IN THE
Court of Appeals of Indiana
FILED
Nicholas Yrjo Nifadeff, Jul 16 2026, 8:57 am
Appellant-Defendant CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
v.
Historic Landmarks Foundation of Indiana, Inc.
d/b/a Indiana Landmarks,
Appellee-Plaintiff
July 16, 2026
Court of Appeals Case No.
25A-PL-2520
Appeal from the LaPorte Circuit Court
The Honorable Julianne K. Havens, Judge
Trial Court Cause No.
46C01-2105-PL-1044
Opinion by Judge Mathias
Judges Kenworthy and DeBoer concur.
Court of Appeals of Indiana Opinion 25A-PL-2520 July 16, 2026 Page 1 of 19
Mathias, Judge.
[1] Nicholas Nifadeff appeals the trial court’s judgment for Historic Landmarks
Foundation of Indiana, Inc., d/b/a Indiana Landmarks (“Indiana
Landmarks”), following a bench trial. Nifadeff raises four issues for our review,
which we consolidate and restate as the following dispositive issues:
1. Whether the trial court’s finding that Nifadeff expressed an
intent to restore the property at issue is sufficient to show a
“promise” under a theory of promissory estoppel.
2. Whether a prior decree of foreclosure entered against Indiana
Landmarks with respect to the property at issue is res judicata as
to Indiana Landmarks’s purported current rights to that property.
[2] We reverse the trial court’s judgment for Indiana Landmarks and remand with
instructions to enter judgment for Nifadeff.
Facts and Procedural History
[3] The Orr Mansion (“the Property”) is a historic property located in LaPorte. In
1999, the then-owner of the Property, Dean White, entered into an agreement
with Indiana Landmarks. Pursuant to that agreement, Indiana Landmarks
provided White with a loan in the amount of $22,295 to be used for certain
restoration at the Property. In exchange, White granted Indiana Landmarks a
security interest on the Property to protect the repayment of his debt, which
security interest the agreement labeled as a “Mortgage.” Appellant’s App. Vol.
Court of Appeals of Indiana Opinion 25A-PL-2520 July 16, 2026 Page 2 of 19
2, p. 38. The agreement further granted Indiana Landmarks a “first right to
purchase” the Property over subsequent bona fide purchasers. Id. at 40.
[4] In that same agreement, White also granted Indiana Landmarks certain
protective covenants on the Property (“the Protective Covenants”). As relevant
here, the Protective Covenants generally sought to restore and maintain the
Property’s historic appearance. In particular, the Protective Covenants state as
follows:
(a) Restoration Plan. Within ninety (90) days hereof, and before
beginning restoration work, Declarant [White] shall submit to
[Indiana] Landmarks a restoration plan. . . . [Indiana]
Landmarks shall either approve or disapprove [of] the restoration
plan within thirty (30) days . . . and any amendment thereto
within fifteen days . . . .
(b) Restoration Work. Within thirty (30) days following approval
of the restoration plan, Declarant shall begin the restoration
work . . . . The restoration work shall be completed no later than
eighteen (18) months following approval of the restoration
plan. . . .
(c) Maintenance. Declarant shall maintain the exterior of the
[Property] in a “first class condition” [with examples
provided]. . . .
Id. at 38-39. The agreement also provided that the Protective Covenants “shall
be binding on the parties . . . , their heirs, successors, and assigns, and run with
the [Property], in perpetuity. . . .” Id. at 40. And the agreement permitted
Court of Appeals of Indiana Opinion 25A-PL-2520 July 16, 2026 Page 3 of 19
Indiana Landmarks to seek injunctive and other relief as necessary to enforce its
terms.
[5] Indiana Landmarks recorded the agreement on May 5, 1999, as instrument
number 99-09876 in the Office of the Recorder of LaPorte County. Indiana
Landmarks separately recorded the mortgage terms and conditions as
instrument number 99-09878. White used his loan from Indiana Landmarks in
accordance with an approved restoration plan and “did complete that work.”
Tr. Vol. 2, p. 17. However, there is no evidence that White repaid his debt to
Indiana Landmarks or that Indiana Landmarks recorded any documentation
that showed a release of its security interest against the Property.
