FOR PUBLICATION
ATTORNEY FOR APPELLANT
: ATTORNEYS FOR APPELLEE
REGIONAL BANK:
BRIAN E. HICKS
Griffin, Hicks & Hicks JASON A. LOPP
An Association of Attorneys C. GREGORY FIFER
Indianapolis, Indiana Young, Lind, Endres & Kraft
New Albany, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE: THE 2002 FLOYD COUNTY )
TAX SALE. )
)
HALIFAX FINANCIAL GROUP, L.P., )
)
Appellant-Petitioner, )
)
vs. ) No. 22A01-0402-CV-84
)
MARGARET L. NANCE, )
REGIONAL BANK, et al., )
)
Appellees-Respondents. )
APPEAL FROM THE FLOYD CIRCUIT COURT
The Honorable J. Terrence Cody, Judge
Cause No. 22C01-0209-MI-511
August 20, 2004
OPINION - FOR PUBLICATION
BAILEY, Judge
Case Summary
Appellant-Petitioner Halifax Financial Group, L.P. (Halifax) appeals an order of the trial court
denying its petition for a tax deed to real property purchased at a
tax sale and ordering the Floyd County Auditor (Auditor) to permit Appellee-Respondent Regional
Bank to redeem the tract outside the one-year redemption period of Indiana Code
Section 6-1.1-25-4. We reverse and direct judgment for the tax purchaser.
See footnote
Issue
Halifax presents a single issue for review: whether the trial court determined
the tax sale to be invalid because of its misinterpretation of the notice
requirements of Indiana Code Section 6-1.1-25-4.6.
Facts and Procedural History
Margaret Nance (Nance) purchased real estate located in Floyd County, Indiana
commonly known as 1721 Millerwood Drive, New Albany, upon which Regional Bank held
a mortgage (the Nance Property). Nance became delinquent in the payment of
her real estate taxes and, on August 9, 2002, the Auditor sent a
pre-tax sale notice to Nance, via certified mail, at the Millerwood address.
The postal carrier thrice attempted to deliver the notice, but ultimately returned it
as unclaimed.
On August 29, 2002, September 5, 2002, and September 12, 2002, the Auditor
published notice of the pending tax sale of the Nance Property in a
New Albany newspaper. On October 2, 2002, Halifax bid $33,000.00 at a
tax sale and purchased the Nance Property.
On April 28, 2003, Halifax sent, via certified mail, a Notice of Tax
Sale to Nance at 1721 Millerwood Drive, New Albany. The postal carrier
thrice attempted to deliver the notice, but ultimately returned it as unclaimed.
On June 13, 2003, Halifax sent, via certified mail, a Notice of Tax
Sale to Regional Bank. Regional Bank courier Bob Etheridge signed for the
certified mail on June 16, 2003. Nevertheless, the notice apparently was not
forwarded to the appropriate department within Regional Bank. Also on June 13,
2003, Halifax sent, via certified mail, notices of tax sale to Associates Financial
Services Company of Indiana, Inc. and Mutual Hospital Service, Inc. Those notices
were timely claimed.
On October 3, 2003, one day after the expiration of the statutory redemption
period of Indiana Code Section 6-1.1-25-4, Halifax filed a Verified Petition for Order
Directing the Auditor of Floyd County, Indiana to Issue Tax Deed. (App.
14.) Also on that date, Halifax sent Nance a notice of its
petition for tax deed, via certified mail. The certified mail was returned
as unclaimed after three unsuccessful attempts at delivery. Also on that date,
Halifax sent notices of its petition for tax deed, via certified mail, to
Regional Bank, Associates Financial Services Company of Indiana, Inc. and Mutual Hospital.
Each of the latter three notices was timely claimed.
On October 16, 2003, Regional Bank filed its Objection to Verified Petition to
Direct County Auditor to Issue a Tax Deed. (App. 32.) Regional
Bank filed an Amended Objection on November 3, 2003. On November 25,
2003, the trial court heard evidence relative to the petition for tax deed
and objection. On December 9, 2003, the trial court issued an order
denying Halifaxs petition for a tax deed and ordering the Auditor to permit
Regional Banks redemption of the Nance Property. On December 12, 2003, Regional
Bank tendered $9,650.34 to the Auditor to redeem the Nance Property. The
trial court denied Halifaxs motion to correct error and this appeal ensued.
Discussion and Decision
I. Standard of Review
The trial court specified that its order denying the tax deed petition and
allowing Regional Banks redemption of the Nance Property derived from its interpretation of
Indiana Code Section 6-1.1-25-4.6. The interpretation of a statute by a trial
court is a question of law to which this Court owes no deference.
County v. Ferguson, 712 N.E.2d 1038, 1043 (Ind. Ct. App. 1999).
The foremost objective in statutory interpretation is to determine and effect the legislative
intent, giving words and phrases their plain, ordinary and usual meaning unless a
different purpose is manifested by the statute. In re Visitation of J.P.H.,
709 N.E.2d 44, 46 (Ind. Ct. App. 1999). Statutes relating to the
same general subject matter are in pari materia and should be construed together
so as to produce a harmonious statutory scheme. Id. Moreover, we
will reject an interpretation of a statute that produces an absurd result.
Id.
II. Analysis
At the outset, we observe that if an owner of real estate fails
to pay his or her property taxes, the property may be sold in
an effort to satisfy the tax obligation. Reeder Associates II v. Chicago
Belle, Ltd., 778 N.E.2d 828, 831 (Ind. Ct. App. 2002). The Auditor
and Treasurer of the county in which the property is located may initiate
a civil action against the property to reduce the tax liability to a
judgment, and have the property sold. Indiana Code sections 6-1.1-24-1 through 14,
and 6-1.1-25-1 through 19 govern the tax sale process. While the issuance
of a tax deed creates a presumption that a tax sale and all
the steps leading to the issuance of the tax deed are proper, the
presumption may be rebutted by evidence to the contrary. Reeder, 778 N.E.2d
at 831. Title conveyed by a tax deed may be defeated if
the notices were not in substantial compliance with the manner prescribed in accordance
with our notice statutes, Indiana Code Sections 6-1.1-25-4.5 and 4.6. Shenvar v.
