Vinod C. Gupta v. Henry S. Busan, Heritage Federal Credit Union

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
LEWIS MAUDLIN S. ANTHONY LONG
Salem, Indiana Long & Mathies Law Firm, P.C.
Boonville, Indiana
IN THE Mar 06 2014, 9:14 am
COURT OF APPEALS OF INDIANA
VINOD C. GUPTA, )
)
Appellant-Defendant, )
)
vs. ) No. 87A01-1307-MI-340
)
HENRY S. BUSAN, )
)
Appellee-Plaintiff, )
)
HERITAGE FEDERAL CREDIT UNION, )
)
Appellee-Defendant. )
APPEAL FROM THE WARRICK CIRCUIT COURT
The Honorable David O. Kelley, Judge
Cause No. 87C01-1304-MI-520
March 6, 2014
OPINION - FOR PUBLICATION
ROBB, Judge
Case Summary and Issues
Vinod C. Gupta appeals the trial court’s denial of his motion for summary judgment
and its grant of summary judgment in favor of Henry S. Busan. 1 He raises two issues for
our review, which we restate as: whether the trial court erred in finding Gupta failed to
comply with statutory notice provisions for obtaining a tax deed, and whether the trial court
erred in granting summary judgment in favor of Busan. Concluding that Gupta complied
with the statutory notice provisions, we reverse and remand.
Facts and Procedural History
In 2008, a lot owned by Busan was sold at a tax sale, and Gupta purchased the tax
certificate. The redemption period on this real estate was to expire on June 10, 2009. On
February 24, 2009, Gupta sent notice of the sale and redemption period to Busan by
certified mail and first class mail within the statutorily prescribed timeframe. The notices
did not come back to Gupta. Gupta also posted notice of the sale on the property. After
the redemption period expired, Gupta sent notice of his filing of a petition for issuance of
a tax deed to Busan, both via certified mail and first class mail. The notices were not
returned to Gupta. Busan did not receive the notices sent either by certified mail or first
class mail, nor did he see the notice posted on the property. Gupta then petitioned for, and
received, a tax deed on the property.
1
Although included as a party in this appeal pursuant to Appellate Rule 17(A), Heritage Federal
Credit Union did not participate in this appeal. The summary judgment order at issue here applied only to
Gupta and Busan; it did not resolve issues between Gupta and Heritage Federal Credit Union.
2
On March 22, 2012, almost four years after the sale, Busan filed an action to quiet
title on the lot in Warrick Superior Court No. 1, arguing he just learned of the sale and that
Gupta did not comply with the notice requirements, particularly, the certified mail
requirements. After hearing arguments, the court granted summary judgment in favor of
Busan. Gupta then filed a motion to correct error, arguing that the court did not have
jurisdiction. The court agreed and transferred the cause to Warrick Circuit Court, which
initially issued the tax deed to Gupta. In the circuit court, the complaint was treated as an
action to set aside the court’s grant of the tax deed pursuant to Trial Rule 60(B). Busan
renewed his request for summary judgment, and Gupta made a cross-motion for summary
judgment. After a hearing, the trial court concluded Gupta failed to comply with the
certified mail requirements and awarded summary judgment in favor of Busan; Gupta’s
cross-claim for summary judgment was denied. Gupta now appeals.
Discussion and Decision
I. Standard of Review
Upon review of a trial court’s grant of summary judgment, appellate courts will
apply the same legal standard as the trial court: summary judgment is appropriate only in
instances where there are no genuine issues of material fact and the moving party is entitled
to judgment as a matter of law. Diversified Invs., LLC v. U.S. Bank, NA, 838 N.E.2d 536,
539 (Ind. Ct. App. 2005), trans. denied, Ind. Trial Rule 56(c). The party appealing the trial
court’s grant of summary judgment has the burden of persuading the court that the grant of
summary judgment was erroneous. Diversified Invs., LLC, 838 N.E.2d at 539. The fact
that the parties made cross-motions for summary judgment does not alter our standard of
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review; we will consider each motion separately to determine if the moving party was
entitled to summary judgment as a matter of law. Id. The facts in this case are undisputed.
