Court of Appeals of Indiana | Memorandum Decision 27A02-1501-MI-68 | December 11, 2015 Page 1 of 9

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

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.

ATTORNEY FOR APPELLANT

Kimberly S. Lytle

Marion, Indiana

ATTORNEY FOR APPELLEE

Jon L. Orlosky

Muncie, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Mark Cotton, et al.,

Appellant-Defendant,

v.

FSPI Empl Profit Sharing Plan 

401K,

Appellee-Plaintiff.

December 11, 2015

Court of Appeals Cause No.

27A02-1501-MI-68

Appeal from the Grant Superior 

Court

The Honorable Jeffrey D. Todd, 

Judge

Trial Court Cause Nos.

27D01-1408-MI-86

27D01-1408-MI-87

Barnes, Judge.
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Case Summary

[1] Mark Cotton appeals the trial court’s denial of his objection to the issuance of a 

tax deed to FSPI Empl Profit Sharing Plan, 401K (“FSPI”). We affirm.

Issue

[2] Cotton raises one issue, which we restate as whether the trial court erred by 

finding that FSPI provided proper notices to Cotton after the certificate sale.

Facts

[3] Cotton was the owner of two lots located at 3420 S. Nebraska Street in Marion. 

Due to unpaid taxes, the properties were offered for sale at a tax sale on 

September 19, 2013. The properties did not sell, and tax sale certificates were 

issued to the Grant County Commissioners for the properties. At all relevant 

times, Cotton’s address in the Grant County Auditor’s records was a post office 

box in Marion. Cotton apparently closed the post office box in January 2014. 

[4] On March 31, 2014, the tax sale certificates were sold to FSPI. On Monday, 

June 30, 2014, FSPI sent a “Notice of Sale and Date of Expiration of Period of 

Redemption” to Cotton. App. pp. 22-23. On August 4, 2014, FSPI filed a 

verified petition for an order directing the Grant County Auditor to issue a tax 

deed. FSPI filed an affidavit and proof of notice that provided, in part:

4. That in compliance with the provisions of Indiana Code 6-1.1-

25-4.5, on or about 6/28/14, I sent a notice of tax sale by both 

U.S. mail, certified with return receipt requested and by First 

Class US Mail to each of the above person or entities at their last 

known address. . . .
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5. In compliance with the provisions of Indiana Code 6-1.1-25-

4.6, on or about 7/31/14, I sent a notice of filing petition for tax 

deed by both U.S. mail, certified with return receipt requested 

and by First Class US Mail to each of the above persons or 

entities at their last known address.

6. The acts of the affiant herein represent the affiant [sic] diligent 

injury [sic] to identify and best efforts to notify those persons 

having a substantial interest of public record in the abovedescribed real property on the date and hour of the tax sale of 

their right of redemption as required by Indiana Code 6-1.1-25.

App. pp. 18-19. Both of the notices to Cotton were sent to the post office box

address. 

[5] On September 15, 2014, Cotton filed an objection to the issuance of the tax 

deed. Cotton claimed that his only notice of “any tax proceedings” was a 

notice left at the subject properties in late August 2014. Id. at 72. However, 

Cotton also alleged that he had attempted to “satisfy the past due taxes” and 

provide a change of address in February 2014. Id. 

[6] At a hearing in October 2014, April Legare, the tax sale deputy of the Grant 

County Auditor’s Office, testified that she had spoken to Cotton about the 

properties on multiple occasions. According to Legare, Cotton was aware at 

least in May 2014 of the certificate sale and his redemption period, and he 

failed to redeem the properties. The trial court found that the time of 

redemption had expired, the real properties were not redeemed, all taxes and 

special assessments, penalties, and costs had been paid, all notices required by 

law had been given, and FSPI had complied with all the provisions of law 
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entitling it to a deed. The trial court ordered the Grant County Auditor to issue 

tax deeds to FSPI for the properties. Cotton filed a motion to correct error, 

which the trial court denied.

Analysis

[7] Cotton argues that FSPI failed to substantially comply with the notice 

provisions to obtain a tax deed. According to Cotton, FSPI’s alleged failure 

violated his due process rights. 

[8] Both our supreme court and this court have held that a non-governmental tax 

purchaser must comply with the notice requirements of the Due Process Clause

of the United States Constitution. Iemma v. JP Morgan Chase Bank, N.A., 992 

N.E.2d 732, 740 (Ind. Ct. App. 2013) (citing Tax Certificate Investments, Inc. v. 

Smethers, 714 N.E.2d 131, 133-34 (Ind. 1999); Combs v. Tolle, 816 N.E.2d 432, 

438-39 (Ind. Ct. App. 2004)). In Marion County Auditor v. Sawmill Creek, LLC, 

964 N.E.2d 213, 217 (Ind. 2012), our supreme court reiterated the federal 

standard that when notice is due “‘[t]he means must be such as one desirous of 

actually informing the absentee might clearly adopt to accomplish it.’” Id.

(quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 315, 70 S. Ct. 

652 (1950)). Thus, 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. “‘But if with due 

regard for the practicalities and peculiarities of the case these [notice] conditions 
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are reasonably met, the constitutional requirements are satisfied.’” Id. (quoting 

Mullane, 339 U.S. at 314-15, 70 S. Ct. 652).

[9] “A tax sale is purely a statutory creation, and material compliance with each 

step of the statute is required.” Iemma, 992 N.E.2d at 738. “While a tax deed 

creates a presumption that a tax sale and all of the steps leading to the issuance 

of the tax deed are proper, the presumption may be rebutted by affirmative 

evidence to the contrary.” Id. An order to issue a tax deed will be given if the 

court finds that the notices have been provided pursuant to the statutes. Id.

