author: MASSA, Justice.

text:
    CITIMORTGAGE, INC., Appellant (Intervenor/Cross-Claimant below), v. Shannon S. BARABAS a/k/a Shannon Sheets Barabas, Defendant below, ReCasa Financial Group, LLC, Appellee (Plaintiff below), and Rick A. Sanders, Appellee (Third-Party Defendant below).
    No. 48S04-1204-CC-00213.
    Supreme Court of Indiana.
    Oct. 4, 2012.

      Archis A. Parasharami, Washington, DC, Harry W. Cappel, Nathan H. Blaske, Cincinnati, OH, Matthew S. Love, Indianapolis, IN, Attorneys for Appellant.
    Theodore J. Nowacki, David J. Jurkiew-icz, Indianapolis, IN, Attorneys for Amicus Curiae Indiana Bankers Association, Inc.
    Christopher C. Hagenow, Sarah Stites Millspaugh, Indianapolis, IN, Attorneys for Appellee ReCasa Financial Group, LLC.
    Donald L. Centers, Mary A. Slade, Car-mel, IN, Attorneys for Appellee Rick A. Sanders.
   MASSA, Justice.

Shannon Barabas had two mortgages on her Madison County home. The second mortgagee foreclosed on the property without notice to the first. The first mortgagee sought to intervene and obtain relief from the foreclosure judgment, but the trial court denied its motion. We reverse.

Facts and Procedural History

A. Mortgage Electronic Registration Systems, Inc. (MERS) and Its Role in the Mortgage Industry

Traditional mortgages were folies á deux; the cast of characters consisted solely of Borrower and Lender. See Ellen Harnick, Crists in Housing and Housing Finance: What Caused It? What Didn’t? What’s Next ?, 31 W. New Eng. L. Rev. 625, 626-27 (2009). Lender, a bank, raised funds through customer deposits and loaned those funds out to Borrower. See id. Lender retained both the mortgage and the promissory note until Borrower had paid his debt in full. Id. Today, a typical mortgage is better described as a mass delusion, in which Borrower and Lender are joined by Loan Servicer, Title Company, Mortgage Broker, Underwriter, Trustee, and various other characters that facilitate the negotiation of mortgages on the secondary market. See Christopher L. Peterson, Foreclosure, Subprime Mortgage Lending, and the Mortgage Electronic Registration System, 78 U. Cin. L. Rev. 1359,1367-68 (2009-2010).

The change began in the 1970s with the invention of the mortgage-backed security, a financial instrument that allowed investors to trade mortgages in the same way that they traded stocks and bonds. David Messerschmitt, Note, Overview of the Subprime Mortgage Market, 27 Rev. Banking & Fin. L. 3, 3 (2007). First, a borrower works with a broker to obtain a loan from a lender, who receives credit from an investment bank to fund the loan. Id. The lender then sells the loan back to the investment bank, which bundles it together with a few thousand others and divides the bundle into shares. Id. These shares are sold to investors, who receive a certain amount of the income that the bundle earns every month when borrowers make their mortgage payments. Id.

This process, called “securitization,” used to require multiple successive assignments, each of which had to be recorded on the county level at considerable inconvenience and expense to the investment banks involved. Christopher L. Peterson, Two Faces: Demystifying the Mortgage Electronic Registration System’s Land Title Theory, 53 Wm. & Mary L. Rev. 111, 116 (2011-2012). In the mid-1990s, seeking to ameliorate those evils, a consortium of investment banks created Mortgage Electronic Registration Systems, Inc. (MERS). Id. MERS maintains “a computer database designed to track servicing and ownership rights of mortgage loans anywhere in the United States.” Peterson, Foreclosure, supra, at 1361. MERS member banks list MERS as both “nominee” for Lender and as “mortgagee” on their mortgage documents. Kevin M. Hudspeth, Clarifying Murky MERS: Does Mortgage Electronic Registration Systems, Inc., Have Authority to Assign the Mortgage Note in a Standard Illinois Foreclosure Action ?, 31 N. Ill. U. L. Rev. 1, 9 (2010-2011). MERS member banks can then buy and sell the note among themselves without recording an assignment of the mortgage. Id. In the event of default, MERS simply assigns the mortgage to whichever member bank currently owns the note, and that bank forecloses on the borrower. Id.

Today, about 60 percent of the nation’s residential mortgages are recorded in the name of MERS rather than in the name of the bank, trust, or company that actually has a meaningful economic interest in the repayment of the debt. Peterson, Two Faces, supra, at 117. That figure includes the mortgage at issue in this case.

B. The Irwin Mortgage

On August 8, 2005, Shannon S. Barabas took out a mortgage in the amount of $154,111 from Irwin Mortgage Corporation on property located at 8285 South Firefly Drive in Madison County, Indiana. The first page of the mortgage document includes the following provision:

This Security Instrument is given to Mortgage Electronic Registration Systems, Inc. (“MERS”), (solely as nominee for Lender, as hereinafter defined, and Lender’s successors and assigns), as mortgagee. MERS is organized and existing under the laws of Delaware, and has an address and telephone number of P.O. Box 2026, Flint, MI 48501-2026, tel. (888) 679-MERS. Irwin Mortgage Corporation (“Lender”) is organized and existing under the laws of The State of Indiana, and has an address of 10500 Kincaid Drive, Fishers, IN 46038.

App. at 88. The mortgage continues on to describe Irwin’s rights:

This Security Instrument secures to Lender: (a) the repayment of the debt evidenced by the Note, with interest, and all renewals, extensions and modifications of the Note; (b) the payment of all other sums, with interest, advanced under paragraph 7 to protect the security of this Security Instrument; and (c) the performance of Borrower’s covenants and agreements under this Security Instrument and the Note.

App. at 88-89. And MERS’s rights:

Borrower does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and Lender’s successors and assigns) and to the successors and assigns to MERS, the following described property located in Madison County, Indiana ... Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument; but, if necessary to comply with law or custom, MERS, (as nominee for Lender and Lender’s successors and assigns), has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing or canceling this Security Instrument.

App. at 89. On August 19, 2005, Barabas’s mortgage was recorded in the office of the Madison County Recorder.

C. The ReCasa Mortgage and Foreclosure

On February 26, 2007, Barabas took a second mortgage on the Madison County property in the amount of $100,000. In this transaction, ReCasa Financial Group, Inc. played the role of both Lender and Mortgagee. On May 11, 2007, the ReCasa mortgage was recorded in the office of the Madison County Recorder. On July 23, 2007, Barabas and ReCasa executed a Note Modification increasing the amount of the principal to $129,600.

Barabas apparently fell behind on her obligation to ReCasa. On June 13, 2008, ReCasa filed suit against Barabas and Irwin in the Madison Circuit Court. ReCa-sa requested, among other relief, foreclosure of the mortgage and a sheriffs sale of the property. After receiving service of process, Irwin filed a “Disclaimer of Interest” in the Madison Circuit Court on June 23, 2008, stating that it “diselaim[ed] any interest in the real estate which is the subject of the Plaintiffs Complaint.” App. at 51.

Meanwhile, on July 15, 2008, Barabas filed a petition for bankruptcy in the United States Bankruptcy Court for the Southern District of Indiana. Perhaps unsurprisingly in light of her apparent financial situation, Barabas did not respond to Re-Casa’s foreclosure complaint, so on September 9, 2008, the trial court entered a default judgment against her. On September 16, after receiving notice that Bar-abas had been discharged of her debt in the federal bankruptcy proceeding, the Madison County trial court amended its default judgment and ordered that the Madison County property be sold in a sheriffs sale.

Back in federal court, on September 22, 2008, Citimortgage filed a motion for relief from automatic stay, alleging that it had “a security interest” in the Madison County property that predated Barabas’s July 15 bankruptcy petition. App. at 155. As one of Barabas’s creditors, ReCasa received service of Citimortgage’s motion. On September 28, ReCasa’s counsel sent a letter to the attorney who had filed the motion on Citimortgage’s behalf to inform him that ReCasa had foreclosed on the property. ReCasa’s counsel enclosed copies of the complaint, the foreclosure commitment, and the amended default judgment. On October 29, the bankruptcy court entered an order discharging Barabas from personal liability on her debts.

The sheriffs sale occurred on January 23, 2009, and ReCasa purchased the property for $65,000. On March 4, 2009, ReCa-sa recorded the sheriffs deed in the office of the Madison County Recorder. On March 17, 2009, ReCasa sold the property to Rick A. Sanders.

D. The Assignment of the Irwin Mortgage and Citimortgage’s Intervention

On April 1, 2009, MERS assigned the Irwin mortgage to Citimortgage, and that assignment was recorded in the office of Madison County Recorder on April 20. On October 23, 2009, Citimortgage filed a motion pursuant to Indiana Trial Rules 24(A) and 60(B) seeking to intervene in ReCasa’s foreclosure lawsuit and requesting that the court modify its judgment “to provide that the judgment granted to Re-Casa Financial is subject to the mortgage now held by Citimortgage, Inc.” App. at 83. Citimortgage alleged that it was entitled to intervene of right and argued that the default judgment was void for lack of personal jurisdiction. Three days later, the court granted Citimortgage’s motion to intervene and ordered that ReCasa’s amended default judgment was “vacated and set aside to any determination of the interest held by Citimortgage.” App. at 99.

On November 19, 2009, Citimortgage filed a motion to vacate the sheriffs deed. On December 8, 2009, Citimortgage filed its own foreclosure complaint and various cross-claims against Sanders and other parties. On December 23, 2009, ReCasa filed an objection to Citimortgage’s motion to intervene.

On February 16, 2010, the trial court heard oral argument, and on March 18, it issued an order finding that “pursuant to Indiana Code 32-29-8-2,” Citimortgage was bound by the amended default judgment because its assignment was never properly recorded. App. at 10. The court also found that “pursuant to Indiana Code 32-29-8-3, CitiMortgage [sic] failed to redeem the Real Estate within one year after the Judicial Sale.” App. at 10. Accordingly, the court denied Citimortgage’s motion and reinstated the amended default judgment.

