ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KENNETH D. REED Attorneys for Chicago Belle, Ltd.:
Abrahamson & Reed ANDREW V. GIORGI
Hammond, Indiana Crown Point, Indiana
RONALD A. DAMASHEK
Stahl Cowen Crowley, LLC
COURT OF APPEALS OF INDIANA
REEDER ASSOCIATES II, )
vs. ) No. 45A03-0204-CV-113
CHICAGO BELLE, LTD., an Illinois Corporation; )
and CERESTAR USA, INC., formerly American )
Maize Products Co., formerly Western Glucose )
Co.; HAMMOND BRIDGE ROADWORKS, )
LLC., an Indiana Limited Liability Company; )
COUNTY OF LAKE, STATE OF INDIANA, )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Jeffrey J. Dywan, Special Judge
Cause No. 45D11-0109-CP-891
November 19, 2002
OPINION FOR PUBLICATION
In this interlocutory appeal,
See footnote Reeder Associates II (Reeder) appeals the trial courts decision
quieting title to a parcel of real estate (the property) located in Lake
County in favor of Chicago Belle, Ltd., an Illinois corporation (Chicago Belle).See footnote
Reeder raises four issues on appeal, which we consolidate and restate as:
FACTS AND PROCEDURAL HISTORYSee footnote
1. whether the notices of the tax sale proceedings sent to Chicago Belle were
whether the trial court erred in setting a hearing concerning Chicago Belles
request for attorney fees.
On February 13, 1999, due to Chicago Belles nonpayment of property taxes, the
Lake County Commissioners obtained a tax deed for the property.See footnote On February
17, 1999, the Commissioners transferred the property to Reeder for $8,500.00 by way
of a Commissioners quit-claim deed.
Previously, the notice of the tax sale, notice of the right of redemption,
and notice of the petition of tax deed were sent by the Lake
County Auditor (the county auditor) via certified mail to:
CHICAGO BELLE, LTD
3218 SKOKIE VALLEY ROAD
HIGHLAND PARK, IL 60035-1730
(App. of Appellant at 134-40.) However, these notices were all returned as
Chicago Belles attorney and registered agent, Lawrence I. Serlin, maintains an office at
3218 Skokie Valley Road, Highland Park, Illinois 60035, along with several other tenants
of the building located at that address. Serlin uses this address as
a mailing address for recording and notice purposes for real estate documents and
transactions handled on behalf of many of his corporate clients. This is
accomplished by designating c/o L. Serlin when filing and recording documents on behalf
of those clients. The names of Serlins clients are not posted anywhere
in his office or the building where it is located.
Apparently an entity named SRI, Inc., is somehow involved in the tax sale
documentation process in Lake County, (Br. of Appellee at 4), and had MaxiMilian
Title Corporation prepare a title report concerning the property. This title report
includes the following pertinent information on its cover page:
BELOW PLEASE FIND A LISTING OF RESIDENT AGENTS AND OTHERS TO CONTACT WITH
REGARD TO ANY VESTED INTEREST IN THE ABOVE REFERENCED PROPERTY:
Chicago Belle LTD (Owner of Record)
3218 Skokie Valley Road
Highland Park, Illinois 60035-1730
(App. of Appellant at 129.) Additionally, page one of the title report
provides in pertinent part:
LAST GRANTEE OF RECORD :iWarranty [sic] Deed
AXG Corporation, C/O Lawrence I. Serlin to Chicago Belle, LTD, % TO [sic]
L. Serlin, dated 5/20/96 and recorded 5/29/96, in the Office of the Lake
County Recorder as Document No. 1870.
Id. at 130.)
The warranty deed on file with the Lake County Recorder transferring the property
from AXG Corporation to Chicago Belle states Send Tax Bills to CHICAGO BELLE,
LTD. c/o Lawrence I. Serlin, 3218 Skokie Valley Rd., Highland Park, Illinois 60035.