However, title conveyed by a tax deed may be defeated if the notices were not 

in substantial compliance with the manner prescribed by the pertinent statutes. 

Id.

[10] Cotton appears to challenge only the post-sale notices required to be provided 

by FSPI.1 FSPI, as purchaser of the certificate of sale, was required to send two 

notices to properly obtain a tax deed. The first notice 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 public record. See Ind. Code § 6-1.1-25-

4.5. Indiana Code Section 6-1.1-25-4.5(d) provides in part:

 

1

FSPI discusses the County’s obligations of providing notice of the certificate sale. However, Cotton does 

not appear to challenge those notice obligations. See Ind. Code § 6-1.1-24-6.1 (discussing the publication 

requirements when a county executive offers certificates of sale to the public). 
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The person required to give the notice under subsection (a), (b), 

or (c) shall give the notice by sending a copy of the notice by 

certified mail to:

(1) the owner of record at the time of the:

(A) sale of the property;

(B) acquisition of the lien on the property under IC 6-

1.1-24-6; or

(C) sale of the certificate of sale on the property under 

IC 6-1.1-24; at the last address of the owner for the 

property, as indicated in the records of the county 

auditor; and

(2) any person with a substantial property interest of public 

record at the address for the person included in the public 

record that indicates the interest.

However, if the address of the person with a substantial property 

interest of public record is not indicated in the public record that 

created the interest and cannot be located by ordinary means by 

the person required to give the notice under subsection (a), (b), or 

(c), the person may give notice by publication in accordance with 

IC 5-3-1-4 once each week for three (3) consecutive weeks.

Indiana Code Section 6-1.1-25-4.5(h) provides: “The notice required by this 

section is considered sufficient if the notice is mailed to the address required 

under subsection (d).” 

[11] The second notice informs the interested parties that the purchaser is filing a 

petition for a tax deed after the redemption period has expired. See I.C. § 6-1.1-

25-4.6. Under Indiana Code Section 6-1.1-25-4.6(a), 
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Notice of the filing of this petition shall be given to the same 

parties and in the same manner as provided in section 4.5 of this 

chapter, except that, if notice is given by publication, only one (1) 

publication is required. The notice required by this section is 

considered sufficient if the notice is sent to the address required 

by section 4.5(d) of this chapter. 

There is no requirement that notices are actually received. Gupta v. Busan, 5 

N.E.3d 413, 416 (Ind. Ct. App. 2014), trans. denied. 

[12] According to Cotton, FSPI failed to provide him with the proper notice of right 

of redemption and notice of filing the petition to issue a tax deed because FSPI 

sent the notices to his closed post office box. Cotton contends that the Grant 

County Auditor’s office was aware that the post office box was closed and that 

he had attempted to change his address.

[13] Cotton does not dispute that his post office box was a proper method of 

providing notice to him at the time of the tax sale. Cotton apparently closed the 

post office box between the time of the tax sale and the certificate sale. The 

statutes required FSPI to send the two required notices to the owner at “the last 

address of the owner for the property, as indicated in the records of the county 

auditor.” I.C. § 6-1.1-25-4.5, 6-1.1-25-4.6. It is undisputed that the address for 

Cotton indicated by the records of the county auditor was the closed post office 

box address and that FSPI sent the notices to the post office box address. 

[14] Although Cotton claims that he attempted to change his address with the 

auditor’s office, Legare discussed the process of changing a property owner’s 

address, the necessary form, and the fact that the auditor’s office did not have 
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such a form for Cotton. Legare also testified that she had spoken to Cotton on 

multiple occasions, that Cotton was aware in May 2014 of the certificate sale 

and his redemption period, and that he failed to redeem the properties. We 

neither reweigh the evidence nor judge the credibility of the witnesses. 

Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013). The trial court clearly 

found Legare’s testimony more credible than Cotton’s claims, and we will not 

reweigh the evidence. 

[15] FSPI was entitled to rely on the official property records in complying with the 

statutory notice requirement. Smethers, 714 N.E.2d at 133-134 (holding that the 

purchaser substantially complied with the notice requirements and due process 

requirements were satisfied where the purchaser sent notice by certified mail to 

the address indicated by the auditor’s records even though the owner had 

moved and failed to update her records at the auditor’s office). Given FSPI’s 

use of the address indicated by the auditor’s records and Legare’s testimony that 

Cotton was aware of the proceedings, the trial court did not abuse its discretion 

in concluding that FSPI’s notices to Cotton regarding the certificate sale process 

met the requirements of due process.

[16] Finally, Cotton also claims that the notice of redemption was not sent in a 

timely manner. Indiana Code Section 6-1.1-25-4.5(c)(3) required FSPI to send 

the notice “not later than ninety (90) days after the date of sale of the certificate 

of sale.” Ninety days after March 31, 2014, is Sunday, June 29, 2014. Under 

Indiana Trial Rule 6(A), because the date fell on a Sunday, the time period did 

not run until the next day, Monday, June 30, 2014, which is when FSPI mailed 
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the notice. See, e.g., Boger v. Lake County Com’rs, 547 N.E.2d 257, 258 (Ind. 

1989) (holding that a tort claims notice was timely filed where, although the 

final day for filing was a Saturday, the notice was filed on a Tuesday and 

Monday was a legal holiday). Consequently, Cotton’s argument fails. 

Conclusion

[17] The trial court properly denied Cotton’s objection to the issuance of the tax 

deeds. We affirm.

[18] Affirmed.

Kirsch, J., and Najam, J., concur.