MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 30 2018, 9:17 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT Megan L. Craig John R. Craig Craig & Craig, LLC Crown Point, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the 2013 Lake May 30, 2018 County, Indiana Real Estate Tax Court of Appeals Case No. Sale: 45A05-1711-MI-2674 Appeal from the Lake Circuit Jennifer Brozak, Court
Appellant-Respondent, The Honorable Marissa J. McDermott, Judge and The Honorable George C. Paras, Judge Barden Procurement Group, LLC, The Honorable Alice A. Kuzemka, Respondent, Magistrate Trial Court Cause No. v. 45C01-1308-MI-129
Wintering, LLC,
Appellee-Petitioner,
Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2674 | May 30, 2018 Page 1 of 8 and
BMO Harris Bank, NA, Appellee-Petitioner/Intervenor
Crone, Judge.
Case Summary [1] Jennifer L. Brozak appeals the trial court’s order, issued on October 6, 2016,
that determined priority to and disbursement of tax sale surplus funds following
the tax sale of certain Lake County property that was owned by her. Brozak
asks that we vacate the October order and reinstate one of the court’s prior
orders determining priority to and ordering disbursement of the same funds.
We decline that request and affirm the court’s October final disbursement order.
Facts and Procedural History [2] Brozak owned certain real property located in Merrillville (“the Property”). In
August 2013, upon application by the Lake County Auditor, the trial court
ordered that the Property be sold at tax sale to satisfy taxes, assessments,
penalties, and costs due. The Property was sold to Wintering, LLC,
(“Wintering”) at tax sale on September 24, 2013. Wintering acquired a tax
deed to the property on December 12, 2014.
[3] The sale bid and payment for the Property by Wintering exceeded the required
minimum bid by the sum of $57,193.80, resulting in tax sale surplus funds. In
Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2674 | May 30, 2018 Page 2 of 8 January 2015, Brozak entered into an agreement with Braden Procurement
Group, LLC (“BPG”), which granted BPG the right to pursue the tax sale
surplus funds on her behalf. In exchange for obtaining the funds on Brozak’s
behalf, BPG would receive ten percent of the net proceeds, or approximately
$5719.38. Thus, on March 16, 2015, BPG filed a “Verified Petition for Order
Directing the Auditor of Lake County, Indiana to Disburse Tax Sale Surplus.”
Appellant’s App. Vol. 4 at 12. Three days later, FLRC Land Trust #6870 also
filed a petition for disbursement of the tax sale surplus funds, stating that it had
priority to the funds because it acquired rights to the Property via a quitclaim
deed from Brozak. In addition, Wintering petitioned for reimbursement of
$700 for taxes accrued between the date of sale of the Property and the end of
the redemption date.
[4] A hearing on the petitions for disbursement was held on February 2, 2016. On
February 5, and before the trial court had issued any decision, BMO Harris
Bank, NA (“BMO Harris”), filed an emergency motion to intervene as a
petitioner as of right and a request for the trial court to freeze the tax surplus
funds pending a determination of BMO Harris’s entitlement to those funds.
BMO Harris claimed priority over the tax sale surplus funds as to Brozak based
upon a 2007 recorded mortgage on the Property and a judgment lien obtained
by foreclosure against Brozak in March of 2014.
Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2674 | May 30, 2018 Page 3 of 8 [5] Thereafter, on April 5, 2016, the trial court issued two orders.1 One order,
which was based on the February hearing, purported to determine priority to
and disburse the tax sale surplus funds as follows: $700 to Wintering, $5719.38
to BPG, and $50,774.42 to Brozak.2 The other order granted BMO Harris’s
emergency motion to intervene and ordered the Lake County Auditor to freeze
the tax sale surplus funds until further determination by the court. The trial
court held a hearing on July 14, 2016. During that hearing, the parties argued
about the implications of the two April 2016 orders. The trial court took the
matter under advisement and, on October 6, 2016, entered a final order lifting
the freeze and disbursing the tax sale surplus funds as follows: $700 to
Wintering, $5719.38 to BPG, and $50,774.42 to BMO Harris.
