A TTORNEY FOR A PPELLANT Pamela A. Paige Plunkett Cooney, P.C. Indianapolis, Indiana A TTORNEY FOR A PPELLEE Mario Garcia Brattain Minnix Garcia Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIAN A
U.S. Bank, National Association, Successor to Nationa l City Bank , Appellant

- Defendant,

v. 

### Jewe l l Investments, Inc. , Appellee

- Plaintiff January 26, 2017 Court of Appeals Ca se No. 49A05

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- 1578 Interlocutory Appeal from the Marion Superior Court The Honorable Cynthia J. Ayers , Judge Trial Co urt Cause No. 49D04

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Crone , Judge . 

### Case Summary

[1] Jewell Investments, Inc. (“Jewell”) , filed a foreclosure action naming U.S. Bank, National Association, Successor to National City Bank (“Bank”) as a defendant as to a certain piece of real estate

. Bank fi led a summary judgment motion , asserting that it was a bona fide purchaser of the real estate and therefore its lien was entitled to priority over Jewell ’s . The trial court denied Court of Appeals of Indiana | Opinion 49A05

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- 1578 | January 26, 2017 Page 1 of 14Bank’s motion . Bank now appeals

. We conclude that B ank carried its bu rden to show that there is no genuine issue of material fact as to whether it is a bona fide purchase r and that it is entitled to judgment as a matter of law. Accordingly, w e r everse and remand with instructions to enter summary judgment in favor of Bank. 

### Facts and Procedural History 1
[2] The heart of t his dispute is whether Bank or Jewell has lien priority on real estate (“the Real Estate”) commonly known as 602 Manhattan Avenue , Indianapolis and legally described as Lot Number 84 in Biltmore Gardens, recorde d in Plat Book 18, pages 88

- 89 , in the Marion County Recorder ’s Office

. 2 Appellant’s App. Vol. 2 at 151. On or about January 29, 2007, Diversified Investments, LLC (“ Diversified ”) , executed a mortgage in favor of Jewell (“the Jewell Mortgage”) for the R e al E state , which w as recorded on February 1, 2007

. The Jewell Mort gage describe s the Real Estate as “[c]ommonly known as: 602 S. Manhattan, Indianapolis, IN

. ” Id . at 152. 3 It is undisputed that the Jewell Mortgage does not contain the legal description of the Real Estate. See Appellee’s Br. at 7 (“[T]he mortgage inadvertently omitted

1 Both Bank’s and Jewell’s briefs fail to comply with our rules because their citations to the record are in footnotes rather than in the text of the document. See Ind. Appellate Rule 22 (requiring adherence to Bluebook rules); THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION R . B1, at 3

- 4 (Columbia Law Review Ass’n et al. eds., 20th ed. 2016) (“In non

- academic legal documents, such as briefs and opinions, citations generally appear within the text of the document directly after the propositions they support.”).
2 All instruments relevant to this appeal are recorded in the Marion County Recorder’s Office

. 3 Although the Jewell Mortgage states that the address is 602 S. Manhattan Avenue, Jewell states that the Real Estate is commonly known as 602 Manhattan Avenue. Appellee’ s Br. at 4, 7.
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- 1578 | January 26, 2017 Page 2 of 14the legal description.”). On February 8, 2007, Diversified recorded its ownership of the Real Estate by special warranty deed

.

[3] In July 2007, Francisco Rutiga Retana agree d to purchase the Real Estate from Diversified and sought financing from National City Mort gage , a division of National City Bank

. In furtherance of this transaction, Fax Mobile Abstracting, Inc., performed a title examination of the Re a l Estate (“ Fax Mob ile’s Property Search ”). Fax Mobile’s Property Search did not reveal the Jewell Mortgage

. However, it revealed that Diversified had executed a mortgage for the Real Estate in favor of Newton County Loan & Savings FSB (“the Newton Mortgage ”) , which was rec orded on February 8, 2007. The Newton Mortgage contained the legal d escription of the Real Estate.

