COA: Notice of sale was mailed within required time period

June 14, 2016

The Indiana Court of Appeals found notice of a tax sale was mailed 21 days before the sale took place as prescribed by Indiana Code, so it affirmed the denial of a man’s motion to set aside tax deeds on property he used to own.

Gregory Schafer stopped paying taxes on his real estate, and it was purchased by Kathryne Borchert in 1988 at a tax sale. In 1991, Schafer attempted to convey the property to Timothy and Francis Schafer, both attorneys, but the title did not transfer because Borchert owned it. This did cloud Borchert’s title in the property, however.

In 1992, Borchert filed an action to quite title to the real estate, and Schafer field a counterclaim seeking to set aside the tax deeds and quiet title in his favor. Borchert filed for summary judgment, but that claim was denied. She then filed in interlocutory appeal in which Schafer replied that Indiana Code 6-1.1-24-4 required notice of the tax sale be given to owners 21 days before the tax sale took place and his notice was one day late. In 1993, the case was continued generally and mediation failed in 1994. Over the next 20 years, trials were scheduled and rescheduled and Borchert died, with Richard Borchert taking Kathryne Borchert’s place.

A bench trial was conducted in 2015 and the trial court held that even if the notice was one day late, the notice substantially complied with the statutory procedure for tax sale notice. Schafer appealed.

The Court of Appeals found in an opinion written by Judge Robert Altice Jr. that the trial court did not need to rely on the substantial compliance doctrine because the notice of the tax sale was mailed in the 21-day window required by Indiana statute. The statute does not require the sale be held no fewer than 21 days after notice is mailed, Altice wrote, so the trial court erred because it counted the number of days from which the notice was mailed from the wrong direction. Also, the court misapplied Trial Court Rule 6(A), which states the day of the event shall not be included in the calculations.
Counting backwards from Oct. 2, 1988, the day before the sale was held, until the day the notice was mailed, Sept. 12, 1988, was 21 days, so the notice was made within the 21-day period.

The case is Gregory Schafer v. Kathryne Borchert d/b/a Southlake Realty, 56A04-1507-CP-977.



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