Opinion
24A-TP-238
10-30-2024
A.J. Patrick, Appellant-Respondent v. Bryan Rivera, Appellee-Petitioner
APPELLANT PRO SE Andrew (A.J.) Patrick Anderson, Indiana ATTORNEY FOR APPELLEE Ralph E. Sipes Anderson, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Madison Circuit Court The Honorable Andrew R. Hopper, Judge The Honorable Christopher A. Cage, Commissioner Trial Court Cause No. 48C03-1911-TP-1026
APPELLANT PRO SE Andrew (A.J.) Patrick Anderson, Indiana
ATTORNEY FOR APPELLEE Ralph E. Sipes Anderson, Indiana
MEMORANDUM DECISION
Tavitas, Judge
Case Summary
[¶1] A.J. Patrick appeals the trial court's denial of his motion to set aside a tax deed issued to Bryan Rivera regarding Patrick's property. Patrick argues that his motion to set aside the tax deed was timely and that Rivera failed to provide Patrick with adequate notice as required by the relevant tax sale statutes. We agree that Rivera violated Patrick's due process rights by failing to take any additional reasonable steps to provide Patrick with notice of the action after Rivera's initial attempts were unsuccessful. Accordingly, the tax deed issued to Rivera is void, and the trial court erred by denying Patrick's motion to set aside the tax deed. We reverse and remand.
Issue
[¶2] Patrick raises multiple issues, which we consolidate and restate as whether the trial court erred by denying Patrick's motion to set aside the tax deed issued to Rivera.
Facts
[¶3] In October 2016, property located at 2212 Forkner Street in Anderson ("the Property") was conveyed to "AJ Patrick, 2317 Fletcher St, Anderson, IN," and the deed was later recorded in November 2016. Appellant's App. Vol. II p. 65. In March 2017, Patrick conveyed the Property to his father, Brian Patrick, and the special warranty deed was recorded on April 24, 2017. On October 2, 2018, Brian then conveyed the Property to "AJ Patrick, 333 E. 13th St Anderson, IN." Id. at 51. The special warranty deed was recorded on October 4, 2018.
[¶4] On October 15, 2018, the Property was placed for tax sale, and Rivera purchased the tax sale certificate from the treasurer of Madison County for $623.61. The tax sale certificate listed the owner of the Property as "Patrick Brian." Id. at 14.
[¶5] Rivera ordered a title search, which was effective January 22, 2019. The title search showed that "AJ Patrick" was the name of the grantee in the last deed of record. Id. at 16. According to the title search report, "Last transfer of record shows title in AJ Patrick by document recorded November 18, 2016 in Instrument No. 2016R015895 in the Office of the Recorder of Madison County." Id. at 17. The title search, thus, did not identify the conveyance from Patrick to Brian in 2017 nor from Brian back to Patrick in 2018, even though these transactions were recorded.
[¶6] On April 11, 2019, Rivera sent a Notice of Sale of Tax Sale Certificate to "AJ Patrick" at the Fletcher Street address in Anderson-the address identified in the 2016 deed-by certified mail. Id. at 21. The letter was returned "Return to Sender, Unclaimed, Unable to Forward." Id. at 27. The redemption period expired on October 15, 2019, and Patrick failed to redeem the Property.
Rivera also sent the letter to ACE Construction and the City of Anderson, and both of those certified letters were received.
[¶7] On November 22, 2019, Rivera filed a petition for a tax deed. To his petition, Rivera attached, among other exhibits, the County Treasurer's online records regarding the Property. Those records showed the following:
Deeded Owner:
Patrick A J (2018) Patrick A J (2017) Patrick Brian (2016) Patrick A J (2011) Davis Chris
Property Address:
2212 FORKNER ST Anderson, IN 46016
Id. at 37. Rivera, however, again sent the notice by certified mail to Patrick at the Fletcher Street address, not the 13th Street address shown in the Treasurer's records. Rivera did not present any documentation as to whether this certified mail was claimed by Patrick.
