UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

METODIJA KRSTEVSKI, ) 

 ) 

Plaintiff, ) 

 ) 

 v. ) CAUSE NO.: 2:14-CV-179-TLS 

 ) 

NATIONAL ATTORNEYS’ TITLE ) 

ASSURANCE FUND, INC, et al., ) 

 ) 

 Defendants. ) 

OPINION AND ORDER 

 This matter comes before the Court on Defendant NASA Leasing’s Motion for Summary 

Judgment [ECF No. 100], which was filed on April 22, 2016. On June 27, 2016, the Plaintiff 

filed his Response to Defendant NASA Leasing’s Motion for Summary Judgment [ECF 

No. 109]. Defendant NASA Leasing entered its Reply [ECF No. 110] on July 7, 2016. The Court 

received the Final Report of Mediation [ECF No. 117] on September 1, 2016, which stated that 

the parties failed to reach an agreement. This matter is now ripe for the Court’s review. 

FACTS OF THE CASE 

 This case involves two adjacent parcels of land in Crown Point, Indiana. The following 

facts are not in dispute. On November 24, 2009, Defendant NASA Leasing purchased a Tax Lien 

for the following land parcel: 

Key Number: 45-16-05-406-004.000-042 

Brief Legal Description: Railroad Add. S.22 Ft. of L.2 Bl. 38 

Commonly known as: 806 N. Grant, Crown Point, Indiana 

(Pl.’s Resp. Ex. C, ECF No. 109-5.) Defendant NASA Leasing purchased 806 N. Grant at a Lake 

County Commissioner’s tax sale, which was assessed solely as land without any improvements. 
2 

(Def.’s Reply 6, ECF No. 110; Pl.’s Resp. Ex. D, ECF No. 109-6.) On February 2, 2010, the 

Plaintiff closed his purchase for the following land parcel: 

Key Number: 45-16-05-406-005.000-042 

Brief Legal Description: Railroad Add. N.22 Ft. of L.2 Bl. 38 

Commonly known as: 804 N. Grant, Crown Point, Indiana 

(Pl.’s Resp. Ex. B, ECF No. 109-4; Id. Ex. E., ECF No. 109-7.) The Plaintiff received a Special 

Warranty Deed from the Secretary of Housing and Urban Development (“HUD”) for 804 N. 

Grant. (Pl.’s Resp. Ex. B; Id. Ex. E.) In addition to land, the Deed included the home located on 

804 N. Grant, which Lake County assessed as an improvement on 804 N. Grant. (Pl.’s Resp. Ex. 

G, ECF No. 109-9.) 

 Defendant NASA Leasing published a notice on May 4, 2010, which stated that it was 

filing an application for deed and a date of hearing. (Def.’s Reply Ex. C.) The notice enumerated 

the identifying information above—Key Number, Brief Legal Description, and Common 

Address. (Id.) Notice was provided both by publication and certified mail, addressed to the 

Secretary of HUD in Chicago. (Id.; Pl.’s Resp. Ex J, ECF No. 109-12.) On July 15, 2010, 

Defendant NASA Leasing submitted an Entry of Order to Issue Tax Deed for 806 N. Grant. 

(Def.’s Reply Ex. D.) Defendant NASA Leasing received its Tax Deed on September 2, 2010, 

which was duly recorded in the Lake County, Indiana, Office of the Recorder on October 25, 

2010. (Def.’s Mot. Summ. J. Ex. A, ECF No. 100.) 

By mid-February 2011, Defendant NASA Leasing and the Plaintiff were disputing their 

respective ownership rights in the adjacent parcels. (Def.’s Reply Ex. F.) Defendant NASA 

Leasing claimed a one-half interest in the Plaintiff’s home, arguing that the home was partly 

located on 806 N. Grant. The Plaintiff argued that Defendant NASA Leasing had no interest in 

the Plaintiff’s home. On April 17, 2014, the Plaintiff filed his initial Complaint [ECF No. 2], 
3 

which was subsequently removed to federal court, pursuant to 28 U.S.C. §§ 1332, 1441, and 

1446 [ECF No. 1]. In the Second Amended Complaint [ECF No. 82], the Plaintiff asserts claims 

against Defendant NASA Leasing, as well as Defendants National Attorneys’ Title Assurance 

Fund, Inc. (“NATAF”), McColly Real Estate, Inc., the Secretary of HUD, County of Lake, 

Indiana, Becky Steininger, and Stephen W. Robertson. Defendant NASA Leasing filed its 

Answer and Counterclaim [ECF No. 90] on October 8, 2015. The Plaintiff seeks to set aside the 

“Tax Deed issued to Defendant NASA Leasing, Quiet Title judgment against them, declare the 

tax sale title to one-half of the home be declared null and void, and fee-simple title and interest to 

804 N. Grant St. home be quieted as against any and all claims of the Defendant and past tax 

sales.” (Second Amend. Compl. ¶ 15, ECF No. 82.) Only those claims asserted against 

Defendant NASA Leasing are pertinent to this Motion for Summary Judgment. 

