Auditor of Owen County and Treasurer of Owen County v. Asset Recovery, Inc.

Jul 18 2013, 6:26 am
FOR PUBLICATION
ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
RICHARD W. LORENZ JONATHAN PETERSEN
Hickam & Lorenz, P.C. NATASHA BURKETT
Spencer, Indiana Law Office of Jonathan Petersen
Hammond, Indiana
IN THE
COURT OF APPEALS OF INDIANA
AUDITOR OF OWEN COUNTY and )
TREASURER OF OWEN COUNTY, )
)
Appellants-Respondents, )
)
vs. ) No. 60A01-1212-MI-592
)
ASSET RECOVERY, INC., )
)
Appellee-Petitioner. )
APPEAL FROM THE OWEN CIRCUIT COURT
The Honorable Frank M. Nardi, Judge
Cause No. 60C01-1109-MI-453
July 18, 2013
OPINION - FOR PUBLICATION
BARTEAU, Senior Judge
STATEMENT OF THE CASE
The auditor and the treasurer of Owen County (“Owen County”) appeal the trial
court’s order granting Asset Recovery, Inc.’s “Verified Petition and Claim for Surplus
After Tax Sale.”
We reverse and remand.
ISSUE
Owen County presents one issue for our review, which we restate as: whether the
trial court erred by granting Asset Recovery’s petition to claim the surplus funds from the
tax sale of certain property in Owen County.
FACTS AND PROCEDURAL HISTORY
In 2010, real estate located in Owen County and belonging to Ora and Leafie
Chambers (collectively “the Chamberses”) was sold at a tax sale. Because the purchaser
paid more for the property than the amount required to fulfill the outstanding tax
obligations, the excess money was deposited in the county’s tax sale surplus fund in
accordance with Indiana Code section 6-1.1-24-7(a)(3) (2010). The Chamberses were
then entitled, pursuant to Indiana Code section 6-1.1-24-7(c)(1), to file a claim for the
money deposited in the fund. On March 16, 2012, the Chamberses signed a document
entitled “Bill of Sale and Assignment,” which purported to transfer to Asset Recovery
their right to the surplus funds from the tax sale of their property in the amount of
$7,465.50.
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In April 2012, Asset Recovery filed with the trial court a motion to intervene and a
petition for release of the surplus funds. Owen County filed an objection to Asset
Recovery’s motion and petition. The trial court held a hearing and granted the motion to
intervene but took under advisement Asset Recovery’s petition for release of the funds.
The trial court later granted the petition for release of the surplus funds. It is from this
order that Owen County now appeals.
DISCUSSION AND DECISION
Owen County contends that the trial court erred in granting Asset Recovery’s
petition for release of the funds. Specifically, Owen County argues that Indiana Code
section 6-1.1-24-7.5 (2010) invalidates the Bill of Sale and Assignment issued by the
Chamberses to Asset Recovery such that Asset Recovery is not entitled to the
Chamberses’ tax sale surplus funds.
We review the trial court’s grant of Asset Recovery’s petition for an abuse of
discretion. An abuse of discretion occurs when a trial court reaches a conclusion that is
against the logic and natural inferences that can be drawn from the facts and
circumstances before it. Orndorff v. Ind. Bureau of Motor Vehicles, 982 N.E.2d 312, 319
(Ind. Ct. App. 2012), trans. denied. An abuse of discretion also occurs when a trial court
misinterprets the law. Id. In addition, the trial court abuses its discretion when it fails to
comply with a statute, and our scope of review in that question is not limited in any way.
Matter of S.L., 599 N.E.2d 227, 230 (Ind. Ct. App. 1992).
Indiana Code section 6-1.1-24-7.5 provides:
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(a) For purposes of this section, “property owner” refers to the
owner of record of real property at the time the tax deed is issued
and who is divested of ownership by the issuance of the tax deed.
(b) If a property owner enters into an agreement on or after May 1,
2010, that has the primary purpose of paying compensation to locate,
deliver, recover, or assist in the recovery of money deposited in the
tax sale surplus fund under section 7(a)(3) of this chapter with
respect to real property as a result of a tax sale, the agreement is
valid only if the agreement:
(1) requires payment of compensation of not more than ten
percent (10%) of the amount collected from the tax sale
surplus fund with respect to the real property, unless the
amount collected is fifty dollars ($50) or less;
(2) is in writing;
(3) is signed by the property owner; and
(4) clearly sets forth:
(A) the amount deposited in the tax sale surplus fund
under section 7(a)(3) of this chapter with respect to the
real property; and
(B) the value of the property owner’s share of the
amount collected from the tax sale surplus fund with
respect to the real property after the compensation is
deducted.