Citimortgage appealed, and on May 17, 2011, the Court of Appeals affirmed. Citimortgage, Inc. v. Barabas, 950 N.E.2d 12, 13 (Ind.Ct.App.2011). A divided panel held that Citimortgage’s claim was statutorily precluded because it failed to intervene within one year after acquiring an interest in the property. Id. at 16 (citing Ind.Code § 32-29-8-3). It also held that MERS was not entitled to independent notice of ReCasa’s foreclosure action because MERS held only “bare legal title to the mortgage.” Id. at 17-18. Judge Brown dissented from the majority opinion on both points. As to the timing of Citi-mortgage’s intervention, Judge Brown noted that “any assignee or transferee” may redeem property for up to one year after the sale, and Citimortgage’s intervention was within that statutory period. Id. at 18 (citing Ind.Code § 32-29-8-3). As to MERS’s interest, Judge Brown noted that both the language of the mortgage, which referred to MERS as both “nominee” and “mortgagee,” and MERS’s assignment to Citimortgage tended to show “that MERS had a real interest in the Property.” Id. at 19.

On rehearing, the court noted “that the one-year redemption period [in Indiana Code § 32-29-8-3] begins after the sale of the property, not after Citi[mortgage] first acquired interest in the property.” Citimortgage, Inc. v. Barabas, 955 N.E.2d 260, 261 (Ind.Ct.App.2011). The court, however, reaffirmed its opinion as to the result and the nature of MERS’s interest. Judge Brown reiterated her dissent.

We granted transfer, 967 N.E.2d 1032 (Ind.2012) (table), thereby vacating the opinion of the Court of Appeals. Ind. Appellate Rule 58(A). We now reverse the trial court.

Standard of Review

As prologue, we note that “Trial Rule 24(C) expressly recognizes the right of a party to intervene after judgment for the purposes of presenting a motion under Trial Rule 60.” State Farm Mut. Auto. Ins. Co. v. Hughes, 808 N.E.2d 112, 116 (Ind.Ct.App.2004). A party seeking to intervene under Rule 24(C) must fulfill the requirements of either Rule 24(A) or (B).

A trial court is required, as a matter of right, to grant a party’s timely motion to intervene if the party shows (1) an interest in property which is the subject of the action, (2) that disposition of the action may practically impair that interest, and (3) that no existing party is adequately representing the moving party’s interest. Ind. Trial Rule 24(A)(2). The trial court has discretion to determine whether a prospective intervenor has met its burden. Thus, we review the trial court’s ruling on a motion to intervene for abuse of discretion and assume that all facts alleged in the motion are true.

Similarly, the propriety of relief under Indiana Trial Rule 60(B) is a matter entrusted to the trial court’s equitable discretion. Shotwell v. Cliff Hagan Ribeye Franchise, Inc., 572 N.E.2d 487, 489 (Ind.1991). We review the exercise of that discretion only for abuse, which “may occur if the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court, or if the trial court has misinterpreted the law,” McCullough v. Archbold Ladder Co., 605 N.E.2d 175, 180 (Ind.1993), but we also note “the disfavor in which default judgments are held.” Hughes, 808 N.E.2d at 116. “A default judgment is an extreme remedy and is available only where a party fails to defend or prosecute a suit.” Id. Courts should guard against the use of a default judgment as “a trap ... set by counsel to catch unsuspecting litigants.” Id. Whenever possible, courts should decide cases on their merits.

Finally, the fact that the trial court’s decision here consists of a wholesale adoption of one party’s proposed findings of fact and conclusions of law does not alter the applicable standard of review. See Wrinkles v. State, 749 N.E.2d 1179, 1188 (Ind.2001).

Citimortgage Has a Right to Intervene

Citimortgage brought its motion to intervene under Indiana Trial Rule 24(A), alleging that it had an interest in this case sufficient to entitle it to intervene as of right. We agree.

A. Citimortgage Has a Property Interest at Stake

As a threshold matter, Citimort-gage argues that Sanders and ReCasa waived the right to challenge MERS’s alleged property interest by failing to raise that issue in the trial court. As a prevailing party, however, ReCasa may defend the trial court’s ruling on any grounds, including grounds not raised at trial. Thus, we address the merits of this issue.

In its motion, Citimortgage premised its right to intervene on its interest in the Madison County property. See Ind. Tr. R. 24(A)(2). Citimortgage alleged that it obtained its interest in the Madison County property mortgage from MERS, stating variously that it is the “successor in interest to MERS” and “the assignee of MERS.” App. at 83-84. The assignee of rights under a contract stands in the shoes of the assignor and can assert any rights that the assignor could have asserted. Lake Cnty. Trust Co. v. Household Merch., Inc., 511 N.E.2d 512, 514 (Ind.Ct.App.1987). Neither party disputes the validity of the April 1, 2009 assignment from MERS to Citimortgage. Citimortgage’s interest is thus dependent upon MERS’s interest, which arises from the original mortgage contract. We turn now to the interpretation of that contract.

The ultimate goal of any contract interpretation is to determine the intent of the parties at the time that they made the agreement. First Fed. Sav. Bank of Indiana v. Key Mkts., Inc., 559 N.E.2d 600, 603 (Ind.1990). We begin with the plain language of the contract, reading it in context and, whenever possible, construing it so as to render each word, phrase, and term meaningful, unambiguous, and harmonious with the whole. Trustcorp Mortg. Co. v. Metro Mortg. Co., Inc., 867 N.E.2d 203, 213 (Ind.Ct.App.2007). “A contract is ambiguous if a reasonable person would find the contract subject to more than one interpretation.” Fackler v. Powell, 891 N.E.2d 1091, 1096 (Ind.Ct.App.2008). If we find ambiguous terms or provisions in the contract, “we will construe them to determine and give effect to the intent of the parties at the time they entered into the contract.” George S. May Int’l. Co. v. King, 629 N.E.2d 257, 260 (Ind.Ct.App.1994) (internal citations omitted), trans. denied.

1. The Mortgage Contract Is Ambiguous

The contract describes MERS as both “nominee for Lender” and “mortgagee” but does not include a definition of either of those terms. App. at 88. As to the first term, Black’s Law Dictionary defines “nominee” as “[a] person designated to act in place of another, usu[ally] in a very limited way” and “[a] party who holds bare legal title for the benefit of others or who receives and distributes funds for the benefit of others.” Black’s Law Dictionary 1149 (9th ed. 2009). Webster’s Dictionary defines “nominee” as “a person in whose name a stock or registered bond certificate is registered but who is not the actual owner.” Webster’s Dictionary, supra, at 1535. Here, Irwin has designated MERS to hold “bare legal title” to the mortgage and to act on its behalf in matters such as foreclosure and cancellation, but MERS is not the actual owner of the note. Thus, all of these definitions are consistent with MERS’s actual role in the mortgage industry generally and in the Barabas mortgage specifically. They are also consistent with an agency relationship. Oil Supply Co., Inc. v. Hires Parts Serv., Inc., 726 N.E.2d 246, 248 (Ind.2000) (defining agent as “one who acts on behalf of some person, with that person’s consent and subject to that person’s control”).

As to the second term, Black’s Law Dictionary defines “mortgagee” as “the mortgage creditor, or lender.” Black’s Law Dictionary, supra, at 1104. Webster’s Dictionary defines “mortgagee” as “a person who takes a mortgage on another’s property as security for a debt or obligation.” Webster’s Dictionary, supra, at 1472. These definitions are less promising. The mortgage clearly states that MERS is not the Lender; rather, Irwin is the Lender. What is more, agency law dictates that MERS cannot be both an agent and a principal with respect to the same right (here, the right to receive service of process in a foreclosure proceeding). Restatement (3d) of Agency §§ 1.01-02 (2006).

The terms “nominee” and “mortgagee,” as used in the Barabas mortgage contract, conflict with each other. A reasonable person, upon reading the contract, could find that the contract is subject to more than one interpretation. It is therefore ambiguous, so we must turn to evidence of the parties’ intent in order to properly construe the ambiguous terms.

2. The Parties Intended to Designate MERS as the Lender’s Agent

The mortgage contract states that MERS has “legal title to the interests granted by Borrower in this Security Instrument.” App. at 89. It also states that MERS may exercise many of Lender’s rights, including the right to foreclose and sell. Foreclosure proceedings are initiated in the form of a lawsuit in Indiana, and the right to file a lawsuit is a “constitutionally recognized property interest.” Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 807, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985).

Additionally, MERS’s own rules of membership state that “[e]ach Member hereby appoints ‘Mortgage Electronic Registration Systems, Inc.,’ as its nominee (as a limited agent) with respect to each mortgage that such Member registers on the MERS® System.” MERSCORP, INC., Rules of Membership, R. 2, § 6. The rules state further that MERS will comply with any instructions it receives from its principals regarding registered mortgages. Id. Most pertinently, the rules state that MERS “shall within two (2) business days forward to the appropriate Member or Members ... all properly identified notices, payments, and other correspondence” related to mortgages for which MERS serves as the record mortgagee. Id. at R. 3, § 1. Much in the same way that a nonresident who drives a car in Indiana appoints the Indiana Secretary of State as his or her agent for service of process in any resultant tort claim, see Ind.Code § 34-33-3-l(b), a MERS member bank appoints MERS as its agent for service of process in any foreclosure proceeding on a property for which MERS holds the mortgage.

Taken together, MERS’s rights under the terms of the Barabas mortgage and MERS’s own rules indicate that the parties intended to designate MERS as an agent of the lender. This agency relationship conferred various rights upon MERS, including rights that constitute protected property interests sufficient to entitle MERS — and Citimortgage standing in the shoes of MERS — to meet the first requirement for intervention of right.

Finally, ReCasa asserts that even if MERS did have rights under the mortgage contract, those rights were derivative of Irwin’s rights and thus extinguished when Irwin disclaimed its interest. MERS, however, has an agency relationship with all of its member banks, not solely with Irwin. The mortgage contract states that MERS holds the mortgage “as nominee for Lender ... and Lender’s successors and assigns ” App. at 88 (emphasis added). Thus, Irwin’s disclaimer would have been effective against MERS’s rights only if no other MERS member bank had an interest in the mortgage. There is no evidence that was the case; on the contrary, Citi-mortgage, a MERS member, claimed an interest. Thus, MERS’s interest survived through its other principals, including Citi-mortgage.