STANDARD OF REVIEW 

Summary judgment is warranted when “the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(a). Summary judgment is the moment in litigation where the nonmoving party is 

required to marshal and present the court with evidence on which a reasonable jury could rely to 

find in that party’s favor. Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). 

A court should only deny a motion for summary judgment when the nonmoving party presents 

admissible evidence that creates a genuine issue of material fact. Luster v. Ill. Dep’t of Corrs., 

652 F.3d 726, 731 (7th Cir. 2011) (first citing United States v. 5443 Suffield Terrace, 607 F.3d 

504, 510 (7th Cir. 2010); then citing Swearnigen–El v. Cook Cnty. Sheriff’s Dep’t, 602 F.3d 852, 

859 (7th Cir. 2010)). A court’s role in deciding a motion for summary judgment “is not to sift 

through the evidence, pondering the nuances and inconsistencies, and decide whom to believe. 
4 

[A] court has one task and one task only: to decide, based on the evidence of record, whether 

there is any material dispute of fact that requires a trial.” Waldridge v. Am. Heochst Corp., 24 

F.3d 918, 920 (7th Cir. 1994). Material facts are those that are outcome determinative under the 

applicable law. Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997). Although a bare contention 

that an issue of material fact exists is insufficient to create a factual dispute, a court must 

construe all facts in a light most favorable to the nonmoving party, view all reasonable inferences 

in that party’s favor, see Bellaver v. Quanex Corp., 200 F.3d 485, 491–92 (7th Cir. 2000), and 

avoid “the temptation to decide which party’s version of the facts is more likely true,” Payne v. 

Pauley, 337 F.3d 767, 770 (7th Cir. 2003). 

ANALYSIS 

This Court has original jurisdiction over “any express or implied contract with the United 

States” pursuant to 28 U.S.C. § 1346(a)(2), and the Plaintiff alleges that the Secretary of HUD 

“fail[ed] to deliver full home ownership . . . in direct breach of the terms of agreement of sale.” 

(Second Amend. Compl. ¶ 10.)1

 Supplemental jurisdiction is appropriate, pursuant to 28 U.S.C. 

§ 1367, over the Plaintiff’s state law claim to quiet title against Defendant NASA Leasing. 

Defendant NASA Leasing moves for summary judgment on the grounds that it received a 

valid Tax Deed to 806 N. Grant, which it claims is prima facie evidence of its fee simple title in 

that property, and thus a one-half interest in the Plaintiff’s home. The Plaintiff challenges 

Defendant NASA Leasing’s claim to a one-half interest by questioning the Tax Deed’s validity 

on the grounds that (1) the Plaintiff was not given constitutionally adequate notice of the 

Defendant’s claim, (2) the 806 N. Grant property was not subject to or assessed for the same 

                                                             1

 The Plaintiff expressly limits his claim against the Secretary of HUD not to exceed $10,000. 

(Second Amend. Compl. at 1.) 
5 

taxes as the 804 N. Grant property, and (3) the Tax Deed failed to describe the property with 

reasonable certainty. 

A. Indiana’s Tax Deed Regime 

“A purchaser at a tax sale receives a tax certificate evidencing a lien against the property 

for the entire amount paid. The lien is superior to all other liens which exist at the time the 

certificate is issued.” Calhoun v. Jennings, 512 N.E.2d 178, 181 (Ind. 1987) (citing Ind. Code 

§ 6-1.1-24-9). Pursuant to the Indiana Code, “[a] tax deed . . . vests in the grantee an estate in fee 

simple absolute, free and clear of all liens and encumbrances created or suffered before or after 

the tax sale except those liens granted priority under federal law, and the lien of the state or a 

political subdivision for taxes and special assessments that accrue subsequent to the sale.” Ind. 

Code. § 6-1.1-25-4.6(k). “However, the estate is subject to all easements, covenants, 

declarations, and other deed restrictions and laws governing land use, including all zoning 

restrictions and liens and encumbrances created or suffered by the purchaser at the tax sale.” Id.