(Id. at 174.) There is no other address listed for Chicago
Belle in the deed. The county auditors Real Estate Assessment and Transfer
Record (transfer record) listed the property as being transferred to:
Chicago Belle, LTD. % L. Serlin,
3218 Skokie Valley Rd., Highland Park, ILL. 60035
(Id. at 39.) Chicago Belles articles of incorporation on file with the
Illinois Secretary of State indicate that its registered office is 3218 Skokie Valley
Road, Highland Park, IL 60035, and that its registered agent is Lawrence I.
STANDARD OF REVIEW
In August of 2000, Chicago Belle became aware of the tax sale proceeding
and made attempts to redeem the property. On September 22, 2000, Chicago
Belle filed within the tax sale proceeding a motion to vacate the issuance
of the tax deed. On October 5, 2000, Reeder filed a separate
action to quiet title. These actions were eventually consolidated, and Chicago Belle
filed a counterclaim against Reeder seeking to quiet title in its favor and
also requesting attorney fees and costs.
On August 8, 2001, Chicago Belle filed a motion for summary judgment.
On March 6, 2002, the trial court entered summary judgment in favor of
Chicago Belle, voiding Reeders deed and quieting title to the property in Chicago
Belle. Essentially, the trial court concluded the notices were defective because they
were not addressed to Chicago Belle in care of Serlin. The trial
court also set a hearing concerning Chicago Belles request for attorney fees.
Reeder now appeals.
On appeal from summary judgment, an appellate court faces the same issues that
were before the trial court and follows the same process. Owens Corning
Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 908 (Ind. 2001). Summary judgment
is appropriate only where the pleadings and evidence show that there is no
genuine issue of material fact and that the moving party is entitled to
a judgment as a matter of law. Id. at 909; Ind. Trial
Rule 56(C). If, as here, there is no dispute as to the
facts, this is a proper case for summary judgment, and our standard of
review is de novo. See Freidline v. Shelby Ins. Co., 774 N.E.2d
37, 39 (Ind. 2002). We view the pleadings and designated materials in
the light most favorable to the nonmovant, in this case, Reeder. Id.
If an owner of real estate fails to pay the property taxes, the
property may be sold in order to satisfy the tax obligation. The
tax sale process is purely a statutory creation and requires material compliance with
each step of the governing statutes, Indiana Code sections 6-1.1-24-1 through 14 (sale),
and 6-1.1-25-1 through 19 (redemption and tax deeds).
See Maudlin v. Hall,
700 N.E.2d 469, 471 (Ind. Ct. App. 1998). While the issuance of
a tax deed creates a presumption that a tax sale and all of
the steps leading up to the issuance of the tax deed are proper,
this presumption may be rebutted by affirmative evidence to the contrary. Id.
Moreover, title conveyed by a tax deed may be defeated if the
three notices required by Ind. Code §§ 6-1.1-24-4, 6-1.1-25-4.5 and 4.6 were not
in substantial compliance with the requirements prescribed in those sections. See id,
700 N.E.2d at 471; Ind. Code § 6-1.1-25-16(7).
The first required notice is the notice of tax sale set forth in
Ind. Code § 6-1.1-24-4(a). That section provides that prior to a tax
sale the county auditor must send notice of the tax sale by certified
mail to the owner or owners of the real property at their last
The second required notice is the notice of the right of redemption.
Ind. Code § 6-1.1-25-4.5(a)(3) provides that a purchaser or assignee is entitled to
a tax deed to the property at issue only if the county auditorSee footnote
gives notice of the sale, the date of expiration of the period of
redemption, and the date on or after which a petition for the tax
deed will be filed to the owner and any person with a substantial
property interest of public record in the tract or real property.
Subsection (b) provides in pertinent part that this notice is to be sent
certified mail to the parties described in subsection (a) at their last known
address. However, if the address of the owner or person with a
substantial property interest of public record upon diligent inquiry cannot be located by
the . . . county auditor, notice may be given by publication.