[6] Subsequent to the execution and recording of his agreement with Indiana
Landmarks, White obtained a mortgage on the Property through Bank One,
N.A. In 2003, White defaulted on his note with Bank One, and Bank One
initiated foreclosure proceedings. In an amended complaint in those
proceedings, Bank One named Indiana Landmarks as a defendant and sought
to have Indiana Landmarks “answer as to any interest claimed” in the Property,
“including, without limitation,” the “mortgage” recorded under instrument
number 99-09878. Appellee’s App. Vol. 2, p. 6 (emphases added; capitalization
and bold font removed). 1 Further, although its interest in the Property was
executed and recorded subsequent to Indiana Landmarks’s interest, Bank One
1
At the bench trial, the trial court took judicial notice of Bank One’s amended complaint for foreclosure.
Court of Appeals of Indiana Opinion 25A-PL-2520 July 16, 2026 Page 4 of 19
asked that a decree of foreclosure be entered in Bank One’s favor “as a first and
prior lien as against” Indiana Landmarks and all other defendants. Id. at 7.
[7] Indiana Landmarks responded in Bank One’s foreclosure proceedings only by
filing a document titled, “Disclaimer of Interest.” Ex. Vol. 1, p. 236
(capitalization and bold font removed) (“the Disclaimer”). 2 The Disclaimer
provided in relevant part as follows:
COMES NOW[ Indiana Landmarks] . . . and disclaims any
interest in and to the real estate described in that certain mortgage
recorded May 5, 1999[,] as Instrument No. 99-09878 in the
Office of the Recorder of LaPorte County, Indiana; said real estate
and [Indiana Landmarks’s] interest therein, being foreclosed upon in the
pending cause of action.
Id. (emphases added).
[8] Thereafter, the trial court entered a decree of foreclosure in favor of Bank One
and against all defendants, including against Indiana Landmarks by way of a
default judgment. The decree of foreclosure stated that Bank One was “entitled
to have its mortgage . . . foreclosed as against the defendants” and that the
Property was to be “sold on foreclosure” to pay Bank One its unpaid sums due
under White’s note. Id. at 239-40. The decree of foreclosure further expressly
2
The parties stipulated to the admission of the Disclaimer at the bench trial.
Court of Appeals of Indiana Opinion 25A-PL-2520 July 16, 2026 Page 5 of 19
provided that “all right, title, interest[,] and claim of the defendants . . . in and
to said real estate shall be sold” at the foreclosure sale. Id. at 241.
[9] Bank One then purchased the Sheriff’s Deed to the Property in December 2006.
Bank One later transferred title to the Property, without notice to Indiana
Landmarks, to David and Leah Peakes in 2007. In September 2009, the
Peakeses transferred title to the Property, again, without notice to Indiana
Landmarks, to William Jacobson and Diane Behnke. Jacobson and Behnke
subsequently executed a note with Horizon Bank secured by a mortgage on the
Property. They defaulted on that note, Horizon initiated foreclosure
proceedings, and Horizon obtained the ensuing Sheriff’s Deed to the Property.
Indiana Landmarks was not a party to Horizon’s foreclosure proceedings. In
2016, Horizon transferred title to the Property to Fannie Mae via quit-claim
deed. Again, Indiana Landmarks was not given notice of the transfer of title.
[10] In early 2017, Nifadeff sought to purchase the Property, and he met with a realestate agent representing Fannie Mae. That agent provided Nifadeff with a
Purchase Agreement and accompanying addendum. The Purchase Agreement
stated that any offer submitted by Nifadeff would be “contingent upon Indiana
Landmarks[’s] First Right to Purchase the [Property] within ten (10) days of
written notice by certified mail of an accepted offer . . . .” Id. at 159.
[11] Nifadeff executed the Purchase Agreement, and Fannie Mae contacted Indiana
Landmarks about its alleged right to purchase the property within ten days.
Indiana Landmarks then contacted Nifadeff “to ensure that you as a buyer
Court of Appeals of Indiana Opinion 25A-PL-2520 July 16, 2026 Page 6 of 19
understand the legal responsibilities” provided by the Protective Covenants
“and the requirements to return the [P]roperty back to a proper level of repair.”