B. Disposition of the Foreclosure Case May Impair Citimortgage’s Interest and No Other Party is Adequately Representing That Interest

There is little dispute as to the remaining two requirements for intervention. As to the first, if the default judgment is permitted to stand, Citimortgage’s interest would be destroyed entirely. Thus, it is certain that resolution in Citimortgage’s absence will “impair” its interest. As to the second, Irwin expressly disclaimed its interest in the debt that now belongs to Citimortgage. Since filing that disclaimer, Irwin has taken no part in the litigation. The remaining parties, Sanders and ReCa-sa, are actively advocating against Citi-mortgage’s interest. No current party is representing Citimortgage’s interest.

C. Citimortgage’s Motion to Intervene Was Timely

ReCasa argues that even if Citi-mortgage satisfies the requirements to intervene of right, we nevertheless should uphold the trial court’s denial of Citimort-gage’s motion on the alternative ground that it was untimely. ReCasa did not raise this issue in the trial court, nor did the court rely upon it in its decision to deny Citimortgage’s motion. Nevertheless, as a prevailing party, ReCasa may defend its judgment on any ground. Ind. Trial Rule 59(G). When, as here, we are presented with a new issue on appeal, we will decide the issue so long as there is no dispute as to any material fact. State v. Kokomo Tube Co., 426 N.E.2d 1338, 1348 (Ind.Ct.App.1981). There is no such dispute, so we proceed to consider whether Citimortgage’s motion to intervene was timely.

Timeliness is a discretionary determination that depends entirely upon the facts of the case at hand. Herdrich Petroleum Corp. v. Radford, 773 N.E.2d 319, 325 (Ind.Ct.App.2002), trans. denied. The requirement that a motion to intervene be “timely” is “intended to insure that the original parties should not be prejudiced by an intervenor’s failure to apply sooner, and that the orderly processes of the court are preserved.” Id. (quoting Bryant v. Lake Cnty. Trust Co., 166 Ind.App. 92, 101, 384 N.E.2d 730, 735 (Ind.Ct.App.1975)). It is not intended to “be employed as a tool to sanction would-be intervenors who are tardy in making their application.” Id. (quoting Bryant, 166 Ind.App. at 101, 334 N.E.2d at 735). Although post-judgment intervention is generally “disfavored,” it is appropriate in certain “extraordinary and unusual circumstances,” particularly when “the petitioner’s rights cannot otherwise be protected.” Bd. of Comm’rs. of Benton Cnty. v. Whistler, 455 N.E.2d 1149, 1153-54 (Ind.Ct.App.1983).

Here, the default judgment was entered on September 16, 2008. Citimortgage filed its motion to intervene thirteen months later, on October 23, 2009. This delay, although considerable, was attributable to ReCasa’s failure to provide Citimortgage (or its agent MERS) with notice of the foreclosure suit. It would be both unfair and inconsistent with the purpose of the timeliness requirement to deny Citimort-gage’s right to intervene under these circumstances. Thus, we find that Citimort-gage’s motion to intervene was timely.

The Default Judgment Is Void as to Citimortgage

Citimortgage brought its motion for relief from judgment under Trial Rule 60(B)(6), alleging that the default judgment was void for lack of personal jurisdiction because it had no notice of the foreclosure proceeding. We agree.

A. Citimortgage’s Motion for Relief from Judgment Was Timely

As in its challenge to Citimort-gage’s motion to intervene, ReCasa alleges that Citimortgage’s motion for relief was untimely. Motions for relief under Rule 60(B)(6) “shall be filed within a reasonable time.” In the past, we have found such motions timely even when filed nearly two years after the entry of default judgment, where the moving party lacked notice of the proceeding and was thus outside the court’s jurisdiction. See, e.g., Shotwell, 572 N.E.2d at 490 (noting that plaintiff faded to make good-faith effort either to serve defendants with process or to meet requirements of relevant service statute). Here, as we have already discussed, Citi-mortgage filed its motion quite some time — thirteen months — after the entry of default judgment. We find this delay was reasonable, however, because Citimort-gage never received notice of the proceeding. Its motion for relief under Rule 60(B)(6), therefore, was timely.

B. The Trial Court Had No Personal Jurisdiction Over Citimortgage

Rule 60(B)(6) provides for relief from judgments that are “void.” Shotwell, 572 N.E.2d at 489-90. A judgment issued without personal jurisdiction is void, and a court has no jurisdiction over a party unless that party receives notice of the proceeding. Id. at 489. It is undisputed that Citimortgage never received proper notice of the foreclosure proceeding. Thus, the trial court never had jurisdiction over Citi-mortgage, and the default judgment is therefore void as to Citimortgage.

ReCasa argues that its failure to serve process on MERS or Citimortgage should be overlooked because of the letter that its counsel sent on September 23, 2008 to a different attorney representing Citimort-gage in Barabas’s federal bankruptcy proceeding. That letter, ReCasa argues, was sufficient to provide Citimortgage with actual knowledge of the foreclosure proceeding. Under the circumstances, it wasn’t.

As a rule, “actual knowledge of the suit does not satisfy due process or give the court in personam jurisdiction.” Overhauser v. Fowler, 549 N.E.2d 71, 73 (Ind.Ct.App.1990) (quoting Glennar Mercury-Lincoln, Inc. v. Riley, 167 Ind.App. 144, 152, 338 N.E.2d 670, 675 (1975)). “This is, of course, particularly true for service of process and other such notice of initial pleadings.” Abrahamson Chrysler Plymouth v. Ins. Co. of N. Am., 453 N.E.2d 317, 321 (Ind.Ct.App.1983). Thus, even if the September 23 letter had provided someone representing Citimortgage in another matter in federal bankruptcy court with actual knowledge of the foreclosure proceeding, it would still have been insufficient to confer jurisdiction upon the trial court to adjudicate Citimortgage’s interest in the Madison County property.

C. Statutory and Constitutional Claims

Citimortgage argues that its agent, MERS, enjoys a statutory entitlement to notice under Indiana Code § 32-29-8-1 because it is a “mortgagee.” That is a bridge too far.

We have stated that the relationship between Citimortgage and MERS was one of principal and agent. Clearly, one of the primary purposes of that agency relationship was to facilitate efficient service of process. The rapid and piecemeal transfer of mortgages on the secondary market creates a strong presumption that the original lender will quickly transfer its interest in the debt. Hudspeth, supra, at 8. Notice to the lender in such a situation is, as here, ineffective to inform the real party in interest. By designating MERS as an agent for service of process, as Irwin did in the Barabas mortgage, lenders can have their cake and eat it too; they free themselves from burdensome, expensive recording requirements but still receive notice when another lienholder seeks to foreclose on a property in which they have a security interest.

And now we come to the reason that the mortgage describes MERS as both “nominee” and, less convincingly, as “mortgagee.” Having created this agency relationship, MERS and its member banks wished to ensure that third parties would respect it. By including the words “as mortgagee” in the description of MERS in the mortgage contract, MERS and Irwin likely sought to bring MERS under the scope of state statutes like Indiana Code § 32-29-8-1: “If a suit is brought to foreclose a mortgage, the mortgagee or an assignee shown on the record to hold an interest in the mortgage shall be named as a defendant” That statute gives a foreclosing party two options as to whom to sue: 1) the mortgagee or 2) an assignee of record. The entire purpose of MERS is to eliminate record assignments, which renders the second option useless. Therefore, in order to be entitled to named defendant status (and thus to notice) under the statute, MERS has to be the “mortgagee,” and that is why the mortgage contract so identifies it.

Ultimately, we do not believe that the authors of the original version of this statute, writing in 1877, would have understood the term “mortgagee” to include an entity like MERS that neither holds title to the note nor enjoys a right of repayment. Thus, our decision here should not be taken to mean that MERS is a “mortgagee” as the term is used in Indiana Code § 32-29-8-1. All we hold today is that because Citimortgage never received proper notice of the foreclosure proceeding, it lay beyond the jurisdiction of the trial court, and the default judgment is thus void as to Citimortgage’s interest in the Madison County property.

As to ReCasa’s arguments regarding the possibility of redemption under Indiana Code § 32-29-8-3, it would be inappropriate to address them here, as we have decided the question before us on other grounds. We therefore express no opinion as to whether Citimortgage had the right to redeem the property under that statute. We emphasize, however, that when we granted transfer in this case, the opinion of the Court of Appeals was vacated in its entirety. Ind. Appellate Rule 58(A).

Similarly, in keeping with our longstanding principle of constitutional avoidance, we decline to address Citimortgage’s constitutional claims. Snyder v. King, 958 N.E.2d 764, 768 (Ind.2011) (citing State v. Darlington, 153 Ind. 1, 4, 53 N.E. 925, 926 (1899) (reiterating rule against deciding constitutional questions that are not “absolutely necessary to a disposition of the cause on its merits.”)).

We note in closing that it is both difficult and undesirable to apply such superannuated statutes to the modern mortgage industry. The drafters of the original 1877 version of Indiana Code § 32-29-8-1 envisioned a drama for two, or at most three, actors: Borrower, Mortgagee, and possibly Assignee. They could not have imagined our present-day multi-trillion-dollar international mortgage market. The statute that they drafted, and under which Indiana mortgage transactions still take place, thus leaves unaddressed many issues important to contemporary practice. We recognize that the General Assembly may soon find it necessary to modernize the statutory script to accommodate this new and larger cast of characters.

Conclusion

On these facts, we hold that the trial court’s denial of Citimortgage’s motion to intervene and obtain relief from the foreclosure judgment was based on a misinterpretation of the law and thus an abuse of discretion. We therefore reverse that ruling and remand with instructions to grant the motion to intervene and amend the default judgment to provide that ReCasa took the Madison County property subject to Citimortgage’s lien.

DICKSON, C.J., RUCKER, and DAVID, JJ., concur.

      . We are mindful that ‘‘[a] judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed." Ind.Code of Jud. Conduct, Rule 2.9(C) (2011). We are also aware, however, that the appellate brief format can, in certain circumstances, be ill-suited to provide the background information essential to a thorough and fair consideration of a case. Here, as we have done before, see, e.g., A.B. v. State, 885 N.E.2d 1223, 1224 (Ind.2008), we include in our opinion some information found outside the trial record in published sources that we cite with specificity.

      . From the French, meaning “double madness” or "the presence of the same or similar delusional ideas in two persons closely associated with one another.” Webster’s Third New International Dictionary 882 (1993); cf. William Shakespeare, Hamlet, act 1, sc. 3 ("Neither a borrower nor a lender be.”).

