      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                            Sep 03 2015, 8:24 am
      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                                         ATTORNEY FOR APPELLEE
      Vinod C. Gupta                                           Andrew M. Auersch
      Boca Raton, Florida                                      O’Connor & Auersch
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Vinod C. Gupta,                                          September 3, 2015
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               84A01-1412-MI-543
              v.                                               Appeal from the Vigo Superior
                                                               Court
      Green Tree Servicing LLC,                                The Honorable Michael J. Lewis,
      f/k/a Conseco Finance Servicing                          Judge
      Corp.,                                                   Trial Court Cause No.
      Appellee-Intervenor.                                     84D06-1208-MI-7316




      Kirsch, Judge.


[1]   Vinod C. Gupta (“Gupta”) appeals the trial court’s order setting aside the tax

      deed and voiding the tax sale of certain property he purchased for failure to

      provide proper service to the mortgage holder, Green Tree Servicing LLC


      Court of Appeals of Indiana | Memorandum Decision 84A01-1412-MI-543 | September 3, 2015   Page 1 of 6
      (“Green Tree”), f/k/a Conseco Finance Servicing, Corp. Gupta raises the

      following restated issue for our review: whether the trial court abused its

      discretion by excluding Gupta’s witness testimony at the hearing on Green

      Tree’s motion to void the tax sale.


[2]   We reverse and remand.


                                 Facts and Procedural History
[3]   On March 30, 2000, as security for a loan in the amount of $65,387.30, Michael

      and Beverly Cooper granted to Green Tree a mortgage lien on certain real

      property and the mobile home located thereon in Vigo County, Indiana. Green

      Tree’s mortgage on the property was recorded on April 7, 2000 in the Mortgage

      Record of the Vigo County Recorder. The address for Green Tree, then known

      as Conseco Finance Servicing Corp., is listed on the mortgage as “11595 N.

      Meridian Street, Suite 310, Carmel, IN 46032.” Appellee’s App. at 6. Green

      Tree had fully moved from that Carmel address by October 31, 2010.


[4]   Gupta purchased the property at a tax sale on September 12, 2012. On

      February 18, 2014, while investigating for a possible foreclosure action, Green

      Tree discovered that the property had been sold to Gupta at the September 2102

      tax sale, but could find no record of notice of the sale. In response to an inquiry

      by Green Tree about the notice of sale, Gupta produced copies of certified mail

      notices required under Indiana Code sections 6-1.1-24-4.5 and 6-1.1-24-4.6.

      However, by looking to the Postal Service records, Green Tree discovered that

      both notices had been sent to the vacated Carmel address. The notice under

      Court of Appeals of Indiana | Memorandum Decision 84A01-1412-MI-543 | September 3, 2015   Page 2 of 6
      Indiana Code section 6-1.1-24-4.5 was returned to Gupta marked as

      “Undeliverable as Addressed,” and the notice under Indiana Code section 6-

      1.1-24-4.6 was returned to Gupta marked as “Addressee Unknown.” Appellee’s

      App. at 18-23.


[5]   On June 4, 2014, Green Tree filed a motion to intervene and void the tax sale in

      Vigo Superior Court under the tax sale cause number and attached as exhibits

      Gupta’s tax sale notices, the USPS tracking confirmation reports, the certified

      mail receipts, and an affidavit by Green Tree. The trial court granted Green

      Tree’s motion to intervene on June 5, 2014 and set the motion for a hearing.

      Gupta did not respond to Green Tree’s motion, but did request two

      continuances of the hearing date.


[6]   A hearing on Green Tree’s motion was held on September 22, 2014. At the

      hearing, Green Tree argued that the tax sale should be voided based on the

      failed notice by Gupta, shown by the undelivered notices returned to Gupta.

      Gupta admitted that he sent those notices, but asserted he also mailed the

      notices by regular mail and posted notice on the door of the residence. Tr. at 7-

      8. Gupta further requested to present witness testimony to support his

      contention that he had taken additional steps to notify Green Tree of the tax

      sale. Green Tree objected to allowing Gupta to present witness testimony, and

      the trial court ruled that Gupta could not present any witnesses at the hearing.

      Gupta continued to testify and summarize the steps he took in addition to the

      certified notices sent to the Carmel address. He added that, “I have the witness,

      but since the Court is not allowing the witness, . . . that’s probably [a] moot

      Court of Appeals of Indiana | Memorandum Decision 84A01-1412-MI-543 | September 3, 2015   Page 3 of 6
      point. . . .[W]e can also say that this is what we did, we even called Green Tree

      and . . . somebody told them the taxes were not paid.” Id. at 10. At the

      conclusion of the hearing, the trial court issued an order voiding the tax sale.