The tax deed is prima facie evidence of “(1) the regularity of the sale of the real property 

described in the deed; (2) the regularity of all proper proceedings; and (3) valid title in fee simple 

in the grantee of the deed.” Id. 

There are certain prescribed ways for a party to defeat another’s claim to title conveyed 

by a tax deed. See Ind. Code § 6-1.1-25-16. Specifically, a party may successfully challenge 

another’s claim to title via tax deed only if: 

(1) the tract or real property described in the deed was not subject to the taxes for 

which it was sold; (2) the delinquent taxes or special assessments for which the 

tract or real property was sold were paid before the sale; (3) the tract or real 

property was not assessed for the taxes and special assessments for which it was 

sold; (4) the tract or real property was redeemed before the expiration of the 

period of redemption . . . ; (5) the proper county officers issued a certificate, 

within the time limited by law for paying taxes or for redeeming the tract or real 
6 

property, which states either that no taxes were due at the time the sale was made 

or that the tract or real property was not subject to taxation; (6) the description of 

the tract or real property was so imperfect as to fail to describe it with reasonable 

certainty; or (7) the notices required . . . were not in substantial compliance with 

the manner prescribed [under relevant Indiana Code sections]. 

Id. Here, Defendant NASA Leasing offered evidence in its Motion that it was the grantee of a 

Tax Deed for 806 N. Grant received on September 2, 2010, which was duly recorded with the 

Office of the Recorder of Lake County, Indiana on October 25, 2010. (Def.’s Mot. Summ. J. 

Ex. A.) Under Indiana law, this is prima facie evidence that Defendant NASA Leasing holds 

“valid title in fee simple,” as well as evidence of the regularity of the “sale of the property” and 

“all proper proceedings.” Ind. Code. § 6-1.1-25-4.6(k). Accordingly, the burden shifts to the 

Plaintiff to present evidence sufficient to rebut the Tax Deed’s validity. 

B. Adequate Notice of the Tax Sale 

 As a preliminary matter, Defendant NASA Leasing challenges the Plaintiff’s ability to 

contest the Tax Deed at all. A tax deed issued pursuant to section 6-1.1-25-4.6 “is incontestable 

except by appeal from the order of the court directing the county auditor to issue the tax deed 

filed not later than sixty (60) days after the date of the court’s order.” Ind. Code § 6-1.1-25-4.6. 

An exception exists to this time limitation where the contesting party alleges that the tax deed “is 

void due to constitutionally inadequate notice.” Edwards v. Neace, 898 N.E.2d 343, 348 (Ind. Ct. 

App. 2008) (citing Diversified Invs., LLC v. U.S. Bank, NA, 838 N.E.2d 536, 544 (Ind. Ct. App. 

2006). Such a claim2

 “must be brought within a reasonable time rather than within sixty days.” 

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

                                                             2

 Indiana courts have held that this type of claim may be brought under Trial Rule 60(B)—

Indiana’s analogue to the Federal Rule of Civil Procedure 60(b) motion for relief from judgment—or in 

an independent action. Edwards, 898 N.E.2d at 348. The Plaintiff’s original filing in state court did not 

specify either avenue for its claim to quiet title, but Indiana courts have construed complaints for quiet 

title as Trial Rule 60(B) motions. See Gupta v. Busan, 5 N.E.3d 413, 416 (Ind. Ct. App. 2014). 
7 

case. Kessen v. Graft, 694 N.E.2d 317, 321 (Ind. Ct. App. 1998); see also Standard Lumber Co. 

of St. John, Inc. v. Josevski, 706 N.E.2d 1092, 1096 (Ind. Ct. App. 1999) (citing Fairrow v. 

Fairrow, 559 N.E.2d 597, 599–600 (Ind. 1990) (finding eleven-year delay in filing motion 

reasonable)). Prejudice to the party opposing the motion and the basis for the moving party’s 

delay are relevant to the question of timeliness. Id.

 The United States Supreme Court held in Mullane v. Central Hanover Bank & Trust Co., 

339 U.S. 306 (1950), that a state must provide “notice reasonably calculated, under all the 

circumstances, to apprise interested parties of the pendency of the action” prior to taking steps 

that will impact a party’s interest in life, liberty, or property. Id. at 314. Specific notice 

requirements govern the receipt of a tax deed under Indiana law, see Ind. Code. § 6-1.1-25-

4.5(c)–(d), and compliance with those requirements is sufficient to satisfy due process, 

Diversified Invs., LLC, 838 N.E.2d at 543–44. The purchaser at a tax sale must give notice of the 

sale to “the owner of record at the time of the sale of the property,” or “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.” Ind. Code. § 6-1.1-25-4.5(d)(1)–(2). A court’s determination 

of whether notice “substantially complied” with the statutory requirements “is a determination 

based on the facts and circumstances of the case and is a question of fact.” First Am. Title Ins. 

