MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Sep 03 2015, 8:24 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEY FOR APPELLEE Vinod C. Gupta Andrew M. Auersch Boca Raton, Florida O’Connor & Auersch Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Vinod C. Gupta, September 3, 2015 Appellant-Petitioner, Court of Appeals Case No. 84A01-1412-MI-543 v. Appeal from the Vigo Superior Court Green Tree Servicing LLC, The Honorable Michael J. Lewis, f/k/a Conseco Finance Servicing Judge Corp., Trial Court Cause No. Appellee-Intervenor. 84D06-1208-MI-7316
Kirsch, Judge.
[1] Vinod C. Gupta (“Gupta”) appeals the trial court’s order setting aside the tax
deed and voiding the tax sale of certain property he purchased for failure to
provide proper service to the mortgage holder, Green Tree Servicing LLC
Court of Appeals of Indiana | Memorandum Decision 84A01-1412-MI-543 | September 3, 2015 Page 1 of 6 (“Green Tree”), f/k/a Conseco Finance Servicing, Corp. Gupta raises the
following restated issue for our review: whether the trial court abused its
discretion by excluding Gupta’s witness testimony at the hearing on Green
Tree’s motion to void the tax sale.
[2] We reverse and remand.
Facts and Procedural History [3] On March 30, 2000, as security for a loan in the amount of $65,387.30, Michael
and Beverly Cooper granted to Green Tree a mortgage lien on certain real
property and the mobile home located thereon in Vigo County, Indiana. Green
Tree’s mortgage on the property was recorded on April 7, 2000 in the Mortgage
Record of the Vigo County Recorder. The address for Green Tree, then known
as Conseco Finance Servicing Corp., is listed on the mortgage as “11595 N.
Meridian Street, Suite 310, Carmel, IN 46032.” Appellee’s App. at 6. Green
Tree had fully moved from that Carmel address by October 31, 2010.
[4] Gupta purchased the property at a tax sale on September 12, 2012. On
February 18, 2014, while investigating for a possible foreclosure action, Green
Tree discovered that the property had been sold to Gupta at the September 2102
tax sale, but could find no record of notice of the sale. In response to an inquiry
by Green Tree about the notice of sale, Gupta produced copies of certified mail
notices required under Indiana Code sections 6-1.1-24-4.5 and 6-1.1-24-4.6.
However, by looking to the Postal Service records, Green Tree discovered that
both notices had been sent to the vacated Carmel address. The notice under
Court of Appeals of Indiana | Memorandum Decision 84A01-1412-MI-543 | September 3, 2015 Page 2 of 6 Indiana Code section 6-1.1-24-4.5 was returned to Gupta marked as
“Undeliverable as Addressed,” and the notice under Indiana Code section 6-
1.1-24-4.6 was returned to Gupta marked as “Addressee Unknown.” Appellee’s
App. at 18-23.
[5] On June 4, 2014, Green Tree filed a motion to intervene and void the tax sale in
Vigo Superior Court under the tax sale cause number and attached as exhibits
Gupta’s tax sale notices, the USPS tracking confirmation reports, the certified
mail receipts, and an affidavit by Green Tree. The trial court granted Green
Tree’s motion to intervene on June 5, 2014 and set the motion for a hearing.
Gupta did not respond to Green Tree’s motion, but did request two
continuances of the hearing date.
[6] A hearing on Green Tree’s motion was held on September 22, 2014. At the
hearing, Green Tree argued that the tax sale should be voided based on the
failed notice by Gupta, shown by the undelivered notices returned to Gupta.
Gupta admitted that he sent those notices, but asserted he also mailed the
notices by regular mail and posted notice on the door of the residence. Tr. at 7-
8. Gupta further requested to present witness testimony to support his
contention that he had taken additional steps to notify Green Tree of the tax
sale. Green Tree objected to allowing Gupta to present witness testimony, and
the trial court ruled that Gupta could not present any witnesses at the hearing.
Gupta continued to testify and summarize the steps he took in addition to the
certified notices sent to the Carmel address. He added that, “I have the witness,
but since the Court is not allowing the witness, . . . that’s probably [a] moot
Court of Appeals of Indiana | Memorandum Decision 84A01-1412-MI-543 | September 3, 2015 Page 3 of 6 point. . . .[W]e can also say that this is what we did, we even called Green Tree
and . . . somebody told them the taxes were not paid.” Id. at 10. At the
conclusion of the hearing, the trial court issued an order voiding the tax sale.
Gupta now appeals.
Discussion and Decision [7] The decision to admit or exclude evidence is within the sound discretion of the
trial court and will only be reversed upon a manifest abuse of that discretion.
Ostrowski v. Everest Healthcare Ind., Inc., 956 N.E.2d 1144, 1149 (Ind. Ct. App.
2011). An abuse of discretion occurs when the trial court’s decision is against
the logic and effect of the facts and circumstances before the court. Id.
