In the trial court, First
Merchants presented a prima facie case of entitlement to foreclosure, and Clark
failed to designate any evidence to create a genuine issue of material fact about
whether First Merchants was entitled to judgment as a matter of law. We
accordingly affirm the trial court’s summary judgment and order of foreclosure.
Facts and Procedural History
[2] On November 30, 2022, Clark signed a promissory note to borrow $177,332.20
from First Merchants to purchase a home in Indianapolis. The note required
Clark to make monthly installment payments for thirty years, with the first
installment due January 1, 2023. On November 30, 2022, Clark also signed a
security instrument to grant Mortgage Electronic Registration Systems, Inc.,
1
The language used by Clark in many of his trial and appellate court filings suggests he is an acolyte of the
“sovereign citizen” movement, “a loosely-formed group of citizens who believe that they are sovereign
individuals” beyond the reach of the courts. Lewis v. Texas, 532 S.W.3d 423, 430 (Tex. App. – Houston [14th
Dist.] 2016). However, this Court and our sister courts have repeatedly rejected such arguments because they
are baseless. See, e.g., Taylor-Bey v. State, 53 N.E.3d 1230, 1231-32 (Ind. Ct. App. 2016) (holding trial court
possessed personal and subject matter jurisdiction over the defendant and rejecting his sovereign citizen
argument); see also, U.S. v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011) (“Regardless of an individual’s claimed
status of descent, be it a ‘sovereign citizen,’ a ‘secured-party creditor,’ or a ‘flesh-and-blood human being,’
that person is not beyond the jurisdiction of the courts. These theories should be rejected summarily,
however they are presented.”), reh’g denied, reh’g en banc denied, cert. denied, 132 S. Ct. 1612 (2012).
Court of Appeals of Indiana | Opinion 24A-MF-2831 | March 11, 2026 Page 2 of 9
(“MERS”) a security interest in the home he was purchasing. The mortgage
was recorded in the Marion County Recorder’s Office on December 15, 2022.
[3] Clark made eight monthly payments on the home loan and then failed to make
further payments. MERS assigned the mortgage to First Merchants on March
4, 2024. On March 11, 2024, First Merchants filed a complaint asking to
collect on the note and foreclose the mortgage. To that complaint, First
Merchants attached the Notice of Default, a copy of the original note with
Clark’s signature, a copy of the mortgage, and a copy of the assignment of the
mortgage from MERS to First Merchants. On April 9, 2024, Clark filed a
response 2 and requested a settlement conference. Two settlement conferences
were held but no agreement was reached to prevent foreclosure.
[4] On August 26, 2024, First Merchants filed a motion for summary judgment,
designation of evidence with attached exhibits, and memorandum in support of
its motion. On September 27, 2024, Clark filed a document that he
denominated an “Affidavit in Response to the Complaint Filed by First
Merchants.” (Appellant’s App. Vol. 2 at 21-24.) On October 25, 2024, the trial
court held a hearing on the motion for summary judgment and, later that same
day, entered summary judgment against Clark and granted a Decree of
Foreclosure to First Merchants. On October 31, 2024, First Merchants moved
the trial court to send the Judgment and Decree of Foreclosure to the Sheriff to
2
We did not find a copy of Clark’s pleading in either Appendix filed by the parties.
Court of Appeals of Indiana | Opinion 24A-MF-2831 | March 11, 2026 Page 3 of 9
proceed with the sale of Clark’s property. On November 14, 2024, Clark filed a
Motion to Set Aside the summary judgment and foreclosure based on “fraud
upon the court” and a Memorandum of Law in support thereof. (Id. at 27.)
Clark then filed his notice of appeal on November 22, 2024. 3
Discussion and Decision
[5] Clark appeals the trial court’s grant of summary judgment. We note that Clark
proceeds pro se. When a party proceeds on appeal without counsel, he is
expected to follow the same procedural rules that licensed attorneys are
expected to follow, McCullough v. Citimortgage, Inc., 70 N.E.3d 820, 825 (Ind.
2017), and “is afforded no inherent leniency simply by virtue of being self-
represented.” Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014).