Therefore, we must determine whether the trial court correctly applied the law to the facts.
Smith v. Breeding, 586 N.E.2d 932, 935 (Ind. Ct. App. 1992).
II. Notice Requirements
Under Indiana Code section 6-1.1-25-4.6(h), a tax deed is incontestable except by
an appeal or by a Trial Rule 60(B) motion filed within sixty days of the issuance of the
deed. Diversified Invs., LLC, 838 N.E.2d at 544. The only exception to this is where a
motion for relief from judgment alleges a tax deed is void due to constitutionally
inadequate notice; then, the motion must be filed within a “reasonable time.” Id. at 545.
The “reasonable time” determination varies with the circumstances of each case. Edwards
v. Neace, 898 N.E.2d 343, 349 (Ind. Ct. App. 2008). Prejudice to the opposing party and
the reason for the delay in filing the motion to set aside the judgment are relevant to the
question of timeliness. Id. To comply with due process, a purchaser must give notice that
is reasonably calculated to inform interested parties of the pending action in order to afford
them an opportunity to present objections. Iemma v. JP Morgan Chase Bank, N.A., 992
N.E.2d 732, 740 (Ind. Ct. App. 2013). If the notice is reasonably calculated to inform
under all of the circumstances of the particular case, the constitutional requirements are
satisfied and the issuance of the tax deed will be upheld. Id.Here, Busan’s complaint was treated by the trial court as a motion to set aside the
judgment under Trial Rule 60(B), though it was captioned as a complaint to quiet title.
Thus, the trial court would be permitted to hear the complaint within a “reasonable time”
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instead of within sixty days only if Busan alleged that he did not receive constitutionally
adequate notice. See Diversified Invs., LLC, 883 N.E.2d at 544. Here, neither party raised
whether the complaint was brought within a reasonable time under this standard, and the
trial court failed to make this determination on its own.
Aside from the fact that Busan failed to show his petition was filed within a
reasonable time, he did not present an argument that Gupta’s notice was not reasonably
calculated to inform, as is the requirement to set aside the issuance of a tax deed for
constitutionally inadequate notice. Instead, he argued that Gupta failed to comply with the
statutory requirements for sending the notices by certified mail. Transcript at 14. Gupta
denied Busan’s claim that the notice was deficient because of the certified mail requirement
and argued that he provided adequate notice. The trial court made its summary judgment
decision based on Gupta’s alleged failure to follow statutory requirements for certified mail
rather than determining whether the notice was constitutionally adequate. Because Busan
did not file the motion within sixty days and did not allege inadequate notice to meet the
exception, the trial court should not have entertained his motion for relief; however, Gupta
did not raise this issue either at the trial court or on appeal, and we will not become an
advocate for a party. See Abbott v. Bates, 670 N.E.2d 916, 924 (Ind. Ct. App. 1996). All
of these deviations from the established process to set aside a tax deed under Trial Rule
60(B) contributed to the unique issue presented here upon appeal, which we now address.
Gupta, as purchaser of real estate at a tax sale, was required to send two notices to
properly obtain a tax deed. The first requires the purchaser to give notice of the redemption
period to the owner of record and/or any person with a substantial property interest of
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public record. See Ind. Code § 6-1.1-25-4.5. The second notifies the interested parties that
the purchaser is filing a petition for a tax deed after the redemption period has expired. See
Ind. Code § 6-1.1-25-4.6. Both of these notices must be sent by certified mail. Ind. Code
§ 6-1.1-25-4.5(d); Ind. Code § 6-1.1-25-4.6(a). There is no requirement that notice is
actually received. In re Sale of Real Prop. with Delinquent Taxes or Special Assessments,
822 N.E.2d 1063, 1072-73 (Ind. Ct. App. 2005), trans. denied; Diversified Invs., LLC, 838
N.E.2d at 542. Indiana Code section 1-1-7-1(a) controls requirements for matters that must
be sent by registered or certified mail:
(a) If a statute enacted by the general assembly or a rule, as defined by IC 4-
22-2-3, requires that notice or other matter be given or sent by registered mail
or certified mail, a person may use:
(1) any service of the United States Postal Service or any service of a
designated private delivery service (as defined by the United States
Internal Revenue Service) that:
(A) tracks the delivery of mail; and
(B) requires a signature upon delivery; or
(2) delivery by an employee of the unit of government sending the
notice;
to comply with the statute or rule.