[4] On September 2007, the closing for Retana’s purchase of the Real Estate from Diversified was held

. Diversified executed a nd delivered a corporate warranty deed to Retana, which was recorded on December 31, 2007 . Retana executed and delivered an $80,500 n ote in favor of National City Mortgage . As security for the n ote, Retana executed and delivered a n $80,500 mortgage to National City Mortgage ( “ the Bank Mo rtgage”) , which was recorded on September 28, 2007 . The Bank Mortgage was subsequently assigned to Bank and recorded on September 25, 2008

.

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- 1578 | January 26, 2017 Page 3 of 14[5] On June 17, 2008, Jewel l filed an action to foreclose on various properties including the Real Estate , naming B ank as a party as to that property

. 4 Bank was served with a copy of Jewell’s complaint but did not appear or file any pleadings. On May 29, 2009, Jewell moved for entry of default judgment and decree of foreclosure . The same day , the trial court issued an a greed entry of in rem judgment and decree of foreclosure, default ing Bank and foreclos ing Jewell’s asserted mortgage lien on the Real Estate

. On September 10, 2009, based on the judgment and decree of foreclosure, a sheriff’s deed to the Real Estate was e xecu ted in favor of Jewell

.

[6] O n April 12, 2012, Bank filed a motion to set aside sherif f

’s sale and default judgment. On November 6, 2014, the trial court vacated the sheriff’s deed and the judgment and decree of for e closure. On June 25, 2015, Bank file d a motion for s ummary judgment against Jewell , asserting that because the Jewell Mortgage had no legal description of the Real Estate , Fax Mobile’s Property Search was unable to locate it , and therefore Bank was a bona fide purchaser for value as to the R eal Estate and its lien had priority over Jewell’s . In support of its motion, Bank designated the affidavit of Cindy Dailey, which provided,
1. I have personal knowledge of the statements made in this affidavit and am competent to testify.

2. I am the owner of Fax Mobile Abstracting, Inc.

4 Initially, Jewell’s complaint named National City Bank as a party, but because the Bank Mortgage was shortly thereafter assigned to Bank, we refer to Bank for simplicity.
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- 1578 | January 26, 2017 Page 4 of 143. A

- One Title, LLC provided closing services for the sale of real property commonly known as 602 Manhattan Avenue, Indianap o lis, Indiana (“Real Estate”) to Francisco Rutiga Retana.
4. Fax Mobile Abstracting, Inc. wa s retained to perform a title examination of the Real Estate relative to that transaction.
5. The examination revealed a $60,000 mortgage from Diversified to Newton County Loan & Savings FSB (“Newton Mortgage”), said Newton Mortgage being filed for record on February 8, 2007 as Instrument No. 2007

- 0023620.
6. The Newton Mortgage correctly contained the correct legal description for the Real Estate.

7. The [Jewell] Mortgage filed for record on Feb ru ary 1, 2007 as Instrument No. 2007

- 0020665 does not conta in a legal description for the Real Estate.

8. Because the [Jewell] Mortgage filed for record as Instrument No. 2007

- 0020665 d id not contain a legal description for the Real Estate , it was not recorded in the chain of title to the Real Estate and was not located during the title examination.
9. A true and accurate copy of the Examination Notes are attached hereto as the same are maint ain ed in the regular course of business of Fax Mobile Abstracting, Inc.
Appellant’s App. Vol. 2 at 171

- 72.

[7] Jewell filed a n objection to Bank’s motion and in support thereof designated a n unauthenticated title search purportedly prepared by Legacy Title & Escro w

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- 1578 | January 26, 2017 Page 5 of 14Services and dated July 28, 2009 (“the Legacy Property Search”) , which revealed the Jewell Mortgage and the Bank Mo rtgage

. Id . at 244.

