Here, the trial court found that the auditor’s office (through its agent, SRI) sent notices, first by certified mail and then by first class mail, and that both notices were returned, thereby triggering the auditor’s duty to search his records for a more complete or accurate address. The trial court found further that the auditor’s office failed to search its records as required by statute. Nevertheless, the trial court upheld the tax sale based on its conclusion that any such search would have been futile. Specifically, the trial court found as follows:
2. Farmers Mutual was the true owner of the Property despite the scrivener’s error in the Corporate Warranty Deed that conveyed title to Farmers Mutual. . . .
3. Because the pre-tax sale notice sent by certified mail and the Duplicate Notice sent by regular mail were “returned”, the Auditor was required by Ind. Code § 6-1.1-24-4 to research his records to determine an accurate address for Farmers Mutual. The Auditor did not conduct the required search because SRI, the Auditor’s agent, claimed the Duplicate Notice was never returned.
4. However, had the Auditor researched his own records under the name of the owner of record, Farmers Mutual Insurance Company of Grant and Blackford Counties, Inc., the Auditor would not have discovered an alternative address for Farmers Mutual because Farmers Mutual had never provided the Auditor with a corrected or new address as it relates to the Property.
5. While Ind. Code § 6-1.1-24-4 does place a duty upon the Auditor to “research” his records in an attempt to discover a more complete or accurate address for the owner, it is inconceivable that the legislature intended for the Auditor to “research” names that are similar to that of the property owner in an effort to ascertain a better address for the owner. Accordingly, the fact that the Auditor did not research his own records for a better address is irrelevant.
Appellant’s Appendix at 27.
Thus, the trial court noted that the auditor had not carried out the duties imposed I.C. § 6-1.1-24-4, but determined that the failure was excusable because compliance with the statute would not have resulted in Farmers Mutual actually receiving notice. Putting aside the question of whether the auditor’s office would have discovered an alternate address for Farmers Mutual had it performed the requisite search, we cannot agree that noncompliance with the statute’s requirement that the auditor’s office search its records may be excused if it is later determined that such a search would have been fruitless.
Because I.C. § 6-1.1-24-4 was amended in response to the Supreme Court’s decision in Jones v. Flowers and for the purpose of codifying the due process principles set forth in that case, we interpret the statute with the reasoning of that case in mind. In Jones v. Flowers, the Court noted that “[d]ue process does not require that a property owner receive actual notice before the government may take his property.” 547 N.E.2d at 226. Instead, it is sufficient if notice is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id. (quoting Mullane v. Cent. Hanover Bank & Trust Co., 399 U.S. at 314). And “when notice is a person’s due . . . [t]he means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it[.]” Id. at 229 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 399 U.S. at 315).
Thus, in the due process analysis, the focus of the inquiry is not on the ultimate result of the auditor’s efforts, i.e., whether the landowner has received actual notice. Instead, the focus is on the efforts themselves, and whether they are consistent with the actions of one desirous of actually informing the landowner of the impending tax sale. We conclude that the same is true of the statute. When both pre-tax sale notices are returned due to an incorrect or insufficient address, both due process and I.C. § 6-1.1-24-4 require further action from the auditor. The statute prescribes the specific action the auditor must take in such a case—the auditor’s office must search its records for a more accurate or complete address. Whether a search of the auditor’s records would have produced an alternate address and resulted in Farmers Mutual receiving actual notice in this case is not the salient question; rather, the question is whether the auditor’s office performed the duties imposed by the statute. In this case, it is undisputed that it did not. Accordingly, the trial court erred in denying the petition to set aside the tax deed based on its conclusion that the auditor’s failure to search his records was, in essence, harmless.
The trial court also concluded that Farmers Mutual was not entitled to have the tax deed set aside due to its failure to comply with its statutory obligation to notify the auditor’s office of its correct address. Specifically, the trial court found as follows:
6. As further set forth in Ind. Code § 6-1.1-24-4, “Failure by an owner to receive or accept the notice required by this section does not affect the validity of the judgment and order. The owner of the real property shall notify the county auditor of the owner’s correct address.” Farmers Mutual failed to meet its obligation to notify the Auditor of the correct address under the statute.
7. Any confusion as to the proper name or address of Farmers Mutual was caused solely by Farmers Mutual’s failure to correct the flawed deed under which the Property was conveyed[3] or update its own address with the Auditor relative to the Property.
