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.

ATTORNEYS FOR APPELLANT:

CRAIG D. DOYLE

AMANDA J. PORTER

KURT V. LAKER

Doyle Legal Corporation, P.C.

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

IN RE: THE PETITION OF )

JOHN OBERLEAS FOR ISSUANCE )

OF TAX DEED, )

)

TAX SALE CERTIFICATES )

#801063, 801066, 801067, 801068, )

)

PARCEL NO. 006-00168-00; 006-01232-00 )

 006-01233-00; 006-01234-00 )

)

Appellee-Respondent, )

_________________________________________ )

RUSHMORE LOAN MANAGEMENT )

SERVICES, LLC, )

)

Appellant-Petitioner, )

)

vs. ) No. 80A05-1402-MI-70

)

JOHN OBERLEAS, )

)

Appellee-Respondent. )
2

APPEAL FROM THE TIPTON CIRCUIT COURT

The Honorable Thomas R. Lett, Judge

Cause No. 80C01-1009-MI-460

July 29, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge 

Rushmore Loan Management Services, LLC (Rushmore) appeals from the trial 

court’s denial of its Indiana Trial Rule 60(B) motion, in which it asked the trial court to 

set aside an order directing issuance of tax deeds and the tax sale of a property in which it 

had obtained an interest. Rushmore contends that property owner John Oberleas’s tax 

deeds ought to be declared invalid because of his failure to substantially comply with the 

notice provisions in Indiana Code sections 6-1.1-25-4.5 and -4.6 and to provide the 

record owners and those with substantial property interest in the property due process. 

Notwithstanding Rushmore’s contention, the evidence demonstrates that Rushmore’s 

motion was not filed within a reasonable time as required by Indiana Trial Rule 60(B). 

Therefore, we affirm the trial court’s denial of Rushmore’s motion.

FACTS

Prior to the proceedings related to this case, Nedra J. Thomas and Virgil L. Hayes 

owned real property (the Property), consisting of five parcels collectively known as 1118 

South 725 West, Goldsmith, Indiana. Thomas and Hayes executed a note in 2008 

promising to repay a loan from Taylor, Bean, & Whitaker Corp. The note was secured 
3

by a mortgage and held all five parcels of 1118 South 725 West, including the residence. 

The mortgage was then assigned to BAC Home Loans on April 8, 2010; Bank of 

America, N.A. is the successor by merger to BAC.

On October 4, 2010, four of the five parcels of the Property owned by Thomas and 

Hayes were offered for tax sale because the taxes on the Property were not paid in a 

timely fashion. Oberleas, who lived next door to the Property, was the high bidder at the 

tax sale and was issued a tax sale certificate for each of the four parcels that he 

purchased. The parcels essentially comprised the land surrounding the residence (e.g. the 

yard and the garage), but not the residence itself. 

In a letter dated July 25, 2011, Oberleas sent notice of his purchase (4.5 Notice) 

via certified mail to the record owners, Thomas and Hayes, and to those who maintained 

a substantial property interest in the Property (including BAC) pursuant to Indiana Code 

section 6-1.1-25-4.5.1 The 4.5 Notice was sent to Thomas and Hayes at an address in 

Muncie that Oberleas’s lawyer obtained through the Tipton Auditor’s Office. However, 

the letter was returned to Oberleas unclaimed, meaning that Thomas and Hayes never 

received it. There is no indication in the record that any of the other 4.5 Notices sent to 

those with a substantial interest in the Property were not received.

 

1

Indiana Code section 6-1.1-25-4.5 requires notice of a tax sale to be sent via certified mail, within nine 

months of the sale, to the owner of record at the last address as indicated by the county auditor and to any 

person with substantial property interest of public record. It also specifies the minimum requirements for 

such a notice, such as the street address or common description of the land, the parcel number of the tract, 

the date the redemption period expires, etc. 
4

The 4.5 Notice letter explained to the parties that Oberleas had purchased four

parcels of the Property at the tax sale and that the redemption period expired on October 

4, 2011. The notice contained the parcel numbers of the lots purchased by Oberleas and 

the common address for the Property, although the address was mistakenly missing one 

digit. Specifically, the notice read 118 S. 725 W, instead of 1118 S. 725 W. 