Id. at 12. Indiana Landmarks included an attachment that outlined eight
“[i]mmediate” needs for restoration and two additional “[s]econdary” needs at
the Property. Id. at 14.
[12] Nifadeff responded by email to Indiana Landmarks in relevant part as follows:
Your concerns about the [Property] are quite understandable; it is
in poor condition. I’d like to assure you that my aim about the
[Property] is exactly the same as [Indiana] Landmarks[’s]: to
restore it to its original glory[] and keep it that way.
***
You should expect from me:
• Detailed restoration plan, within 90 days after transaction is
closed,
• Completion of the listed exterior works, within 18 months after the
approval of the restoration plan . . . .
• As an extra, I will consider a complete restoration of
chimneys . . . .
I believe[ the] timeframe specified by [Indiana Landmarks] is
realistic. I only hope to pick the right contractors who could
deliver on time. . . .
Id. at 16 (emphases added; bold font removed).
Court of Appeals of Indiana Opinion 25A-PL-2520 July 16, 2026 Page 7 of 19 [13] Based on that email, Indiana Landmarks informed Fannie Mae that it would
not purchase the property, and Nifadeff closed with Fannie Mae. Thereafter,
Nifadeff did not submit a restoration plan with Indiana Landmarks. Instead, he
made various repairs to the Property of his own accord.
[14] In May 2021, Indiana Landmarks filed a complaint against Nifadeff. In its
complaint, Indiana Landmarks alleged that, as the “Property’s owner,”
Nifadeff was bound by the Protective Covenants, and his “fail[ure] to submit to
Indiana Landmarks a restoration plan within 90 days” of his closing with
Fannie Mae was a breach of the Protective Covenants. Appellant’s App. Vol. 2,
p. 33. Indiana Landmarks also alleged that Nifadeff had failed to maintain the
Property in a first-class condition. Accordingly, Indiana Landmarks requested
injunctive relief and specific performance to require Nifadeff to comply with its
reading of the Protective Covenants. In his answer, Nifadeff alleged affirmative
defenses of waiver and laches, which defenses were based on Indiana
Landmarks’s nonenforcement of its purported rights between Bank One’s
acquisition of the Sheriff’s Deed and Nifadeff’s ownership of the property.
[15] In June 2022, the trial court held a hearing on Indiana Landmarks’s request for
a preliminary injunction. The essential dispute between the parties at that
hearing was whether the two foreclosures “terminate[d] any vertical privity” of
title between White and Nifadeff and whether, notwithstanding the termination
of vertical privity, Nifadeff’s 2017 email to Indiana Landmarks created an
enforceable promise by Nifadeff to be bound by the Protective Covenants. Id. at
92. In May 2023, the trial court denied Indiana Landmarks’s request for a
Court of Appeals of Indiana Opinion 25A-PL-2520 July 16, 2026 Page 8 of 19
preliminary injunction without proper findings and conclusions, and our Court
directed the trial court to enter proper findings and conclusions in support of its
decision in accordance with Indiana Trial Rule 52(A). The trial court then
entered an amended order in March 2024, nearly two years after the
preliminary-injunction hearing. In its amended order, the court stated that,
while Indiana Landmarks was likely to succeed on the merits of its promissoryestoppel argument, injunctive relief was nonetheless inappropriate.
[16] In June 2024, Indiana Landmarks moved for summary judgment.3 In its brief in
support of its motion, Indiana Landmarks argued, among other things, that the
Protective Covenants were binding on Nifadeff because “[t]here is no evidence
suggesting [a] lack of vertical privity” from White to Nifadeff. Pl’s. Br. on
Summary J., p. 25. Indiana Landmarks also included the transcript from the
preliminary-injunction hearing in its designation of evidence.
[17] In response, Nifadeff designated the Disclaimer, the decree of foreclosure for
Bank One, and Bank One’s ensuing Sheriff’s Deed. Nifadeff argued that the
designated evidence showed that Indiana Landmarks had released its rights to
the Property and that the decree of foreclosure for Bank One and against
Indiana Landmarks was res judicata. Indiana Landmarks did not object to
Nifadeff’s designated evidence, but it did file a reply brief in which it asked the
trial court to not consider Nifadeff’s release- and res-judicata arguments on the
3
Nifadeff did not include the summary-judgment materials in his Appellant’s Appendix. Nonetheless, they
are a part of the Record on Appeal in accordance with Indiana Appellate Rules 2(E) and 2(L).