[6] An appellant bears the burden of showing that the trial court erred when it
granted summary judgment. Kramer v. Cath. Charities of Diocese of Fort Wayne-
South Bend, Inc., 32 N.E.3d 227, 231 (Ind. 2015). Summary judgment is
appropriate only if the moving party was entitled to judgment as a matter of law
and there were no genuine issues of material fact 4 remaining for trial. See Ind.
3
Clark filed his notice of appeal prior the trial court having an opportunity to rule on his motion to set aside
the judgment. The trial court clerk filed the Notice of Completion of Clerk’s Record on November 26, 2024,
which transferred jurisdiction to our Court. See Ind. Appellate Rule 8. Because the trial court no longer had
jurisdiction, the trial court’s order of December 3, 2024, which denied Clark’s motion to set aside the
judgment, is void. See, e.g., Conroad Assocs., L.P. v. Castleton Corner Owners Ass’n, Inc., 205 N.E.3d 1001, 1007
(Ind. 2023) (holding orders are “void” if they are entered by trial court after filing of clerk’s record and impact
the subject matter on appeal). Nevertheless, as we herein affirm the trial court’s grant of summary judgment,
Clark’s motion to set aside is moot and need not be addressed by the trial court.
4
“A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier
of fact is required to resolve the parties’ differing accounts of the truth or if the undisputed material facts
Court of Appeals of Indiana | Opinion 24A-MF-2831 | March 11, 2026 Page 4 of 9
Trial Rule 56(C) (“The judgment sought shall be rendered forthwith if the
designated evidentiary matter shows that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.”). We review the grant of summary judgment de novo, Cave Quarries, Inc.
v. Warex LLC, 240 N.E.3d 681, 684 (Ind. 2024), and as we conduct our analysis,
we “view the evidence in the light most favorable to the nonmovant and draw
all reasonable inferences for the nonmovant.” Id. at 685.
[7] When First Merchants filed its motion for summary judgment, it designated the
following evidence: the Pre-Suit Notice of default, the promissory note, the
mortgage, the assignment of the mortgage to First Merchants, and multiple
affidavits affirming the existence of the original promissory note, default on the
loan, and costs. (See Appellee’s App. Vol. 2 at 34-60.) These documents
demonstrated a prima facie case that First Merchants was entitled to judgment.
See Hussain v. Salin Bank & Trust Co., 143 N.E.3d 322, 328 Ind. Ct. App. 2020)
(evidence of note, mortgage, and default create prima facie case for mortgage
foreclosure), trans. denied.
[8] When the party moving for summary judgment designates evidence
demonstrating entitlement to judgment as a matter of law, the burden shifts to
the non-moving party to “‘come forward with contrary evidence’” creating a
genuine issue of material fact to avoid summary judgment. Hughley v. State, 15
support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (internal
citation omitted).
Court of Appeals of Indiana | Opinion 24A-MF-2831 | March 11, 2026 Page 5 of 9
N.E.3d 1000, 1003 (Ind. 2014) (quoting Williams v. Tharp, 914 N.E.2d 756, 762
(Ind. 2009)). As Trial Rule 56(C) states: “A party opposing the motion shall
also designate to the court each material issue of fact which that party asserts
precludes entry of summary judgment and the evidence relevant thereto.” The
opposing party has “thirty (30) days” to file a response and any opposing
affidavits. T.R. 56(C). Clark failed to file an adequate response in a timely
manner.
[9] First Merchants filed its motion for summary judgment on August 26, 2024.
On September 27, 2024, Clark filed an “Affidavit in Response to the Complaint
filed by First Merchants Bank.” (Appellant’s App. Vol. 2 at 21.) On October
17, 2024, Clark filed a “Notice of Claim, Exhibit, and Forensic Audit.” (Id. at
6.) At the October 25, 2024, hearing on the motion for summary judgment,
First Merchants argued the trial court could not consider Clark’s September 27
or October 17 filings when determining summary judgment because those
filings occurred “outside of the thirty (30) day period” provided by Indiana
Trial Rule 56. (Tr. Vol. 2 at 6.) Clark was unable to articulate a cogent
response to that argument, and the trial court determined “I cannot consider
your filings on the 27th and the 17th.” (Id. at 8.) The trial court then allowed the
parties to argue the summary judgment motion. In its final order the trial court
indicated it considered the “Motion [for summary judgment], Plaintiff’s
Supporting Memorandum, and the designated evidentiary materials[.]”