Co. v. Calhoun, 13 N.E.3d 423, 433 (Ind. Ct. App. 2014) (citing In re Sale of Real Prop. with 

Delinquent Taxes or Special Assessments, 822 N.E.2d 1063, 1074 (Ind. Ct. App. 2005)). 

 In this case, Defendant NASA Leasing sent notice via certified mail to the Secretary of 

HUD on January 23, 2010. (Pl.’s Resp. Ex. J.) In addition, notice via publication was effected on 

May 4, 2010. (Def.’s Reply Ex. C.) The Plaintiff argues notice via certified mail was not 

“reasonably calculated, under all the circumstances” to notify the Secretary as to the true nature 
8 

of the proceedings because it did not state that the tax sale involved a taking of the improved 

land at 804 N. Grant. (Pl.’s Resp. 8–9, ECF No. 109-13.) The Defendant disputes this argument 

and further argues that the Defendant satisfied the statutory requirements by providing notice to 

the owner of record and any person with a substantial property interest at the time of the sale. 

(Def.’s Reply 6–7 (emphasis added).) 

It is unclear that Defendant NASA Leasing’s notice via certified mail meets the standard 

articulated in Mullane. Before the Plaintiff became the owner of 804 N. Grant, the Secretary of 

HUD was its owner. Thus, for Defendant NASA Leasing to later assert that it owned a one-half 

interest in the home located on 804 N. Grant, it would have needed to provide notice to the 

Secretary in the letter. But the only parcel referenced in the notice sent to the Secretary was to 

806 N. Grant. (Pl.’s Resp. Ex. J.) The Court does not find that this is notice “reasonably 

calculated, under all the circumstances” to notify the Secretary that Defendant NASA Leasing 

had obtained a one-half interest in the improved real estate located on 804 N. Grant. 

Even assuming that the certified mail meets the standard articulated in Mullane, there is 

insufficient evidence to find compliance with the requirements of section 6-1.1-25-4.5. 

Defendant NASA Leasing argues that the Indiana Code’s notice provision only requires notice to 

the person who is the “owner of record” or “any person with a substantial property interest” “at 

the time of the sale.” Ind. Code § 6-1.1-25-4.5(d)(1)–(2). However, the phrase “at the time of the 

sale” only modifies the phrase “owner of record,” and thus “any person with a substantial 

property interest” need only have that interest at the time the notice is sent. Id. There is no 

evidence showing that the Plaintiff had a “substantial property interest of public record” in 804 

N. Grant on January 23, 2010, as closing occurred nearly two weeks later on February 2, 2010, 
9 

so the Plaintiff was not entitled to mailed notice.3

 The Secretary of HUD was the owner of record 

of 804 N. Grant at the time of the tax sale of 806 N. Grant, and thus entitled to notice. However, 

the mailing failed to apprise the Secretary that there was potential for a taking of 804 N. Grant 

because of the tax sale of 806 N. Grant, which suggests constitutionally deficient notice.4

 In sum, the Court finds genuine issues of fact as to whether the Plaintiff received 

constitutionally adequate notice. Additionally, Indiana courts have found delays of greater than 

three-years before bringing legal challenges to be “within a reasonable time.” See Standard 

Lumber Co., 706 N.E.2d at 1096. Accordingly, the Plaintiff is entitled to contest the validity of 

Defendant NASA Leasing’s Tax Deed in this proceeding. 

C. Taxes, Assessments, and Consolidation of the Properties 

The Plaintiff challenges Defendant NASA Leasing’s Tax Deed on the basis of the taxes 

for which it was sold and the taxes for which it was assessed. In addition, the Plaintiff claims that 

the 806 N. Grant property should not have been sold because the assessing officials were 

required to consolidate the 806 N. Grant parcel with the 804 N. Grant parcel. Under the Indiana 

Code, an “assessing official shall consolidate more than one (1) existing contiguous parcel into a 

single parcel if the assessing official has knowledge that an improvement to the real property is 

located on or otherwise significantly affects the parcels.” Ind. Code § 6-1.1-5-16. 

 In support of his argument, the Plaintiff points to the inconsistencies in the files of 

various Lake County local government offices. Both the County Assessor and County Auditor 

                                                             3

 Neither party argues that the Plaintiff being in escrow or negotiating with a government agency 

for the sale, which preceded the closing on February 2, 2010, would qualify as a “public record” for 

purposes of notice under section 6-1.1-25-4.5(d). 