      . The market for these securities grew precipitously in the early years of the twenty-first century before ultimately collapsing under the weight of a collective misapprehension that both the borrower default rate and the real estate appreciation rate would remain consistent; in reality, the former rose as sharply as the latter dropped. See Messerschmitt, supra, at 34; This American Life: The Giant Pool of Money, Chicago Public Radio (May 9, 2008).

      . There is no public record of the real party in interest in these mortgages, and MERS does not require member banks to report transfers. Peterson, Two Faces, supra, at 127. The resulting paucity of information has caused significant confusion for banks, borrowers, and courts. Id.

      . ReCasa also named Barabas’s husband, Brian, in the lawsuit as guarantor for her debt. The claim against Brian Barabas is not at issue in this appeal.

      . In any event, Sanders did raise this argument in the trial court. On February 16, 2010, in a hearing in the Madison Circuit Court, Sanders’s counsel argued that MERS was not entitled to service because the mortgage stated that MERS was only a nominee for the lender and that only the lender was entitled to notice.

      . As of July 5, 2012, these rules were available at http://www.mersinc.org/Foreclosures (link to "Rules of Membership”), but they have since been removed.

      . Although their decision is not binding upon us, we are gratified to note that our federal colleagues share our view of the relationship between MERS and its member banks. See Mortg. Elec. Registration Sys., Inc. v. Estrella,
        390 F.3d 522, 525 (7th Cir.2004) ("[MERS] is a nominee only, holding title to the mortgage but not the note. Each lender appears to be entitled not only to payment as the note’s equitable (and legal) owner but also to control any litigation and settlement.”). Other state courts agree. See, e.g., Landmark Nat. Bank v. Kesler, 289 Kan. 528, 216 P.3d 158, 166 (2009); Mortg. Elec. Registration Sys., Inc. v. Sw. Homes of Ark., Inc., 2009 Ark. 152, 301 S.W.3d 1, 3-4 (2009).

      . Counsel for Citimortgage, perhaps believing that ReCasa had waived this argument by not raising it in the trial court, declined to address it on reply.

      . This statute was originally enacted in 1877 and has since been subject only to cosmetic amendments. 1877 Ind. Acts ch. 58, § 2 ("And in a suit to foreclose said mortgage, it shall be sufficient to make the mortgagee, or the assignee shown by said record to hold an interest therein, defendants.”).

      . Indiana-is not alone in this regard; other state courts have noted "the difficulty of attempting to shoehorn a modern innovative instrument of commerce into a nomenclature and legal categories which stem essentially from the medieval English land law.” Mortg. Elec. Registration Sys., Inc. v. Revoredo, 955 So.2d 33, 34 (Fla.Ct.App.2007).


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Susan J. KRIESEL, Respondent.
    No. 49S00-1205-CO-253.
    Supreme Court of Indiana.
    Oct. 11, 2012.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT IN RESOLUTION OF CONTEMPT PROCEEDING

The Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement In Resolution Of Contempt Proceeding,” stipulating agreed facts and proposed discipline as summarized below.

Respondent was suspended for registration fee (“dues”) nonpayment and continuing legal education (“CLE”) noncompliance effective 11:59 p.m., June 20, 2008. Respondent was aware of this suspension, which is still in effect. Nevertheless, Respondent continued to practice law as an associate in the employ of a law firm for more than three years, until approximately September 9, 2011.

The parties agree that Respondent practiced law while suspended in contempt of this Court’s suspension order. The parties propose the appropriate sanction in the circumstances of this case is imposition of a $250.00 fine and conversion of her dues nonpayment and CLE noncompliance suspension to an indefinite suspension from practice. Respondent admits that she practiced law unabated for three years, knowing she was suspended. The only issue is whether the punishment proposed is sufficient.

Suspensions for dues nonpayment and CLE noncompliance are fairly easily cured procedurally by the payment of delinquent dues and other fees and the completion of required CLE hours. See Admis. Disc. R. 2(b) and (h); Admis. Disc. R. 29(10). By comparison, an attorney with an indefinite suspension must go through the formal reinstatement process, which includes payment of a $500 filing fee, the burden of proving by clear and convincing evidence his or her fitness to resume practice, an evidentiary hearing before a hearing officer, and review by this Court. See Admis. Disc. R. 23(4) and (18).

The Court, having considered the submissions of the parties, now approves the agreed sanction. The sanction imposed for Respondent’s contempt of court might have been more severe had this matter been submitted without the Commission’s agreement that the punishment proposed is sufficient under the circumstances. If Respondent petitions for reinstatement, Respondent will be required to address her dues nonpayment, her CLE noncompliance, her knowing violation of this Court’s suspension order, and the attorney fees she earned while suspended. Approval of a petition for reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

IT IS THEREFORE ORDERED that Respondent be fined the sum of two hundred and fifty dollars ($250.00). Respondent shall remit this amount within 60 days of the date of this order to the Clerk of the Indiana Supreme Court, Court of Appeals and Tax Court.

IT IS FURTHER ORDERED that Respondent’s current suspension from the practice of law for dues nonpayment and CLE noncompliance is converted to an indefinite suspension, effective immediately. Respondent is ordered to fulfill the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26). To be readmitted to the practice of law in this State, Respondent must cure the causes of all suspensions in effect, pay the $250.00 fine and any other amounts owing to the Court, the Clerk, or the Commission, and successfully petition this Court for reinstatement pursuant to Admission and Discipline Rule 23(4) and (18).

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.

All Justices concur.


author: BAILEY, Judge. MATHIAS, J.,

text:
    Cortney L. SCHWARTZ, Appellant/Cross-Appellee/Respondent, v. Jodi S. HEETER, Appellee/Cross-Appellant/Petitioner.
    No. 02A03-1109-DR-401.
    Court of Appeals of Indiana.
    June 26, 2012.
    Order Clarifying Decision on Rehearing Sept. 13, 2012.

      Cornelius B. Hayes, Fort Wayne, IN, Andrea R. Trevino, Bobilya Law Group LLP, Fort Wayne, IN, Attorneys for Appellant.
    Perry D. Shilts, Shilts Law Office, Fort Wayne, IN, Attorney for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Cortney L. Schwartz (“Father”) appeals the trial court’s order of summary judgment construing a “true up” provision in the settlement agreement entered in the dissolution of his marriage from Jodi S. Heeter (“Mother”). Mother cross-appeals, challenging the trial court’s construction of the provision and seeking appellate attorney’s fees.

We affirm in part, reverse in part, and remand.

Issues

The parties present several issues for our review, which we consolidate and restate as:

I.Whether the trial court erred when it construed the settlement agreement’s “true up” provision to apply the previous year’s Child Support Guidelines for each year’s determination of Father’s “true up” payments;
II.Whether Mother may, upon remand, be granted relief based upon her previously-filed Petition for Modification of Support; and
III.Whether Mother is entitled to appellate attorneys’ fees under Appellate Rule 66.

Facts and Procedural History

Father and Mother were married in 1992. The marriage produced two children. On July 9, 2008, Mother filed her petition for dissolution of the marriage. On February 20, 2009, the parties entered into and jointly filed with the trial court a Marital Settlement Agreement (“the agreement” or “the settlement agreement”), in which the parties agreed, among other things, to a determination of Father’s child support obligations. In this regard, the agreement provided:

The parties agree that the required support obligation shall be fixed and [Father] shall pay the sum of $430.00 per week (or $860.00 every two [2] weeks), if paid bi-weekly) [sic] to the Clerk of Allen County for the support of the parties’ minor children by direct deposit into an account created by [Mother] for this purpose. The parties further agree to the following, on an annual basis, to account for irregular income:
True Up
At the conclusion of each calendar year, starting with 2009, the parties’ respective weekly child support obligation shall be adjusted and recalculated by taking the amount of their gross taxable income from their tax return(s) for that year, dividing it by 52 weeks, and using this amount at line 1 of the [Child Support Obligation Worksheet], with all other factors remaining the same for purposes of calculating the parties’ adjusted child support obligation. [Father] shall pay the difference between his weekly adjusted child support obligation, multiplied by 52 weeks, to [Mother] by May 1st of each year. As a part of this process, [Father and Mother] shall provide each other with a copy of the federal income tax return along with all attachments and schedules thereto.
The above support and methodology is [sic] a compromise by the parties to avoid litigation.

App. at 31-32.

The determination of Father’s weekly support obligation of $430 was based upon an estimate of $5872 for Father’s weekly income and an estimate of $500 for Mother’s weekly income, and was calculated using the 2009 Child Support Guidelines. The terms of the agreement were incorporated into the decree of dissolution of marriage, which the trial court entered on February 20, 2009.

In early 2010, Father recalculated his weekly support obligation for purposes of compliance with the “true up” provision of the agreement for 2009, and used the 2009 Guidelines’ formula to make this determination. Based upon the results of the parties’ 2009 federal income tax returns, Father determined that his weekly child support obligation for 2009 was $579, which is $149 per week more than the $430 weekly payment provided for by the agreement. Multiplying the difference by forty-four, which represented the number of weeks in 2009 during which the decree of dissolution was in effect, yielded a “true up” amount of $6,556. Father remitted this amount to Mother on May 5, 2010, and filed a Report to Court and Notice of Compliance to this effect on May 6, 2010.

On June 11, 2010, Mother filed her Objection to Report to Court and Notice of Compliance, in which she stated that Father had not complied with the provisions of the agreement, and this non-compliance left an outstanding support arrearage of more than $47,000. Along with the Objection, Mother filed a Petition for Citation for Contempt (“the Petition”), which alleged that Father’s “true up” payment was insufficient under the terms of the agreement. In the alternative, the Petition requested relief in the form of a motion for modification of Father’s child support obligations because of “a change of circumstances so substantial and continuing as to make the prior support order unreasonable.” App. at 66.

The core of Mother’s objection was that Father “incorrectly relied upon the no-longer existing Guideline Schedules associated with the 2009 Support Guidelines.” App. 67. Basing her objection on the changed support calculations set forth in the 2010 Support Guidelines, Mother argued that Father’s weekly support obligation for 2009 under the “true up” procedure was $1,655.93. Less the agreed-to $430 weekly payment amount, Father’s remaining weekly support obligation under Mother’s calculation was $1,225.93. Thus, Mother argued that the appropriate “true up” payment was $53,990, of which Father had paid only $6,556, leaving an arrears of $47,388. App. at 67-69. Mother argued that Father’s claimed underpayment was a willful violation of the terms of the “true up” provision, but requested that if the court determined otherwise that Father’s support obligations be modified retroactive to the date of the Petition.