Mailing Address for Tax Statements
Type
Name
Address
Owner
Patrick A J
333 E 13th St Anderson, IN 46016 USA
[¶8] On January 3, 2020, the trial court granted Rivera's petition for a tax deed for the Property. A tax deed was then issued to Rivera on January 13, 2020, and recorded on January 21, 2020.
[¶9] On March 31, 2020, Patrick filed a petition to set aside the tax deed. Patrick argued that his address in the records of the county auditor was "333 E. 13th St., Anderson, IN" but the notices were sent to "2317 Fletcher St., Anderson, IN" and were undeliverable. Id. at 49. Thus, Patrick argued that he was not given adequate notice as required by Indiana Code Section 6-1.1-25-4.5 or Indiana Code Section 6-1.1-25-4.6 and that he was "not made aware of the sale of the real property until March 9th, 2020." Id.
[¶10] On May 11, 2020, before any further proceedings on Patrick's petition, Rivera conveyed the Property to Charles Campbell, and Campell later conveyed the Property to Raymundo Gregorio Sanjuan. On May 29, 2020, Patrick filed a motion for summary judgment. Rivera filed a motion to strike and argued that a motion for summary judgment was inappropriate in Trial Rule 60(B) proceedings. The trial court granted Rivera's motion to strike.
[¶11] On August 18, 2020, Patrick filed a motion to dismiss, which provided: 4. Now therefor[e], Patrick has no interest in reclaiming his property.
5. Patrick now rescinds his motion to Set Aside Tax deed, and further moves the Court to dismiss[] the matter with prejudice.
6. Patrick has contacted counsel for Brian Rivera and opposing counsel presented no objection, therefor[e] Patrick moves for the immediate dismissal of the Motion to Set Aside Tax Deed.Appellee's App. Vol. II pp. 36-37. On September 2, 2020, however, the trial court denied Patrick's motion to dismiss.
[¶12] Patrick filed another motion for summary judgment on November 14, 2021, and Rivera again filed a motion to strike and a motion for extension of time to respond to Patrick's motion. The trial court granted Rivera's motion for extension of time, but Rivera did not file a response to the motion for summary judgment. The trial court held a hearing on January 13, 2022, but Patrick's motion for summary judgment was barely mentioned at the hearing. Rather, at this hearing, the trial court heard evidence regarding Patrick's petition to set aside the tax deed. Patrick testified, and exhibits were entered into evidence. Patrick testified that he "never received any mail to [his] correct mailing address that's recorded about the sale ...." Tr. Vol. II p. 17. Rivera presented evidence that Patrick received mail at the Fletcher Street address in 2016 and but Patrick testified that the Fletcher Street address has "not been [his] legal address for quite a long time." Id. at 29.
Rivera presented evidence that Patrick routinely used the Fletcher Street address in 2016 and 2017 for his businesses, deeds, and legal filings. In fact, in 2017, in a brief to this Court, Patrick, the appellant in an appeal, listed his address as "Law Office of AJ Patrick, 2317 Fletcher St., Anderson, IN 46016." Ex. Vol. I p. 32. Patrick, however, admitted during his testimony that he is not an attorney.
[¶13] Rivera argued that: (1) Patrick's petition to set aside the tax deed was untimely; (2) Rivera substantially complied with the notice requirements because Patrick receives mail at the Fletcher Street address; (3) Patrick failed to make subsequent owners of the Property parties to the proceeding; (4) Patrick has unclean hands because he appeared to transfer properties during tax sale months to cause confusion; and (5) by filing the motion to dismiss, Patrick made judicial admissions that warranted the denial of his petition to set aside. Rivera's counsel admitted that he sent the notices to the address identified in the title search and "didn't go back and look at the Auditor's records." Id. at 46.