Court of Appeals of Indiana Opinion 25A-PL-2520 July 16, 2026 Page 9 of 19
theory that he did not specifically allege them as affirmative defenses in his
answer as required under Indiana Trial Rule 8(C).
[18] The trial court never ruled on Indiana Landmarks’s motion for summary
judgment or its request to not consider Nifadeff’s release and res-judicata
arguments. Instead, in August 2025, the trial court held a bench trial, and the
parties presented testimony relevant to the promissory-estoppel and
waiver/laches theories. The Disclaimer, Bank One’s amended complaint for
foreclosure, and Bank One’s decree of foreclosure were also admitted into
evidence without objection. In their closing statements, the parties expressly
referenced the pending summary-judgment motion and arguments as well.
[19] Following the bench trial, the court entered judgment for Indiana Landmarks.
The court’s judgment does not mention the Disclaimer, the decrees of
foreclosure, or the parties’ summary-judgment arguments. Instead, the court
found for Indiana Landmarks on its theory of promissory estoppel. In
particular, the court found that, “[p]rior to buying the [Property], [Nifadeff] was
made aware of the Protective Covenant[s] and made representations to [Indiana
Landmarks] of his intention to submit a restoration plan . . . , which included his
intent to complete all exterior work within 18 months after approval of the
restoration plan . . . .” Appellant’s App. Vol. 2, pp. 24-25 (emphases added).
Based on those representations and Indiana Landmarks’s ensuing decision to
not purchase the Property, the court concluded that Nifadeff “is bound by all
terms of the Protective Covenant[s],” and, “within ninety (90) days of this
Court’s Order of Judgment,” he “shall . . . submit a detailed restoration plan” to
Court of Appeals of Indiana Opinion 25A-PL-2520 July 16, 2026 Page 10 of 19
Indiana Landmarks for its approval, with no further alterations to the Property
being permitted without that approval. Id. at 25-26.
[20] This appeal ensued.
Standard of Review
[21] Nifadeff appeals the trial court’s judgment for Indiana Landmarks following a
bench trial. The trial court’s judgment is supported by findings of fact and
conclusions thereon. As our Supreme Court has made clear:
Because the trial court entered findings of fact and conclusions of
law, our review is for clear error under Trial Rule 52(A). SteeleGiri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016). In conducting this
review, we determine whether the evidence supports the court’s
findings and whether those findings support the court’s
judgment. Id. We do not reassess witnesses’ credibility or reweigh
evidence. Id. at 124. And we will reverse only if the findings lack
factual support in the record or if the judgment applies the wrong
legal standard to properly found facts. Wysocki v. Johnson, 18
N.E.3d 600, 603-04 (Ind. 2014).
Norris v. Norris, 275 N.E.3d 505, 509 (Ind. 2026). Further, for issues not covered
by the trial court’s findings, “we apply our general judgment standard, meaning
we should affirm based on any legal theory supported by the evidence.” State ex
rel. Dep’t of Nat. Res. v. Leonard, 226 N.E.3d 198, 202 (Ind. 2024) (quotation
marks omitted).
Court of Appeals of Indiana Opinion 25A-PL-2520 July 16, 2026 Page 11 of 19
1. The trial court’s finding that Nifadeff’s 2017 email reflected
a statement of his intent is supported by the record; however,
the trial court’s conclusion that that finding supports a theory
of promissory estoppel is contrary to law.
[22] On appeal, we first consider the trial court’s stated rationale for its judgment for
Indiana Landmarks. 4 The court’s judgment concludes that, the Disclaimer and
decrees of foreclosure apparently notwithstanding, Nifadeff represented to
Indiana Landmarks a promise to be bound by the Protective Covenants;
Indiana Landmarks detrimentally relied on his promise; and, thus, Nifadeff
must now be bound by his promise.