4

 Finally, if only notice by publication was required, the evidence shows that Defendant NASA 

Leasing again failed to comply with the statute. Section 6-1.1-25-4.5(d) specifies that notice by 

publication be given “once each week for three (3) consecutive weeks,” but the evidence shows that 

Defendant NASA Leasing only published notice once for the week of May 4, 2010. (Def.’s Reply Ex. C.) 
10 

assessed 806 N. Grant only as land, not as land with improvements (Pl.’s Resp. Exs. C–D), but 

the County Surveyor determined, based on GIS maps, that 806 N. Grant included improvements 

to the land (Pl.’s Resp. Exs. F, I, ECF Nos. 109-8, 109-11). Defendant NASA Leasing offers no 

evidence in rebuttal, claiming instead that the Plaintiff’s proffered evidence does not preclude 

summary judgment. The Court finds that the inconsistencies between these government records 

support two reasonable inferences. 

The first inference arises from the County Surveryor’s determination that 806 N. Grant 

had an improvement: 806 N. Grant should have been assessed for the improvement on the land, 

meaning that the taxes for which 806 N. Grant was sold should have been greater. Such evidence 

calls into question the Tax Deed’s validity as it was not sold for the correct amount. See Ind. 

Code § 6-1.1-25-16(1)–(3). 

The second inference is that the assessing official (whomever that was) should have 

consolidated the two parcels, as those government records provided that official with notice of 

the home improvement on both 804 N. Grant and 806 N. Grant. Indiana law recognizes “actual 

notice” and “constructive notice.” Wienke v. Lynch, 407 N.E.2d 280, 286 (Ind. Ct. App. 1980) 

(citations and quotation marks omitted). Actual notice is when information “has been directly 

and personally given to the person to be notified,” whereas constructive notice “is a legal 

inference from established facts.” Id. Here, the evidence does not show any assessing official had 

actual knowledge of the home improvement located on 804 N. Grant, but it does raise an issue of 

fact as to whether an assessing official had constructive knowledge. Based upon proferred GIS 

maps and assessments, it would be reasonable to expect an assessing official to know that there 

was a home partially on both the 804 N. Grant and 806 N. Grant parcels, and to thus be required 

under state law to consolidate the two parcels. Ind. Code § 6-1.1-5-16. 
11 

Accordingly, the Court finds that the evidence the Plaintiff presented raises questions as 

to the Tax Deed’s validity, which renders summary judgment inappropriate at this time. 

D. Failure to Describe the Property with Reasonable Certainty 

The Plaintiff also challenges Defendant NASA Leasing’s Tax Deed on the basis that it 

failed to describe the property with reasonable certainty. The Plaintiff relies on the same 

evidence discussed previously to argue that, if Defendant NASA Leasing’s position is correct, 

then the written Tax Deed should have stated a one-half interest in the home on 804 N. Grant. 

The Court finds that such an argument fails because there is no rule under Indiana law that says 

if there is some confusion over the boundaries of a parcel, then that parcel is not described with 

reasonable certainty. All that Indiana law requires for reasonable certainty is the “name of the 

subdivision” and “a description of the property, including the number of acres, contained in a 

deed, mortgage, will, or other public record . . . .” Nieto v. Kezy, 846 N.E.2d 327, 339–40 (Ind. 

Ct. App. 2006) (internal quotation marks omitted). In the analogous context of the Statute of 

Frauds, this requirement of reasonable certainty need not “be sufficient to identify the land, but 

only . . . furnish[] the means of identification.” Blake v. Hosford, 387 N.E.2d 1335, 1340 (Ind. 

Ct. App. 1979) (citing Dowd v. Andrews, 134 N.E. 294, 296 (1922)). In Nieto, the redemption 

notice was reasonably certain even though it gave only the legal description “26–36–0244–0029 

E.90FT L23 BL 4 E.90FT L24 BL.4” with no other identifying information. Here, the Tax Deed 

included not only a legal description but the commonly known address “806 N. Grant,” as well. 

Accordingly, the Court finds that the Tax Deed describes the property with reasonable certainty. 

 
12 

CONCLUSION 

 For the aforementioned reasons, the Court DENIES Defendant NASA Leasing’s Motion 

for Summary Judgment [ECF No. 100]. 

SO ORDERED on November 18, 2016. 

 s/ Theresa L. Springmann 

 THERESA L. SPRINGMANN 

 UNITED STATES DISTRICT COURT 

 FORT WAYNE DIVISION