On December 22, 2010, Father moved for summary judgment and requested that the trial court rule in his favor on all the claims Mother raised in the Petition. On December 29, 2010, Father moved for a continuance and stay in proceedings on Mother’s Petition pending the trial court’s decision on his motion for summary judgment. On January 3, 2011, the trial court denied this motion, but scheduled a July 8, 2011, hearing on both the Petition and Father’s motion for summary judgment. Also on January 3, 2011, Father filed a written motion requesting the trial court to enter findings of fact and conclusions of law as provided by Indiana Trial Rule 52.

On January 24, 2011, Mother filed her response to Father’s motion for summary judgment and submitted a cross-motion for summary judgment. On February 28, 2011, Father filed his response to Mother’s cross-motion for summary judgment and reply to Mother’s brief in response to his own motion for summary judgment.

On April 29, 2011, Father filed his Report to Court and Notice of Compliance, which set forth Father’s calculation of the “true up” amount he owed for 2010. Again basing his calculations on the 2009 Child Support Guidelines, Father determined that his weekly child support obligation for 2010 was $552 per week. Less the $430 per week already remitted during 2010, this resulted in a difference of $ 122 per week and a “true up” amount of $6,344 for 2010. Father remitted payment in this amount to Mother.

On May 20, 2011, Mother filed her objection to Father’s Report and a Verified Petition for Citation for Contempt (“the Second Petition”). In the Second Petition, Mother again argued that Father improperly applied the 2009 Child Support Guidelines when he should have used the Guidelines in effect for the year during which Father was to make his “true up” payment. Based upon the 2011 Guidelines, Mother argued that Father’s weekly support obligation upon application of the “true up” provision should have been determined to be $1290, which, less the $430 per week already paid, yielded a remaining weekly support obligation of $860. This would result in a “true up” payment for 2010 of $44,720. Based upon this, and taking into account the $6,344 Father had already paid, Mother’s Second Petition argued that Father was $38,376 in arrears for his 2010 child support obligation. Also on May 20, 2011, Mother filed a supplement to her prior motion for summary judgment and to her response to Father’s motion, which incorporated her allegations in the Second Petition into the summary-judgment proceedings.

On August 8, 2011, the trial court entered its order on Mother’s motion for summary judgment. Interpreting the “true up” provision, the trial court concluded that Father’s “true up” payment of $6,556 was correctly determined based upon the 2009 Guidelines, but that Father’s “true up” payment for 2010 should have been based upon the 2010 Guidelines. Because Father paid $6,844 to Mother as his “true up” payment for 2010, the trial court’s construction of the agreement determined Father’s payments to be in arrears by $88,376, and ordered that Father pay this amount to Mother by December 8, 2011. Thus, the trial court partially granted and partially denied each party’s motion for summary judgment.

This appeal ensued.

Discussion and Decision

Construction of the “True Up Provision

Father and Mother both challenge the trial court’s construction of the “true up” provision of the settlement agreement.

In reviewing an appeal from a trial court’s decision to grant or deny a motion for summary judgment, we stand in the same position as the trial court and review the motion de novo. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009). Summary judgment is appropriate only where there is no question of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). A trial court’s entry of summary judgment “arrives on appeal ‘clothed with a presumption of validity,’ ” and thus the party challenging summary judgment must bear the burden of proving that the movant was not entitled to summary judgment. Williams, 914 N.E.2d at 762 (quoting Rosi v. Bus. Furniture Corp., 615 N.E.2d 431, 434 (Ind.1993)). We construe all factual inferences in favor of the non-movant, and resolve all doubts regarding the existence of a material issue against the moving party. Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270 (Ind.2009). Specific findings and conclusions are not required at summary judgment, and while they may offer valuable insight, they are not binding upon our review of a summary judgment order. Bradley v. Hall, 720 N.E.2d 747, 750 (Ind.Ct.App.1999).

The interpretation of a contract provision is a question of law. Town of Plainfield v. Paden Eng’g Co., 943 N.E.2d 904, 909 (Ind.Ct.App.2011), trans. denied. Thus, summary judgment is especially appropriate in the context of contract interpretation. Id.

Where, as here, cross-motions for summary judgment are at issue, our standard of review remains unchanged. Kelley v. Med-1 Solutions, LLC, 952 N.E.2d 817, 827 (Ind.Ct.App.2011), trans. denied. We consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Id.

Here, Mother and Father entered into a settlement agreement, which the trial court incorporated into the decree of dissolution of marriage. Our supreme court has stated the standard by which Indiana courts interpret settlement agreements.

Courts therefore interpret the settlement agreements using ordinary contract principles. Bailey [v. Mann ], 895 N.E.2d [1215,] 1217 [ (Ind.2008) ]. Thus, the goal of courts in interpreting a settlement agreement is to ascertain and give effect to the parties’ intent. See Reuille v. E.E. Brandenberger Const, Inc., 888 N.E.2d 770 (Ind.2008). Rules of contract construction and extrinsic evidence may be employed in giving ef-feet to the parties’ reasonable expectations. First Federal Sav. Bank v. Key Markets, Inc., 559 N.E.2d 600 (Ind.1990). When a contract’s terms are ambiguous or uncertain and its interpretation requires extrinsic evidence, its construction is a matter for the fact-finder. Noblesville Redevelopment Comm’n v. Noblesville Assocs. Ltd. P’ship, 674 N.E.2d 558 (Ind.1996).

Johnson v. Johnson, 920 N.E.2d 253, 256 (Ind.2010).

Here, the parties recognized that Father’s income might vary from year to year based upon occasional earnings beyond the weekly income estimated in 2009. Thus, they agreed to a procedure by which variations in Father’s income could be taken into account for purposes of determining Father’s child support obligations without requiring litigation, namely, the “true up” provision in the settlement agreement. That procedure was then incorporated into a court order.

Thus, the court’s decree of dissolution of marriage includes the provision upon which the parties’ appeal now centers:

At the conclusion of each calendar year, starting with 2009, the parties’ respective weekly child support obligation shall be adjusted and recalculated by taking the amount of their gross taxable income from their tax return(s) for that year, dividing it by 52 weeks, and using this amount at line 1 of the [Child Support Obligation Worksheet], with all other factors remaining the same for purposes of calculating the parties’ adjusted child support obligation.

App. at 32.

The parties’ disagreement centers on whether the language, “with all other factors remaining the same for purposes of calculating the parties’ adjusted child support obligation,” requires the parties to apply the Child Support Guidelines’ weekly child support obligation formula as it existed in 2009 or in later years. Father contends that “all other factors remaining the same” means that only line 1 of the Child Support Obligation Worksheet may change, and that the 2009 formula applies going forward until the child support obligation is modified. Mother contends that the Guidelines are to be applied as they exist in the year in which the “true up” payment will be made. Under this procedure, then, the “true up” payment for 2009 should have used the 2010 Guidelines because Father made the payment in 2010, the payment for 2010 should have used the 2011 Guidelines because Father made the payment in 2011, etc.

The trial court held that the agreement requires that the Child Support Guidelines be applied as they exist in the calendar year for which the “true up” process is used. Thus, on the trial court’s construction of the “true up” provision, it concluded that Father paid the correct “true up” amount in 2010 for the 2009 calendar year because he calculated his payment amount based upon the 2009 Guidelines. However, the trial court concluded that Father’s 2011 calculation for the “true up” payment for the 2010 calendar year was incorrect because Father again applied the 2009 version of the Guidelines rather than the 2010 version of the Guidelines.

Which set of Guidelines applies at what time is of no small event. Father’s calculation of his “true up” payment for the 2009 calendar year resulted in a recommended weekly child support obligation for Father of $579, or $149 more per week than the $430 provided by the settlement agreement. Multiplied by forty-four (the number of weeks in 2009 during which the agreement was in force), this results in a “true up” amount of $6,556. Following Mother’s approach of applying the 2010 version of the Guidelines results in a recommended support obligation of $1,656, or roughly $1,226 more than the $430 weekly obligation provided by the agreement. Multiplied by forty-four, this yields a “true up” payment amount of $53,499, or $47,388 more than Father’s result. A similar disparity obtains for the 2010 calendar year “true up” payment, with Father calculating a payment of $6,344 and Mother calculating a payment of $38,376.

Central to each party’s argument is the meaning of “factors” as used in the settlement agreement. Father contends “factors” includes all facets of the calculation used to determine his child support obligation, including the formula specified by the 2009 Guidelines. Mother contends “factors” includes only the numbers entered into the Child Support Obligation Worksheets, but that the formula itself is not among the factors determined by the agreement.

We think the use of the word “factors” in the phrase, “with all other factors remaining the same for purposes of calculating” the child support obligation, requires application of the 2009 Guidelines’ formula — at least until Mother properly seeks modification of Father’s child support obligations under Section 31-16-8-16. The word factor has many definitions, but the two most directly applicable definitions relate to the more colloquial use of “factor” as any fact that bears upon the outcome of a result, and the more mathematically specific meaning of “factor” as the numbers calculated in determining the product of a multiplication. Webster’s Third New International Dictionary Unabridged 813 (2002).

Under either definition, each of the numbers used to determine the weekly child support obligation amounts — and thus the amount of the “true up” payment for a given year — is a factor in the determination of Father’s support obligations. Indeed, the Child Support Guidelines’ formulas are themselves factors under the more colloquial definition, as trial courts have discretion in deviating from the results of the Guidelines’ calculations where “the Guideline amount is unjust or inappropriate in a particular case.” Ind. Child Support Guideline 3(F)(2) (2011) (citing I.C. § 31-16-6-1 & -2).

Moreover, this construction of the agreement seems the most compatible with the provisions of the agreement itself, particularly in light of the provision indicating that Mother’s decision to enter the agreement was against the advice of counsel. That provision included Mother’s counsel’s opinion that the “true up” provision was not as generous in establishing Father’s child support obligations as would result from litigation based upon the Child Support Guidelines.

Thus, we conclude that the trial court’s entry of summary judgment against Father on Mother’s claim regarding the 2010 “true up” payment was in error. We construe the “true up” provision’s language to require continued application of the 2009 Guideline formula until mother properly moves for modification of child support. Because we agree with the trial court that Father’s 2010 “true up” payment for 2009 of $6,556 was correct, we affirm that portion of the trial court’s order granting Father summary judgment. In conformance with our reasoning above, however, we reverse as to the trial court’s determination regarding Father’s 2011 “true up” payment for 2010, and remand for entry of an order consistent with our decision today.