[¶14] The trial court then denied Patrick's motion for summary judgment on July 6, 2022, but did not issue an order regarding Patrick's motion to set aside. Patrick filed a motion to set a hearing date, and the trial court held a hearing on March 22, 2023. Rivera argued that the trial court had already heard evidence on the petition to set aside in January 2022. The trial court allowed the parties an opportunity to review the January 2022 hearing and submit arguments. Both parties did so, and on January 5, 2024, the trial court denied Patrick's motion to set aside the tax deed.
Discussion and Decision
[¶15] Patrick challenges the denial of his motion to set aside the tax deed to Rivera pursuant to Indiana Trial Rule 60(B). We review the denial of a motion for relief from judgment under Trial Rule 60(B) for an abuse of discretion. In re 2020 Madison Cnty. Tax Sale, 218 N.E.3d 1274, 1277 (Ind. 2023), cert denied. A trial court abuses its discretion when its denial is clearly against the logic and effect of the facts and inferences supporting the judgment for relief. Id. The burden is "on the movant to demonstrate that relief is both necessary and just." Id. A. Patrick's motion to set aside the tax deed was timely.
[¶16] We begin by addressing Patrick's argument that his motion to set aside the tax deed was filed in a timely manner. Although Rivera argued to the trial court that Patrick's petition was untimely, Rivera does not respond to this argument on appeal.
[¶17] In Patrick's petition, he argued that he was entitled to relief under Trial Rule 60(B) because of lack of adequate notice of the tax deed proceedings. "Indiana Trial Rule 60(B) is one way for a property owner to challenge the sale of their property as void because they did not receive adequate notice." Id. Under Trial Rule 60(B)(6), a petitioner may seek relief from a "void" judgment, and the Rule requires that the motion be filed "within a reasonable time."
[¶18] Under Indiana Code Section 6-1.1-25-4.6(1), however, "[a] tax deed issued under this section is incontestable except by appeal from the order of the court directing the county auditor to issue the tax deed filed not later than sixty (60) days after the date of the court's order." "The issuance of a tax deed can be appealed under this statute by either an independent action or a Trial Rule 60(B) motion in the same trial court that issued the original tax deed." Gupta v. Jay Cnty. Auditor Nancy Cully, 910 N.E.2d 796, 799 (Ind.Ct.App. 2009) (quoting Diversified Invs., LLC v. U.S. Bank, NA, 838 N.E.2d 536, 544 (Ind.Ct.App. 2005), trans. denied). "This court has held that both available remedies, either a Trial Rule 60(B) motion or an independent action, are subject to the same sixty-day statutory time limit pursuant to [Ind. Code § 6-1.1-25-4.6(1)]." Id. This Court has recognized an exception, however, "where a motion for relief from judgment alleges a tax deed is void due to constitutionally inadequate notice, in which case an appeal must be brought within a reasonable time rather than within sixty days." Id. (emphasis added).
[¶19] Here, Patrick argued, in part, that the tax deed was void due to constitutionally inadequate notice. Accordingly, Patrick's petition to set aside the tax deed falls within the exception to Indiana Code Section 6-1.1-25-4.6(1). Thus, Patrick was required to file his petition within a "reasonable time." See T.R. 60(B). On January 3, 2020, the trial court granted Rivera's petition for a tax deed for the Property. Patrick filed a petition to set aside the tax deed on March 31, 2020, only eighty-eight days after the trial court granted Rivera's petition for the tax deed. Accordingly, we conclude that Patrick's petition was timely.
B. Rivera violated Patrick's due process rights by failing to provide adequate notice.
[¶20] Next, Patrick argues that he received inadequate notice of the tax sale. Our Supreme Court has noted that a property owner may "challenge the sale of their property as void" when the property owner did not receive adequate notice. 2020 Madison Cnty. Tax Sale, 218 N.E.3d at 1277. "A trial court determines whether the judgment is void or valid." Id. "If a trial court finds the judgment void, then the judgment cannot be enforced, but if the judgment is valid, then the Trial Rule 60(B) motion must be denied." Id.
