Friedlander, J.
Demetrius and Vickie Grant appeal the trial court’s denial of their motion to dismiss and grant of summary judgment in favor of The Bank of New York Mellon Trust Company (the Bank). The Grants present the following dispositive issue for review: Was dismissal of the Bank’s second foreclosure action against the Grants required where the first action was dismissed under Indiana Trial Rule 41(E)?
We reverse and remand.
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Before addressing these arguments, we observe one key difference between this case and Zavodnik. The latter was dismissed without prejudice, while the present was dismissed with prejudice. {FN: T.R. 41(B) provides in relevant part as follows: “Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision or subdivision (E) of this rule…operates as an adjudication upon the merits.” In this case, because Judge Reid did not otherwise specify, the dismissal of the First Foreclosure Action was with prejudice.] In Zavodnik, we reached the T.R. 41(F) analysis only after observing that the T.R. 41(E) dismissal without prejudice had no res judicata effect. The same cannot be said for a dismissal with prejudice, such as in the case at hand. See Afolabi v. Atl. Mortgage & Inv. Corp., 849 N.E.2d 1170, 1173 (Ind. Ct. App. 2006) (“a dismissal with prejudice is conclusive of the rights of the parties and is res judicata as to any questions that might have been litigated”).
In any case, however, we must address the Bank’s assertion that the two actions are not the same. Citing Afolabi, the Bank argues that the Grants’ obligations under the note and mortgage were ongoing and any subsequent default created a new and independent right to initiate foreclosure. The Bank continues, “[t]he Second Action seeks relief for defaults that could not have been contemplated by the First Action because the Second Action sought to recover amounts based on defaults that had accrued only after the dismissal of the First Action.” Appellant’s Brief at 13.
The Bank’s argument ignores the undisputed fact that the Grants’ personal liability under the note and mortgage had been discharged in bankruptcy. Accordingly, the relief sought in both foreclosure actions was precisely the same and the First Foreclosure Action fully contemplated nonpayment due to the bankruptcy. A review of the respective complaints, in fact, reveals that they were based on the same alleged default. Cf. Afolabi v. Atl. Mortgage & Inv. Corp., 849 N.E.2d at 1175 (“the facts necessary to establish a default in the first foreclosure action are different from the facts necessary to establish a default in the second foreclosure action”); Deutsche Bank Nat’l Trust Co. v. Harris, 985 N.E.2d 804, 816 (Ind. Ct. App. 2013) (“subsequent and separate alleged defaults under the note create a new and independent right in the mortgagee to accelerate payment on the note in a subsequent foreclosure action”). Unsatisfied with Judge Reid’s refusal to reinstate the First Foreclosure Action and apparently unwilling to appeal that ruling, the Bank chose to re-institute the exact same claim in a new lawsuit. This was improper.
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The Bank improperly attempted to circumvent Judge Reid’s T.R. 41 ruling by filing an entirely new complaint raising identical legal and factual issues. This violated both T.R. 41 and principles of res judicata. Accordingly, the trial court erred when it granted summary judgment in favor of the Bank. The trial court is directed on remand to vacate the grant of summary judgment and dismiss the Bank’s complaint.
Judgment reversed and cause remanded with instructions.
Kirsch, J., and Crone, J. concur.