Here, the only question is whether Gupta complied with the notice requirements
when he sent the letters using certified mail without any additional services. Neither party
contests the fact Gupta mailed the notice to Busan at the correct address as evidenced by
the postmarked certified mail receipt. Appellant’s Appendix at 82; Brief of Appellee at 5.
Gupta argues this receipt is sufficient to prove that he complied with the notice statutes and
the trial court erred in concluding otherwise. Busan argues that Gupta did not request
signature upon delivery, did not request return receipts (commonly referred to as “green
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cards”2), provided no evidence that he tried to track or verify delivery, and accordingly
failed to comply with the statute.
The United States Postal Service’s certified mail service inherently provides proof
of mailing, tracks delivery, and requires the signature of the recipient.3 Thus, by sending
a notice using the United States Postal Service’s certified mail, one has complied with
Indiana Code section 1-1-7-1(a). A plain reading of the notice statute also reveals that the
legislature only requires notice to be sent by certified mail to comply; it does not require
the notice to be sent by certified mail with return receipt requested 4 or for the sender to
actually track or verify the receipt if it is not returned to sender, as Busan argues. Ind. Code
§ 6-1.1-25-4.5(h) (“The notice required by this section is considered sufficient if the notice
is mailed to the address required under subsection (d).”).
Gupta provided certified mail receipts, postmarked by the Boca Raton, Florida, post
office as evidence of the fact he mailed the notices to Busan. This is sufficient to prove that
he sent the notices certified mail and complied with the statute. In re Sale of Real Prop.
with Delinquent Taxes or Special Assessments, 822 N.E.2d at 1073. Gupta was not
2
See In re Sale of Real Prop. with Delinquent Taxes or Special Assessments, 822 N.E.2d 1063, 1073 at n.
6 (Ind. Ct. App. 2005).
3
See Add Insurance & Extra Services, USPS.COM, https://www.usps.com/ship/insurance-and-
extra-services.htm? (last visited Feb. 19, 2014) (“Find out when your item was delivered or delivery was
attempted. Requires the signature of the recipient . . . Present for mailing to a Postal employee to get your
postmarked mailing receipt.”).
4
Return receipt requested is a supplemental feature to certified mail, and the legislature has
distinguished the two types of service in the Indiana Code. Compare Ind. Code § 6-1.1-25-4.5(d) (“The
person required to give the notice . . . shall give the notice by sending a copy of the notice by certified mail
to . . . .), with Ind. Code § 6-1.1-24-3(b) (“[T]he county auditor shall mail a copy of the notice required by
sections 2 and 2.2 of this chapter by certified mail, return receipt requested, to any mortgagee who annually
requests, by certified mail, a copy of the notice.”).
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required to provide actual proof of tracking and delivery to show compliance. The trial
court therefore erred in finding Gupta’s title defective and erred in granting summary
judgment to Busan. Because Gupta complied with the notice statutes, he is entitled to
summary judgment as a matter of law.5
Conclusion
Under the unique facts presented in this case, where the parties and trial court did
not follow the established procedures to set aside a tax deed and where the parties did not
address the procedural deficiencies upon appeal, we conclude that the trial court erred in
finding Gupta’s notices sent certified mail, but without return receipt requested, statutorily
deficient. We further conclude that Gupta provided notice reasonably calculated to inform
Busan of the tax sale and petition for the tax deed. Therefore, we reverse the trial court’s
grant of summary judgment in favor of Busan and denial of summary judgment for Gupta.
We remand for a grant of summary judgment quieting title for Gupta.
Reversed and remanded.
BARNES, J., and BROWN, J., concur.
5
We note that even if the process to set aside the tax deed pursuant to Trial Rule 60(B) had been
done correctly, Gupta would be entitled to summary judgment as a matter of law because the notices sent
by certified mail, first class mail, and posted on the property were reasonably calculated to inform Busan
of the tax sale and issuance of the deed.
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