After the expiration of the redemption period in October, Oberleas filed a verified 

petition for tax deeds for the four parcels of the Property he purchased at the tax sale. He 

also sent notice of this petition to the interested parties via certified mail (“4.6 Notice”).2 

The 4.6 Notice letter stated that the Property had not been redeemed within the one-year 

redemption period and that the parties now had 30 days after the petition to file a written 

objection. The 4.6 Notice described the Property by including the parcel numbers for the 

four lots and the erroneous common address (118 S. 725 W). 

The Property was not redeemed within the appropriate time period, and the trial 

court ordered issuance of tax deeds on December 8, 2011. Oberleas was then issued the 

tax deeds for four parcels of the Property on February 16, 2012.

On September 10, 2012, the trial court entered judgment in rem and entry of 

decree of foreclosure in favor of Bank of America against Thomas and Hayes. The 

Property was scheduled for a sheriff’s sale, but after Oberleas’s counsel contacted Bank 

 

2

Indiana Code section 6-1.1-25-4.6 provides that “[n]otice 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 . . . Any person owning 

or having an interest in the tract or real property may file a written objection to the petition with the court 

not later than thirty (30) days after the petition was filed.” 
5

of America’s attorney to inform him that Oberleas had acquired the parcels by deed, the 

Property was not sold at the sheriff’s sale.

Bank of America subsequently transferred the note, mortgage, and judgment to 

Rushmore on June 15, 2013. Rushmore then filed its Rule 60(B) motion to set aside its 

earlier order regarding the issuance of tax deeds and sale on September 9, 2013. The trial 

court denied Rushmore’s motion.

Rushmore now appeals.

DISCUSSION AND DECISION

This Court reviews the denial of a Trial Rule 60(B) motion for an abuse of 

discretion. G.B. v. State, 715 N.E.2d 951, 952 (Ind. Ct. App. 1999). We will not find an 

abuse of discretion unless the trial court’s decision is clearly against the logic and effect 

of the facts and circumstances before it. Id. at 953. “On a motion for relief from 

judgment, the burden is on the movant to demonstrate that relief is both necessary and 

just.” Id.

Rushmore filed its motion asking the trial court to set aside the order directing 

issuance of tax deeds and tax sale pursuant to Trial Rule 60(B)(6). Motions filed 

pursuant to this subsection must be filed within a “reasonable time.” T.R. 60(B). The

determination of what constitutes a reasonable time varies with the circumstances of each 

case. Levin v. Levin, 645 N.E.2d 601, 604 (1994). Relevant to the question of timeliness 

is the basis for the moving party’s delay and prejudice to the party opposing the motion. 

Id. 
6

Here, Rushmore claims that its motion was filed within a reasonable time. In 

particular, the record demonstrates that Rushmore filed its Trial Rule 60(B) motion on 

September 9, 2013, over 18 months after Oberleas received the tax deeds to the parcels of 

Property. Rushmore claims that its motion was filed within a reasonable time because: 1) 

Rushmore filed its motion within three months of acquiring an interest in the Property, 

which Rushmore claims is not unreasonable given the difficulty a mortgagee may have 

connecting a tax sale notice with an erroneous property address to a particular mortgage 

loan; and 2) This delay did not result in prejudice because Oberleas will still retain a lien 

against the Property parcels in the event that the deeds are invalidated.

We find these arguments, particularly the former, unavailing and agree with 

Oberleas that the delay is unreasonable. While we do not condone the errors made by 

Oberleas and caution that exactitude is important when recording and notifying others of 

property interests, Rushmore’s challenge simply comes too late.