[¶21] "'A tax sale is purely a statutory creation, and material compliance with each step of the statute is required.'" Iemma v. JP Morgan Chase Bank, N.A., 992 N.E.2d 732, 738 (Ind.Ct.App. 2013) (quoting Nieto v. Kezy, 846 N.E.2d 327, 337 (Ind.Ct.App. 2006)). "The issuance of a tax deed by the trial court creates a presumption that a tax sale and all of the statutory steps leading to the issuance of the tax deed were proper." Ind. Land Tr. Co. v. XL Inv. Properties, LLC, 155 N.E.3d 1177, 1190 (Ind. 2020). "[T]his presumption may be rebutted by affirmative evidence showing the contrary." Id. "Whether notice 'substantially complied' with statutory requirements, though a 'fact-sensitive determination,' is a question of law." Id. (quoting Collier v. Prater, 544 N.E.2d 497, 499 (Ind. 1989)).
[¶22] "The General Assembly codified tax sale requirements when a real property owner becomes delinquent on property taxes." 2020 Madison Cnty. Tax Sale, 218 N.E.3d at 1281 (citing I.C. § 6-1.1-24 et seq.). After a tax sale, "the county auditor shall deliver a certificate of sale to the purchaser[.]" Id. (quoting I.C. § 6-1.1-24-9(a)). The owner then has one year to redeem the property. Id. (citing I.C. §§ 6-1.1-25-1, -4). If the owner fails to redeem the property within the redemption period, the purchaser is entitled to a tax deed. Id. (citing I.C. § 61.1-25-4).
[¶23] The statutory provisions related to tax sales, thus, require that the property owner be provided with three notices: (1) Indiana Code Section 6-1.1-24-4 (the county auditor's notice of tax sale); (2) Indiana Code Section 6-1.1-25-4.5 (notice of the right of redemption or 4.5 Notice); and Indiana Code Section 61.1-25-4.6 (notice of petition for tax deed or 4.6 Notice). Windy City Acquisitions, LLC v. Est. of Simms, 173 N.E.3d 675, 683 (Ind.Ct.App. 2021), trans. denied. Only the 4.5 Notice and 4.6 Notice are at issue here.
[¶24] The 4.5 Notice "must inform the parties of the sale, the redemption period expiration date, and the date on or after a tax deed petition will be filed." 2020 Madison Cnty. Tax Sale, 218 N.E.3d at 1281 (citing I.C.§ 6-1.1-25-4.5(e)). The 4.6 Notice "must inform the parties that the purchaser petitioned for a tax deed." Id. (citing I.C. § 6-1.1-25-4.6).
[¶25] Under Indiana Code Section 6-1.1-25-4.5(c)(3), the tax sale purchaser must send the 4.5 Notice to: "(A) the owner of record at the time of the sale; and (B) any person with a substantial property interest of public record in the tract or item of real property." Further, under subsection (d):
The person required to give the notice under subsection (a), (b), or (c) shall give the notice by sending a copy of the notice by certified mail, return receipt requested, to:
(1) the owner of record at the time of the:
(A) sale of the property;
(B) acquisition of the lien on the property under IC 6-1.1-24-6; or
(C) sale of the certificate of sale on the property under IC 6-1.1-24;
at the last address of the owner for the property, as indicated in the records of the county auditor; and
(2) any person with a substantial property interest of public record at the address for the person included in the public record that indicates the interest.
However, if the address of the person with a substantial property interest of public record is not indicated in the public record that created the interest and cannot be located by ordinary means by the person required to give the notice under subsection (a), (b), or (c), the person may give notice by publication in accordance with IC 5-3-1-4 once each week for three (3) consecutive weeks.I.C. § 6-1.1-25-4.5(d) (emphasis added).
[¶26] The requirements for the 4.6 Notice are similar. Indiana Code Section 6-1.1 4.6(a) provides:
Notice of the filing of this petition shall be given to the same parties as provided in section 4.5 of this chapter, except that, if notice is given by publication, only one (1) publication is required. The notice required by this section is considered sufficient if the notice is sent to the address required by section 4.5(d) of this chapter.
