FILED
Oct 12 2017, 10:48 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES
Adam D. Decker J. Alex Bruggenschmidt
Crown Point, Indiana Buchanan & Bruggenschmidt, P.C.
Zionsville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lamasco Redevelopment, LLC, October 12, 2017
Appellant, Court of Appeals Case No.
33A01-1702-MI-398
v. Appeal from the Henry Circuit
Court.
The Honorable Bob A. Witham,
Henry County, Indiana, Auditor Judge.
and Henry County, Indiana, Trial Court Cause No.
Treasurer. 33C01-1509-MI-116
Appellees.
Sharpnack, Senior Judge
[1] The Henry County Auditor and the Henry County Treasurer have filed a
petition requesting rehearing of our July 25, 2017 opinion. Lamasco
Redevelopment, LLC v. Henry Cty, Ind., Auditor, 80 N.E.3d 257 (Ind. Ct. App.
2017). We grant rehearing to address the issues raised by the Auditor and
Treasurer, but we reaffirm our opinion.
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[2] The Auditor and Treasurer first claim the Court failed to consider all the
evidence. In the opinion, we noted that according to the warranty deed for
parcel 91, Justin Kolodziej paid Unique Real Estate Solutions, Inc., $10 for the
property. Id. at 259. We further stated in a footnote that $10 does not reflect a
substantial investment in the property. Id. at 263 fn 2.
[3] The Auditor and Treasurer now point to other evidence in the record indicating
that despite the representations in the warranty deed, Kolodziej paid $30,000
for the property after taking out a mortgage. The amount Kolodziej paid is
ultimately immaterial to our decision in this case. As we stated in the opinion,
“the key issue for us to resolve is whether the trial court was required to
invalidate the tax sale and vacate its orders to the Auditor to issue tax deeds to
Lamasco because of the Auditor’s unintentional violation of Indiana Code
section 32-21-8-7 by endorsing post-tax sale deeds to purchasers who had failed
to pay back taxes.” Id. at 260.
[4] Indiana Code section 32-21-8-7 clearly states that a county auditor may not
endorse a deed for the transfer of property that is being sold through a tax sale
unless the purported purchaser pays the delinquent property taxes. The statute
does not provide that the auditor’s erroneous endorsement of a deed during the
tax sale process renders the tax sale invalid, and for good reason. In this case,
the Auditor’s erroneous endorsement of Kolodziej’s warranty deed for parcel 91
did not affect the tax sale process in any way. The Auditor’s mistake appears to
be a matter for the Auditor and Kolodziej to resolve between themselves, not
grounds to undo Lamasco’s good-faith purchase, particularly considering
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Lamasco’s compliance with the requirements of the tax sale process. As we
have stated, the intent of Indiana Code section 32-21-8-7, as shown by its plain
language, is that “unless the property of the delinquent taxpayer is redeemed
during the redemption period, the tax sale process continues to its conclusion
with the issuance by the auditor of a deed to the tax sale purchaser.” Lamasco
Redevelopment, 80 N.E.3d at 261. Thus, the Auditor and Treasurer’s factual
argument does not provide grounds for reversal.
[5] The Auditor and the Treasurer next claim the opinion misstated key points in
In re 2014 Johnson County Tax Sale, 48 N.E.3d 340 (Ind. Ct. App. 2015). They
assert that in that case, “it was the county auditor, not the property owner, who
prosecuted the court action and requested the trial court to grant equitable relief
from the tax sale.” Petition for Rehearing p. 8. We disagree. In that case, the
property owner was a party to the case and participated in a hearing that
resulted in a refusal to issue a deed to a tax sale purchaser. The property owner
also participated in the appeal.
[6] Here, the Auditor and the Treasurer sent Kolodziej a copy of their motion to
invalidate the tax sale, but he made no appearance in the trial court or in this
Court to assert his claim to the property based on his deed. Furthermore, in the
current case, unlike In re 2014 Johnson County Tax Sale, the Auditor and
Treasurer sought to set aside deeds to protect themselves from claims based on
their failure to comply with the statutory requirements.
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[7] Viewed equitably, Lamasco, who did all required by law, stands on higher
ground than the county officials who failed to do all required by law and the
grantees who benefitted from that failure.
[8] For these reasons, we grant rehearing but reaffirm our opinion.
Bailey, J., and Robb, J., concur.
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