[23] As Indiana Landmarks recognizes on appeal, the trial court’s judgment is based
in promissory estoppel. Our Supreme Court has held:
a party asserting promissory estoppel must establish five
elements: (1) a promise by the promisor (2) made with the
expectation that the promisee will rely thereon (3) which induces
reasonable reliance by the promisee (4) of a definite and
substantial nature and (5) injustice can be avoided only by
enforcement of the promise.
Biddle v. BAA Indianapolis, LLC, 860 N.E.2d 570, 581 (Ind. 2007) (quotation
marks omitted).
4
Nifadeff argues on appeal that Indiana Landmarks’s promissory-estoppel argument is not properly before us
because Indiana Landmarks did not sufficiently plead that theory in its complaint. We conclude that Indiana
Landmarks’s promissory-estoppel argument has long been actually litigated between the parties, without
objection, and we consider it accordingly.
Court of Appeals of Indiana Opinion 25A-PL-2520 July 16, 2026 Page 12 of 19 [24] We agree with Nifadeff that the representations he made to Indiana Landmarks
in his 2017 email were not sufficient to demonstrate a “promise” under a theory
of promissory estoppel. As we have explained:
“A promise is a voluntary commitment or undertaking by the
party making it (the promisor) addressed to another party (the
promisee) that the promisor will perform some action or refrain
from some action in the future.” Woodall[ v. Citizens Banking Co.],
507 N.E.2d [999,] 1000 [(Ind. Ct. App. 1987), trans. denied],
quoting J. Murray, Murray on Contracts, 2-3 (2d [e]d. 1974).
Although no special form of words is necessary to create a
promise, the mere expression of an intention is not a promise. Security
Bank[ & Trust Co. v. Bogard], 494 N.E.2d [965,] 968-69 [(Ind. Ct.
App. 1986)]. Nor does a prediction, opinion, or prophecy
constitute a promise. Id.
Medtech Corp. v. Ind. Ins. Co., 555 N.E.2d 844, 847 (Ind. Ct. App. 1990)
(emphases added), trans. denied.
[25] Likewise, the United States Court of Appeals for the Seventh Circuit,
considering Indiana law, has concluded that “the promise relied on to trigger an
estoppel must be definite in the sense of being clearly a promise and not just a
statement of intentions . . . .” Garwood Packaging, Inc. v. Allen & Co., 378 F.3d 698,
702 (7th Cir. 2004) (citing Sec. Bank & Trust, 494 N.E.2d at 968-69) (emphasis
added); see also Minturn v. Monrad, 64 F.4th 9, 15 (1st Cir. 2023) (“The case law
strongly favors” the conclusion that precatory language that “‘indicates an
expectation or intention’” is not “‘a promise’”) (quoting Hansen v. Catsman, 123
N.W.2d 265, 267 (Mich. 1963), and also citing Sec. Bank & Trust, 494 N.E.2d at
969).
Court of Appeals of Indiana Opinion 25A-PL-2520 July 16, 2026 Page 13 of 19 [26] Here, Nifadeff’s 2017 email to Indiana Landmarks stated that it was his “aim”
to restore the Property to its “original glory.” Ex. Vol. 1, p. 16. He then stated
that Indiana Landmarks “should expect” him to provide Indiana Landmarks
with a restoration plan within ninety days of his closing and completion of
exterior work within eighteen months of the approval of the restoration plan. Id.
[27] The trial court correctly found that Nifadeff’s statements concerned “his
intention to submit a restoration plan” and “his intent to complete all exterior
work.” Appellant’s App. Vol. 2, pp. 24-25 (emphases added). But the court then
incorrectly concluded that those statements were sufficient to establish a
promise under a theory of promissory estoppel. They were not. Again, the mere
expression of an intention is not sufficient to establish a promise under a theory
of promissory estoppel. Sec. Bank & Trust, 494 N.E.2d at 968-69. Accordingly,
the trial court’s conclusion for Indiana Landmarks is not supported by its
findings, and the court’s judgment is therefore clearly erroneous. 5
2. The decree of foreclosure for Bank One is res judicata
against Indiana Landmarks.