Here, the Chamberses are the property owners as defined in Indiana Code section
6-1.1-24-7.5(a). They were the owners of record of the property when it was sold and a
tax deed was issued. As a result of that transaction, they were divested of their ownership
of the property. The parties do not dispute this.
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On March 16, 2012, the Chamberses entered into an agreement with Asset
Recovery, a Colorado corporation, whereby they purportedly sold to Asset Recovery
their rights to the surplus funds from the tax sale of their Indiana property. The
agreement is entitled “Bill of Sale and Assignment,” and its terms state that for the sum
of $4,479.30, $150 of which was paid in advance, the Chamberses assigned to Asset
Recovery their personal property, specifically the “Excess Proceeds claim in the amount
of $7,465.50 originating from the 9/1/2010 sale of tax defaulted property in Owen
County under Map #60-16-20-100-010.000-017.” Appellants’ App. p. 8.
This agreement between the Chamberses and Asset Recovery is invalid pursuant
to Indiana Code section 6-1.1-24-7.5(b) because it is an agreement that has the primary
purpose of paying compensation to recover money deposited in a tax sale surplus fund
with respect to property that has been the subject of a tax sale and requires payment of
compensation of more than 10% of the amount to be collected from the tax sale surplus
fund. We are unmoved by Asset Recovery’s disingenuous argument that the agreement
is a bill of sale and assignment and nothing more. While the agreement, in form and
label, is an assignment of rights to certain personal property (i.e., tax sale funds), it is in
substance an asset recovery agreement. Substantively the agreement states that Asset
Recovery will recover the Chamberses’ funds in the amount of $7,465.50 from Owen
County’s tax sale surplus fund and give $4,479.30 to the Chamberses. This leaves
$2,986.20 for Asset Recovery. The agreement contains no stated purpose, and we
discern no other purpose for the agreement than to pay compensation to Asset Recovery
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for its recovery of the Chamberses’ money from the tax sale surplus fund. Therefore, we
refuse to accept Asset Recovery’s invitation to regard the agreement between it and the
Chamberses as a bill of sale, thereby elevating its form over its true substance. See
Citizens Action Coal. of Ind., Inc. v. N. Ind. Pub. Serv. Co., 804 N.E.2d 289, 301 (Ind. Ct.
App. 2004) (stating that this Court has indicated its preference to place substance over
form). Moreover, justice should not be defeated by technicalities. Binninger v.
Hendricks Cnty. Bd. of Zoning Comm’rs, 668 N.E.2d 269, 272 (Ind. Ct. App. 1996)
(discussing Court’s policy not to exalt form over substance), trans. denied.
Having determined that the primary purpose of the agreement between Asset
Recovery and the Chamberses is to pay compensation to Asset Recovery to recover
money deposited in the tax sale surplus fund, we now turn to whether the agreement
requires payment of more than 10% of the amount collected. Pursuant to its agreement
with the Chamberses, Asset Recovery would receive $2,986.20. This amount is equal to
40% of the total amount collected from the surplus fund. In stark contrast, pursuant to
Indiana Code section 6-1.1-24-7.5(b)(1), Asset Recovery is limited to 10% of the total
amount collected from the surplus fund, which is equal to $746.55. Thus, Asset
Recovery would receive $2,239.65 more as a result of circumventing the statute. The
agreement is merely a ruse utilized by Asset Recovery to circumvent the 10% fee cap
statutorily mandated by Indiana Code section 6-1.1-24-7.5(b)(1). See, e.g., Greenpoint
Bank v. Criscione, 23 Misc.3d 1106, 885 N.Y.S.2d 711 (2009) (holding that New York
Abandoned Property Law § 1416 invalidated property recovery agreement because
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agreement provided for payment of fees in excess of 15% of value of recoverable
property).
Moreover, as a matter of public policy, the statute is designed to protect the
citizens of our state and to regulate the activities of property locator services whose
primary purpose is to locate money deposited in tax sale surplus funds by capping the
fees at 10% of the total amount collected from the surplus fund. Certainly, elderly
property owners are a particular group of the population to be protected by this statute as
their vulnerability is often preyed upon. Therefore, it would be error for us to ignore the
spirit and objectives of Indiana Code section 6-1.1-24-7.5 by allowing Asset Recovery to
be compensated for the recovery of the funds pursuant to the terms of its agreement with
the Chamberses.
CONCLUSION
For the reasons stated, we conclude that the trial court abused its discretion by
granting Asset Recovery’s petition for the release of the surplus funds.
Reversed and remanded for further action not inconsistent with this opinion.
BRADFORD, J., and BROWN, J., concur.
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