Robert H. Gentry, III v. Michael Blair (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Nov 06 2015, 6:02 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT APPELLEE PRO SE
Ronald K. Smith Michael Blair
Muncie, Indiana Eaton, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert H. Gentry, III, November 6, 2015
Appellant-Respondent, Court of Appeals Case No.
18A05-1504-MI-147
v. Appeal from the Delaware Circuit
Court
Michael Blair, The Honorable Thomas A.
Appellee-Petitioner. Cannon, Jr., Judge
Trial Court Cause No.
18C05-1309-MI-96
Najam, Judge.
Statement of the Case
[1] Robert H. Gentry III appeals the trial court’s order, following a hearing,
overruling Gentry’s objection to the issuance of a tax deed for the property at
300 N. Meridian, Eaton, Indiana 47338 (“the property”) on which Gentry and
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John Bales owed delinquent taxes. Gentry raises two issues on appeal, which
we restate as follows:
1. Whether the trial court erred in holding that Michael
Blaire gave Gentry sufficient notice of the sale of the
property as required by state law and due process; and
2. Whether Gentry timely redeemed the property in good
faith reliance on one of the deadlines contained in the
Notice of Tax Sale.
[2] We affirm.
Facts and Procedural History
[3] When they bought the property, Gentry owned seventy-five percent of it, and
Bales owned the other twenty-five percent. At some point, Gentry and Bales
became delinquent on their property taxes and/or special assessments for the
property. In a Notice of Tax Sale dated July 18, 2013, the Auditor of Delaware
County informed Gentry and Bales, pursuant to Indiana Code Section 6-1.1-24-
4, that the auditor would apply on or after September 13, 2013, for a court
judgment and order to sell the property, subject to the right of redemption, due
to the delinquent taxes. The Notice was addressed to Gentry and Bales at
“P.O. Box 445, Eaton, Indiana 47338-0445” (“the P.O. Box”) and was sent by
certified mail. Appellant’s App. at 41. The Notice informed Gentry and Bales
that “[t]he period of redemption will expire on Wednesday, October 1, 2014[,]
for property sold on this sale,” and “[t]he period of redemption for a property
not sold on this sale will expire on: Wednesday, January 29, 2014[,] if the
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county intends to pursue title to the parcel. The terms of redemption are
specified in IC 6-1.1-25-4.” Id. The notice was mailed to the correct address
according to the Delaware County Auditor’s records for the property at the
time the notice was sent. However, at the end of July or August 2014, Gentry
changed his mailing address with the post office to have all mail forwarded
from the property to an address in Florida.
[4] On September 26, 2013, the Delaware County auditor and treasurer received a
court judgment and order of sale for the property. At a tax sale held on October
1, 2013, the Delaware County Commissioners bought the property and received
a Tax Sale Certificate from the county auditor, pursuant to Indiana Code
Section 6-1.1-24-9. The certificate stated that Delaware County would be
entitled to the deed for the property unless it was redeemed by January 29,
2014, i.e., 120 days from the date of the tax sale.
[5] On April 14, 2014, the Delaware County Commissioners assigned the property
to Michael Blaire, pursuant to Indiana Code Section 6-1.1-24-6.1 and 6.4, for
$200. In a document entitled “Notice of Sale and Date of Expiration of Period
of Redemption,” dated June 20, 2014, Blaire provided Gentry and Bales with
notice that the property had been assigned to Blaire and that he would file a
petition for a tax deed to the property on or after August 12, 2014, unless the
property was redeemed by that date, i.e., 120 days from the date of the
assignment. The notice was sent by certified mail to Gentry and Bales at the
P.O. Box. A copy of the notice was also posted on the property itself at around
the same time the notice was mailed.
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[6] On August 18, 2014, Blaire filed his verified petition for the issuance of a tax
deed for the property. On the same date, he sent Gentry and Bales, by certified
mail, a document entitled “Notice of filing Petition for Tax Deed.” Id. at 15.
The notice informed Gentry and Bales that the petition for the tax deed was
filed on August 18, 2014, and that they had no later than thirty days after the
filing of that petition to object to it. The notice was mailed to Gentry and Bales
at the P.O. Box. The notice was also mailed to Gentry at his address in
Florida, i.e., “5750 Oak Hollow Ln., Oviedo, FL 32765.” Id. at 16.
[7] On September 15, 2014, Blaire filed his Affidavit and Proof of Notice in which
he informed the trial court that he had sent Gentry and Bales a notice of tax sale
and right of redemption on June 20, 2014, to their last known address of record,
in compliance with Indiana Code Section 6-1.1-25-4.5 (“the Section 4.5
notice”), and a notice of filing of petition for tax deed on August 18, 2014, to
their last known addresses of record, in compliance with Indiana Code 6-1.1-25-
4.6 (“the Section 4.6 notice”). Blaire attached to the Affidavit and Proof of
Notice post-marked and certified mail receipts showing that the Section 4.5
notice was mailed to Gentry and Bales at the P.O. Box, and the Section 4.6
notice was mailed to Gentry at both the P.O. Box and his address in Florida.
