Transfer Denied - All Justices concur, except Rucker, J., votes to grant Transfer
9/6/2012
http://www.in.gov/judiciary/cofc/2338.htm
In the order at issue in the transfer request, the Court of Appeals held:
Indiana Code section 6-1.1-24-4 provides, in relevant part, that the county auditor must take the following steps when providing notice of tax sale to an owner of real property:
[T]he county auditor shall send a notice of the sale by certified mail, return receipt requested, to . . . the owner of record of real property with a single owner . . . at the last address of the owner for the property as indicated in the records of the county auditor on the date that the tax sale list is certified.
In addition, the county auditor shall mail a duplicate notice to the owner of record . . . by first class mail to the owners from whom the certified mail return receipt was not signed and returned.
Additionally, the county auditor may determine that mailing a first class notice to or serving a notice on the property is a reasonable step to notify the owner, if the address of the owner is not the same address as the physical location of the property.
If both notices are returned due to incorrect or insufficient addresses, the county auditor shall research the county auditor records to determine a more complete or accurate address. If a more complete or accurate address is found, the county auditor shall resend the notices to the address that is found in accordance with this section. Failure to obtain a more complete or accurate address does not invalidate an otherwise valid sale.
Ind. Code § 6-1.1-24-4.
The evidence shows that the Auditor complied with these steps when providing notice of the tax sale to the Trust. The Auditor sent, through its agent, SRI, a notice of tax sale via two certified mailings to Ali at 19910 Overlook Court, which was the last address on record in the Auditor’s office for the Trust. Both certified mailings were returned undelivered with no suggestions for a forwarding address. SRI then sent a notice of tax sale to Ali at 19910 Overlook through first class mail. There was no evidence that the first class mailing was returned undelivered, and as a result, the Auditor was not required to take additional steps pursuant to Indiana Code section 6-1.1-24-4. However, the Auditor apparently did conduct a search of the Auditor’s records and sent two more certified mailings to Ali at P.O. Box 3822. After all the certified mailings were returned undelivered, the Auditor published the notice of tax sale in a local paper prior to sale.
Although the Trust argues that Rahman notified the Auditor to change the mailing address where his tax statements should be sent, Rahman was not designated as the trustee or beneficiary of the Trust and had totally divested himself of any and all interest in the ownership of the properties. Tr. at 28, Tr. Supp. at 34. As a result, Rahman had no legal authority to change the mailing address of the Trust. Id. The burden is on the owner of the real property to notify the county auditor of the owner’s correct address. Ind. Code § 6-1.1-24-4. The Trust failed to provide any evidence that either owner of the properties, Ali, trustee of the Trust, or his successor trustee, Jawaad Rahman, contacted the Auditor to change the mailing address of the Trust.
Additionally, while the Trust argues that the physical addresses of the properties and personal property records related to the properties were in the Auditor’s records, the Auditor was not required to send the notice of tax sale to either address. First, the plain language of Indiana Code section 6-1.1-24-4 requires that the county auditor search the county auditor records only if both the notices mailed via certified mail and first class mail are returned due to incorrect or insufficient addresses. There was no evidence that the notice of tax sale sent via first class mail was returned undelivered. Even if both mailings had been returned undelivered, serving notice to the property address is left to the discretion of the county auditor. Ind. Code § 6-1.1-24-4. Finally, requiring the Auditor to associate the medical equipment owned by Rahman, who is neither a trustee nor beneficiary of the Trust, with the properties owned by Ali, trustee of the Trust, would demand that the Auditor engage in speculation.
Even though the Trust did not receive the notice of tax sale, “failure by an owner to receive or accept the notice . . . does not affect the validity of the judgment and order” as long as the county auditor has mailed the notice of tax sale to the required addresses. Ind. Code § 6-1.1-24-4. The evidence shows that the notices sent by the Auditor were sufficient under Indiana Code section 6-1.1-24-4. Accordingly, the trial court did not abuse its discretion in finding that the Auditor complied with statutory and constitutional requirements when sending notice relating to the tax sale of the properties.
Regarding the notice sent by Gupta, the Trust argues that the Marked Certified Mailing received by Gupta provided notice to him of the Trust’s correct mailing address. The Trust contends that Gupta’s failure to mail the notice of the right of redemption and the notice of filing a petition for tax deed to this address constituted statutorily and constitutionally defective notice.
Pursuant to Indiana Code section 6-1.1-25-4.5(d), the notice of the right of redemption is to be given “by sending a copy of the notice by certified mail to . . . the owner of record at the time of the . . . sale of the property . . . at the last address of the owner for the property, as indicated in the records of the county auditor . . . .” Notice of filing a petition for tax deed is given in the same manner. Ind. Code § 6-1.1-25-4.6(a). When the statutes are read in context of the United States Supreme Court’s decision in Jones v. Flowers, 547 U.S. 220, 225 (2006), notices mailed by certified mail and returned undelivered and unsigned, require “further action be taken . . . to effectuate notice reasonably calculated to apprise an interested party of tax sale proceedings . . . .” Edwards, 898 N.E.2d at 348 (quoting Jones, 547 U.S. 220 at 225). Resending notice via first class regular mail is considered to be such a “reasonable additional step.” Jones, 547 U.S. 220 at 234-235.
The evidence shows that Gupta complied with the notice requirements pursuant to Indiana statute by mailing the notice of the right of redemption and the notice of the petition for tax deed to the Trust by certified mail to 19910 Overlook Circle, the address on file in the Auditor’s office. He then took the additional steps of sending both notices via first class mail when the certified mailings were returned undelivered. The first class mailings were never returned undelivered. Finally, Gupta tacked notice on the door of the building located on the properties. “[P]osting notice on real property is ‘a singularly appropriate and effective way of ensuring that a person . . . is actually apprised of the proceedings against him.’” Jones, 547 U.S. at 236 (internal citation omitted).
Additionally, the evidence supports the trial court’s conclusion that the markings on the Marked Certified Mailing were “simply numbers coupled with other writings” and that it did not provide information to Gupta of “another address to which [Gupta] ha[d] another duty of notice.” Appellant’s App. at 13-15. The Marked Certified Mailing with the “19921” handwritten on the envelope and the “10 Ove” of the address crossed out, Appellant’s App. at 101, Def.’s Ex. A., did not provide direct proof from the U.S. Post Office of a correct forwarding address. In McBain v. Hamilton, 744 N.E.2d 984, 986 (Ind. Ct. App. 2001), we held that the Auditor was required to send notice to another address when “[t]he Notice, which the Auditor’s office sent by certified mail . . . was returned by the post office with a notation indicating that the order to forward the [property owners’] mail to their new address at 7612 Emerald Greens Drive in Cordova, Tennessee had expired.” No such clear notation was present here to require Gupta to send notice to a different address in order to comply with Indiana statute. Consequently, the trial court did not abuse its discretion in finding that Gupta complied with statutory and constitutional requirements when sending notice relating to the tax sale of the properties.