One of the factors we consider when assessing whether or not a motion was filed 

within a reasonable time is the basis for the moving party’s delay. Here, Rushmore was 

not a party in interest during the time of the tax sale or even when the deeds were issued. 

In fact, Rushmore did not acquire an interest in the Property until 16 months after the 

deeds had been issued to Oberleas. When a mortgagee takes an assignment of a

mortgage, he acquires the status of the mortgage at that time. Further, the mortgagee is 

charged with constructive notice of all the facts that a proper examination of the record 

would show. Keybank Nat’l Ass’n v. NBD Bank, 699 N.E.2d 322, 327 (Ind. Ct. App. 
7

1998). The record clearly shows the Oberleas’s tax deeds were recorded in the Auditor’s 

Office on February 16, 2012 under an accurate lot number and property description. 

Appellant’s App. 91-97. Therefore, Rushmore had constructive notice of Oberleas’s tax 

deeds and thus was not a bona fide purchaser, despite an error in the common address. 

See Union State Bank v. Williams, 169 Ind. App. 345, 350, 348 N.E.2d 683, 687 (1976). 

Had Rushmore checked the record prior to acquiring the mortgage from Bank of 

America, it would have been aware that Oberleas was issued tax deeds for four of the five 

parcels on the Property. 

Additionally, it is apparent that Oberleas suffered prejudice as a result of the 

delay. More specifically, for approximately 18 months, Oberleas believed he was the 

rightful owner of the parcels and acted accordingly. He has paid taxes and “mowed, 

cleared underbrush and weeds, and provided general care to the [p]arcels.” Appellant’s 

App. 123.

Finally, this Court recognizes a general public policy interest in having finality 

and closure to such transactions. As this Court previously explained, “[i]n ruling on 

a T.R. 60(B) motion, the trial court must balance the alleged injustice suffered by the 

party moving for relief against the interests of the winning party and societal interest in 

the finality of litigation.” Hoosier Health Sys., Inc. v. St. Francis Hosp. & Health 

Ctrs.,796 N.E.2d 383, 388 (Ind. Ct. App. 2003). Although Rushmore may not have had 

actual notice of Oberleas’s deeds to the Property parcels, it is charged with constructive 

notice; therefore, we do not believe Rushmore suffers grave injustice if Oberleas retains 
8

ownership of the Property because Rushmore had the opportunity to avoid the problem 

much earlier. See Union State Bank, 169 Ind. App. at 350, 348 N.E.2d at 687. In short, 

because of society’s interest in the finality of litigation, we cannot indefinitely allow 

banks to shift any potential issues associated with a mortgage to subsequent mortgagees 

if it operates to the detriment of the tax sale purchaser as it does in this case. Therefore, 

we conclude that Rushmore’s motion was not filed within a reasonable period of time. 

Moving onto Rushmore’s other claims, it also argues that the property descriptions 

in the 4.5 and 4.6 notices Oberleas sent to the record owners, Thomas and Hayes, were 

not in substantial compliance with Indiana Code sections 6-1.1-25-4.5 and -4.6 because 

they omitted a digit in the common address and failed to provide a full legal description 

per the statute. Appellant’s Br. 7. Further, Rushmore argues that the notices were sent to 

Thomas and Hayes at an address in Muncie, rather than the proper address on record with 

the Auditor’s Office, meaning that the mailing itself was not in compliance with the 

statute. Id. at 11. However, we need not address the sufficiency of the 4.5 and 4.6 

notices because, even if they possess merit, the issue of reasonable timing discussed 

above is dispositive. The sufficiency challenge simply comes too late. 

Based on these facts, we cannot say that the trial court abused its discretion in 

denying Rushmore’s motion to set aside the issuance of the tax deeds and tax sale. 

Accordingly, we affirm the judgment of the trial court.

BARNES, J., and CRONE, J., concur.