Relief upon Remand under Previously Filed Motion for Modification

Mother argues in her cross-appeal that she may resume pursuing modification of Father’s child support obligations as of the date of her filing of the motion for modification. Father responds that the trial court has already denied these motions and that, in any event, Mother has waived the trial court’s consideration of these motions.

Our Appellate Rules require appellants’ briefs to provide cogent argumentation of designated issues with citation to relevant authorities. Ind. Appellate Rule 46(A)(8)(a). Failure to comply with these requirements may result in the waiver of an issue upon appeal. Estate of Collins v. McKinney, 936 N.E.2d 252, 258 (Ind.Ct.App.2010), trans. denied. The same requirements apply to an appellee’s brief, and the language of Rule 46(D)(2), which states the requirements for an appellee’s brief on cross-appeal, echoes that of Rule 46(A)(8): “[t]he Appellee’s Brief shall contain any contentions the appellee raises on cross-appeal as to why the trial court or Administrative Agency committed reversible error.” App. R. 46(D)(2); cf. App. R. 46(A)(8) (providing that the Argument section of an appellant’s brief “shall contain the Appellant’s contentions why the trial court or Administrative agency committed reversible error”). Moreover, this Court has previously applied the requirements for an appellant’s response to issues raised on cross-appeal in a similar manner to the requirements of an appellee’s response to an appellant’s arguments. See In re Riddle, 946 N.E.2d 61, 70-71 (Ind.Ct.App.2011) (applying the prima facie error standard of review, ordinarily used when an appellee does not respond to an appellant’s brief, in a case where the appellant failed to respond in a reply brief to appellee’s contentions on cross-appeal).

Here, Mother contends that the trial court did not deny her requests to modify Father’s support obligations. During a hearing on September 9, 2011, concerning the parties’ motions for attorneys’ fees, counsel for Father raised to the trial court the disposition of the Petition and Second Petition for contempt, each of which requested in the alternative that the trial court grant relief in the form of a modification of Father’s child support obligations. The trial court declined to find Father in contempt of court. The trial court continued:

with respect to the alternative request to modify support ... the Court is not modifying support but the request for relief that the Petitioner has asked for has been addressed through the Court’s ruling on the motions for summary judgment but I’m denying, I will technically deny both.
Okay, so the Court is denying those pleadings and then the remaining issue is the request for the payment of attorney fees ... ?

Sept. 9, 2011 Hrg. Tr. at 8-9.

Counsel for Mother then inquired, “you are denying the request that [Father] is not found in contempt?” Sept. 9, 2011 Hrg. Tr. at 10. The trial court confirmed this. Immediately afterward, counsel for Father asked, “[a]nd the alternative is as you have already spoken,” to which the court answered, “Yes.” Sept. 9, 2011 Hrg. Tr. at 10. The trial court then heard argument from the parties about other pending motions and the parties’ requests for attorneys’ fees.

Based upon this exchange, we conclude that the trial court ruled on Mother’s alternative request for relief in the Petition and Second Petition by denying her successive requests for modification of Father’s support obligation. During the September 9, 2011, hearing, Mother did not argue that the summary judgment order did not incorporate within it her alternative basis for relief. Mother also did not request that the trial court withhold its ruling on the motions for modification pending the presentation of other evidence.

Mother now seeks to reopen the trial court’s decision on these requests, stating only that “the Court’s subsequent denials of ‘motions’ related to [Mother’s] effort to have [Father] found in contempt in two separate pleadings.” Appellee’s Br. at 23. Without citation to authority or cogent argument, Mother baldly asserts that the case “should be remanded for evidence to be presented on [her] Motion to Modify filed on June 11, 2010.” Appellee’s Br. at 23.

We disagree. Because Mother has failed to comply with Appellate Rule 46(A)(8), her argument on this matter is waived. Moreover, it seems clear to us that the trial court has denied the request for modification. We leave it to the trial court, then, to determine whether it will reconsider that decision and hear evidence on Mother’s requests.

Mother’s Request for Appellate Attorney’s Fees

Finally, Mother requests appellate attorney’s fees in her cross-appeal. Our appellate rules provide that we “may assess damages if an appeal, petition, or motion, or response, is frivolous or in bad faith. Damages shall be in the Court’s discretion and may include attorneys’ fees. The Court shall remand the case for execution.” App. R. 66(E).

An award of appellate attorney fees “is discretionary and may be ordered when an appeal is replete with meritlessness, bad faith, frivolity, harassment, vexa-tiousness, or purpose of delay.” Trost-Steffen v. Steffen, 772 N.E.2d 500, 514 (Ind.Ct.App.2002), trans. denied. “However, we must use extreme restraint when exercising our discretionary power to award damages on appeal because of the potential chilling effect upon the exercise of the right to appeal.” Id.

Gertz v. Estes, 922 N.E.2d 135, 138 (Ind.Ct.App.2010).

We cannot say that Father’s appeal was “ ‘replete with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.’” Id. (quoting Trost-Steffen, 772 N.E.2d at 514). Indeed, our decision agrees with Father’s arguments on substantial issues and not Mother’s arguments. Mother is not, then, entitled to appellate attorney’s fees under Appellate Rule 66.

Conclusion

The trial court’s construction of the “true up” agreement was erroneous, and thus its entry of summary judgment was partially in error as to Father’s “true up” obligation for 2010. Mother may not, upon remand, seek rulings from the trial court on her prior motions for modification of Father’s support obligation. Finally, we deny Mother’s request for appellate attorney’s fees under Appellate Rule 66.

Affirmed in part, reversed in part, and remanded.

ROBB, C.J., concurs.

MATHIAS, J., concurs in part and dissents in part.

MATHIAS, J.,

concurring in part and dissenting in part.

I agree with the trial court’s interpretation of the “true up” provision of the parties’ marital settlement agreement, and I respectfully dissent from the majority with regard to this issue.

The portion of the settlement agreement at issue provides:

At the conclusion of each calendar year, starting with 2009, the parties’ respective weekly child support obligation shall be adjusted and recalculated by taking the amount of their gross taxable income from their tax return(s) for that year, dividing it by 52 weeks, and using this amount at line 1 of the CSOW [Child Support Obligation Worksheet], with all other factors remaining the same for purposes of calculating the parties’ adjusted child support obligation.

Appellant’s App. p. 32.

As explained by the majority, the formula for calculating child support under the 2009 Child Support Guidelines was subsequently changed in a manner that would lead to a much larger child support obligation for Father. That is, using the formula from the 2009 Guidelines, Father’s 2009 true up payment would be the relatively modest sum of $6,556. However, using the formula from the 2010 Guidelines, Father’s true up payment is the much larger sum of $53,940.92. Similarly, applying the 2009 Guidelines formula to calculate Father’s 2010 true up payment results in a total of $6,344. But using the formula from the 2010 Guidelines would result in a true up payment of $44,720

Father argues that the phrase “with all other factors remaining the same” means that the 2009 Guidelines formula must be applied unless and until his support obligation is modified by the trial court. Mother argues that the proper formula to be used is the one which is applicable in the year the calculations are performed and the true up payment is made, e.g., the 2010 Guidelines formula is to be used to determine the 2009 true up due in 2010, and the 2011 Guidelines formula is to be used to determine the 2010 true up due in 2011. The trial court, adopting neither party’s position, concluded that the proper formula to be used is the one that was applicable during the year for which the true up was due, not the year it was payable, e.g., the 2009 formula for the 2009 true up payment, and the 2010 formula for the 2010 true up payment.

The majority agrees with Father, concluding that the formula to be used to calculate the “true up” is a “factor” that must remain the same pursuant to the language of the agreement. To me, this misuses the word “factor,” within the context of the agreement. The relevant language of the agreement provides that the parties’ actual weekly income for the year at issue will be calculated based on their tax returns and that this amount will be used “at line 1 of the CSOW [Child Support Obligation Worksheet], with all other factors remaining the same.” Appellant’s App. p. 32. I think it is clear from the structure of this sentence that the other “factors” that will remain the same are the other variables that go into calculating the true up amount, not the child support obligation worksheet or formula itself.

It is clear that the parties intended to “adjust and recalculate[ ]” the child support obligation at the end of each year, and they are to be commended on their foresight in making provisions to do so. Appellant’s App. p. 32. However, the formula used to adjust and recalculate the child support obligation should be the formula applicable to the income earned during that year, precisely as the trial court held. Perhaps the parties did not anticipate that the formula used to calculate the true up might change in the future. But if Father intended to freeze his support obligation at the 2009 level, then certainly this intent should have been stated explicitly. And if the parties did not anticipate the possibility that the formula might change, then the party who should bear the risk of any change should be Father, not the children.

Indeed, it should be kept in mind that the money at issue is not for the benefit of Mother. Instead, she is merely the trustee of the payments for the use and benefit of the children. See Straub v. B.M.T. by Todd, 645 N.E.2d 597, 599 (Ind.1994). Nor does either parent have a right to contract away the support benefits of their children, as the right to the support lies exclusively with the children. See id. It is for this reason that settlement agreements that purport to contract away these rights are directly contrary to public policy and unenforceable. Id. at 600.

Although the agreement here does not purport to wholly contract away Father’s support obligation, I believe that any ambiguity in the language of the agreement should be construed in the manner that is more favorable to the children. Had the parties desired to use the 2009 Guidelines formula regardless of the year for which the true up payments were calculated, that intent should have been explicitly stated in the language of the agreement. Because the agreement is not explicit in this regard, I would hold that the Guidelines formula in effect during the year for which the true up calculation is performed is the proper formula to use.

Because I agree with the trial court’s resolution of the issues, I would affirm the trial court’s grant of summary judgment in all respects.

BAILEY, Judge.

OPINION ON REHEARING

Cortney L. Schwartz (“Father”) appealed the trial court’s entry of summary judgment construing a “true up” provision relating to child support in the marital dissolution agreement he entered into with Jodi S. Heeter (“Mother”). Mother in her cross-appeal argued that she was entitled to reopen motions to modify Father’s support obligations. We affirmed in part, reversed in part, and remanded. In doing so, we concluded that Mother waived her arguments on the motions for modification of support on appeal. Schwartz v. Heeter, 970 N.E.2d 197 (Ind.Ct.App.2012). Mother now files her petition for rehearing, which we grant for the sole purpose of clarifying our holding on her motions for modification of support.

