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Tax sale petitions OK because of lack of notice

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The Indiana Court of Appeals ruled in favor of a woman in two separate cases involving the purchase of her property at tax sales in Franklin County after determining she received insufficient notice of the sales.

In both of the cases - Kimberly Neace v. Vinod C. Gupta, No. 24A01-0806-CV-255, and Kenneth Edwards v. Kimberly Neace, No. 24A04-0807-CV-401 - Neace had appealed the sale of parcels of property to Vinod Gupta and Kenneth Edwards. The Franklin County Auditor's office had an incorrect address listed for Neace, causing the pre-sale and post-sale notices of the tax sales and the petition for a tax deed to be returned as unclaimed or undeliverable.

The tax sale occurred in September 2005, and the tax deeds were ordered in January 2007 in both sales. Neace didn't learn of the sales until April 2007 and petitioned the court to set aside the sales, alleging she didn't receive notice.

In Neace v. Gupta, the trial court granted Gupta's motion to dismiss her petition. The Indiana Court of Appeals reversed, ruling that although there is a 60-day statutory limit to appeal the order to issue a tax deed, an exception may be made when the petition for relief from judgment alleges the tax deed is void due to inadequate notice, wrote Judge Nancy Vaidik, who authored both opinions. The exception allows for an appeal to be brought under insufficient notice within a reasonable time frame. The appellate court had previously found a delay of more than four months to be reasonable in the case Diversified Investments v. U.S. Bank, NA, 838, N.E.2d 536, 544 (Ind. Ct. App. 2006). The Court of Appeals remanded for the trial court to hold the evidentiary hearing provided for by Ind. Trial Rule 60(D).

In Edwards v. Neace, Edwards appealed the trial court denial of his motion to correct errors after the court set aside the tax deed issued to him. Edwards argued the trial court lacked subject matter jurisdiction over Neace's petition since she filed it after the 60-day time limit. However, because Neace alleges insufficient notice of the sale and order to issue the tax deed, the trial court did have subject matter jurisdiction over her petition, wrote Judge Vaidik.

When notices are returned as undeliverable, further, practical action must be taken to attempt to notify an interested party of tax sale proceedings, she wrote.

The county auditor should have been aware there was a discrepancy in Neace's record since the "property address" was listed in Ohio and not in Indiana. Neither Edwards nor the auditor sent notice to her address of record instead of the property address, making the notices constitutionally insufficient, she wrote.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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