Finding error, COA reverses denial of tax sale

The deceased owner’s brother has lost possession of a 10-foot-wide vacant lot after the Indiana Court of Appeals found the trial court was “clearly erroneous” in finding the purchaser did not give proper notice.

Lloyd Simms disputed the sale of the vacant lot at 5820-36 W. 29th Ave. in Gary, which had belonged to his brother Leland Simms. Although Leland Simms died in 2013, the Lake County Assessor’s Office still lists him as the owner. Also, his mail was forwarded to Lloyd Simms, but Lloyd threw the mail away without opening it.

Eventually the lot was sold at a tax sale and Alexander Petrovski purchased an “Assignment of Commissioner Owned Tax Sale Certificate.” His attorney did a title search and sent notices, through first-class and certified mail, to both Leland Simms’ residence on Dallas Street and Lloyd Simms’ residence on Burr Street. In addition, Petrovki posted a notice to the fence along Dallas Street.

Windy City Acquisitions LLC then filed a verified petition for a tax deed after Petrovski assigned the tax sale certificate to it. Then Windy City sent notice of the filing to the vacant lot’s address as well as to the Dallas and Burr street addresses.

Subsequently, Brentwood Equitable Trust No. 1003-0613837, successor to Lloyd Simms, filed an objection to the issuance of the tax deed. Brentwood argued Lloyd did not receive proper notice of the tax sale.

The Lake Circuit Court denied Windy City’s petition, finding Windy City did not give adequate notice as required by Indiana Code §§ 6-1.1-25-4.5 and 6-1.1-25-4.6.

Windy City challenged the ruling and the Court of Appeals reversed in Windy City Acquisitions, LLC, v. Estate of Leland Simms, et al, and Brentwood Equitable Trust #1003-061387, and Green Leaf Enterprises, LLC, 20A-TP-2347.

The appellate panel determined the trial court’s finding of a lack of substantial compliance was clearly erroneous.

“We acknowledge that the notice requirements of Section 4.5 and 4.6 are complicated when the taxpayer is deceased and the tax records have not been updated,” Judge Elizabeth Tavitas wrote for the court. “Sending notices to the property and a decedent’s last known address may not guarantee actual notice. Actual notice, however, is not required, and Windy City’s additional posting of the notice on the property itself compels us to conclude that, under these circumstances, Windy City complied with the notice requirements.”

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