In our original decision we stated, “Mother has failed to comply with Appellate Rule 46(A)(8),” and thus waived the question of her motions to modify support. Id. at 205. We went on to “leave it to the trial court ... to determine whether it will reconsider” its decision on those motions, which motions the court had previously denied. Id. We now clarify our decision, and specifically the conclusion, to state that we leave whether to reconsider the motions and hear evidence on them entirely to the discretion of the trial court. Mother is not entitled to reconsideration as a matter of right. With this clarification, we affirm our original decision in all other respects.

ROBB, C.J., and MATHIAS, J., concur.

      . This provision was entered into against advice of counsel for Mother, whose opinion, which formed part of the terms of the agreement, stated that the agreement "favors [Father], is less generous to [Mother’s] children than the law would provide and may cause annual difficulties between the parties.” App. at 49. Father also entered into the agreement against advice of counsel after his attorney advised that litigation might lead to a distribution of the marital estate more favorable to Father.

      . The formula under the 2009 Guidelines for determining the weekly total child support obligation for one child where the parents’ combined weekly income was greater than $4000 is [89.42443 x ln(N) ] — 411.24, where "N” is the combined weekly adjusted income of the parents. (The function ”ln(N)” indicates that among the operands used to determine support is the natural logarithm of N.) Where there are two children, the result of this formula is multiplied by 1.50 to determine the weekly child support obligation. This amount is then used to determine the child support obligation for the non-custodial parent based upon such factors as differences in parental income, expenses during parenting time, duplicated expenses, health insurance premiums. Ind. Child Support Guidelines 3(C)-(H) & 6 (2009). Using the procedure in the 2009 Guidelines, Father's recommended child support obligation would have been $402.95; the parties agreed to the slightly larger figure of $430.00.

      . The amount Mother argued Father was in arrears does not match precisely the result of the calculations, which yields a "true up” amount under the 2010 Guidelines of $53,940.92, and an arrearage of $47,384.92.

      . We recognize that the trial court’s decision appears more equitable. Writ large, however, that decision would have the effect of modifying numerous preexisting and unchallenged support arrangements through the operation of law.

      . Although I do not find Father’s appellate argument to be persuasive, I concur with the majority’s conclusion that Mother is not entitled to appellate attorney fees.

      . The Guidelines were amended effective January 1, 2010, and appear not to have been amended since.


author: SHEPARD, Senior Judge.

text:
    PAC-VAN, INC., Appellant-Defendant, v. WEKIVA FALLS RESORT, Appellee-Plaintiff.
    No. 49A02-1204-CT-337.
    Court of Appeals of Indiana.
    Sept. 11, 2012.
    Daniel D. Bobilya, Bobilya Law Group, LLC, Fort Wayne, IN, Attorney for Appellant.
   OPINION

SHEPARD, Senior Judge.

When the losing party pays a judgment in full, does post-judgment interest keep running on the whole amount until the trial court calculates the amount due for the period between the judgment and the payment? The trial court here said yes. The statute and the cases are otherwise.

FACTS AND PROCEDURAL HISTORY

Wekiva Falls Resort sued Pac-Van, Inc., for breach of contract and negligence. On April 15, 2011, a jury returned a verdict for Wekiva in the amount of $102,285. Pac-Van paid the judgment on June 2, 2011. Wekiva also requested an award of attorney’s fees. On July 19, 2011, the trial court ordered Pac-Van to pay $123,379 in fees. Pac-Van paid the award to Wekiva on August 22, 2011.

Wekiva then filed a petition for prejudgment and post-judgment interest. Pac-Van responded, noting that it had already paid both the jury verdict and the attorney’s fees award. On January 28, 2012, the trial court denied Wekiva’s request for pre-judgment interest but granted post-judgment interest, determining that Wekiva was entitled to $6368.27 in interest on the jury verdict and $5075.81 in interest on the attorney’s fees award.

Pac-Van filed a motion to correct error, asserting that the award of post-judgment interest did not account for Pac-Van’s payment of the judgment and the fee award. Pac-Van’s lawyer Daniel D. Bobilya had first contacted Wekiva’s attorney Daniel Cueller on this point. “Although opposing counsel was made aware of the error and has acknowledged receipt of the principal payments,” Bobilya informed the trial court, “he refused to voluntarily remedy this error via stipulation.” Appellant’s App. p. 3. The motion to correct error did not elicit a response, the motion was deemed denied, and this appeal followed. Wekiva has not filed an appellee’s brief.

ISSUE

Pac-Van raises one issue, which is: whether the trial court erred in the calculation of post-judgment interest on the jury verdict and the attorney’s fees award.

DISCUSSION

We start with the trial court’s calculation of post-judgment interest on the jury verdict. The governing statute provides, in relevant part, “interest on judgments for money whenever rendered shall be from the date of the return of the verdict or finding of the court until satisfaction at ... an annual rate of eight percent (8%), if there was no contract by the parties.” Ind.Code § 24-4.6-1-101 (1993). This statute creates an incentive for judgment debtors to satisfy their obligations expeditiously to avoid the accrual of interest. Poehlman v. Feferman, 717 N.E.2d 578, 583 (Ind.1999).

Here, the jury rendered its verdict on April 15, 2011, and Pac-Van paid the judgment on June 2, 2011, forty-eight days later. Under the plain language of Section 24-4.6-1-101, post-judgment interest accrued during that period of time. See State v. Booher, 935 N.E.2d 274, 282 (Ind.Ct.App.2010) (holding that interest accrued between the date the trial court entered final judgment and the date the judgment was paid in full). The interest does not compound because the statute does not permit interest to accrue upon interest. Nesses v. Kile, 656 N.E.2d 546, 547 (Ind.Ct.App.1995).

Thus, the post-judgment interest due on the jury verdict of $102,285 is calculated by multiplying that figure by .08 (the interest rate), dividing the result ($8182.80) by 365 to determine the amount of interest that accrues each day, and multiplying that result ($22.42) by forty-eight days to reach the total amount: $1076.09. The trial court’s award imposed interest running for some eight months after “satisfaction” of the jury verdict, to use the word in the Code, had already occurred. This was error.

Next, we turn to the trial court’s calculation of interest on the attorney’s fees award. Such modest authority as exists in Indiana holds that post-judgment interest does accrue on an award of fees. See Olcott Int’l & Co. v. Micro Data Base Sys., Inc., 793 N.E.2d 1063, 1079 (Ind.Ct.App.2003), trans. denied. This is also the rule in other jurisdictions. See Parker v. I & F Insulation Co., 89 Ohio St.3d 261, 730 N.E.2d 972, 977-78 (2000) (collecting cases). It was the position of both parties before the trial court that an award of fees is governed by the general post-judgment interest statute cited above, Ind.Code § 24-4.6-1-101.

Here, the trial court issued its fee award on July 19, 2011, and Pac-Van paid Weki-va the full amount on August 22, 2011, thirty-four days later. Thus, post-judgment interest on the attorney’s fees award of $123,379 is calculated by multiplying that figure by .08 (the interest rate), dividing the result ($9870.32) by 365 to determine the amount of interest that accrues each day, and multiplying that result ($27.04) by thirty-four to reach the total due: $919.43. The trial court’s award of interest on fees for five months after the fees were paid was error.

CONCLUSION

We reverse the trial court’s award of post-judgment interest and remand with instructions to issue a new order reflecting $1076.09 in interest on the verdict and $919.43 in interest on the fees, for a total of $1995.52.

Reversed and remanded with instructions.

KIRSCH, J., and CRONE, J., concur.

      . The trial court's denial of Wekiva’s request for pre-judgment interest rested on Ind. Code § 34-51-4-6 (1998). That section bars interest where a pre-trial offer of settlement is more than a third higher than the eventual judgment. Wekiva had offered to settle for $1.4 million; the jury awarded $102,285.

      . The parties acknowledged in the trial court that the applicable interest rate is eight percent.


author: ROBB, Chief Judge.

text:
    Paul HARDY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 88A01-1203-CR-93.
    Court of Appeals of Indiana.
    Sept. 28, 2012.

      Ryan D. Bower, Allen Allen & Brown, Salem, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issue

Paul Hardy appeals the trial court’s revocation of his probation in multiple cases. For our review, Hardy raises one issue: whether the trial court properly ordered him to serve all of his previously suspended sentences when it revoked his probation. Concluding the trial court did not abuse its discretion in its disposition of Hardy’s probation revocation, we affirm.

Facts and Procedural History

This case concerns the status of five separate but ultimately inter-related criminal cases against Hardy:

Cause Number 88C01-9609-CF-350 (“Cause 350”): Hardy was convicted in 1997 of three counts of burglary, all Class C felonies. He was sentenced to ten years in the Indiana Department of Correction (“DOC”), with four years suspended to probation. He began serving his probation on December 23, 1999, with a “maximum termination date” of December 23, 2003. Appellant’s Appendix at 26.

Cause Number 88C01-0008-CM-238 (“Cause 238”): Hardy was convicted in 2000 of operating a vehicle while never licensed, a Class C misdemeanor. He was sentenced to sixty days in jail, with credit for one day served and the remainder suspended to probation. He began serving his probation on October 9, 2000, with a maximum termination date of December 8, 2000.

Cause Number 88C01-0101-CM-15 (“Cause 15”): Hardy was convicted on February 28, 2002, of operating a vehicle while never licensed, a Class C misdemeanor. He was sentenced to sixty days in jail with twenty days to be executed and the remaining forty days suspended. He was also placed on probation for one year, with a maximum termination date of March 7, 2003. As part of the plea agreement resolving Cause 15, petitions for revocation of probation that had been filed in Cause 350 and Cause 238 were dismissed.

January 29, 2001 Plea Agreement (Cause Numbers 88C01-0304-FB-128 (“Cause 128”), 88C01-0301-FD-46 (“Cause 46”), and 88C01-0306-FB-228 (“Cause 228”)): On January 29, 2004, Hardy pleaded guilty to residential entry, a Class D felony, in Cause 128; theft, a Class D felony, in Cause 46; and dealing in a schedule II controlled substance, a Class B felony, in Cause 228. He was sentenced to consecutive terms of three years for residential entry, two years for theft, and ten years for dealing, for a total sentence of fifteen years with five years suspended to probation, to “run consecutive to current probation” in Causes 15, 238, and 350. Id. at 39. Also as part of the plea agreement, petitions for probation revocation filed in Causes 15, 238, and 350 were dismissed. He began serving his probation as a result of this plea agreement on January 19, 2010, with a maximum termination date of January 18, 2015.