Appellant’s Appendix at 27-28.
We note, as did the trial court, that I.C. § 6-1.1-24-4 provides that “[t]he owner of real property shall notify the county auditor of the owner’s correct address.” The statute does not, however, indicate that a property owner’s failure to update his or her mailing address relieves the county auditor of his duties under the statute. Indeed, if we were to adopt such an approach, the requirement that the auditor’s office search its records for a more accurate or complete address in the event that the pre-tax sale notices are returned due to an incorrect or insufficient address would be meaningless; this is so because the very fact that the mailings have been returned means, in most cases, that the property owner has failed to provide a correct address.
Moreover, in Jones v. Flowers, the Supreme Court rejected any suggestion that a landowner’s failure to comply with a statutory obligation to keep his address updated forfeited his right to constitutionally sufficient notice. Although we decide this case on the basis of Indiana’s statutory notice requirements, the purpose of I.C. § 6-1.1-24-4 is to codify the applicable due process protections and instruct the auditor on how to provide constitutionally sufficient notice. Thus, to interpret the statute in a manner that conflicts with or provides less protection than the Due Process Clause would frustrate its clear legislative purpose. See Maser v. Hicks, 809 N.E.2d 429, 432 (Ind. Ct. App. 2004) (“[t]he cardinal rule of statutory construction is to determine and give effect to the true intent of the legislature”). Accordingly, we cannot conclude that a landowner’s failure to provide the auditor’s office with a correct mailing address excuses the auditor’s failure to carry out his duties under I.C. § 6-1.1-24-4.
Nevertheless, Jewell argues that Farmers Mutual is seeking equitable relief under T.R. 60(B) and, because Farmers Mutual failed to keep its address updated, it is barred from relief under the doctrine of unclean hands. As an initial matter, we note that it has often been said that a ruling on a T.R. 60(B) motion for relief from judgment is committed to “the equitable discretion of the trial court.” See, e.g., Fairrow v. Fairrow, 559 N.E.2d 597, 599 (Ind. 1990). In the context of actions to defeat tax deeds under I.C. § 6-1.1-25-16, however, T.R. 60(B) merely provides a procedural mechanism for asserting a claim under the statute.. Swami, Inc. v. Lee, 841 N.E.2d 1173 (Ind. Ct. App. 2006), trans. denied. Moreover, where a tax deed is void under I.C. § 6-1.1-25-16(7) due to a lack of substantial compliance with statutory notice procedures, the trial court exercises no discretion and is required to set aside the tax deed. Lindsey v. Neher, 988 N.E.2d 1207.
Indeed, the cases on which Jewell relies in support of its argument that the doctrine of unclean hands precludes setting aside the tax deed are inapposite because they involve situations in which the petitioners sought relief on purely equitable grounds, as opposed to seeking relief under I.C. § 6-1.1-25-16. In Swami, Inc. v. Lee, 841 N.E.2d 1173 (Ind. Ct. App. 2006), the petitioner did not assert any defect under I.C. § 6-1.1-25-16, but nevertheless sought equitable relief because it relied on a misrepresentation made by an employee of the county treasurer’s office that no taxes were due on the subject property. This court concluded that the trial court did not err in declining to set aside the tax deed on equitable grounds because the landowner had unclean hands due to its failure to keep its address updated. See also Tajuddin v. Sandhu Petroleum Corp. No. 3, 921 N.E.2d 891 (Ind. Ct. App. 2010) (concluding that notice had been provided, but affirming trial court’s award of equitable relief to party seeking to set aside tax deed, concluding that under the circumstances, the landowner’s failure to keep its address updated did not establish unclean hands). These cases are easily distinguishable because here, Farmers Mutual seeks relief based on one of the statutory grounds enumerated in I.C. § 6-1.1-25-16—namely, that the notices required by I.C. § 6-1.1-24-4 were not provided in substantial compliance with that section.
For all of these reasons, we conclude that the trial court’s judgment denying Farmers Mutual’s petition to set aside the tax deed was clearly erroneous. We therefore reverse the judgment of the trial court and remand with instructions to grant Farmers Mutual’s petition.
Judgment reversed and remanded with instructions.
http://www.in.gov/judiciary/opinions/pdf/07251310ehf.pdf
