MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited before FILED
any court except for the purpose of
Oct 31 2017, 11:22 am
establishing the defense of res judicata,
collateral estoppel, or the law of the CLERK
Indiana Supreme Court
Court of Appeals
case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE,
BLN INVESTMENTS, LLC
William A. Ramsey
Joshua C. Neal Robert W. Eherenman
Barrett McNagny, LLP Andrew L. Teel
Fort Wayne, Indiana Haller & Colvin, P.C.
Fort Wayne, Indiana
ATTORNEYS FOR APPELLEES,
WILLIAM ROYCE, ALLEN COUNTY
TREASURER AND NICHOLAS D.
JORDAN, ALLEN COUNTY AUDITOR
Thomas A. Hardin
Shine & Hardin, LLP
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JLP, October 31, 2017
Appellant-Defendant, Court of Appeals Case No.
02A05-1703-MI-460
v.
Appeal from the Allen Circuit
Court
William Royce, Allen County
Treasurer, Nicholas D. Jordan, The Honorable Thomas J. Felts,
Judge
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Allen County Auditor, and BLN Trial Court Cause No.
Investments, LLC, 02C01-1606-PL-270
Appellees-Plaintiffs, 02C01-1408-MI-646
Barnes, Judge.
Case Summary
[1] JLP appeals the denial of its motion to set aside a tax deed and the grant of
summary judgment in favor of BLN Investments, LLC (“BLN”), regarding
BLN’s action to quiet title. We affirm.
Issue
[2] The sole issue before us is whether the trial court erred by finding that JLP
received adequate notice of tax sale proceedings.
Facts
[3] JLP, a general partnership, owned a parcel of real estate (the “parcel”) located
at 15415 Washington Street in Huntertown. JLP provided a business address of
521 Ley Road, Fort Wayne (“Ley address”), to the Allen County Auditor
(“Auditor”) as its business address of record. JLP eventually sold the property
located at the Ley address and began to use P.O. Box 219, Pleasant Lake, as its
new address. JLP failed to provide an updated business address to the Auditor,
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who continued to mail JLP’s tax-related documents concerning the parcel to
the Ley address.
[4] In November 2013, the Allen County zoning administrator filed suit against
JLP regarding an unrelated matter. The zoning administrator successfully
served process upon JLP at the Pleasant Lake P.O. box address.
[5] Due to unpaid property taxes, the parcel was included in Allen County’s 2014
tax sale. On July 11, 2014, a “notice of tax sale” was sent to JLP by certified
mail, return receipt requested, at the Ley address. The notice was returned to
the Auditor bearing “RETURN[ED] TO SENDER,” “UNCLAIMED,” and
“UNABLE TO FORWARD” markings. App. p. 86, 97. The Auditor then
sent the notice by regular first class mail to JLP at the Ley address on August 7,
2014. The post office did not return the second notice. JLP did not receive the
notice.
[6] On September 10, 2014, the parcel was sold at a tax sale to Robert F. Jones.
On March 10, 2015, a “notice to owner of record at the time of sale with a
substantial property interest of public record” was sent by certified mail, return
receipt requested, to JLP at the Ley address. The notice, intended to alert the
owner of record of its right to redeem the property, was returned to the Auditor
bearing “RETURN[ED] TO SENDER,” “UNCLAIMED,” and “UNABLE
TO FORWARD” markings. Id. at 87, 97. The Auditor then sent the notice by
regular mail to JLP at the Ley address on April 8, 2015. The post office did not
return the second notice to owner. JLP did not receive the notice.
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[7] On September 16, 2015, a “notice of petition for a tax deed” was sent to JLP at
the Ley address. The notice was returned to the Auditor bearing
“RETURN[ED] TO SENDER,” “UNCLAIMED,” and “UNABLE TO
FORWARD” markings. Id. at 87, 98. The Auditor then sent the notice by
regular first class mail to JLP at the Ley address on October 8, 2015; the post
office did not return it. JLP did not receive the notice. The Auditor also
published notice of the tax sale of the parcel in a newspaper1 and “researched
the records of the Allen County Auditor’s Office,” to no avail, in an effort to
identify an alternate address for JLP. See Appellant’s App. Vol. II, p. 87.