Ind. Code § 6-1.1-25-4.5(b)
The third notice that must be given is the notice of the petition
for tax deed. Ind. Code § 6-1.1-25-4.6(a) provides that if the property
is not redeemed from the tax sale, notice of the petitioning of the
court to issue a tax deed must be given as follows:
Notice of the filing of this petition and the date on or after
which the petitioner intends to make application for an order on the petition
shall be given to the owner and any person with a substantial interest
of public record in the tract or real property in the same manner
as provided in section 4.5 of this chapter, except that only one (1)
publication is required.
DISCUSSION AND DECISION
1. Adequacy of Notice
Reeder argues that in Lake County the county auditors transfer record is not
the exclusive record for determining an owners last known address, and that a
review of other public records reveals the notices sent by the county auditor
substantially complied with the notice requirements. Chicago Belle responds that notices regarding
tax sale proceedings must be sent to the property owner at its last
known address as indicated in the county auditors records.
The basis for Reeders appeal centers on the county auditors apparent reliance upon
title reports to ascertain where to send notices. Reeder argues that Ind.
Code §§ 6-1.1-24-2(a)(11),
See footnote 6-1.1-24-5(e)(6), 6-1.1-25-2(e)(3), 6-1.1-25-4.5, and 6-1.1-25-4.7 provide the statutory authority for
the county auditor to rely on title reports in order to determine the
correct notice information. However, Reeder fails to offer any explanation whatsoever as
to how these statutes operate either individually or collectively to allow a county
auditor to rely on title reports in lieu of its own records.
We disagree that the statutes support Reeders contention.See footnote
As stated in our supreme courts decision in Tax Certificate Investments, Inc. v.
Smethers, 714 N.E.2d 131, 133-34 (Ind. 1999):
The U.S. Supreme Court held in Mullane v. Central Hanover Bank & Trust
Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950), that
a state must provide notice reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action prior to taking steps that
will affect a protected interest in life, liberty, or property. Notice is
constitutionally adequate when the practicalities and peculiarities of the case . . .
are reasonably met. Id. at 314-15, 70 S.Ct. 652.
In McBain v. Hamilton County, 744 N.E.2d 984, 988 (Ind. Ct. App. 2001),
rehg denied, the Hamilton County Auditor sent the McBains a notice of tax
sale to the McBains Hamilton County address. However, the McBains did not
receive the notice because they had moved to Tennessee. The notice was
returned to the auditor by the post office with a notation indicating that
the order to forward the McBains mail to their new address at 7612
Emerald Greens Drive in Cordova, Tennessee had expired. The auditor, however, did
not send the notice to the Tennessee address and subsequently sold the McBains
property at a tax sale. Relying on our supreme courts decision in
Elizondo v. Read, 588 N.E.2d 501 (Ind. 1992), we held in McBain that
the county auditor was required to send the notice to the Tennessee address.
744 N.E.2d at 989.
McBains discussion of our supreme courts decision in Elizondo, which addressed the requirements
of due process in the context of tax sale notices, is as follows:
In Elizondo, the county Auditor mailed notices regarding tax sale proceedings to a
tax-delinquent property owner at the owners most recent address on file in the
auditors office. Id. at 502. The notices, however, were returned to
the Auditors office by the post office marked Unclaimed or Undeliverable as addressed.
No forwarding order on file. Id. A more recent address
for the property owner apparently could have been discovered by searching records in
the Auditors office, and by thumbing through the local phone book, and the
property owner argued that the Auditor was affirmatively obligated to find his address
from one of these sources and mail notice to him at that address.
Id. at 504. The supreme court disagreed, explaining that an Auditor
has no obligation to search through telephone directories or other documents or sources
of information not routinely maintained by and within the auditors office to discover
the property owners current address. Id. According to the supreme court,
All that is required is that the auditor send notice to the owners
last known address, that is, the last address of the owner of the
specific property in question of which the auditor has knowledge from records maintained
in its office.