Johnson, 741 N.E.2d 1275, 1280 (Ind. Ct. App. 2001), trans. denied.
Our supreme court succinctly set forth the statutory framework applicable to this case
in Tax Certificate Invs., Inc. v. Smethers, 714 N.E.2d 131, 133 (Ind. 1999).
In part, a purchaser of Indiana real property that is sold for
delinquent taxes initially receives a certificate of sale. Ind. Code § 6-1.1-24-9.
A one-year redemption period by the occupant or person with a substantial
property interest of public record ensues. Ind. Code §§ 6-1.1-25-1, -4.
If the owner or interested party fails to redeem the property during that
year by paying all back property taxes, costs, expenses and interest charges, a
purchaser who has complied with the statutory requirements is entitled to a tax
deed. Ind. Code § 6-1.1-25-4. The property owner and any person
with a substantial property interest of public record must each be given two
notices. Ind. Code §§ 6-1.1-25-4.5, -4.6.
The first notice announces the fact of the sale, the date the redemption
period will expire, and the date on or after which a tax deed
petition will be filed. Ind. Code § 6-1.1-25-4.5. The second
notice announces that the purchaser has petitioned for a tax deed. Ind.
Code § 6-1.1-25-4.6. The trial court found that the tax sale herein
was invalid because the second notice did not apprise the owner and interested
parties of a continuing right to redeem the property. The order provided
in pertinent part as follows:
The Court
now finds that the notice of tax sale given by
Halifax to Regional is insufficient under the requirements of IC 6-1.1-25-4.6 in that
it does not include the information required to be deemed to have been
given in the same manner as set forth in IC 6-1.1-4.5(c) [sic].
The requirement pursuant to IC 6-1.1-25-4.6 that such notice of tax sale include
information regarding a continuing right to redeem the subject property following expiration of
the statutory redemption period creates an ambiguity between such statute and the amended
provisions of IC 6-1.1-25-1 that the Court now finds should be resolved in
favor of the rights of a redemptioner.
(App. 11.) The trial court erred in its conclusions that (1) the
second notice was not given in the same manner as the first, (2)
there exists a continuing right to redemption after the one-year redemption period of
Indiana Code Section 6-1.1-25-4, and (3) that the relevant statutes are ambiguous with
respect to notification of the right of redemption.
Indiana Code Section 6-1.1-25-4.6(a) states in pertinent part: Notice of the filing
of this petition shall be given to the same parties and in the
same manner as provided in section 4.5 of this chapter, except that, if
notice is given by publication, only one (1) publication is required. After
the expiration of the one-year redemption period, Halifax advised the interested parties of
its petition for a tax deed in the same manner as it notified
the interested parties of the tax sale, i.e., certified mail.
See footnote Nevertheless, the
trial court interpreted the statutory phrase in the same manner as including the
same content. The content of the first notice included advice of the
expiration of the redemption period, while the second notice did not.
Indiana Code Section 6-1.1-25-1 governs the time for redemption, and provides as follows:
Any person may redeem the tract or real property: (1) sold; or
(2) for which the certificate of sale is sold under IC 6-1.1-24; under
IC 6-1.1-24 at any time before the expiration of the period of redemption
specified in section 4 of this chapter by paying to the county treasurer
the amount required for redemption under section 2 of this chapter.
Previously, the statute provided that an interested person could redeem the tract at
any time before the date when the auditor was required to issue a
tax deed; thus a redemption could occur after the one year redemption period
expired if the trial court had not yet entered the order for a
tax deed.
See Wildwood Acres Trust v. First Citizens State Bank, 671
N.E.2d 1199 (Ind. Ct. App. 1996). Consistent with that version of Indiana
Code Section 6-1.1-25-1, Regional Bank contended that, because no tax deed had issued
before the second notice, it was still within the redemption period and should
be advised accordingly.
However, effective July 1, 2001, Indiana Code Section 6-1.1-25-1 was amended to provide
for a definitive time for redemption, dependent upon the expiration of the statutory
period specified in section 4, rather than upon the time of a court
order for a tax deed. Indiana Code Section 6-1.1-25-4(a) provides in relevant
part: The period for redemption of real property sold under IC 6-1.1-24
is one (1) year after the date of sale. Contemporaneously, the legislature
amended Indiana Code Section 6-1.1-25-2(b) to delete an escalated rate of payment applicable
to tracts redeemed after a one-year redemption period. The redemption statutes, construed
together, clearly contemplate a fixed one-year redemption period.
See footnote We find no ambiguity.
Accordingly, advice in the second notice of a continuing right to redemption would
have been contrary to law. As such, the trial court erroneously concluded
that the tax sale was invalid because of the omitted advice. Halifax
complied with the statutory requirements and is entitled to a tax deed.
We reverse the trial courts order and direct judgment for the tax purchaser.
SHARPNACK, J., and MAY, J., concur.
Footnote:
We hereby deny Halifaxs Motion for Oral Argument.
Footnote: Blacks Law Dictionary (abridged 5
th ed. 1983) defines manner as: A
way, mode, method of doing anything, or mode of proceeding in any case
or situation. Id. at 496.
Footnote:
Under some circumstances, not applicable here, the redemption period is only 120
days. Ind. Code § 6-1.1-25-4.