The Indiana Supreme Court has reversed a trial court’s decision to set aside a tax deed, finding the Marion County auditor’s office satisfied the due process requirement articulated by the United States Supreme Court.
Sawmill Creek LLC, a Wyoming entity, purchased four acres of unimproved land on Rockville Road in Marion County. The closing statement, general warranty deed and the title insurance policy named the purchaser as “Saw Creek Investments LLC.” Bill Simpson, the manager of Sawmill Creek, didn’t notice the error. When Simpson moved his office from a Dandy Trail address to a location in Brownsburg, he stopped receiving tax bills on the property and became delinquent. The auditor tried sending notices of the sale to the Dandy Trail address through first class mail, but they came back as undeliverable and unable to forward. The auditor even sent notices to the previous owner, which also came back undeliverable. A title search didn’t reveal the new address of Sawmill Creek because the title company was using the incorrect name.
The property was sold at tax sale to McCord Investments. It wasn’t until an acquaintance of Simpson saw “for sale” signs posted on the property did Simpson learn of the tax sale. He filed a motion to set aside, which the trial court granted.
The Indiana Court of Appeals affirmed, but a majority of justices reversed, finding the auditor’s office did what it could to attempt to notify Simpson and Sawmill Creek of the sale. The majority cited Mullane v. Cent. Hanover Bank & Trust, 339 U.S. 306, 313, 70 S. Ct. 652, 656–57, 94 L. Ed. 865, 873 (1950), Jones v. Flowers, 547 U.S. 220, 126 S. Ct. 1708, 164 L. Ed.2d 415 (2006), and Dusenberry v. United States, 534 U.S. 161, 122 S. Ct. 694m 151 L.Ed.2d 597 (2002).
In Marion County Auditor, and McCord Investments, LLC v. Sawmill Creek, LLC a/k/a Saw Creek Investments, LLC, No. 49S02-1106-CV-364, the majority also rejected Sawmill’s argument that notice must be posted on the property when the owner of record can’t be located through any reasonable means.
Justice Robert Rucker dissented, writing he agreed with the decision by the Court of Appeals.