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10/19/87 ED GOSSETT v. AUBURN NATIONAL BANK AUBURN

Filed: October 19, 1987.

ED GOSSETT, APPELLANT (DEFENDANT BELOW),
v.
AUBURN NATIONAL BANK OF AUBURN, FRANCIS M. SANDA, APPELLEES (PLAINTIFFS BELOW)



APPEAL FROM THE MARION SUPERIOR COURT, ROOM NO. TWO, The Honorable Kenneth H. Johnson, Cause No. S284-1409.

Conover, J., Miller, P.j., Shields, P.j., concur.

Author: Conover

CONOVER, J.

Defendant-Appellant Ed Gossett (Gossett) appeals the trial court's judgment divesting him of the interest he acquired in certain real estate by way of a tax sale.

We reverse.

ISSUES

Because we reverse, we address only the following dispositive issues which we raise sua sponte :

1. whether Auburn National Bank (Auburn) lacks "standing" to argue Ind. Code § 6-1.1-24-4.2 violated First Federal Savings and Loan Association's (First Federal) Fourteenth Amendment due process right to receive notice "reasonably calculated to apprise" it of a pending tax sale of real estate upon which it held a mortgage, and

2. whether Auburn was entitled to notice of proposed issuance of the tax deed.

FACTS

O.S.I., Inc. (OSI) was an Indiana corporation. The subject real estate, commonly known as 6415 West Washington Street, Indianapolis, Marion County, Indiana (6415), was one of several properties OSI acquired in Indiana upon which Omelette Shop restaurants were located. OSI acquired title to 6415 by warranty deed dated September 1, 1977, recorded September 14, 1977, in the office of the Recorder of Marion County (recorder).

Ken Sexton (Sexton), a vice president of OSI, was hired in 1977 to oversee OSI's business interests in Indiana. His duties included paying the property taxes assessed on OSI's various parcels of Indiana real estate, including 6415. Sexton was terminated by OSI in December, 1981. Since then, two other persons have been responsible therefor. However, OSI never paid any of the real estate taxes assessed against 6415 from the time OSI acquired it in 1977 until it was sold to Gossett at the tax sale in 1982.

On February 20, 1978, OSI executed a mortgage on 6415 to secure a loan made to it by First Federal. This mortgage was recorded the following day, February 21, 1978, in the recorder's office. Francis Sanda (Sanda), an officer and shareholder of OSI, was guarantor of the loan secured by this mortgage.

Since 1979, the township assessors of Marion County have kept copies of the deeds filed for record and the real estate transfer books, rather than the Marion County Auditor (auditor).[Footnote 1] These assessors first value the parcels for tax purposes, assign a parcel number to each piece of real estate, keep records of the property owners in their townships and the addresses to which the property owners request that tax notices be sent, and of any requests to change the mailing addresses for tax purposes. (R. 474-5). These parcel numbers, names, and mailing addresses are then put into the Marion County computerized property system. Only the township assessor may change the tax mailing address, the auditor is not empowered to do so. (R. 507).

The handwritten notation appearing on the deed conveying 6415 to OSI is

Tax statement: c/o Robt T. Wildman

2450 1 Indiana Sq.

according to the Wayne Township assessor's records. (R. 473). 6415 is located in Wayne Township. Wildman was an Indianapolis attorney who represented OSI sporadically during its corporate existence.

Because OSI was delinquent in paying the taxes assessed on 6415, the auditor on June 25, 1982, mailed notices of proposed tax sale of ...


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