[8] On September 17, 2014, Gentry filed his timely Objection to Issuance of Tax
Deed, in which he alleged that Blaire was ineligible to purchase the property
and that “[p]roper notice [had] not been given to the parties concerning the tax
sale or the issuance of a tax deed.” Id. at 18. The trial court held a hearing on
December 4, 2014, at which both parties testified and presented other evidence.
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In particular, Gentry testified that he did see both the Notice of Tax Sale dated
July 18, 2013, and the Tax Sale Certificate dated October 2, 2013. Gentry also
testified that Bales had agreed to check the P.O. Box periodically and forward
any mail to Gentry at his address in Florida. Bales had complied with that
agreement until sometime around August 2013, at which point Bales stopped
checking the P.O. Box for mail because Gentry had stopped paying Bales.
Bales testified that he was aware throughout the tax sale process that the
property was being sold and that Blaire might buy it. But Gentry testified that
Bales did not tell him the property was in the process of being sold and Gentry
did not learn that the property was sold until he tried to pay the delinquent
taxes in September 2014.
[9] On January 23, 2015, the trial court issued findings and conclusions in its order
overruling Gentry’s objection to the issuance of the tax deed, and on February
4, 2015, the court issued an order directing the auditor of Delaware County to
issue the tax deed to Blaire. Gentry filed a motion to correct error, which the
court denied. This appeal ensued.
Discussion and Decision
Standard of Review
[10] Gentry alleges the trial court erred in overruling his objection and ordering that
the tax sale deed be issued to Blaire. When a trial court enters findings and
conclusions, as the court here did,
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[we] first determine whether the evidence supports the findings
and then whether the findings support the judgment. Marion
Cnty. Auditor v. Sawmill Creek, LLC, 964 N.E.2d 213, 216 (Ind.
2012). We will not set aside the findings or judgment unless
clearly erroneous. Id. In reviewing the findings we neither
reweigh the evidence nor reassess the credibility of the witnesses.
Id. The evidence is viewed in the light most favorable to the
judgment, and we will defer to the trial court’s factual findings if
they are supported by the evidence and any legitimate inferences
therefrom. Id. at 216-17. Legal conclusions are reviewed de
novo. Id. at 217. A judgment is clearly erroneous if it applies the
wrong legal standard to properly found facts. Id.
2011 Marion County Tax Sale v. Marion County Auditor, 14 N.E.3d 883, 890 (Ind.
Ct. App. 2014).
Issue One: Notice Required by State Law and Due Process
[11] Gentry claims he did not get the notices of the tax sale that are required by state
law and due process. Indiana statutes make clear the process required for tax
sales of real property with delinquent taxes.
If an owner of real estate fails to pay the property taxes, the
property may be sold to satisfy the tax obligation. The tax sale
process is a purely statutory creation and requires material
compliance with each step of the governing statutes, Ind. Code §§
6-1.1-24-1 through -14 (sale) and 6-1.1-25-1 through -19
(redemption and tax deeds). Reeder Associates II [v, Chicago Belle,
Ltd.], 778 N.E.2d [828,] 831 [Ind. Ct. App. 2002), trans. denied].
The issuance of a tax deed creates a presumption that a tax sale
and all of the steps leading up to the issuance of the tax deed are
proper. However, this presumption may be rebutted by
affirmative evidence to the contrary. Id. Title conveyed by a tax
deed may be defeated if the three notices required by Ind. Code
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§§ 6-1.1-24-4 (notice of tax sale), 6-1.1-25-4.5 (notice of the right
of redemption), and 6-1.1-25-4.6 (notice of petition for tax deed)
were not in substantial compliance with the requirements
prescribed in those sections. Id.; Ind. Code § 6-1.1-25-16(7).
Schaefer v. Kumar, 804 N.E.2d 184, 191 (Ind. Ct. App. 2004), trans. denied. The
three required notices must be sent by certified mail to the last known address
contained in the county auditor’s records. I.C. § 6-1.1-24-4; -25-4.5(c), (d), (h);
-25-4.6 (2013 & 2014).1 Notices sent in such a manner are “considered
sufficient” under Indiana Code Sections 6-1.1-25-4.5(h) and 6-1.1-25-4.6. State
law also requires that the owner of the real property at issue “shall notify the
county auditor of the owner’s correct address.” I.C. § 6-1.1-24-4(a).
[12] Neither Indiana statutes nor due process requires that the owner of the property
actually receives notice, so long as the notice is sent in compliance with
Indiana’s statutory scheme for tax sales. See Jones v. Flowers, 547 U.S. 220, 226
(2006); 2011 Marion County Tax Sale, 14 N.E.3d at 890. Thus, a certified mail
1
Indiana Code Section 6-1.1-24-4 (2013) provides in relevant part that “the county auditor shall send a
notice of the sale by certified mail, return receipt requested, to . . . at least one of the owners . . . at the last
address of the owner for the property indicated in the records of the county auditor . . . .”