[¶27] In addition to the statutory requirements, before an owner may be deprived of his land, the owner must be given notice "in a manner that satisfies due process requirements of the United States Constitution." 2020 Madison Cnty. Tax Sale, 218 N.E.3d at 1277. "The court must 'ensure the basic requirements of due process are met in a particular case.'" Id. (quoting Ind. Land Tr. Co., 155 N.E.3d at 1182). "[D]ue process requires taking 'additional reasonable steps' to provide notice when a notice letter is returned undelivered or unclaimed so interested parties can object to the threatened action." Id. at 1278 (internal citations omitted) (quoting Jones v. Flowers, 547 U.S. 220, 225, 126 S.Ct. 1708, 1713 (2006)).
[¶28] "In determining whether notice has been reasonably calculated, the Court requires a 'balancing' of government and individual interests." Id. (quoting Jones, 547 U.S. at 229, 126 S.Ct. at 1715). "[E]ach case should individually assess the feasibility of taking reasonable steps, such as sending notice via 3 regular mail or posting notice on the property's door." Id. "'[W]hen mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so.'" Id. (quoting Jones, 547 U.S. at 225, 126 S.Ct. at 1713).
"[B]oth our Supreme Court and this Court have held that a non-governmental tax purchaser must comply with the notice requirements of the due process clause." Iemma, 992 N.E.2d at 740 (citing Tax Certificate Invs., Inc. v. Smethers, 714 N.E.2d 131, 133-34 (Ind. 1999); Combs v. Tolle, 816 N.E.2d 432, 438-39 (Ind.Ct.App. 2004)). Accordingly, we will determine whether Rivera's actions complied with the due process clause.
[¶29] Here, the October 2018 tax sale certificate erroneously identified the owner as "Patrick Brian," but Brian had conveyed the Property to Patrick on October 2, 2018. Appellant's App. Vol. II p. 14. Rivera ordered a title search, which also erroneously identified the last transfer of record as the 2016 deed to Patrick, and that 2016 deed listed the Fletcher Street address as Patrick's address. Inexplicably, the title search failed to identify the conveyance from Patrick to Brian in 2017 or from Brian back to Patrick in October 2018.
[¶30] Although Indiana Code Section 6-1.1-25-4.5 and Indiana Code Section 6-1.125-4.6 required Rivera to send the 4.5 Notice and the 4.6 Notice by certified mail to "the last address of the owner for the property, as indicated in the records of the county auditor," Rivera's counsel admitted that he sent the notices to the address identified in the erroneous title search and did not review the auditor's records. (emphasis added). Despite the conflicting information from the tax sale certificate and title search, Rivera "didn't go back and look at the Auditor's records." Tr. Vol. II p. 46.
[¶31] Below, the parties submitted records from the County Treasurer, not the County Auditor. Even the County Treasurer's records, which Rivera attached to his petition for a tax deed, did not correspond with the information set out in the title search or the tax sale certificate. Those records listed Patrick's address as the correct 13th Street address. It is unclear, however, from the record presented to us whether the County Auditor's records reflected the same.
[¶32] Regardless, we conclude that Rivera failed to comply with basic due process requirements. Our Supreme Court has noted that, under such circumstances where a notice is undeliverable, "due process requires taking 'additional reasonable steps' to provide notice . . . so interested parties can object to the threatened action." 2020 Madison County Tax Sale, 218 N.E.3d at 1278. When Rivera's certified mailing of the 4.5 Notice was returned undeliverable, Rivera made no additional attempts to notify the property's owner of the tax sale by any other methods or at any other addresses, even though Rivera had Patrick's correct address in his possession.
It is unclear whether the certified mailing of the second notice was successful as Rivera never supplemented his filing or presented evidence regarding the certified mailing of the second notice at the evidentiary hearing.
