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.

APPELLANT PRO SE

Robert A. Hutchens

Carmel, Indiana

ATTORNEY FOR APPELLEE

Miranda D. Bray

Manley Deas Kochalski, LLC

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Robert A. Hutchens,

Appellant-Defendant,

v.

BAC Home Loans Servicing, LP,

Appellee-Plaintiff.

September 24, 2015

Court of Appeals Case No.

29A02-1503-MF-190

Appeal from the Hamilton Superior 

Court.

The Honorable Daniel J. Pfleging, 

Judge.

Cause No. 29D02-0904-MF-1651

Darden, Senior Judge

Statement of the Case

[1] Robert A. Hutchens appeals the trial court’s order denying his motion to set 

aside and vacate sheriff’s sale. We affirm.

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Issues

[2] Hutchens presents four issues for our review, which we consolidate and restate 

as:

I. Whether the trial court erred by denying Hutchens’ 

motion to set aside and vacate the sheriff’s sale.

II. Whether BAC lacks the capacity to maintain an action 

against Hutchens.

Facts and Procedural History

[3] This case began with the filing of a complaint to foreclose mortgage on April 

14, 2009. BAC subsequently filed a motion for summary judgment, and, 

following a hearing, the trial court granted BAC’s motion. Hutchens appealed 

the grant of summary judgment, and, this Court, in a memorandum decision, 

affirmed the trial court. Hutchens v. BAC Home Loans Servicing, LP, No. 29A02-

1010-MF-1085 (Ind. Ct. App. June 24, 2011). Hutchens sought transfer of this 

decision, but the Supreme Court denied his petition.

[4] Later, on February 6, 2013, BAC obtained an order for sheriff’s sale from the 

trial court, and a sheriff’s sale of the real estate was set for March 28, 2013. 

Hutchens was served with notice of the sheriff’s sale on March 6, 2013. On 

March 21, 2013, Hutchens filed a motion requesting the trial court to cancel the 

March 28, 2013 sheriff’s sale stating that he received inadequate notice of the 

sale. Hutchens argued that, pursuant to statute, he was entitled to receive 

notice thirty days prior to the sale and stated that he received notice only 

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twenty-two days prior. The trial court granted Hutchens’ motion to cancel the 

March 28, 2013 sale.

[5] Subsequently, BAC obtained a second order for sheriff’s sale from the trial 

court on March 25, 2014, and a sheriff’s sale was set for May 22, 2014. 

Hutchens was served with notice of the sheriff’s sale on April 29, 2014. On 

May 15, 2014, Hutchens filed a motion requesting the trial court to cancel the 

May 22, 2014 sheriff’s sale based upon the same argument as presented in his 

previous motion filed in March 2013. This time Hutchens alleged he received 

notice only twenty-three days prior to the sale. The trial court denied 

Hutchens’ motion. The sale proceeded on May 22, 2014, and BAC submitted a 

bid and bought the real estate. On May 28, 2014, Hutchens filed with the trial 

court a motion to set aside and vacate the sheriff’s sale. The trial court denied 

Hutchens’ motion on March 16, 2015, and this appeal ensued.

Discussion and Decision

I. Denial of Motion to Set Aside and Vacate Sheriff’s Sale

[6] Hutchens contends that the trial court erred by denying his motion to set aside 

and vacate the May 22, 2014 sheriff’s sale due to untimely notice. The vacation 

of a sheriff’s sale is committed to the sound discretion of the trial court and will 

not be disturbed absent a showing of an abuse of that discretion. Indi Invs., LLC 

v. Credit Union 1, 884 N.E.2d 896, 898 (Ind. Ct. App. 2008). “The law allows a 

trial court to take a commonsense approach in deciding whether or not to 

vacate a sheriff’s sale.” Id. In doing so, the court takes into consideration all 

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circumstances, such as the inadequacy of the price, the effect of procedural 

irregularities, the existence of inequitable conduct, the evidence of mistake or 

misapprehension, and problems with title. Id. The trial court’s decision in this 

regard is entitled to significant deference. Centex Home Equity Corp. v. Robinson, 

776 N.E.2d 935, 942 (Ind. Ct. App. 2002). 

[7] The crux of his argument is that an alleged procedural irregularity denied him 

due process. Hutchens asserts that the trial court should have vacated the sale 

because he did not receive sufficient advance notice. Particularly, he claims 

that the sheriff’s sale statute mandates thirty days’ prior notice to the owner of 

the real estate. Indiana Code section 32-29-7-3 governs notice of a sheriff’s sale. 