[8] Bank filed a reply brief in support of its summary judgment motion and designated a second affidavit from Cindy Dailey, which provided , 3. I am familiar with the title search standards followed by title searchers in Marion County, I ndiana.
4. In Marion County, when performing a title search as to deeds/mortgages, the title searcher is to use the grantor/grantee index, the mortgagor/mortgagee index and then use the tract index to narrow the search results to the particular lot at iss ue. 5. There is no method in Marion County, Indiana to search title via a common address.

.... 7. The Mortgage from Diversified Investments, LLC to Jewell Investments, Inc. dated January 29, 2007 and recorded on February 1, 2007 as Instrument No. 2007

- 0020 665 does not appear when searching the grantor/grantee index in Marion County and narrowing the search results as to Lot No. 84 of Biltmore Gardens.
8. Because the Mortgage from Diversified Investments, LLC to Jewell Investments, Inc. dated January 29, 200 7 and recorded on February 1, 2007 as Instrument No. 2007

- 0020665 does not appear when searching the grantor/grantee index in Marion County and narrowing the search results as to Lot No. 84 of Biltmore Gardens , the Mortgage is not in the chain of title as to said Lot.

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- 1578 | January 26, 2017 Page 6 of 149. When Fax Mobile Abstracting, Inc. performed its title search of Lot No. 84 of Biltmore Gardens, Fax Mobile Abstracting, Inc. followed the title search standards in Marion County, Indiana.

10. Fax Mobile Abstracting, Inc. searched the gran tor/grantee index and the mortgagor/mortgagee index and then used the tract index to narrow the search results to the particular lot at issue (Lot No. 84 of Biltmore Gardens ).
11. The title search performed by Fax Mobile Abstracting, Inc. did not locate t he Mortgage from Diversified Investments, LLC to Jewell Investments, Inc. dated January 29, 2007 and recorded on February 1, 2007 as Instrument No. 2007

- 0020665 because said Mortgage did not include a legal description for Lot No. 84 of Biltmore Gardens an d, therefore, is not in the chain of title thereto.

12. I have seen the [Legacy] Property Search that was attached to Plaintiff’s Designation of Material Relied Upon as Exhibit 4.

13. The fact that the [Legacy] Property Search shows the Mortgage from Div ersified Investments, LLC to Jewell Investments, Inc. dated January 29, 2007 and recorded on February 1, 2007 as Instrument No. 2007

- 0020665 does not mean that the Mortgage was in the chain of title to Lot No. 84 of Biltmore Gardens.

14. The [Legacy] Prop erty Search does not say what information was provided to the searcher to search the chain of title to Lot No. 84 of Biltmore Gardens (i.e. was the searcher told about the Mortgage from Diversified Investments, LLC to Jewell Investments, Inc.).

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- 1578 | January 26, 2017 Page 7 of 1415. Withou t being provided additional information (i.e. that the Mortgage from Diversified Investments, LLC to Jewell Investments, Inc. was supposed to attach to Lot No. 84 of Biltmore Gardens), a title searcher would not locate the Mortgage using the grantor/grante e index and the mortgagor/mortgagee index and the corresponding tract index as shown by Exhibit 1 attached hereto.
Appellant’s App. Vol. 3 at 7

- 9 (emphasis added)

.

[9] The trial court denied Bank’s summary judgment motion. This appeal ensued.


### Discussion and D ecision

[10] Our standard of review for summary judgment is well settled:
Indiana Trial Rule 56(C) provides that summary judgment is appropriate when the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the mo ving party is entitled to judgment as a matter of law. The party moving for summary judgment bears the initial burden of showing that there is no genuine issue of material fact and that judgment as a matter of law is appropriate. If the moving party meets these two requirements, the burden shifts to the nonmovant to specifically designate facts showing that there is a genuine issue for trial. When reviewing summary judgment, we apply the same standard as the trial court and construe all facts and reasonable inferences to be drawn from those facts in favor of the non

- moving party. Where material facts conflict, or undisputed facts lead to conflicting material inferences, entry of summary judgment is inappropriate. We carefully scrutinize a trial court ’ s gran t of summary judgment to assure that the losing party is not improperly prevented from having its day in court.

