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COA: Questions remain whether proper notice given after tax sale

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The Indiana Court of Appeals, citing several questions of fact in a case involving a tax sale, affirmed denial of summary judgment for a mortgagee that sought to set aside the issuance of a tax deed.

WM Specialty Mortgage LLC issued a mortgage to Raymond Gresham on real estate in English, Ind. At issue is a 4.5-acre tract of land in which WM foreclosed but never was put through a sheriff’s sale. Due to delinquent property taxes, the land went through a tax sale, at which Marcus Burgher purchased it.

He sent notice of the sale and the right of redemption, referred to as the 4.5 Notice, and notice of his filing for a tax deed, referred to as the 4.6 Notice, to the California address listed for WM in its foreclosure complaint and the address on record with the county. The 4.6 Notice came back as undeliverable. The trial court ordered the county auditor to issue the tax deed to Burgher, who later transferred title of the real estate to Darrell and Barbara Calhoun via a quitclaim deed. WM then filed a motion to intervene and sought to set aside the tax sale and tax deed.

WM at first argued the California address was not its correct address to mail the notice, but later conceded it was. WM then argued that it was entitled to summary judgment because Burgher couldn’t prove he mailed the 4.5 notice via certified mail and he should have taken additional steps once he learned WM didn’t receive the 4.6 notice. First American was later substituted as intervenor after WM assigned its rights to the company. The Calhouns were substituted in place of Burgher because he sold the real estate to them.  The trial court denied summary judgment for First American, and the case went before the Court of Appeals on interlocutory appeal.

First American had the burden to rebut the presumption of the validity of the tax deed, but instead moved for summary judgment, claiming that Burgher wouldn’t be able to prove he complied with statute. This is not enough to meet its burden on summary judgment, Judge Rudolph Pyle III wrote in First American Title Insurance Company v. Darrell Calhoun and Barbara Calhoun, Successors to Marcus Burgher III, for Issuance of Tax Deed, 13A01-1304-MI-177.

First American argued that its failure to update its address in the county records has no effect on the results of this case, citing Jones. In Jones, the Supreme Court of the United States held “that when mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so.” But the Indiana Supreme Court has clarified that the additional steps the state must take specifically applies to pre-tax sale notice sent to property owners and not to a party with a substantial property interest, such as mortgagees, Pyle wrote.

The judges noted there are questions of fact regarding the constitutional adequacy of the 4.6 Notice and regarding the balancing of the parties’ interests as well as whether Burgher gave notice in a manner reasonably calculated to inform WM of the issuance of the tax deed. As such, the trial court properly denied WM Mortgage’s/First American’s motion for summary judgment.

 

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  1. I have dealt with more than a few I-465 moat-protected government attorneys and even judges who just cannot seem to wrap their heads around the core of this 800 year old document. I guess monarchial privileges and powers corrupt still ..... from an academic website on this fantastic "treaty" between the King and the people ... "Enduring Principles of Liberty Magna Carta was written by a group of 13th-century barons to protect their rights and property against a tyrannical king. There are two principles expressed in Magna Carta that resonate to this day: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land." "To no one will We sell, to no one will We deny or delay, right or justice." Inspiration for Americans During the American Revolution, Magna Carta served to inspire and justify action in liberty’s defense. The colonists believed they were entitled to the same rights as Englishmen, rights guaranteed in Magna Carta. They embedded those rights into the laws of their states and later into the Constitution and Bill of Rights. The Fifth Amendment to the Constitution ("no person shall . . . be deprived of life, liberty, or property, without due process of law.") is a direct descendent of Magna Carta's guarantee of proceedings according to the "law of the land." http://www.archives.gov/exhibits/featured_documents/magna_carta/

  2. I'm not sure what's more depressing: the fact that people would pay $35,000 per year to attend an unaccredited law school, or the fact that the same people "are hanging in there and willing to follow the dean’s lead in going forward" after the same school fails to gain accreditation, rendering their $70,000 and counting education worthless. Maybe it's a good thing these people can't sit for the bar.

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  5. Aristotle said 350 bc: "The most hated sort, and with the greatest reason, is usury, which makes a gain out of money itself, and not from the natural object of it. For money was intended to be used in exchange, but not to increase at interest. And this term interest, which means the birth of money from money, is applied to the breeding of money because the offspring resembles the parent. Wherefore of an modes of getting wealth this is the most unnatural.

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