Indiana Code Section 6-1.1-25-4.5(c) (2013) provides in relevant part that a purchaser of a certificate of sale
must, “not later than ninety (90) days after the date of sale[,] . . . give[] notice of the sale to . . . the owner of
record at the time of the sale.” Indiana Code Section 6-1.1-25-4.5(d) provides in relevant part that the person
giving notice must do so by “sending a copy of the notice by certified mail to . . . the owner of record . . . at
the last address of the owner for the property, as indicated in the records of the county auditor . . . .” Indiana
Code Section 6-1.1-25-4.5(h) provides that “[t]he notice required by this section is considered sufficient if the
notice is mailed to the address required under subsection (d).”
And Indiana Code Section 6-1.1-25-4.6 (2014) provides in relevant part that the purchaser must give notice of
the filing of a verified petition for issuance of a tax deed “to the same parties and in the same manner as
provided in section 4.5 of this chapter . . . . The notice . . . is considered sufficient if the notice is sent to the
address required by section 4.5(d) of this chapter.”
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receipt, postmarked by the post office and sent to the last known address in the
auditor’s records, “is sufficient to prove [a notice was sent by] certified mail and
complied with the statute,” even if no return receipt is requested and the owner
asserts that he never received actual notice. Gupta v. Busan, 5 N.E.3d 413, 417
(Ind. Ct. App. 2014), trans. denied. Moreover, the county auditor is not required
to search any other records to find an updated address, Combs v. Tolle, 816
N.E.2d 432, 437-38 (Ind. Ct. App. 2004), unless a notice is returned to the
auditor due to an insufficient or incorrect address, Farmers Mut. Ins. Co. of Grant
& Blackford Cntys. v. M Jewell, LLC, 992 N.E.2d 751, 757-58 (Ind. Ct. App.
2013), trans. denied; see also Oliverio v. Chumley, 817 N.E.2d 660, 663 (Ind. Ct.
App. 2004) (“Since the 2001 amendment, nothing in the statute requires a tax
sale purchaser to notify an owner of record by any means other than by certified
mail to the address maintained by the county auditor’s office.”).
[13] Gentry claims that he did not receive actual notice of the tax sale pursuant to
either Section 4.5 or Section 4.6. But, in light of the evidence presented by
Blaire, actual notice was not required. In particular, Blaire presented evidence
that he sent the Section 4.5 notice by certified mail to Gentry and Bales to the
P.O. Box, which was the last known address listed for them in the county
auditor’s records at the time. Blaire also presented evidence that he sent the
Section 4.6 notice by certified mail to Gentry at his home address in Florida.
And there is no evidence that either the Section 4.5 notice or the Section 4.6
notice was returned due to an insufficient or incorrect address. Thus, the
evidence supports the trial court’s finding that Blaire provided notice to Gentry
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as required by state statute and due process. Gentry’s contention on appeal
amounts to a request that we reweigh the evidence, which we will not do.
Issue Two: Redemption
[14] Nevertheless, Gentry claims he timely attempted to redeem the property on
September 15, 2014, in “good faith reliance”2 on the Notice of Tax Sale
statement that the period of redemption expired on October 1, 2014.
Appellant’s Br. at 1, 7-8. This argument lacks merit for several reasons. First,
the Notice of Tax Sale listed two different potential redemption dates: October
1, 2014, if the property were sold at the tax sale, or January 29, 2014, if the
property were not sold at the tax sale but the county “intend[ed] to pursue title”
to the property. Appellant’s App. at 41. Since the property was not sold at the
tax sale but, instead, the certificate of sale for the property was sold to the
county at the tax sale, the January 29, 2014, date was the applicable redemption
date. I.C. § 6-1.1-25-4(c). Gentry provides no explanation for his reliance on
the October 2014 date rather than the January 2014 date; regardless, his
reliance was clearly misplaced.
2
Gentry provides no legal authority or cogent argument as to how his reliance was “in good faith” or why
such reliance is even relevant within the context of the sale of property due to delinquent taxes where all
notices are sent in compliance with state law and due process. Gentry’s reliance on McBain v. Hamilton, 744
N.E.2d 984 (Ind. Ct. App. 2001), is misplaced. McBain says nothing about “reliance in good faith” on a
notice of the tax sale of property. Rather, in McBain we simply reiterated that, when a Notice of Tax Sale is
returned to the county auditor with a more recent address for the property owner, due process requires that
the auditor re-mail the notice to the more recent address. Id. at 989. Here, of course, the Notice of Tax Sale
was not returned to the auditor, and Gentry did actually receive a copy of the notice.
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[15] Second, Gentry admitted at the hearing that he saw the October 2, 2013,
Certificate of Sale, although there was no evidence presented as to when he saw
it. The Certificate of Sale states that “the expiration of the redemption period”
for the property was January 29, 2014. Appellant’s App. at 33. Thus, Gentry
again received actual notice that the redemption period was in January 2014.
[16] Finally, regardless of Gentry’s reliance on the October 1, 2014, redemption
date, Blaire met all the statutory and due process requirements for obtaining a
deed to property with delinquent taxes. Therefore, the trial court did not err in
concluding that Gentry’s objection lacked merit and should be overruled.
[17] Affirmed.
Kirsch, J., and Barnes, J., concur.
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