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- 1578 | January 26, 2017 Page 8 of 14Crown Coin Meter Co. v. Park P, LLC , 934 N.E.2d 142, 146 (Ind. Ct. App. 2010) (citations omitted).

[11] Bank moved for summary judgment on the is sue of lien priority. Indiana Code Section 32

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- 1(a) provides that a mortgage of land “must be recorded in the recorder’s office of the county where the land is situated[.]” A mortgage “takes priority according to the time of its filing.” Ind. Code § 32

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- 1(b). Thus, “when multiple parties claim adverse interests in the same land, the date of recording provides a means to determine priority among those claims.” Patterson v. Seavoy , 822 N.E.2d 206, 211 (Ind. Ct. App. 2005).

[12] The Jewell Mortgage was recorded prior to Bank’s. However, Bank asserts that it is a bona fide purchaser for value of the Real Estate and is therefore entitled to lien priority as to Jewell

. “The theory behind the bona fide purchaser defense is that every reasonable effort shou ld be made to protect a purchaser of legal title for a valuable consideration without notice of a legal defect.” S & S Enter

. v. Marathon Ashland Petroleum, LLC , 799 N.E.2d 18, 23 (Ind. Ct. App. 2003). “In order to qualify as a bona fide purchaser, one mu st purchase in good faith, for valuable consideration, and without notice of the outstanding rights of others.” Bank of N.Y. v. Nally , 820 N.E.2d 644, 648 (Ind. 2005) (emphasis added)

.

[13] Here , the parties dispute the element of notice

. Bank argues that t he Jewel l Mortgage ’s omission of the legal description of the Real Estate rendered it

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- 1578 | January 26, 2017 Page 9 of 14insufficient to charge Bank with notice . Jewell counters that the Jewell Mortgage was sufficiently discoverable so as to place Bank on notice.

[14] Our supreme court has expl ained,
The law recognizes both constructive and actual notice. A purchaser of real estate is presumed to have examined the records of such deeds as constitute the chain of title thereto under which he claims, and is charged with notice, actual or construc tive, of all facts recited in such records showing encumbrances, or the non - payment of purchase

- money. A mortgage provides constructive notice to subsequent purchasers when it is properly acknowledged and recorded.

.... The purpose of recording a mortgage is to give notice to persons subsequently dealing with the property of the existence of the mortgage and to charge them with notice of what the records disclose. To charge subsequent purchasers with notice, a mortgage must be recorded in the proper count y and must contain an accurate legal description of the property

.
Id . at 648

- 50 (emphasis added) (citations and quotation marks omitted)

. Lastly, to provide notice “‘ a recorded mortgage must be in the ‘chain of title.’” Id . at 650 (quoting Szakaly v. Smi th , 544 N.E.2d 490, 492 (Ind. 1989)).

[15] Here, Jewell concedes that the Jewell Mortgage does not contain the legal description of the Real Estate. Accordingly, Bank ca nnot be charged with constructive notice of Jewell’s interest. Nevertheless, Jewell argu es that its “description of the Real Estate on the mortgage provided U.S. Bank with

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- 1578 | January 26, 2017 Page 10 of 14sufficient notice of Jewell’s superior interest.” Appellee’s Br. at 10

. In essence, Jewell’s argument is that Bank may be charged with implied or inferred actual noti ce. Notice is actual when notice has been directly and personally given to the person to be notified. Additionally, actual notice may be implied or inferred from the fact that the person charged had means of obtaining knowledge which he did not use. [] Wh atever fairly puts a reasonable, prudent person on inquiry is sufficient notice to cause that person to be charged with actual notice, where the means of knowledge are at hand and he omits to make the inquiry from which he would have ascertained the existe nce of a deed or mortgage. Thus, the means of knowledge combined with the duty to utilize that means equates with knowledge itself. Whether knowledge of an adverse interest will be imputed in any given case is a question of fact to be determined objectiv ely from the totality of the circumstances.
Weathersby v. JPMorgan Chase Bank, N.A. , 906 N.E.2d 904, 911 (Ind. Ct. App. 2009) ( citations and quotation marks omitted).