Id. As for the possibility that the Auditor might have had a
more recent address for the property owner in the Auditors own records, the
court noted that an Auditor is deemed to be aware of the contents
of records in its office, and stated:
It is reasonable to require the auditor to search the records of his
own office for other possible addresses upon the receipt of an undelivered notice.
. . .
Certainly, the auditor must ascertain from the records which he keeps and maintains
any alternate addresses for the owner of the specific piece of property at
Id. at 505. The court explained, however, that in fulfilling this obligation,
an auditor would be deemed to be aware of an alternate address for
a property owner found in the Auditors records only to the extent that
the source of the information affirmatively links the alternate address as that of
the owner of the specific property in question. Id. at 504.
In Elizondo, that meant that while the Auditor apparently had alternate listings for
property owner Urbano Elizondo, the Auditor had no obligation to forward notice to
those alternate listings because there was nothing save Elizondos name to directly link
the Urbano Elizondo identified in those listings with the Urbano Elizondo who owned
the parcel of property in question. Id.
McBain, 744 N.E.2d at 988-89.
McBain, applying the principles of Elizondo, held that the county auditor could not
disregard the Tennessee address located on the returned envelope because the county auditor
had at that time what became the McBains last known address. 744
N.E.2d at 989. The Tennessee address by virtue of its location on
the returned envelope containing the notice of tax sale was unquestionably linked to
the McBains and the property in question. Id.
In our case, the address maintained by the county auditor in its transfer
record for Chicago Belle concerning the property in question included Serlins name.
The county auditor is deemed to be aware of the contents of the
records maintained in its office. See Elizondo, 588 N.E.2d at 504; McBain,
744 N.E.2d at 989. Therefore, the county auditor was required to include
Serlins name in addressing the notices. However, instead of relying on its
own records, the county auditor apparently relied on a title report in ascertaining
where to send the tax notices. As a result, Chicago Belle did
not receive the notices. Due process requires the county auditor to search
the records that it maintains in its office. See Elizondo, 588 N.E.2d
at 505; McBain, 744 N.E.2d at 989. Although a county auditor may
go beyond the minimum requirements of due process and engage in a search
of outside records, it may not do so in lieu of a search
of its own records.
Reeder argues that other records, primarily Chicago Belles Illinois corporate records, indicate that
the notices sent by the county auditor without the inclusion of Serlins name
substantially complied with the notice requirements. However, Chicago Belles address as it
is contained in these other records is irrelevant. Even if records other
than those maintained by the county auditor indicate an alternative address for Chicago
Belle, due process still requires the county auditor to send notices to the
address that it maintains in its own records.
2. Attorney Fees
Reeder argues that Chicago Belle is not entitled to attorney fees and costs.
However, Chicago Belle has not been granted any attorney fees or costs.
The issue of attorney fees and costs is still pending in the
trial court. The trial court, thus far, has only set a hearing
concerning this issue. This issue is not ripe for appellate review.
See Ruman v. Eskew, 168 Ind.App. 428, 343 N.E.2d 806, 809-10 (1976).
The trial court did not err by setting a hearing concerning this issue.
SHARPNACK, J., and BARNES, J., concur.
Ind. Appellate Rule 14(A)(4) provides that interlocutory appeals [f]or the sale or
delivery of the possession of real property are brought as a matter of
Footnote: Reeder also named a number of other parties as defendants in this
case. Reeder states the other defendants in this suit are so designated
only because they have or claim an interest in the subject real estate,
and, by statute must be made parties to answer to their interests, if
any, even though said interest may not be extinguished or adversely affected, as
a matter of law, in a proceeding of this nature. (Br. of
Appellant at 3) (footnotes omitted). The other defendants are not participating in
Footnote: We heard oral argument in this case on September 26, 2002, in
Evansville, Indiana at the University of Southern Indiana. We thank the faculty,
staff, and students for their interest and hospitality, and we commend counsel for
their capable oral advocacy.
