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Appeals court affirms tax sale notice statute unconstitutional

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The Indiana Court of Appeals on Monday affirmed a trial court ruling denying a petition for a tax deed after a Bartholomew County tax sale, finding that the court was correct in ruling that the state’s statutory notice violated the 14th Amendment guarantee of due process.

In M & M Investment Group, LLC v. Ahlemeyer Farms, Inc. and Monroe Bank, 03A04-1112-CC-639, Bartholomew Circuit Judge Stephen R. Heimann denied M&M’s petition for a tax deed after it purchased a property in Columbus at a tax sale for $95,000. Monroe Bank had been the mortgagee, lending Ahlemeyer Farms a total of $750,000 in 2006 and 2007.

The Bartholomew County auditor provided Ahlemeyer Farms notice of tax sale but didn’t provide notice to Monroe Bank before the sale took place.

Indiana Code 6-1.1-24-3(b) says auditors shall mail notice to any mortgagee who annually requests, but states, “However, the failure of the county auditor to mail this notice or its nondelivery does not affect the validity of the judgment and order.”

Even though Monroe Bank had not requested notice of tax sale as the statute describes, the appeals court said it had been denied due process. The court cited Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983), in which the U.S. Supreme Court struck down an earlier version of Indiana pre-tax-sale notice law.

“When a mortgagee has a publicly recorded mortgage, as in the present case, we conclude, under the holdings of both Mennonite and [Jones v. Flowers, 547 U.S. 220 (2006)], that due process requires that the government must supplement notice by publication with pre-tax sale notice mailed to the mortgagee’s last known available address or by personal service, regardless of whether the mortgagee has requested such notice,” Judge James Kirsch wrote in a unanimous opinion.

“We therefore conclude that the Indiana pre-tax sale notice statute violates the Due Process Clause of the Fourteenth Amendment because it does not require the government to provide sufficient notice prior to the tax sale either by mail or by personal service to mortgagees who have publicly recorded mortgages, even if such notice is not requested by the mortgagees, and because it provides that, even if the government fails to mail the requested notice or the notice is undeliverable for some reason, the validity of the tax sale will not be affected,” Kirsch wrote.


 

 

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  1. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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