[6] Brozak filed a motion to correct error asserting that the trial court’s April 2016
disbursement order was a final judgment and that neither BMO Harris, nor any
other party, ever filed a motion to correct error or a notice of appeal. Therefore,
she argued, the trial court was without authority to enter the October 2016
disbursement order. Following a hearing, the trial court entered its order
denying the motion to correct error. Specifically, the trial court found in
relevant part,
[T]he conflicting court actions of April 5, 2016 resulted in jurisdiction continuing with this present court, which it exercised in conducting the July 14, 2016 hearing to determine priority of
1 Neither order is time-stamped, but both orders were issued on the same day under the same cause number. 2 The court deemed FLRC’s deed and interest in the Property void.
Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2674 | May 30, 2018 Page 4 of 8 claims, and in issuing the order on the priority of claims of October 6, 2016, which order contradicted, and thereby set aside, its previously entered April 5, 2016 order.
Id. at 47. This appeal ensued.
Discussion and Decision [7] We begin by acknowledging that no party has filed an appellee’s brief. Where
an appellee fails to file a brief, we do not undertake to develop arguments on
that party’s behalf; rather, we may reverse upon a prima facie showing of
reversible error by the appellant. Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind.
2008). Prima facie error is error “at first sight, on first appearance, or on the
face of it.” Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014). This
“prima facie error rule” relieves this Court from the burden of controverting
arguments advanced for reversal, a duty which remains with the appellee.
Simek v. Nolan, 64 N.E.3d 1237, 1241 (Ind. Ct. App. 2016).
[8] This Court has stated that a petition seeking tax sale surplus funds is essentially
an action for declaratory judgment. Beneficial Ind., Inc. v. Joy Props., LLC, 942
N.E.2d 889, 891-92 (Ind. Ct. App. 2011) (citing Lake Cty. Auditor v. Burks, 802
N.E.2d 896 (Ind. 2004)), trans. denied. In a declaratory judgment action, the
trial court determines the specific rights, duties and obligations of the respective
parties at the time of trial. Fawcett v. Gooch, 708 N.E.2d 908, 910 (Ind. Ct. App.
1999).
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 30 2018, 9:17 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT Megan L. Craig John R. Craig Craig & Craig, LLC Crown Point, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the 2013 Lake May 30, 2018 County, Indiana Real Estate Tax Court of Appeals Case No. Sale: 45A05-1711-MI-2674 Appeal from the Lake Circuit Jennifer Brozak, Court
Appellant-Respondent, The Honorable Marissa J. McDermott, Judge and The Honorable George C. Paras, Judge Barden Procurement Group, LLC, The Honorable Alice A. Kuzemka, Respondent, Magistrate Trial Court Cause No. v. 45C01-1308-MI-129
Wintering, LLC,
Appellee-Petitioner,
Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2674 | May 30, 2018 Page 1 of 8 and
BMO Harris Bank, NA, Appellee-Petitioner/Intervenor
Crone, Judge.
Case Summary [1] Jennifer L. Brozak appeals the trial court’s order, issued on October 6, 2016,
that determined priority to and disbursement of tax sale surplus funds following
the tax sale of certain Lake County property that was owned by her. Brozak
asks that we vacate the October order and reinstate one of the court’s prior
orders determining priority to and ordering disbursement of the same funds.
We decline that request and affirm the court’s October final disbursement order.
Facts and Procedural History [2] Brozak owned certain real property located in Merrillville (“the Property”). In
August 2013, upon application by the Lake County Auditor, the trial court
ordered that the Property be sold at tax sale to satisfy taxes, assessments,
penalties, and costs due. The Property was sold to Wintering, LLC,
(“Wintering”) at tax sale on September 24, 2013. Wintering acquired a tax
deed to the property on December 12, 2014.
[3] The sale bid and payment for the Property by Wintering exceeded the required
minimum bid by the sum of $57,193.80, resulting in tax sale surplus funds. In
Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2674 | May 30, 2018 Page 2 of 8 January 2015, Brozak entered into an agreement with Braden Procurement
Group, LLC (“BPG”), which granted BPG the right to pursue the tax sale
surplus funds on her behalf. In exchange for obtaining the funds on Brozak’s
behalf, BPG would receive ten percent of the net proceeds, or approximately
$5719.38. Thus, on March 16, 2015, BPG filed a “Verified Petition for Order
Directing the Auditor of Lake County, Indiana to Disburse Tax Sale Surplus.”