Footnote: Pursuant to Ind. Code § 6-1.1-24-6, when after two consecutive tax sales
the minimum required sale price is not received, the county obtains the rights
of a purchaser of the property.
Footnote: The statutes governing tax sales have been amended since the events in
this case occurred. Accordingly, citations to these statutes, unless otherwise noted, are
to the 1998 edition of the Indiana Code, which was the version in
effect at that time.
Footnote: Ind. Code § 6-1.1-24-4(a) has been subsequently amended effective July 1, 2001,
to provide that notice is to be sent to the last address of
the owner for the property as indicated in the records of the county
auditor. The new version of the statute also provides in pertinent part
that: [t]he owner of the real property shall notify the county auditor of
the owners correct address. The notice required under this section is considered
sufficient if the notice is mailed to the address required by this section.
Ind. Code § 6-1.1-25-4.5(a)(3) provides that this notice is given by:
(A) the purchaser or assignee; or
(B) in a county having a consolidated city, a county having a population
of more than two hundred thousand (200,000) but less than four hundred thousand
(400,000), or a county where the county auditor and county treasurer have an
agreement under section 4.7 of this chapter, the county auditor.
The parties agree that in Lake County the county auditor instead of the
tax sale purchaser gives this notice.
Footnote: Reeder cites to a nonexistent Ind. Code § 6-1.1-24-1(a)(11). We assume
Reeder is actually referring to Ind. Code § 6-1.1-24-2(a)(11).
Footnote: Although some of the statutes cited by Reeder refer to title searches,
those statutes do not appear to support Reeders contention that a county auditor
can rely on a title search in lieu of its own records.
For example, Ind. Code § 6-1.1-25-4.7 provides:
(a) A county auditor and county treasurer may
enter into a mutual agreement for the county auditor to perform the following
duties instead of the purchaser:
(1) Notification and title search under section 4.5 of this chapter.
(2) Notification and petition to the court for the tax deed under section
4.6 of this chapter.
(b) If a county auditor and county treasurer
enter into an agreement under this section, notice shall be given under IC
However, Ind. Code §§ 6-1.1-25-4.5 and 4.6, which are the statutes regarding the
notices of redemption and petition of tax deed, do not even mention title
searches. Ind. Code § 6-1.1-24-2 is a public notice of sale statute
for the benefit of the buyers and does not address the notice that
is to be given to owners.
See Ransburg v. Kirk, 509 N.E.2d
867, 874 (Ind. Ct. App. 1987). Ind. Code §§ 6-1.1-24-5(e)(6) and 6-1.1-25-2(e)(3)
generally provide for the recovery of the costs of title searches. These
statutes do not support Reeders contention that a county auditor can rely on
a title search in lieu of its own records.
Additionally, Reeder argues that tax notices are not service of process that
would require them to be served on Serlin as Chicago Belles registered agent.
Regardless of whether tax sale notices are service of process, the county
auditor was required to send the notices to the address it maintained for
Chicago Belle in its own records.
Ind. Code § 6-1.1-25-13 provides:
(a) When the grantee of an ineffectual tax
deed, or his successors or assigns, receives payment for the amount which he
is entitled to receive under section 12(c) of this chapter, he shall execute,
acknowledge, and deliver a deed releasing the lien on the real property which
he has acquired under section 12(a) of this chapter. He shall execute
and deliver the deed to the person who makes the payment.
(b) If the grantee, or his successors or
assigns, fails to execute, acknowledge, or deliver a deed as required by this
section, the person who makes the payment may initiate an action to quiet
title to the real property. When the payor initiates such an action,
the grantee, or the grantees successors or assigns, is liable for the court
cost and the payors reasonable attorney fees which result from the action.