[8] The Allen County Circuit Court entered an order directing issuance of a tax
deed for the parcel on October 19, 2015. The Auditor issued a tax title deed to
Jones on October 26, 2015. On May 25, 2016, Jones conveyed the parcel to
BLN. On December 20, 2016, JLP filed a motion to set aside the judgment and
the tax deed. On February 1, 2017, the trial court conducted a hearing on the
motion to set aside the tax deed and denied the motion.
[9] In a separate action, BLN filed a complaint to quiet title on June 8, 2016. BLN
named as defendants all persons believed to have a claim or interest in the
parcel. On October 21, 2016, BLN filed a motion for summary judgment. JLP
filed a response and cross-motion for summary judgment on November 21,
2016. On February 2, 2017, the trial court conducted a hearing on the
1
The date of publication is unclear from the record; however, the fact of publication is not in dispute.
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summary judgment motions and, finding that (1) JLP failed to designate any
evidence that the Auditor failed to provide all of the notices required by law for
the tax sale; (2) the Auditor issued the notices in the manner prescribed by
statute; and (3) the Auditor took reasonable and practicable steps to inform JLP
of the tax sale, the trial court found that JLP was not deprived of due process
regarding the tax sale and that the tax sale was valid. The trial court further
decreed that BLN was the fee simple owner of the parcel and granted summary
judgment in its favor.
[10] On March 1, 2017, the trial court consolidated the tax deed and quiet title
actions. JLP now appeals from the denial of its motion to set aside the tax deed
and the grant of summary judgment in favor of BLN.
Analysis
[11] JLP argues that the tax deed at issue here is void because the Auditor failed to
provide constitutionally adequate notice of the tax sale. “[T]he proper
procedure for appealing the issuance of a tax deed is found in Ind[iana]Trial
Rule 60[.]” Kessen v. Graft, 694 N.E.2d 317, 320 (Ind. Ct. App. 1998), trans.
denied. Rule 60(B)(6) provides that a trial court may relieve a party from the
entry of judgment if the judgment is void. “Failure to comply substantially with
statutes governing tax sales renders void subsequent tax deeds which deprive
owners of their property.” Lindsey v. Neher, 988 N.E.2d 1207, 1210 (Ind. Ct.
App. 2003) (quoting Kessen, 694 N.E.2d at 320). As a general matter, a trial
court’s ruling on a Rule 60(B) motion is reviewed for an abuse of discretion.
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Rice v. Comm’r, Ind. Dep’t of Envtl. Mgmt., 782 N.E.2d 1000, 1003 (Ind. Ct. App.
2003). A ruling under Rule 60(B)(6), however, “requires no discretion on the
part of the trial court because either the judgment is void or it is valid.” Id. at
1003 (quoting Hotmix & Bituminous Equip. Inc. v. Hardrock Equip. Corp., 719
N.E.2d 824, 826 (Ind. Ct. App. 1999)).
[12] Our standard of review upon appeal from a trial court’s ruling at summary
judgment is well settled. A grant of summary judgment is reviewed de novo on
appeal. N. Ind. Pub. Serv. Co. v. U.S. Steel Corp., 907 N.E.2d 1012, 1018 (Ind.
2009). Summary judgment is appropriate only where there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of law.
T.R. 56(C); Shi v. Yi, 921 N.E.2d 31, 39 (Ind. Ct. App. 2010). Our review of an
order upon a motion for summary judgment is limited to the materials
designated to the trial court. Shi, 921 N.E.2d at 39. We draw all facts and
reasonable inferences therefrom in favor of the nonmovant, and we review
summary judgment decisions carefully to ensure a party was not improperly
denied its day in court. Id.