      Gupta now appeals.


                                     Discussion and Decision
[7]   The decision to admit or exclude evidence is within the sound discretion of the

      trial court and will only be reversed upon a manifest abuse of that discretion.

      Ostrowski v. Everest Healthcare Ind., Inc., 956 N.E.2d 1144, 1149 (Ind. Ct. App.

      2011). An abuse of discretion occurs when the trial court’s decision is against

      the logic and effect of the facts and circumstances before the court. Id.


[8]   Gupta argues that the trial court abused its discretion in excluding his witness

      testimony at the hearing on Green Tree’s motion to void the tax sale. He urges

      that he should have been allowed to present any pertinent evidence regarding

      what additional steps he took to ascertain Green Tree’s address. Gupta

      contends that the hearing was held on Green Tree’s Trial Rule 60(B) motion,

      which made it an evidentiary hearing, and he, therefore, should have been

      given the opportunity to present all pertinent evidence, including his witness

      testimony.


[9]   Initially, Green Tree asserts that Gupta has waived his argument on appeal

      because he failed to make an offer of proof to the trial court. It is well settled

      that an offer of proof is required to preserve an error in the exclusion of a

      witness’s testimony. Barnett v. State, 916 N.E.2d 280, 287 (Ind. Ct. App. 2009),

      Court of Appeals of Indiana | Memorandum Decision 84A01-1412-MI-543 | September 3, 2015   Page 4 of 6
       trans. denied. An offer of proof allows the trial and appellate courts to determine

       the admissibility of the testimony and the potential for prejudice if it is

       excluded. Id.


[10]   Here, at the hearing, Gupta stated, “we also prove to the Court and I have a

       witness, live witness, here that we did additional steps. A reasonable

       (inaudible) to inform Green Tree.” Tr. at 8. Gupta additionally stated, “I

       would like to call some witnesses and prove that I did additional steps besides

       sending the notices certified mail.” Id. He further informed the court, “I have

       the witness, but since the Court is not allowing the witness, . . . that’s probably

       [a] moot point. . . .[W]e can also say that this is what we did, we even called

       Green Tree and . . . somebody told them the taxes were not paid.” Id. at 10.

       We conclude that this was sufficient to make an offer of proof as to what the

       excluded witness would testify, which was the additional steps taken by Gupta

       to notify Green Tree. This offer of proof was sufficient to preserve this issue for

       appeal.


[11]   Finding that Gupta did not waive his issue for appeal, we now turn to the

       merits of the case. Gupta claims that it was an abuse of discretion to exclude

       his witness’s testimony from the hearing as to whether to void the tax sale.

       Indiana courts have held that if the notice of a tax sale sent by the auditor to the

       landowner pursuant to statute has been returned due to an incorrect or

       insufficient address, due process requires that the auditor take additional steps

       to attempt to determine the landowner’s proper address. Farmers Mut. Ins. Co. of

       Grant & Blackford Counties v. M Jewell, LLC, 992 N.E.2d 751, 757 (Ind. Ct. App.

       Court of Appeals of Indiana | Memorandum Decision 84A01-1412-MI-543 | September 3, 2015   Page 5 of 6
       2013), trans. denied. Such due process requirements apply to a tax sale

       purchaser as well. Iemma v. JP Morgan Chase Bank, N.A., 992 N.E.2d 732, 740

       (Ind. Ct. App. 2013). The notice “must be ‘reasonably calculated under all the

       circumstances, to apprise interested parties of the pendency of the action and

       afford them an opportunity to present their objections.’” Id.


[12]   Therefore, Gupta was required to present evidence that he had taken additional

       steps to ascertain Green Tree’s proper address and that he provided sufficient

       notice to Green Tree. Green Tree’s motion to void the tax sale was filed

       pursuant to Trial Rule 60(B)(6). Trial Rule 60(D) states, “In passing upon a

       motion allowed by subdivision (B) of this rule the court shall hear any pertinent

       evidence . . . .” Gupta sought to admit testimony from a witness regarding the

       additional steps he took to notify Green Tree of the tax sale. We conclude that

       such evidence was pertinent to the issue before the trial court, and the trial court

       abused its discretion in excluding such evidence. We, therefore, reverse the

       trial court’s order voiding the tax sale and remand for further proceedings.


[13]   Reversed and remanded.


       Najam, J., and Barnes, J., concur.




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