[28] Having concluded that the trial court’s stated rationale for its judgment on
behalf of Indiana Landmarks is contrary to law, we thus turn to whether the
5
Indiana Landmarks also asserts that Fannie Mae’s Purchase Agreement somehow “reestablished” the
Protective Covenants. Appellee’s Br. at 32. We cannot agree. The Purchase Agreement simply shows that
Fannie Mae would provide Indiana Landmarks with an opportunity to purchase the Property over Nifadeff.
Such a showing is not a promise by Nifadeff to be bound by the Protective Covenants, nor is it a concession
by him that Indiana Landmarks had any enforceable rights under its agreement with White.
Court of Appeals of Indiana Opinion 25A-PL-2520 July 16, 2026 Page 14 of 19
trial court’s judgment might be sustainable as a general judgment. See, e.g.,
Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). “A general judgment
entered with findings will be affirmed if it can be sustained on any legal theory
supported by the evidence.” Id. (quotation marks omitted). We conclude that
the trial court’s judgment for Indiana Landmarks is contrary to the evidence
and is not sustainable as a general judgment.
[29] We find Nifadeff’s argument under the doctrine of res judicata both persuasive
and decisive. But we initially acknowledge Indiana Landmarks’s argument on
appeal that, contrary to Indiana Trial Rule 8(C), Nifadeff did not raise the issue
of res judicata as an affirmative defense in his answer and instead raised it for
the first time in his response on summary judgment. According to Indiana
Landmarks, Nifadeff’s failure to raise res judicata as an affirmative defense in
his answer results in his waiver of that defense.
[30] On this record, we cannot agree. “Even though Indiana Trial Rule 8(C)
generally requires responsive pleadings to raise affirmative defenses, trial courts
may exercise their discretion and entertain affirmative defenses that are not
raised in a responsive pleading.” Shakur v. Hendrix, 234 N.E.3d 194, 203 (Ind.
Ct. App. 2024). Indeed, Indiana Trial Rule 15(B) provides that, even where, as
here, a party objects to an untimely raised affirmative defense, the trial court
may allow the pleadings to be amended and shall do so freely
when the presentation of the merits of the action will be
subserved thereby and the objecting party fails to satisfy the court
that the admission of such evidence would prejudice him in
maintaining his action or defense upon the merits. The court may
Court of Appeals of Indiana Opinion 25A-PL-2520 July 16, 2026 Page 15 of 19
grant a continuance to enable the objecting party to meet such
evidence.
[31] Here, while the trial court neither ruled on Indiana Landmarks’s objection nor
directed the pleadings to be amended, the court did have the parties proceed to
a final evidentiary hearing and final judgment several weeks after Nifadeff first
raised his res-judicata argument; Indiana Landmarks never disputed the
evidence underlying that argument; and the parties actually litigated the legal
effect of Bank One’s decree of foreclosure over several years. We thus conclude
that Indiana Landmarks had sufficient notice of Nifadeff’s affirmative defense
and opportunity to respond to it, and Indiana Landmarks has not demonstrated
that our consideration of that defense is inconsistent with how the parties
actually proceeded in the trial court.
[32] Turning to Nifadeff’s argument, our Supreme Court has stated that the doctrine
of res judicata requires: “(1) a former judgment rendered by a court of
competent jurisdiction; (2) a former judgment rendered on the merits; (3) the
opportunity for the matter to have been determined in a prior suit; and (4) the
same parties or their privies” in the current action. Hoagland Fam. Ltd. P’ship v.
Town of Clear Lake, 253 N.E.3d 1109, 1110 (Ind. 2025) (per curiam) (quotation
marks omitted). There is no question here that the trial court’s decree of
foreclosure for Bank One satisfies the first requirement.
[33] As for the second and third requirements, the undisputed evidence before the
trial court at the bench trial included Bank One’s amended foreclosure
complaint against Indiana Landmarks and Indiana Landmarks’s corresponding
Court of Appeals of Indiana Opinion 25A-PL-2520 July 16, 2026 Page 16 of 19
Disclaimer. In the amended complaint, Bank One expressly sought to have
Indiana Landmarks, a named defendant, “answer as to any interest claimed” in
the Property, “including, without limitation,” the “mortgage” recorded under
instrument number 99-09878. Appellee’s App. Vol. 2, p. 6 (emphases added;
capitalization and bold font removed).