[13] If a real estate owner fails to pay property taxes, the property may be sold to
satisfy the tax obligation. Schaefer v. Kumar, 804 N.E.2d 184, 191 (Ind. Ct. App.
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2004), trans. denied. Indiana statutes make clear the process required for tax
sales of real property with delinquent taxes.2
A tax sale is purely a statutory creation, and material compliance
with each step of the statute is required. While a tax deed creates
a presumption that a tax sale and all of the steps leading to the
issuance of the tax deed are proper, the presumption may be
rebutted by affirmative evidence to the contrary. An order to
issue a tax deed will be given if the court finds that the notices
have been provided pursuant to the statutes. However, title
conveyed by a tax deed may be defeated if the notices were not in
substantial compliance with the manner prescribed by the
pertinent statutes.
Iemma v. JP Morgan Chase Bank, N.A., 992 N.E.2d 732, 738 (Ind. Ct. App. 2013)
(internal quotations and citations omitted). “A tax deed is void if the former
owner was not given constitutionally adequate notice of the tax sale
proceedings.” Schaefer, 804 N.E.2d at 192; see Ind. Code § 6-1.1-25-16(7).
Before the government may sell property due to unpaid property
taxes, the Due Process Clause of the Fourteenth Amendment to
the United States Constitution requires the government to
provide the owner with “notice and opportunity for hearing
appropriate to the nature of the case.” Marion Cnty. Auditor v.
Sawmill Creek, 964 N.E.2d 213, 217 (Ind. 2012) (quoting Jones v.
Flowers, 547 U.S. 220, 223, 126 S. Ct. 1708 (2006)). Due process
does not require that a property owner receive actual notice
before the government may take his property. Jones, 547 U.S. at
2
The statutes governing tax sales and tax deeds have been amended since the events in this case occurred.
Unless otherwise noted, citations to these statutes are to the edition of the Indiana Code in effect at the time
of the 2014 tax sale.
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226, 126 S. Ct. 1708. Rather, the government must provide
notice 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.
Prince v. Marion County Auditor, 992 N.E.2d 214, 219 (Ind. Ct. App. 2013).
[14] A person may defeat a tax deed only by proving one of the seven defects set
forth in Indiana Code Section 6-1.1-25-16. Swami, Inc. v. Lee, 841 N.E.2d 1173,
1177 (Ind. Ct. App. 2006), trans. denied. One such defect exists if the three
notices required by Indiana Code Sections 6-1.1-24-4 (notice of tax sale), 6-1.1-
25-4.5 (notice of the right of redemption), and 6-1.1-25-4.6 (notice of petition
for tax deed) were not in substantial compliance with the requirements
prescribed in those Sections. I.C. § 6-1.1-25-16(7); Schaefer, 804 N.E.2d at 191.
[15] The notice of tax sale is governed by Indiana Code Section 6-1.1-24-4,3 which at
the time of these events required the county auditor to send notice of the tax
sale (1) by certified mail, return receipt requested, to the owner(s) of the real
property “at the last address of the owner for the property as indicated in the
records of the county auditor”; and (2) by regular first class mail to the owners
from whom the certified mail return receipt was not signed and returned.” The
statute at the time further provided,
3
The version of Indiana Code section 6-1.1-24-4 was effective from March 14, 2012 to December 31, 2014.
The statute was subsequently amended by P.L. 247-2015, sec. 13, which became effective on January 1,
2015.
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If both notices are returned due to incorrect or insufficient
addresses, the county auditor shall research the county auditor
records to determine a more complete or accurate address. If a
more complete or accurate address is found, the county auditor
shall resend the notices to the address that is found in accordance
with this section. Failure to obtain a more complete or accurate
address does not invalidate an otherwise valid sale.
*****
Failure by an owner to receive or accept the notice required by
this section does not affect the validity of the judgment and order.
The owner of real property shall notify the county auditor of the
owner’s correct address. The notice required under this section is
considered sufficient if the notice is mailed to the address or
addresses required by this section.
