Elizondo v. Read

588 N.E.2d 501, 1992 Ind. LEXIS 122, 1992 WL 55084
CourtIndiana Supreme Court
DecidedMarch 23, 1992
Docket50S04-9203-CV-189
StatusPublished
Cited by34 cases

This text of 588 N.E.2d 501 (Elizondo v. Read) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elizondo v. Read, 588 N.E.2d 501, 1992 Ind. LEXIS 122, 1992 WL 55084 (Ind. 1992).

Opinions

ON PETITION TO TRANSFER

KRAHULIK, Justice.

The Auditor of Marshall County and Thomas and Jacqueline Read, tax sale purchasers, petition this Court to accept transfer after the Court of Appeals reversed the trial court's entry of summary judgment against Urbano and Irma Elizondo. Elizondo v. Read (1990), Ind.App., 553 N.E.2d 849, on reh'g. 556 N.E.2d 959. The Court of Appeals' decision effectively invalidated a tax sale of property owned by the Elizon-dos. The question squarely presented by the petition to transfer is whether the notice of tax sale utilized by the Auditor of Marshall County ("Auditor") was unconstitutionally defective. We accept transfer to answer this question.

[502]*502The Elizondos purchased a recreational lot at Yogi Bear Jellystone Park camp resort in Plymouth, Marshall County, Indiana, in 1979. The deed was properly recorded with the Marshall County recorder's office in September of 1979. At the time the Elizondos purchased the lot, they executed a real estate mortgage with First Source Bank ("the Bank") acting as mortgagee. From 1981 to 1984, the real estate tax statements for the property were addressed to the Elizondos at 213 North See-ond Street, Plymouth, Indiana. During this period, the Elizondos moved twice. From 1983 to 1984, they resided at 8310 South Plum Street, Plymouth, Indiana. In 1984, they purchased a new residence and relocated again, moving to 1631 West Harrison, Plymouth, Indiana.

All notices sent to the Elizondos by the Auditor were sent to the 218 North Second Street address. Tax statements sent to this address were returned marked "Unclaimed" or "Undeliverable as addressed. No forwarding order on file." A review of the tax duplicate records first revealed that the Elizondos were in arrears and, thus, their property was eligible for tax sale.

A courtesy letter was sent, followed by a certified mailing of the formal notice of tax sale, dated July 23, 1984. This notice was returned to the Auditor stamped "Unclaimed." In compliance with statutory criteria, a notice of tax sale was placed in several local newspapers. The Reads purchased the property at a tax sale in August of 1984 for $85.

Two years later, in compliance with statute, the Auditor sent the Elizondos a "notice of tax sale redemption or issuance of tax deed" by certified mail to the Second Street address. The notice was returned to the Auditor marked "Undeliverable as addressed. No forwarding order on file." A tax title deed was issued to the Reads. The Elizondos failed to provide any change of address notice to the Auditor's office. In 1984, at the time the tax sale notices were mailed, the Auditor had available personal property records indicating that Ur-bano Elizondo resided at 310 South Plum Street. In 1986, at the time of the forwarding of the notice of redemption, the Auditor's office maintained a real estate tax file and an alphabetized real estate card file containing a listing for the Elizon-dos. Also, the Elizondos were listed in the phone directory at the proper address during the time period in question.

At the time the Auditor put the property up for sale, the Bank's mortgage existed as a valid lien on the property. In July of 1984, when the tax sale notice was mailed, there existed no statutory requirement that the auditor send notice to any party with a substantial interest in the property unless that party complied with the requirements of Ind.Code § 6-1.1-24-4.2. This section provided that any party wishing to receive notice must annually file such request with the auditor and pay a small fee. The Bank did not file such a request or pay the fee and it did not receive notice.

The Elizondos brought suit against the Auditor and the Reads. The trial court granted summary judgment in favor of the Reads and the Auditor. The Court of Appeals reversed, holding that the statutory provisions requiring the auditor to send notice by certified mail to the Elizondos' "last known address" are constitutionally insufficient with regard to the circumstances of the case.

In order to decide the constitutional question presented by the facts of this case, we must discuss and decide two separate issues of notice. The first addresses notice to the Elizondos' mortgagee, First Source Bank. The second concerns the notice given to the Elizondos themselves.

I. Notice to the Mortgagee

In July of 1984, when the Auditor issued the notice of tax sale, Ind. Code § 6-1.1-24-4.2 required the county auditor to send notice of sale to any mortgagee of real property subject to sale if the mortgagee annually, on a form provided by the State Board of Accounts, requested such notice and agreed to pay a fee to the county auditor to cover the costs of sending the notice.1 It is uncontested that First Source [503]*503Bank did not take any action to request notice, including the filing of the necessary request form. Nonetheless, the Elizondos argue that the Auditor's failure to search the public records-in this case the recorded mortgages-led to a deprivation of the mortgagee's constitutional right to be notified of the tax sale.

As support for this argument, the Elizon-dos point to Mennonite Board of Missions v. Adams (1983), 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180. The Mennonite Board of Missions ("MBM") took a mortgage as a security interest against a loan made to Alfred Jean Moore. The mortgage was recorded in the Elkhart County recorder's office in 1983. When Moore defaulted on property tax payments, the auditor placed the property up for tax sale.

At the time of the sale, this State did not have any provision for notification by mail or personal service to mortgagees that the property in which they held an interest would be sold. The U.S. Supreme Court's majority opinion notes that § 6-1.1-24-4.2, the statute applicable to our case, was added in 1980. Because the events in Mer-nonite occurred before this addition, the Court expressly declined to examine the constitutionality of the statute.

The Court in Mennonite held that a mortgagee has a legally-protected interest and is, thus, "entitled to notice reasonably calculated to appraise him of a pending tax sale." 462 U.S. at 798, 103 S.Ct. at 2711, 77 L.Ed.2d at 187. The Court said:

When the mortgagee is identified in a mortgage that is publicly recorded, constructive notice by publication must be supplemented by notice mailed to the mortgagee's last known available address, or by personal service. But unless the mortgagee is not reasonably identifiable, constructive notice alone does not satisfy the mandate of Mullane.

Id. The rule established in Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed.

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Cite This Page — Counsel Stack

Bluebook (online)
588 N.E.2d 501, 1992 Ind. LEXIS 122, 1992 WL 55084, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elizondo-v-read-ind-1992.