The version of the statute that was in place at the time the complaint for 

foreclosure was filed in this case provided, in pertinent part: 

(d) Before selling mortgaged property, the sheriff must advertise 

the sale by publication once each week for three (3) successive 

weeks in a daily or weekly newspaper of general circulation. The 

sheriff shall publish the advertisement in at least one (1) 

newspaper published and circulated in each county where the 

real estate is situated. The first publication shall be made at least 

thirty (30) days before the date of sale. At the time of placing the 

first advertisement by publication, the sheriff shall also serve a 

copy of the written or printed notice of sale upon each owner of 

the real estate. Service of the written notice shall be made as 

provided in the Indiana Rules of Trial Procedure governing 

service of process upon a person.

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Ind. Code §32-29-7-3 (2008).

1

[8] The words of a statute are to be given their plain, ordinary and usual meaning 

unless a contrary purpose is clearly shown by the statute itself, and the language 

employed is deemed to have been used intentionally. Schafer v. Sellersburg Town 

Council, 714 N.E.2d 212, 215 (Ind. Ct. App. 1999). The plain language of 

Indiana Code section 32-29-7-3(d) indicates that the notice of a sheriff’s sale is 

to be served upon the owner of the real estate approximately thirty days before 

the sale. However, the statute does not, as Hutchens asserts, mandate that 

exactly thirty days’ notice is to be given to the owner of the real estate. With 

this in mind, we look to the effect of the alleged procedural irregularity within 

the given circumstances.

[9] Even assuming irregularity of the sheriff’s sale notice, the fact remains that 

Hutchens had at least twenty-three days’ advance notice of the sale. Within 

that period of time, Hutchens mailed to counsel for BAC on May 1, 2014, a 

letter demanding that the May 22, 2014 sale be canceled. See Appellant’s 

Appendix pp. 48-49. Further, on May 15, he filed with the trial court his 

1 Previously in this case, the trial court granted Hutchens’ motion to cancel and vacate the sheriff’s sale of 

March 28, 2013, when he argued that he had insufficient notice because he had less than thirty days’ notice of 

the sale. According to Hutchens, the trial court erred when it subsequently denied his motion to set aside and 

vacate the sheriff’s sale of May 22, 2014 for the same reason because, in doing so, it acted contrary to the law 

of the case. He is incorrect. “The law of the case doctrine provides that an appellate court’s determination of 

a legal issue binds both the trial court and the appellate court in any subsequent appeal involving the same 

case and substantially the same facts.” Think Tank Software Dev. Corp. v. Chester, Inc., 30 N.E.3d 738, 744 

(Ind. Ct. App. 2015). Thus, the law of the case doctrine is inapplicable here.

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motion to cancel and vacate the May 22, 2014 sale with supporting 

memorandum of law and affidavit. 

[10] Moreover, this case has been pending since April 2009, with summary 

judgment having been granted to BAC and entered of record in September 2010 

and affirmed on appeal in June 2011. In addition, the property was advertised 

for sheriff’s sale in March 2013, and, through Hutchens’ filings with the trial 

court and argument that he had only received twenty-two days’ notice, the 

March 2013 sale was canceled. However, the CCS shows that following the 

cancellation of the first scheduled sheriff’s sale, the trial court conducted a 

status conference on April 4, 2013, at which Hutchens appeared in person and 

participated. At the status conference, the trial court inquired as to whether 

BAC intended to schedule another sheriff’s sale. BAC responded that it 

planned to set another sheriff’s sale, and possible dates for the sale were 

discussed in Hutchens’ presence. Thus, Hutchens was fully aware that BAC 

intended to sell the property at a subsequent sheriff’s sale. Further, in spite of 