(Appellant’s App. Vol. 2 at 9.) We infer therefrom that the trial court did not
consider Clark’s filings.
Court of Appeals of Indiana | Opinion 24A-MF-2831 | March 11, 2026 Page 6 of 9
[10] In his brief on appeal, Clark provides three sentences to argue the trial court
should have accepted and considered his September 27 “affidavit”:
Under Indiana Code § 34-28-1-2 and Indiana Trial Rule 56, trial
courts may permit the filing of affidavits beyond statutory limits
for good cause shown. The Appellant’s affidavit, filed 1 day
beyond the limit September 27, 2024 presented critical evidence
of fraudulent misrepresentation and procedural errors. The trial
court’s refusal to accept this affidavit constitutes an abuse of
discretion, particularly given the equitable principles governing
foreclosure actions.
(Appellant’s Br. at 17-18) (citation to the record omitted). First, we do not
believe three sentences with citation to only Trial Rule 56 5 is sufficient to
constitute the “cogent” argument required on appeal. See Ind. Appellate Rule
46(A)(8)(a) (“The argument must contain the contentions of the appellant on
the issues presented, supported by cogent reasoning. Each contention must be
supported by citations to the authorities, statutes, and the Appendix or parts of
the Record on Appeal relied on . . . .”). This is especially true because Clark
provided no citation to case law that suggests the trial court abused its broad
discretion by enforcing the timeline provided by Trial Rule 56. Second, the
document that Clark denominated an affidavit did not, in fact, “present[]
5
Clark also cited Indiana Code section 34-28-1-2, but that statute sets out the procedure whereby a
nonresident of Indiana who was born in Indiana can petition the court “to establish a public record of the
time and place of the birth of the applicant.” Ind. Code § 34-28-1-2(b). That statute does not appear relevant
to the timeliness of filings in opposition to summary judgment under Trial Rule 56(C).
Court of Appeals of Indiana | Opinion 24A-MF-2831 | March 11, 2026 Page 7 of 9
critical evidence” (Appellant’s Br. at 17), because it was not signed 6 and it
therefore presented no evidence at all. See In re Paternity of P.W.J., 846 N.E.2d
752, 757-58 (Ind. Ct. App. 2006) (holding typewritten and unsigned document
did not constitute competent evidence under Indiana Trial Rule 11), aff’d on
reh’g 850 N.E.2d 1024 (Ind. Ct. App. 2006).
[11] Clark did not designate any evidence to create a genuine issue of material fact
after First Merchants had demonstrated it was entitled to foreclose on Clark’s
house given that he was in default on the promissory note. Therefore, we
cannot say the trial court erred when it granted summary judgment to First
Merchants and ordered foreclosure. See Rood v. Mobile Lithotripter of Ind., Ltd.,
844 N.E.2d 502, 508 (Ind. Ct. App. 2006) (“Because Rood did not specifically
designate evidence in opposition to Union’s motion for summary judgment, he
has not satisfied the requirements of the [sic] Indiana Trial Rule 56 and not
established that there are genuine issues of fact for trial.”).
Conclusion
[12] We affirm the trial court’s grant of summary judgment to First Merchants and
its order of foreclosure.
[13] Affirmed.
6
When a document requires a signature and must be electronically filed, the signature “must” appear in one
of two ways: (1) as “a graphic image of a handwritten signature,” or (2) with “the indicator ‘/s/’ followed by
the person’s name.” Ind. Trial Rule 87(G)(1). Clark’s document contained neither of those and thus was not
signed.
Court of Appeals of Indiana | Opinion 24A-MF-2831 | March 11, 2026 Page 8 of 9
Altice, J., and Foley, J., concur.
PRO SE APPELLANT
Damon D. Clark
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Bryan K. Redmond
Matthew S. Love
Feiwell & Hannoy, P.C.
Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 24A-MF-2831 | March 11, 2026 Page 9 of 9
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