[8] Gupta argues that the trial court abused its discretion in excluding his witness
testimony at the hearing on Green Tree’s motion to void the tax sale. He urges
that he should have been allowed to present any pertinent evidence regarding
what additional steps he took to ascertain Green Tree’s address. Gupta
contends that the hearing was held on Green Tree’s Trial Rule 60(B) motion,
which made it an evidentiary hearing, and he, therefore, should have been
given the opportunity to present all pertinent evidence, including his witness
testimony.
[9] Initially, Green Tree asserts that Gupta has waived his argument on appeal
because he failed to make an offer of proof to the trial court. It is well settled
that an offer of proof is required to preserve an error in the exclusion of a
witness’s testimony. Barnett v. State, 916 N.E.2d 280, 287 (Ind. Ct. App. 2009),
Court of Appeals of Indiana | Memorandum Decision 84A01-1412-MI-543 | September 3, 2015 Page 4 of 6 trans. denied. An offer of proof allows the trial and appellate courts to determine
the admissibility of the testimony and the potential for prejudice if it is
excluded. Id.
[10] Here, at the hearing, Gupta stated, “we also prove to the Court and I have a
witness, live witness, here that we did additional steps. A reasonable
(inaudible) to inform Green Tree.” Tr. at 8. Gupta additionally stated, “I
would like to call some witnesses and prove that I did additional steps besides
sending the notices certified mail.” Id. He further informed the court, “I have
the witness, but since the Court is not allowing the witness, . . . that’s probably
[a] moot point. . . .[W]e can also say that this is what we did, we even called
Green Tree and . . . somebody told them the taxes were not paid.” Id. at 10.
We conclude that this was sufficient to make an offer of proof as to what the
excluded witness would testify, which was the additional steps taken by Gupta
to notify Green Tree. This offer of proof was sufficient to preserve this issue for
appeal.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Sep 03 2015, 8:24 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEY FOR APPELLEE Vinod C. Gupta Andrew M. Auersch Boca Raton, Florida O’Connor & Auersch Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Vinod C. Gupta, September 3, 2015 Appellant-Petitioner, Court of Appeals Case No. 84A01-1412-MI-543 v. Appeal from the Vigo Superior Court Green Tree Servicing LLC, The Honorable Michael J. Lewis, f/k/a Conseco Finance Servicing Judge Corp., Trial Court Cause No. Appellee-Intervenor. 84D06-1208-MI-7316
Kirsch, Judge.
[1] Vinod C. Gupta (“Gupta”) appeals the trial court’s order setting aside the tax
deed and voiding the tax sale of certain property he purchased for failure to
provide proper service to the mortgage holder, Green Tree Servicing LLC
Court of Appeals of Indiana | Memorandum Decision 84A01-1412-MI-543 | September 3, 2015 Page 1 of 6 (“Green Tree”), f/k/a Conseco Finance Servicing, Corp. Gupta raises the
following restated issue for our review: whether the trial court abused its
discretion by excluding Gupta’s witness testimony at the hearing on Green
Tree’s motion to void the tax sale.
[2] We reverse and remand.
Facts and Procedural History [3] On March 30, 2000, as security for a loan in the amount of $65,387.30, Michael
and Beverly Cooper granted to Green Tree a mortgage lien on certain real
property and the mobile home located thereon in Vigo County, Indiana. Green
Tree’s mortgage on the property was recorded on April 7, 2000 in the Mortgage
Record of the Vigo County Recorder. The address for Green Tree, then known
as Conseco Finance Servicing Corp., is listed on the mortgage as “11595 N.
Meridian Street, Suite 310, Carmel, IN 46032.” Appellee’s App. at 6. Green
Tree had fully moved from that Carmel address by October 31, 2010.
[4] Gupta purchased the property at a tax sale on September 12, 2012. On
February 18, 2014, while investigating for a possible foreclosure action, Green
Tree discovered that the property had been sold to Gupta at the September 2102
tax sale, but could find no record of notice of the sale. In response to an inquiry
by Green Tree about the notice of sale, Gupta produced copies of certified mail
notices required under Indiana Code sections 6-1.1-24-4.5 and 6-1.1-24-4.6.
However, by looking to the Postal Service records, Green Tree discovered that
both notices had been sent to the vacated Carmel address. The notice under
Court of Appeals of Indiana | Memorandum Decision 84A01-1412-MI-543 | September 3, 2015 Page 2 of 6 Indiana Code section 6-1.1-24-4.5 was returned to Gupta marked as
“Undeliverable as Addressed,” and the notice under Indiana Code section 6-
1.1-24-4.6 was returned to Gupta marked as “Addressee Unknown.” Appellee’s
App. at 18-23.
[5] On June 4, 2014, Green Tree filed a motion to intervene and void the tax sale in
Vigo Superior Court under the tax sale cause number and attached as exhibits
Gupta’s tax sale notices, the USPS tracking confirmation reports, the certified
mail receipts, and an affidavit by Green Tree. The trial court granted Green
Tree’s motion to intervene on June 5, 2014 and set the motion for a hearing.
Gupta did not respond to Green Tree’s motion, but did request two
continuances of the hearing date.
[6] A hearing on Green Tree’s motion was held on September 22, 2014. At the
hearing, Green Tree argued that the tax sale should be voided based on the
failed notice by Gupta, shown by the undelivered notices returned to Gupta.