Hardy was released from incarceration on May 8, 2009. On February 11, 2010, the trial court, at the request of the State and Hardy, extended Hardy’s probation in Causes 350, 238, and 15 to be completed by January 8, 2014. Thereafter, in May and June of 2011, petitions for revocation were filed in the five causes now on appeal. On February 2, 2012, the trial court issued the following order:

The Court having taken ruling under advisement and being duly advised, does now grant the State’s request and Orders that Paul Hardy’s probation in all cases be revoked and that [Hardy] serve his remaining suspended sentence at the Indiana Department of Correction and Washington County Jail as set out below:
A. To the Indiana Department of Correction in [Cause 350], 4 years;
B. To the Washington County Jail in [Cause 238], 58 days;
C. To the Washington County Jail in [Cause 15], 40 days;
D. To the Indiana Department of Correction for a total of 5 years, 2 years in [Cause 46]; 3 years in [Cause 128] (to run consecutively)
E.All sentences are to be served consecutively.
The Court, being duly advised, hereby grant’s [sic] the State’s request and Orders that Paul Hardy’s probation in [Causes 350, 46, and 128] be revoked and that [Hardy] serve his remaining sentence of 3,285 days at the Department of Correction and [Cause 238] be revoked and [Hardy] serve his remaining sentence of 58 days at the Washington County Jail and [Cause 15] be revoked and that [Hardy] serve his remaining sentence of 40 days (to run consecutive) at the Washington County Jail. [Hardy] shall receive 16 days good time credit, 8 actual days.

Amended Appellant’s Brief at 10-11. Hardy appeals the trial court’s disposition upon revoking his probation.

Discussion and Decision

I. Standard of Review

Probation revocation is a two-step process. Alford v. State, 965 N.E.2d 133, 134 (Ind.Ct.App.2012), trans. denied. First, the court must make a factual determination that a violation of a condition of probation has occurred. Id. Second, the trial court must determine if the violation warrants revocation of the probation. Ripps v. State, 968 N.E.2d 323, 326 (Ind.Ct.App.2012). Upon revoking probation, the trial court may impose one of several sanctions provided by statute. Alford, 965 N.E.2d at 134; see also Ind.Code § 35-38-2-3(h). We review a trial court’s sentencing decisions for probation violations for an abuse of discretion. Alford, 965 N.E.2d at 134. An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances before the court. Id.

II. Sentence for Violating Probation

Hardy “does not try to improve his situation by arguing that the probation was revoked without cause....” Amended Appellant’s Br. at 3-4. Rather, he argues that the trial court abused its discretion in ordering him to serve all of his suspended time in these five causes because “[s]urely, between May 9th, 2009 (prison release date) and May 17th, 2011 (revocation filing date), one or more of [his] probations had closed.” Id. at 4. His appeal requires consideration of several provisions of Indiana Code section 35-38-2-3:

(a) The court may revoke a person’s probation if:
(1) the person has violated a condition of probation during the probationary period; and
(2) the petition to revoke probation is filed during the probationary period or before the earlier of the following:
(A) One (1) year after the termination of probation.
(B) Forty-five (45) days after the state receives notice of the violation.
(b) When a petition is filed charging a violation of a condition of probation, the court may:
(1) order a summons to be issued to the person to appear; or
(2) order a warrant for the person’s arrest if there is a risk of the person’s fleeing the jurisdiction or causing harm to others.
(c) The issuance of a summons or warrant tolls the period of probation until the final determination of the charge.
* * *
(h) If the court finds that the person has violated a condition at anytime before termination of the period, and the petition to revoke is filed within the probationary period, the court may impose one (1) or more of the following sanctions:
(1) Continue the person on probation, with or without modifying or enlarging the conditions.
(2) Extend the person’s probationary period for not more than one (1) year beyond the original probationary period.
(3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.

A. Causes 350, 238, and 15

Hardy contends that his probation in Causes 350, 238, and 15 should not have been revoked because the revocation petition was filed “much later than one year after the maximum termination date.... ” Amended Appellant’s Br. at 5. However, Hardy signed an agreement extending his probation in these three cases to January 8, 2014, to allow him “additional time to complete his/her probation requirements, including payment of fines and costs.” Appellant’s App. at 47. He argues that this agreement was improper because it extended his probation longer than allowed by law. Further, he contends it was improper because he was not represented by counsel when he signed it.

Indiana Code section 35-38-2-3(e) provides a right to counsel prior to revocation of his probation. See Bumbalough v. State, 873 N.E.2d 1099, 1102 (Ind.Ct.App.2007). The probation extension agreement, however, does not appear to be a result of a probation revocation proceeding and Hardy has not shown he had a right to counsel when entering into the agreement. See Ind. Appellate Rule 46(B)(8)(a) (requiring all contentions to be supported by cogent reasoning and citations to authority).

Hardy also contends that based on Indiana Code section 35-38-2-3(g), his probation could not be extended for more than one year beyond his original probationary period and the agreement improperly extended it for more than three years. A probation modification agreement is akin to a plea agreement. Watson v. State, 833 N.E.2d 497, 500 (Ind.Ct.App.2005). The decision to accept or reject a plea agreement is a matter left to a trial court’s discretion. Allen v. State, 865 N.E.2d 686, 689 (Ind.Ct.App.2007). Once a plea agreement is accepted by the trial court, the plea agreement, like a contract, is binding upon both parties and the trial court. Id. Our supreme court has held that “a defendant may not enter a plea agreement calling for an illegal sentence, benefit from that sentence, and then later complain that it was an illegal sentence.” Collins v. State, 509 N.E.2d 827, 833 (Ind.1987). The benefit to Hardy here was that revocation proceedings were apparently foregone in lieu of extending his probation to allow him more time to comply with the terms. Moreover, as the State notes, Hardy raised no challenge to the extension agreement before the trial court, and therefore has waived any issues relating to it. See Wilson v. State, 931 N.E.2d 914, 919 (Ind.Ct.App.2010) (“The failure to raise an issue at trial waives the issue on appeal.”), trans. denied.

We acknowledge these cases are quite old and the probationary period in at least Causes 238 and 15 were quite short. However, Hardy’s repeated violations of the law have resulted in multiple petitions to revoke being filed and multiple extensions of his probationary period by law, see Ind.Code § 35-38-2-3(c), (h), as well as by his agreement. In short, we cannot say the trial court abused its discretion in revoking Hardy’s probation in Causes 350, 238, and 15 and ordering that he serve the suspended time when the revocation petitions were filed within the probation period as extended by agreement between Hardy and the State and approved by the trial court.

B. Causes 46 and 128

Hardy contends his probation in Causes 46 and 128 had not yet begun when the probation revocation petitions were filed and therefore the trial court abused its discretion in revoking his probation and ordering him to serve his suspended time in these cases prospectively. Specifically, he argues that the January 2004 plea agreement specifically provided that he would not begin serving his probation in these causes until after his probation in Cause 350 and revoking his probation prospectively denies him the benefit of his bargain.

Indiana Code section 35 — 38—2—3(h) provides that a trial court may revoke probation “[i]f the court finds that the person has violated a condition at any time before termination of the period....” (Emphasis added.) This has been interpreted to mean that probation may be revoked even before it begins. Ashley v. State, 717 N.E.2d 927, 928 (Ind.Ct.App.1999). In Rosa v. State, 832 N.E.2d 1119 (Ind.Ct.App.2005), the defendant was to serve a two-year sentence suspended to probation in Wabash County consecutively to a sentence he was serving in Grant County. The order of probation showed he would begin serving his probation on February 15, 2007. However, on October 16, 2004, the defendant was charged with a crime, and Wabash County subsequently revoked his probation. The defendant argued that Wabash County had no authority to prospectively revoke his probation when it was specifically ordered to be served following another sentence that he was still serving at the time of the violation. This court disagreed, noting that under the defendant’s reasoning, “he could commit any number of offenses from 2004 to 2007 and not face a probation violation.” Id. at 1122. Because the “probationary period begins immediately after sentencing and ends at the conclusion of the probationary phase of the defendant’s sentence!,]” id. at 1121, Wabash County had the authority to revoke his probation even before he had begun to serve it.

The same reasoning applies here. Although Hardy was still serving his probation in Cause 350 at the time and therefore had not begun serving his probation in Causes 46 and 128 the petitions for revocation were filed, the trial court still had the authority to revoke his probation in those cases and did not abuse its discretion in doing so upon finding a violation.

Conclusion

The trial court did not abuse its discretion in revoking Hardy’s probation in any of the five cases on appeal or in ordering that he serve all of his previously suspended time. The trial court’s order on violation of probation is affirmed.

Affirmed.

BAKER, J., and BRADFORD, J., concur.

      . Cause 228 is not part of this appeal, but is included herein in the interests of completeness.

      . Although Hardy contends he was given more time only to pay fines and costs, the agreement actually states that he is afforded additional time to complete his probation requirements “including fines and costs.” Appellant's App. at 47. Hardy's probation requirements were not just fines and costs but also community service.

      . The State has meticulously set forth in its brief the procedural history of Cause 350, in which the various probation revocation petitions filed during its pendency and Hardy’s incarceration for other cases had extended, by virtue of the tolling provision of Indiana Code section 35-38-2-3(c), his probationary period in that cause to August 2011 notwithstanding the probation extension agreement, a date well after the current petition to revoke was filed. See Brief of Appellee at 9-13. The State has also meticulously documented the procedural history of Cause 15, in which his probationary period was extended to June 2009, and noting that pursuant to Indiana Code section 35 — 38—2—3(a)(2)(l), a revocation petition could have been filed in that cause up to June 2010, after the date of the extension agreement. See id. at 13-14. Finally, the State has agreed with Hardy that his probation in Cause 238 was improperly revoked because the one-year limitation period of Indiana Code section 35 — 38—2—3(a)(2)( 1) was exceeded prior to the extension agreement. Though we appreciate the State’s candor, the State’s concession is not determinative because we have held that Hardy waived any error in the extension by agreeing to it.