all of Hutchens’ procedural maneuvering, we have not been made aware of any 

evidence to demonstrate that he has been harmed by less than thirty days’ 

notice of the sheriff’s sale or that he has the ability to redeem the property even 

if the sheriff’s sale was set aside. Given the totality of the circumstances of this 

case and the principles of common sense, we find that Hutchens had adequate 

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notice of the sale, and any irregularity in the notice is harmless and is not 

grounds for setting aside the May 22 sheriff’s sale.2

II. BAC’s Capacity to Maintain Action

[11] Hutchens additionally argues that BAC does not have the legal capacity to 

maintain this action against him. Indiana Trial Rule 9(A) provides that “[t]he 

burden of proving lack of such capacity [to sue], authority, or legal existence 

shall be upon the person asserting lack of it, and shall be pleaded as an 

affirmative defense.” Indiana Trial Rule 8(C) states that responsive pleadings 

shall set forth affirmatively all affirmative defenses. Failure to do so results in 

waiver. Molargik v. W. Enters., Inc., 605 N.E.2d 1197, 1199 (Ind. Ct. App. 

1993).

[12] The burden of pleading and proving this affirmative defense lies with Hutchens. 

However, he neither asserts nor provides any evidence that he raised lack of 

capacity as an affirmative defense in his responsive pleading in the trial court as 

required by the trial rules. Instead, in an effort to avoid waiver, Hutchens

points to his filing of a motion to dismiss the original complaint in 2009. In his 

reply brief, he refers to his 2009 motion to dismiss as a responsive pleading and 

claims that in it he raised the issue of BAC’s capacity to maintain this action. 

2 Hutchens asserts that his rights under both the federal and Indiana Constitutions as well as the Civil Rights 

Act were violated. His argument is based solely upon his contention that the sheriff’s sale statute mandates, 

at a minimum, thirty days’ notice to the owner. Because we recognize that the statute does not mandate a 

specific time period and that Hutchens’ twenty-three days’ advance notice is not grounds for setting aside the 

sheriff’s sale in this case, we need not address the constitutional claims he raises. 

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We have not been provided with these documents on appeal; however, we are 

able to glean some pertinent information from the CCS which shows that on 

November 19, 2009, Hutchens filed with the trial court a motion to dismiss the 

original complaint for failure to name and prosecute in the name of the real 

party in interest. Appellant’s App. pp. 5-6. At that time, the named plaintiff 

was Countrywide Home Loans Servicing, L.P. On February 22, 2010, 

however, Countrywide filed its response to Hutchens’ motion to dismiss as well 

as a motion to amend its name to BAC Home Loans Servicing, L.P. The trial 

court granted Countrywide’s motion to amend four days later on February 26, 

2010. Id. at 9.

[13] Subsequently, Hutchens raised the issue of whether BAC was a real party in 

interest when he appealed the trial court’s grant of summary judgment in favor 

of BAC on its foreclosure claim. A panel of this Court discussed Countrywide’s 

motion to amend and the amendment naming BAC as the plaintiff and 

concluded that BAC was authorized to pursue the foreclosure claim against 

Hutchens. See Hutchens, No. 29A02-1010-MF-1085, slip op. p. 4 n.2 and pp. 6-

8. Allowing Hutchens’ claim to continue in the instant appeal would allow him 

the possibility of endless litigation over BAC’s capacity to maintain this action. 

This issue went to judgment and was affirmed on appeal and cannot now be 

resurrected and relitigated; to do so would be to contravene the doctrine of res 

judicata. 

[14] Therefore, Hutchens has waived this issue by failing to plead it as an affirmative 

defense in his responsive pleading in the instant matter. Waiver 

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notwithstanding, the issue has been finally determined and may not be 

relitigated.

Conclusion

[15] For the reasons stated, we conclude that the trial court did not abuse its 

discretion in denying Hutchens’ motion to set aside and vacate the sheriff’s sale. 

Further, the issue of whether BAC has the capacity to maintain an action 

against Hutchens has been waived and, waiver aside, has already been litigated 

to a final determination.

[16] Affirmed.

[17] Kirsch, J., and Robb, J., concur.

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