Appellant’s App. Vol. 4 at 12. Three days later, FLRC Land Trust #6870 also
filed a petition for disbursement of the tax sale surplus funds, stating that it had
priority to the funds because it acquired rights to the Property via a quitclaim
deed from Brozak. In addition, Wintering petitioned for reimbursement of
$700 for taxes accrued between the date of sale of the Property and the end of
the redemption date.
[4] A hearing on the petitions for disbursement was held on February 2, 2016. On
February 5, and before the trial court had issued any decision, BMO Harris
Bank, NA (“BMO Harris”), filed an emergency motion to intervene as a
petitioner as of right and a request for the trial court to freeze the tax surplus
funds pending a determination of BMO Harris’s entitlement to those funds.
BMO Harris claimed priority over the tax sale surplus funds as to Brozak based
upon a 2007 recorded mortgage on the Property and a judgment lien obtained
by foreclosure against Brozak in March of 2014.
Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2674 | May 30, 2018 Page 3 of 8 [5] Thereafter, on April 5, 2016, the trial court issued two orders.1 One order,
which was based on the February hearing, purported to determine priority to
and disburse the tax sale surplus funds as follows: $700 to Wintering, $5719.38
to BPG, and $50,774.42 to Brozak.2 The other order granted BMO Harris’s
emergency motion to intervene and ordered the Lake County Auditor to freeze
the tax sale surplus funds until further determination by the court. The trial
court held a hearing on July 14, 2016. During that hearing, the parties argued
about the implications of the two April 2016 orders. The trial court took the
matter under advisement and, on October 6, 2016, entered a final order lifting
the freeze and disbursing the tax sale surplus funds as follows: $700 to
Wintering, $5719.38 to BPG, and $50,774.42 to BMO Harris.
[6] Brozak filed a motion to correct error asserting that the trial court’s April 2016
disbursement order was a final judgment and that neither BMO Harris, nor any
other party, ever filed a motion to correct error or a notice of appeal. Therefore,
she argued, the trial court was without authority to enter the October 2016
disbursement order. Following a hearing, the trial court entered its order
denying the motion to correct error. Specifically, the trial court found in
relevant part,
[T]he conflicting court actions of April 5, 2016 resulted in jurisdiction continuing with this present court, which it exercised in conducting the July 14, 2016 hearing to determine priority of
1 Neither order is time-stamped, but both orders were issued on the same day under the same cause number. 2 The court deemed FLRC’s deed and interest in the Property void.
Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2674 | May 30, 2018 Page 4 of 8 claims, and in issuing the order on the priority of claims of October 6, 2016, which order contradicted, and thereby set aside, its previously entered April 5, 2016 order.
Id. at 47. This appeal ensued.
Discussion and Decision [7] We begin by acknowledging that no party has filed an appellee’s brief. Where
an appellee fails to file a brief, we do not undertake to develop arguments on
that party’s behalf; rather, we may reverse upon a prima facie showing of
reversible error by the appellant. Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind.
2008). Prima facie error is error “at first sight, on first appearance, or on the
face of it.” Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014). This
“prima facie error rule” relieves this Court from the burden of controverting
arguments advanced for reversal, a duty which remains with the appellee.
Simek v. Nolan, 64 N.E.3d 1237, 1241 (Ind. Ct. App. 2016).
[8] This Court has stated that a petition seeking tax sale surplus funds is essentially
an action for declaratory judgment. Beneficial Ind., Inc. v. Joy Props., LLC, 942
N.E.2d 889, 891-92 (Ind. Ct. App. 2011) (citing Lake Cty. Auditor v. Burks, 802
N.E.2d 896 (Ind. 2004)), trans. denied. In a declaratory judgment action, the
trial court determines the specific rights, duties and obligations of the respective
parties at the time of trial. Fawcett v. Gooch, 708 N.E.2d 908, 910 (Ind. Ct. App.
1999). Declaratory orders generally have the force and effect of a final
judgment, and are reviewed in the same manner as other judgments. Johnson v.