Gupta admitted that he sent those notices, but asserted he also mailed the
notices by regular mail and posted notice on the door of the residence. Tr. at 7-
8. Gupta further requested to present witness testimony to support his
contention that he had taken additional steps to notify Green Tree of the tax
sale. Green Tree objected to allowing Gupta to present witness testimony, and
the trial court ruled that Gupta could not present any witnesses at the hearing.
Gupta continued to testify and summarize the steps he took in addition to the
certified notices sent to the Carmel address. He added that, “I have the witness,
but since the Court is not allowing the witness, . . . that’s probably [a] moot
Court of Appeals of Indiana | Memorandum Decision 84A01-1412-MI-543 | September 3, 2015 Page 3 of 6 point. . . .[W]e can also say that this is what we did, we even called Green Tree
and . . . somebody told them the taxes were not paid.” Id. at 10. At the
conclusion of the hearing, the trial court issued an order voiding the tax sale.
Gupta now appeals.
Discussion and Decision [7] The decision to admit or exclude evidence is within the sound discretion of the
trial court and will only be reversed upon a manifest abuse of that discretion.
Ostrowski v. Everest Healthcare Ind., Inc., 956 N.E.2d 1144, 1149 (Ind. Ct. App.
2011). An abuse of discretion occurs when the trial court’s decision is against
the logic and effect of the facts and circumstances before the court. Id.
[8] Gupta argues that the trial court abused its discretion in excluding his witness
testimony at the hearing on Green Tree’s motion to void the tax sale. He urges
that he should have been allowed to present any pertinent evidence regarding
what additional steps he took to ascertain Green Tree’s address. Gupta
contends that the hearing was held on Green Tree’s Trial Rule 60(B) motion,
which made it an evidentiary hearing, and he, therefore, should have been
given the opportunity to present all pertinent evidence, including his witness
testimony.
[9] Initially, Green Tree asserts that Gupta has waived his argument on appeal
because he failed to make an offer of proof to the trial court. It is well settled
that an offer of proof is required to preserve an error in the exclusion of a
witness’s testimony. Barnett v. State, 916 N.E.2d 280, 287 (Ind. Ct. App. 2009),
Court of Appeals of Indiana | Memorandum Decision 84A01-1412-MI-543 | September 3, 2015 Page 4 of 6 trans. denied. An offer of proof allows the trial and appellate courts to determine
the admissibility of the testimony and the potential for prejudice if it is
excluded. Id.
[10] Here, at the hearing, Gupta stated, “we also prove to the Court and I have a
witness, live witness, here that we did additional steps. A reasonable
(inaudible) to inform Green Tree.” Tr. at 8. Gupta additionally stated, “I
would like to call some witnesses and prove that I did additional steps besides
sending the notices certified mail.” Id. He further informed the court, “I have
the witness, but since the Court is not allowing the witness, . . . that’s probably
[a] moot point. . . .[W]e can also say that this is what we did, we even called
Green Tree and . . . somebody told them the taxes were not paid.” Id. at 10.
We conclude that this was sufficient to make an offer of proof as to what the
excluded witness would testify, which was the additional steps taken by Gupta
to notify Green Tree. This offer of proof was sufficient to preserve this issue for
appeal.
[11] Finding that Gupta did not waive his issue for appeal, we now turn to the
merits of the case. Gupta claims that it was an abuse of discretion to exclude
his witness’s testimony from the hearing as to whether to void the tax sale.
Indiana courts have held that if the notice of a tax sale sent by the auditor to the
landowner pursuant to statute has been returned due to an incorrect or
insufficient address, due process requires that the auditor take additional steps
to attempt to determine the landowner’s proper address. Farmers Mut. Ins. Co. of
Grant & Blackford Counties v. M Jewell, LLC, 992 N.E.2d 751, 757 (Ind. Ct. App.
Court of Appeals of Indiana | Memorandum Decision 84A01-1412-MI-543 | September 3, 2015 Page 5 of 6 2013), trans. denied. Such due process requirements apply to a tax sale
purchaser as well. Iemma v. JP Morgan Chase Bank, N.A., 992 N.E.2d 732, 740
(Ind. Ct. App. 2013). The notice “must be ‘reasonably calculated under all the
circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections.’” Id.
[12] Therefore, Gupta was required to present evidence that he had taken additional
steps to ascertain Green Tree’s proper address and that he provided sufficient
notice to Green Tree. Green Tree’s motion to void the tax sale was filed
pursuant to Trial Rule 60(B)(6). Trial Rule 60(D) states, “In passing upon a
motion allowed by subdivision (B) of this rule the court shall hear any pertinent
evidence . . . .” Gupta sought to admit testimony from a witness regarding the
additional steps he took to notify Green Tree of the tax sale. We conclude that
such evidence was pertinent to the issue before the trial court, and the trial court
abused its discretion in excluding such evidence. We, therefore, reverse the
trial court’s order voiding the tax sale and remand for further proceedings.
[13] Reversed and remanded.
Najam, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 84A01-1412-MI-543 | September 3, 2015 Page 6 of 6