[16] Jewell correctly observes that prospective purchasers of real estate must search both the grantor
- grantee index and the mortgagor

- mortgage index for the period that the mortgagor hold s title to the real estate. Nally , 820 N.E.2d at 649. Indiana Code Section 36

- 2

- 11

- 12 provides,
(a) The recorder shall index each volume of instruments the reco rder records by:
(1) the name of each grantor, promisor, or covenantor, in alphabetical order and cross

- referenced to the proper grantee, promisee, or covenantee; and
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- 1578 | January 26, 2017 Page 11 of 14(2) the name of each grantee, promisee, or covenantee, in alphabetical order and cross

- re ferenced to the proper grantor, promisor, or covenantor.
(b) The recorder shall accurately maintain separate indexes of all the records of:
(1) deeds for real estate; and
(2) mortgages on real estate;

in the recorder’s office. The recorder shall index each deed or mortgage alphabetically, by the name of each grantor and grantee or mortgagor and mortgagee, and shall include in each index entry a concise description of the real property, the date of the deed or mortgage, and the number or letter of the book a nd the page at which each deed or mortgage is recorded.

[17] Jewell takes the position that Bank did not perform a search of the mortgagor

mortgagee index, claim ing that if Bank had performed a mortgagor

- mortgagee title search, “it would have certainly discover ed Jewell’s prior Mortgage and Jewell’s superior interest in the Real Estate.” Appellee’s Br. at 13. Jewell also
argues ,
T he failure by U.S. Bank to put forth any evidence reg arding which index or indexes w ere searched by it or its abstractor, how the se arch was conducted, or offer any explanation as to why [Jewell’s] lien was not discovered during its title search when it was discoverable in [ t he Legacy Property Search ] collectively demonstrates that there remains unanswered genuine questions of material fact.

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- 1578 | January 26, 2017 Page 12 of 14Id at 15.

[18] Bank contends that Dail e y ’s affidavits establish th at both the grantor

- grantee and mortgagor

- mortgagee indexes were searched, how they had been searched, that the mortgagor

- mortgagee title search did not reveal the Jewell Mortgage, and that it was not discovered because it did not contain the legal description of the Real Estate. We agree

. Dail e y attested that Fax Mobile searched the grantor/grantee index and the mortgag o r/mortgagee index according to Marion County title search standa rds ; that Marion Co unty does not provide a method to search title using a common address; and that the Jewell Mortgage was not discovered because it did not include a legal description for the Real Estate. Appellant’s App. Vol. 3 at 7

- 9. Bank’s designate d evidence was sufficient to carry its initial burden to show that it cannot be charged with notice of Jewell’s interest and is therefore a bona fide purchaser for value. Jewell’s argument ignores Bank’s designated evidence. Although Jewell asserts that the street address on the Jewell Mortgage was sufficient to provid e Bank with notice, Jewell did not designate any evidence regarding how the street address would operate to alert Bank to Jewell’s interest and its unauthenticated title search is inadequate to show that there is a genuine issue of material fact

. Based on the designated evidence, w e conclude that Bank established that it was a bona fide purchaser for value as against Jewell. Accordingly, the trial court erred in denying Bank’s motion for s ummary judgment. We reverse and remand for entry of summary judgment in favor of Bank.

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- 1578 | January 26, 2017 Page 13 of 14[19] Reversed and remanded.

Riley, J., and Altice, J., concur.

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