Johnson, 920 N.E.2d 253, 255 (Ind. 2010). Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2674 | May 30, 2018 Page 5 of 8 [9] The crux of Brozak’s argument on appeal is that the trial court has issued
dueling declaratory final orders regarding the distribution of the tax sale surplus
funds, one in April 2016 which granted her a large portion of the funds, and one
in October 2016 which granted BMO Harris those funds. She characterizes the
October order as an improper “second final judgment” and urges this Court to
vacate it. Appellant’s Br. at 9. We disagree with Brozak and decline to do so.
[10] It is well settled that trial courts have ample authority to alter, amend, or
modify their judgments any time before a motion to correct error is required to
be made, or with or as part of a motion to correct error. Deen-Bacchus v. Bacchus,
71 N.E.3d 882, 885 (Ind. Ct. App. 2017) (citing Ind. Trial Rule 52(B)); see also
State ex rel. Rans v. St. Joseph Super. Ct. No. 2, 246 Ind. 74, 78, 201 N.E.2d 778,
779-80 (1964) (“[A] court may, upon motion to reconsider or rehear, upon its
own motion or the suggestion of a party, vacate, set aside, amend or modify a
ruling entered in the same term of court, since such a matter is in fieri”). Here,
on the same day it issued its order determining priority to and disbursement of
the tax sale surplus funds as between Brozak and certain petitioners, the trial
court also granted BMO Harris’s motion to intervene as of right and froze those
same funds in order for the court to determine priority to and disbursement of
the tax sale surplus funds as between Brozak and BMO Harris. The trial court’s
order granting the motion to intervene and freezing the tax sale surplus funds
was a timely and proper exercise of the trial court’s power to reconsider and
modify the disbursement of the tax sale surplus funds. That order constituted a
clear signal to the parties that the disbursement order issued that same date was
Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2674 | May 30, 2018 Page 6 of 8 effectively stayed, and the matter remained in fieri pending further
determination of the court regarding the ultimate disbursement of the funds.
[11] Contrary to Brozak’s assertion, the trial court has issued only one declaratory
final order here, that being the October 2016 disbursement order. Significantly,
the relevant facts supporting that final order are undisputed. In its emergency
motion to intervene, BMO Harris informed the trial court that it holds a
judgment against Brozak in the amount of $108,587.37 under trial court cause
number 45D05-1302-MF-54, based upon its foreclosure of a mortgage secured
by the Property. A copy of the foreclosure judgment and mortgage was
attached to BMO Harris’s motion as Exhibit A. Appellant’s App. Vol. 4 at 30.
These facts are not, and have never been, contested by Brozak. 3 Accordingly,
there is no question that BMO Harris has “a substantial interest in the real
estate by virtue of its foreclosure judgment,” and that judgment has “priority
over the interest of the owner, [Brozak].” CANA Invs., LLC v. Fansler, 832
N.E.2d 1103, 1107-08 (Ind. Ct. App. 2005). The judgment “was a lien against
the real estate subject to the tax sale,” and “followed the proceeds of the sale
and attached to the [tax sale] surplus.” Id. Brozak has failed to show any error,
much less prima facie error, in the trial court’s final order granting BMO Harris
the lion’s share of the tax sale surplus funds.
3 Indeed, Brozak did not object to BMO Harris’s motion to intervene nor request to bring an interlocutory appeal from the trial court’s order granting that motion. Similarly, Brozak did not challenge the validity of BMO Harris’s judgment lien at any time during the July 2016 hearing, or during the subsequent hearing on her motion to correct error.
Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2674 | May 30, 2018 Page 7 of 8 [12] We further note that an action for declaratory judgment is generally equitable in
nature, and equity seeks the avoidance of a windfall. Beneficial of Ind., 942
N.E.2d at 894 (citing Neu v. Gibson, 928 N.E.2d 556, 560 (Ind. 2010)). By
requesting that we reinstate the trial court’s April 2016 disbursement order,
Brozak attempts to receive a windfall by obtaining tax sale surplus funds to
which BMO Harris undisputedly holds a superior claim. We reject her attempt,
and affirm the disbursement of the tax sale surplus funds as provided in the trial
court’s October 2016 final order.
[13] Affirmed.
Bailey, J., and Brown, J., concur
Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2674 | May 30, 2018 Page 8 of 8