[¶33] Due process required that, after Rivera's certified mailing was returned as undeliverable, Rivera was required to take additional reasonable steps to inform Patrick of the action. Rivera's actions must demonstrate that he was "desirous of actually informing" Patrick of the tax sale. Id. at 1280. Rivera, however, made no additional attempts to inform Patrick of the tax sale. Rivera's failure to take any additional reasonable steps to inform Patrick of the tax sale violated Patrick's due process rights. "'A tax deed is void if the former owner was not given constitutionally adequate notice of the tax sale proceedings,' including notice of the right of redemption under Indiana Code section 6-1.1-25-4.5 and notice of the petition for the issuance of a tax deed under Indiana Code section 6-1.1-25-4.6." Marion Assets 2020, LLC v. Fiascone Fam. LP, 211 N.E.3d 1, 6 (Ind.Ct.App. 2023). Accordingly, the tax deed issued to Rivera is void, and the trial court erred by denying Patrick's motion to set aside the tax deed.
B. Rivera's equitable arguments fail.
[¶34] Despite Rivera's violation of Patrick's due process rights, Rivera argues that his conduct should be excused because: (1) Patrick's Rule 60(B) motion was rendered moot by Patrick's motion to dismiss; (2) Patrick made "judicial admissions that are binding and conclusive" when he filed his motion to dismiss; (3) Patrick had unclean hands because, according to Rivera, Patrick was engaged in a scheme to make it difficult for tax sale purchasers to locate him; and (4) Patrick's motion to set aside is barred by laches. Appellee's Br. p. 19.
Rivera also states that this Court should "reverse the trial court's September 2, 2020 denial of Patrick's Motion to Dismiss ...." Appellee's Br. p. 20. Rivera, however, fails to set out a standard of review, relevant authority or trial rules, or make a cogent argument on this issue. Accordingly, this argument is waived. See Ind. Appellate Rule 46(A)(8); Loomis v. Ameritech Corp., 764 N.E.2d 658, 668 (Ind.Ct.App. 2002) (holding that the failure to present a cogent argument waives the issue for appellate review), trans. denied.
[¶35] Our Supreme Court has held that "[a] case is moot when the controversy at issue has been ended, settled, or otherwise disposed of so that the court can give the parties no effective relief." E.F. v. St. Vincent Hosp. &Health Care Ctr., Inc., 188 N.E.3d 464, 466 (Ind. 2022). The trial court here denied Patrick's motion to dismiss; accordingly, the case was not ended by the motion to dismiss. This case was not rendered moot by Patrick's motion to dismiss. Further, "[j]udicial admissions . . . are voluntary and knowing concessions of fact by a party or a party's attorney occurring at any point in a judicial proceeding." Stewart v. Alunday, 53 N.E.3d 562, 568 (Ind.Ct.App. 2016) (emphasis added). Patrick, however, did not make a concession of fact in the motion to dismiss. Rivera essentially is attempting to challenge the trial court's denial of Patrick's motion to dismiss, but Rivera waived that argument. See supra note 5.
[¶36] As for Rivera's other equitable arguments, we rejected similar arguments in Porter v. Bankers Tr. Co. of California, 773 N.E.2d 901, 908-09 (Ind.Ct.App. 2002). There, we noted that "[e]quity has power, where necessary, to pierce rigid statutory rules to prevent injustice." Porter, 773 N.E.2d at 908. "But where substantial justice can be accomplished by following the law, and the parties' actions are clearly governed by rules of law, equity follows the law." Id.
As we have stated, a tax sale is purely a statutory creation and, therefore, parties must strictly comply with each step set forth in the statutes. In this case, the parties' actions are clearly governed by the tax sale statutes, and no injustice will result from following the statute. Thus, in this case equity must follow the law.Id. at 908-09 (internal citations omitted). Similarly, here, equity must follow the law, and Rivera's actions were clearly governed by the tax sale statutes. No injustice will result from following the tax sale statutes here.
Conclusion
[¶37] The tax deed issued to Rivera is void due to constitutionally inadequate notice, and the trial court erred by denying Patrick's motion to set aside the tax deed. Accordingly, we reverse and remand.
[¶38] Reversed and remanded.
Crone, J., and Bradford, J., concur.