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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. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  2. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  3. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  4. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

  5. I whole-heartedly agree with Doug Church's comment, above. Indiana lawyers were especially fortunate to benefit from Tom Pyrz' leadership and foresight at a time when there has been unprecedented change in the legal profession. Consider how dramatically computer technology and its role in the practice of law have changed over the last 25 years. The impact of the great recession of 2008 dramatically changed the composition and structure of law firms across the country. Economic pressures altered what had long been a routine, robust annual recruitment process for law students and recent law school graduates. That has, in turn, impacted law school enrollment across the country, placing upward pressure on law school tuition. The internet continues to drive significant changes in the provision of legal services in both public and private sectors. The ISBA has worked to make quality legal representation accessible and affordable for all who need it and to raise general public understanding of Indiana laws and procedures. How difficult it would have been to tackle each of these issues without Tom's leadership. Tom has set the tone for positive change at the ISBA to meet the evolving practice needs of lawyers of all backgrounds and ages. He has led the organization with vision, patience, flexibility, commitment, thoughtfulness & even humor. He will, indeed, be a tough act to follow. Thank you, Tom, for all you've done and all the energy you've invested in making the ISBA an excellent, progressive, highly responsive, all-inclusive, respectful & respected professional association during his tenure there.

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