[16] Next, Indiana Code Section 6-1.1-25-4.5 governs notices of the right of
redemption. The version in effect at the time of these events,4 provided in part
that a person who purchases property at a tax sale must send notice of the sale
and of the right of redemption “by certified mail” to “the owner of record . . . at
the last address of the owner for the property, as indicated in the records of the
county auditor”; and “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.” Indiana Code Section 6-1.1-25-4.5(d) provided that a notice that
4
The version of Indiana Code section 6-1.1-25-4.5 was effective from July 1, 2014 to December 31, 2015.
The statute was subsequently amended by P.L. 236-2015, which became effective on January 1, 2016.
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was mailed to “the last address of the owner for the property, as indicated in the
records of the county auditor” is “considered sufficient.”
[17] Finally, if the owner of record does not redeem the property from the tax sale
within the required period, the purchaser may petition the trial court for
issuance of a tax deed. I.C. § 6-1.1-25-4.6.5 The version in effect during the
relevant period required that tax sale purchaser to provide “[n]otice of his filing
of this petition . . . to the same parties and in the same manner as provided in
section 4.5 of this chapter[.]” See I.C. § § 6-1.1-25-4.5, 6-1.1-25-4.6. Thus,
Indiana Code Section 6-1.1-25-4.6 required that the notice of tax deed petition
be sent by certified mail to “the last address of the owner for the property, as
indicated in the records of the county auditor.” Notice sent in such a manner
was “considered sufficient.” I.C. § 6-1.1-25-4.6(a).
[18] Here, the record reveals that the three statutory notices were initially sent by
certified mail; however, each was returned bearing “RETURNED TO
SENDER,” “UNCLAIMED,” and “UNABLE TO FORWARD” markings.
App. p. 87, 97, 98. The Auditor then sent the notices by regular first class mail,
as required by the relevant statutes. See I.C. § 6-1.1-24-4(a) (In addition [to
sending notice of tax sale to the owner via certified mail, “the county auditor
5
The version of Indiana Code section 6-1.1-25-4.6 was effective from July 1, 2014 to June 30, 2015. The
statute was subsequently amended by P.L. 251-2015, sec. 22, which became effective on July 1, 2015.
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shall mail a duplicate notice to the owner of record . . . by first class mail to the
owners from whom the certified mail return receipt was not signed and
returned”); see Flowers, 547 U.S. at 234-35 (holding that following up with
regular mail after failed delivery of certified mail is an additional reasonable
step that might increase chances of actual notice to the property owner.). It is
undisputed that the Auditor also published the notice of tax sale in a
newspaper.
[19] The second set of notices, sent by regular first class mail, was not returned to
the Auditor. Had both sets of notices been returned, the Auditor’s duty to
search for a more complete or accurate address would have been triggered. See
I.C. 6-1.1-24-4 (“If both notices are returned are returned due to incorrect or
insufficient addresses, the county auditor shall research the county auditor
records to determine a more complete or accurate address.”). Nevertheless, the
Auditor researched the records of the Allen County Auditor’s Office to
determine if a more complete or accurate address existed for JLP. See
Appellant’s App. Vol. II p. 87. That the search ultimately proved fruitless
because JLP failed to supply an updated address is not a failing of the Auditor.6
6
To be clear, a property owner’s failure to provide an auditor with an updated address does not relieve the
auditor of his or her statutory duties. See Farmer’s Mut. Ins. Co. of Grant and Blackford Counties v. M Jewell, LLC,
992 N.E.2d 751, 759 (Ind. Ct. App. 2013) (“[W]e cannot conclude that a landowner’s failure to provide the
auditor’s office with a correct mailing address excuses the auditor’s failure to carry out his [or her] duties
under [Indiana Code Section] 6-1.1-24-4.”).
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See I.C. § 6-1.1-24-4(a) (owner of the real property at issue “shall notify the
county auditor of the owner’s correct address”).