[34] In response, Indiana Landmarks filed the Disclaimer, which, again, stated:
COMES NOW[ Indiana Landmarks] . . . and disclaims any
interest in and to the real estate described in that certain mortgage
recorded May 5, 1999[,] as Instrument No. 99-09878 in the
Office of the Recorder of LaPorte County, Indiana; said real estate
and [Indiana Landmarks’s] interest therein, being foreclosed upon in the
pending cause of action.
Ex. Vol. 1, p. 236 (emphases added). Indiana Landmarks did not otherwise
respond to Bank One’s complaint, and the trial court entered default judgment
against Indiana Landmarks in its decree of foreclosure for Bank One. And the
decree of foreclosure expressly provided that “all right, title, interest[,] and
claim of the defendants . . . in and to said real estate shall be sold” at the
foreclosure sale. Id. at 241.
[35] We conclude that those undisputed records demonstrate that Indiana
Landmarks had full opportunity for the scope of its rights in and to the
Property, including its rights through the Protective Covenants, to be
determined in Bank One’s foreclosure action, and the court’s decree of
foreclosure was a judgment on the merits of those rights. Bank One sought to
discern what rights, if any, Indiana Landmarks may have had in and to the
Court of Appeals of Indiana Opinion 25A-PL-2520 July 16, 2026 Page 17 of 19
Property. Bank One’s request identified Indiana Landmarks’s mortgage
instrument, but Bank One’s request was expressly not limited to that
instrument. Likewise, Indiana Landmarks’s Disclaimer identified its mortgage
instrument, but Indiana Landmarks disclaimed “any interest in and to the real
estate described” in that instrument. Id. at 236 (emphasis added). Even if the
Disclaimer could be construed in multiple, reasonable ways, the trial court’s
ensuing decree of foreclosure in favor of Bank One made clear that the
foreclosure sale would result in the termination of “all right, title, interest[,] and
claim” held by Indiana Landmarks “in and to said real estate . . . .” Id. at 241.
[36] We thus reject Indiana Landmarks’s attempt to restore, through Nifadeff, the
rights that the trial court unambiguously terminated in the decree of foreclosure
for Bank One, which rights included the Protective Covenants. When Bank
One purchased its Sheriff’s Deed, that deed, in accordance with the plain
language of the decree of foreclosure, represented clean title to the Property.
And, as Nifadeff’s title has followed from Bank One’s acquisition of that deed,
we likewise conclude that Nifadeff’s role in the instant litigation is as Bank
One’s privy, satisfying the final element of his res-judicata defense. See Chemco
Transp., Inc. v. Conn, 527 N.E.2d 179, 182 (Ind. 1988) (“A ‘[p]rivy’ is one who
after rendition of the judgment has acquired an interest in the subject matter
affected by the judgment.”) (quoting Smith v. Midwest Mut. Ins. Co., 154 Ind.
App. 259, 269, 289 N.E.2d 788, 793 (1972)).
[37] Accordingly, we hold that the undisputed evidence demonstrates that Indiana
Landmarks’s rights in and to the Property were foreclosed upon in the trial
Court of Appeals of Indiana Opinion 25A-PL-2520 July 16, 2026 Page 18 of 19
court’s decree of foreclosure for Bank One, and the decree of foreclosure,
entered against Indiana Landmarks, prevents Indiana Landmarks from now
litigating the rights it lost in that prior proceeding. We therefore also conclude
that, insofar as the trial court’s judgment for Indiana Landmarks might be
considered a general judgment, it is contrary to the evidence.
Conclusion
[38] For all of these reasons, we reverse the trial court’s judgment for Indiana
Landmarks and remand with instructions for the court to enter judgment for
Nifadeff.
[39] Reversed and remanded.
Kenworthy, J., and DeBoer, J., concur.
ATTORNEY FOR APPELLANT
Bradley J. Adamsky
Drayton, Biege, Sirugo & Elliott, LLP
La Porte, Indiana
ATTORNEYS FOR APPELLEE
Amber M. Neal
Jacob T. Palcic
Barnes & Thornburg LLP
South Bend, Indiana
Court of Appeals of Indiana Opinion 25A-PL-2520 July 16, 2026 Page 19 of 19