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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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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