[20] We reject JLP’s suggestion that the fact of the Allen County zoning
administrator having JLP’s updated Pleasant Lake P.O. Box address indicates
that the Auditor was derelict in failing to search all Allen County records to
determine JLP’s new address. JLP has presented no evidence to explain how
the zoning administrator found its address or how the Auditor could have
similarly located the updated address information. We cannot impute to the
Auditor a duty to conduct a county-wide, inter-agency electronic records
search, when no such obligation exists under Indiana’s existing tax sale
statutory scheme. See Flowers, 547 U.S. at 236 (“An open-ended search for a
new address—especially when the State obligates the taxpayer to keep his
address updated with the tax collector . . . imposes burdens on the State . . . .”).
If the Legislature intends for the Auditor to undertake such a duty and to
assume the attendant risks, it certainly knows how to do so.7
[21] Nor can we, as JLP urges, apply either of the readily distinguishable federal
cases upon which JLP relies. In Kelber, LLC, v. WVT, LLC, et al., 213 F. Supp.
7
A decision to undertake an open-ended search not only imposes burdens upon the State, but is also
potentially fraught with risk. Here, for instance, an open-ended search for an entity known only as “JLP”
could steer an auditor’s office far afield.
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3d 789, 791-92 (N.D. W.Va. Sept. 30, 2016), Kelber’s real property was sold at
a tax sale. The purchaser requested that the state auditor send the certified
notices of the tax sale proceedings to the purchaser’s list of persons entitled to
redeem the property. The purchaser also asked that the notices be sent via
regular first class mail and published. When the certified notices were returned
as undeliverable, the purchaser took no further steps to provide notice to
Kelber. Kelber is distinguishable because the purchaser’s duty to take additional
reasonable steps to provide notice to Kelber was triggered and went unheeded.
See Kelber, 213 F. Supp. 3d at 797 ([“Purchaser] not only failed to take further
steps after the unsuccessful delivery, it also demonstrated no desire whatsoever
to ascertain the results of its notification efforts. Essentially, it closed its eyes
and hoped for the best.”). Such is not the case here, as we have discussed.
[22] Also distinguishable is Caplash v. Johnson, 230 F. Supp. 3d 128 (W.D. N.Y. Jan,
18, 2017), which involved federal immigration officials’ failure to pursue
additional reasonable steps to notify a plaintiff of an outstanding USCIS request
for evidence before denying his immigration petition. The Caplash court found
that the immigration officials were specifically aware that Caplash would not
receive the notice, but still failed to take additional steps to provide him with
reasonable notice before denying his immigration petition. This distinction
renders Caplash factually inapposite for purposes of analyzing JLP’s claims.
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[23] Here, the Auditor substantially complied with the statutes that govern the
notices, and the manner of service that the Auditor chose was reasonably
calculated, under the circumstances, to apprise JLP of the pending tax sale
proceedings and to afford JLP an opportunity to object. See Prince, 992 N.E.2d
at 220; see also Sawmill Creek, 964 N.E.2d at 220 (determining that county
auditor’s manner of service satisfied due process requirements, despite the
property owner’s failure to receive actual notice, because Auditor published
notices in multiple ways, mailed notices to all known addresses, and obtained a
title search in an attempt to find additional addresses for the owner).
[24] Based on the foregoing, we conclude that JLP was not denied due process, and
the tax deed is valid; thus, the trial court properly denied JLP’s motion to set
aside the tax deed. Additionally, no genuine issue of material fact exists
regarding the superiority of BLN’s interest and title to the parcel, BLN’s status
as fee simple owner of the parcel, and as to whether BLN is entitled to
judgment as a matter of law. Accordingly, the trial court properly granted
summary judgment in BLN’s favor in its action to quiet title.
Conclusion
[25] We conclude that the trial court properly denied JLP’s motion to set aside the
tax deed. The trial court did not err in granting summary judgment in BLN’s
favor regarding BLN’s quiet title action. We affirm.
[26] Affirmed.
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May, J., and Bradford, J., concur.
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