Attempt to change ‘and’ to ‘or’ stumbles in court

A lawsuit brought to prevent a single-word change in a state law from taking effect ended Thursday with a dismissal, which followed an earlier ruling by the Marion Superior Court denying the plaintiffs’ motion to enjoin the state from enforcing the statute.

Marion Superior Judge James Osborn ordered Indiana Land Title Association, et al. v. State of Indiana and Marion County Recorder’s Office, 49D14-2008-PL-29187, dismissed without prejudiced. The ruling came one day after the plaintiffs and defendants jointly filed a stipulation of dismissal.

At issue was a change from “or” to “and” in Indiana Code § 32-21-2-3(1), which covers the requirements for getting a document recorded. To get an instrument recorded under the old language, it had to be “acknowledged by the grantor or proved” by the county recorder, notary public, mayor or other official. The new language switched conjunctions so the instrument had to be both acknowledged by the grantor and proved by an official.

The new language was included as an amendment to Senate Enrolled Act 340, which was signed into law March 18. As the effective date of July 1 came closer, attorneys grew concerned about the potential for the amended law to invalidate some power of attorney documents or create an additional hurdle for getting mortgages, deeds and other documents recorded.

A group of attorneys are working on a proposed fix for the 2021 session of the Indiana General Assembly. Also, the Indiana Land Title Association, Bosse Title Corp., Pulaski County Abstract Co. Inc., (d/b/a as Fulton County Title), Cass County Title Co. Inc. and Moore title & Escrow. Inc. filed the lawsuit, seeking to get the court to block the new language.

On Sept. 25, the Marion Superior Court denied the plaintiffs’ motion for temporary restraining order and preliminary injunction to enjoin the defendants from enforcing the statute.

The court found no irreparable harm could result since the state of Indiana has no role in recording instruments and the Marion County recorder has indicated it will proceed without requiring documents to be both acknowledged and proved. In addition, the court asserted the plaintiffs did not establish a prima facie case that the statute would be found unconstitutional.