ATTORNEY FOR APPELLANT

Pamela A. Paige

Plunkett Cooney, P.C.

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Mario Garcia

Brattain Minnix Garcia

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

U.S. Bank, National 

Association, Successor to 

National City Bank,

Appellant-Defendant,

v.

Jewell Investments, Inc.,

Appellee-Plaintiff

January 26, 2017

Court of Appeals Case No.

49A05-1607-MF-1578

Interlocutory Appeal from the 

Marion Superior Court

The Honorable Cynthia J. Ayers, 

Judge

Trial Court Cause No.

49D04-0806-MF-26954

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 filed 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 49A05-1607-MF-1578 | January 26, 2017 Page 1 of 14
Bank’s motion. Bank now appeals. We conclude that Bank carried its burden 

to show that there is no genuine issue of material fact as to whether it is a bona 

fide purchaser and that it is entitled to judgment as a matter of law. 

Accordingly, we reverse and remand with instructions to enter summary 

judgment in favor of Bank.

Facts and Procedural History1

[2] The heart of this 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, 

recorded 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 Real Estate, which was recorded on 

February 1, 2007. The Jewell Mortgage describes 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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the 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 agreed to purchase the Real Estate from 

Diversified and sought financing from National City Mortgage, a division of 

National City Bank. In furtherance of this transaction, Fax Mobile Abstracting, 

Inc., performed a title examination of the Real Estate (“Fax Mobile’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 recorded on February 8, 2007. The Newton Mortgage 

contained the legal description of the Real Estate.

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

Diversified was held. Diversified executed and delivered a corporate warranty 

deed to Retana, which was recorded on December 31, 2007. Retana executed 

and delivered an $80,500 note in favor of National City Mortgage. As security 

for the note, Retana executed and delivered an $80,500 mortgage to National 

City Mortgage (“the Bank Mortgage”), 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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[5] On June 17, 2008, Jewell filed an action to foreclose on various properties 

including the Real Estate, naming Bank 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 agreed entry of in 

rem judgment and decree of foreclosure, defaulting Bank and foreclosing

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 executed in favor of Jewell. 

[6] On April 12, 2012, Bank filed a motion to set aside sheriff’s sale and default 

judgment. On November 6, 2014, the trial court vacated the sheriff’s deed and 

the judgment and decree of foreclosure. On June 25, 2015, Bank filed a motion 

for summary 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 Real 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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3. A-One Title, LLC provided closing services for the sale of real 

property commonly known as 602 Manhattan Avenue, 

Indianapolis, Indiana (“Real Estate”) to Francisco Rutiga 

Retana.

4. Fax Mobile Abstracting, Inc. was 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 February 1, 2007 as 

Instrument No. 2007-0020665 does not contain a legal 

description for the Real Estate.

8. Because the [Jewell] Mortgage filed for record as Instrument 

No. 2007-0020665 did 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 maintained in the regular course 

of business of Fax Mobile Abstracting, Inc.

Appellant’s App. Vol. 2 at 171-72. 

[7] Jewell filed an objection to Bank’s motion and in support thereof designated an 

unauthenticated title search purportedly prepared by Legacy Title & Escrow

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Services and dated July 28, 2009 (“the Legacy Property Search”), which 

revealed the Jewell Mortgage and the Bank Mortgage. 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, Indiana.

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 issue.

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. 2007-0020665 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.

8. Because the Mortgage from Diversified Investments, LLC to 

Jewell Investments, Inc. dated January 29, 2007 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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9. 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 grantor/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 the 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 and, 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 Diversified 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] Property 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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15. Without 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/grantee 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 Decision

[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 

moving 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 grant of summary judgment to assure that the losing 

party is not improperly prevented from having its day in court.

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Crown 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 issue of lien priority. Indiana Code 

Section 32-21-4-1(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 § 32-21-4-1(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 should 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 must 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 the Jewell

Mortgage’s omission of the legal description of the Real Estate rendered it

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insufficient 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 explained,

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 constructive, 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 county 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. Smith, 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 cannot be charged with 

constructive notice of Jewell’s interest. Nevertheless, Jewell argues that its 

“description of the Real Estate on the mortgage provided U.S. Bank with 

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sufficient 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 

notice.

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. [] 

Whatever 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 

existence 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 objectively 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 holds 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 

recorder 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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(2) the name of each grantee, promisee, or covenantee, in 

alphabetical order and cross-referenced 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 and the 

page at which each deed or mortgage is recorded.

[17] Jewell takes the position that Bank did not perform a search of the mortgagormortgagee index, claiming that if Bank had performed a mortgagor-mortgagee 

title search, “it would have certainly discovered Jewell’s prior Mortgage and 

Jewell’s superior interest in the Real Estate.” Appellee’s Br. at 13. Jewell also 

argues,

The failure by U.S. Bank to put forth any evidence regarding 

which index or indexes were searched by it or its abstractor, how 

the search was conducted, or offer any explanation as to why 

[Jewell’s] lien was not discovered during its title search when it 

was discoverable in [the Legacy Property Search] collectively 

demonstrates that there remains unanswered genuine questions 

of material fact. 

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Id at 15. 

[18] Bank contends that Dailey’s affidavits establish that 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. Dailey attested that Fax Mobile searched the 

grantor/grantee index and the mortgagor/mortgagee index according to 

Marion County title search standards; that Marion County 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 designated 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 provide 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, we 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 summary judgment. We reverse and 

remand for entry of summary judgment in favor of Bank.

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[19] Reversed and remanded.

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

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