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First American Title Ins. Co. v. Calhoun

Court of Appeals of Indiana

June 25, 2014

FIRST AMERICAN TITLE INSURANCE COMPANY, Appellant-Intervenor,
v.
DARRELL CALHOUN and BARBARA CALHOUN, Successors to MARCUS BURGHER III, FOR ISSUANCE OF TAX DEED, Appellees-Petitioners

Page 424

APPEAL FROM THE CRAWFORD CIRCUIT COURT. The Honorable Kenneth L. Lopp, Judge. Cause No. 13C01-0910-MI-022.

ATTORNEY FOR APPELLANT: KURT V. LAKER, Doyle Legal Corporation, P.C., Indianapolis, Indiana.

PYLE, Judge. MATHIAS, J., and BRADFORD, J., concur.

OPINION

Page 425

PYLE, Judge.

STATEMENT OF THE CASE

This discretionary interlocutory appeal involves a mortgage foreclosure judgment holder's motion for summary judgment seeking to set aside the issuance of a tax deed for property located in Crawford County and purchased in a tax sale. The summary judgment motion was based on a challenge to the sufficiency of the pre-tax sale and post-tax sale notices to the mortgage foreclosure judgment holder. The Appellant and Appellee in this appeal were not the original parties involved in the summary judgment proceeding. Instead, they were substituted as the Intervenor and Petitioner, by order of the trial court, on the same day the trial court entered its summary judgment order.

In this appeal, Appellant/Substitute Intervenor/Mortgage Foreclosure Judgment Holder-by-Assignment, First American Title Insurance (" First American" ), appeals the trial court's order denying the original intervenor/mortgage foreclosure judgment holder's--WM Specialty Mortgage, LLC (" WM Mortgage" ), later known as JPMC Specialty Mortgage, LLC (" JPMC Mortgage" )--motion for summary judgment, in which it sought to set aside the tax deed issued to the tax sale purchaser/original petitioner, Marcus Burgher, III (" Burgher" ), for the Crawford County property that he later quitclaim deeded to Appellee/Substitute Petitioners, Darrell Calhoun (" Darrell" ) and Barbara Calhoun (" Barbara" ) (collectively, " the Calhouns" ).

We affirm.

ISSUE

Whether the trial court erred by denying the mortgage foreclosure judgment

Page 426

holder's motion for summary judgment that sought to set aside a tax deed.

FACTS

The property at issue in this appeal is a 4.5-acre tract of land located at 2640 Calhoun Road in English, Indiana (" the Real Estate" ). Raymond Gresham (" Gresham" ) owned the Real Estate and executed a note and mortgage in the amount of $50,000 with Ameriquest Mortgage Company (" Ameriquest Mortgage" ) on the Real Estate in 2002. An exhibit attached to the mortgage provided that the land subject to the mortgage consisted of " TWENTY (20) ACRES" in English, Indiana. (App. 93).[1]

In June 2008, Ameriquest Mortgage assigned the mortgage on the Real Estate to WM Mortgage. The assignment listed WM Mortgage's address as 10801 6th Street, #130, Rancho Cucamonga, California. On June 10, 2008, WM Mortgage filed the assignment of mortgage with the Crawford County Recorder's office. There is no indication in the record on appeal that WM Mortgage filed a request for a mortgagee's notice of a tax sale, pursuant to Indiana Code § 6-1.1-24-3, with the Crawford County Auditor (" the Auditor" ).

In 2007, Gresham stopped paying on the mortgage for the Real Estate. On June 12, 2008, WM Mortgage filed a Complaint on the Note and Real Estate Mortgage (" the mortgage foreclosure case" ), in which it sought a judgment against Gresham for the principal and interest on the mortgage, as well as various fees. WM Mortgage's complaint provided that its " principal place of business [was] in Rancho Cucamonga, California." (App. 65). The appearance form for WM Mortgage's attorney listed WM Mortgage's address as Rancho Cucamonga, California.

WM Mortgage also named the Calhouns as defendants in the mortgage foreclosure case and alleged that Gresham had conveyed his interest in " Tract II of the Real Estate" by warranty deed to the Calhouns in April 2003. (App. 68). The warranty deed attached to the complaint provided that Gresham had conveyed 15.5 acres of land to the Calhouns, who recorded the deed on April 29, 2003. WM Mortgage alleged that the Calhouns' 15.5 acres of property was subject to WM Mortgage's mortgage lien on the Real Estate. Burgher, who is an attorney, represented the Calhouns in the mortgage foreclosure case.

WM Mortgage filed two separate motions for summary judgment in the mortgage foreclosure case, one in July 2008 and the other in August 2008. Both summary judgment motions included affidavits from attorneys-in-fact for WM Mortgage, and these affiants averred that WM Mortgage's principal place of business was in Rancho Cucamonga, California.

On July 14, 2008, the trial court ordered default judgment and a decree of mortgage foreclosure against Gresham and in favor of WM Mortgage. The trial court ordered that Gresham was responsible for a personal judgment of $63,910.02 plus interest and other costs, including " advances of real estate taxes," and " any monies

Page 427

[WM Mortgage] [would] be compelled to expend for redemption of the Real Estate from tax sale, assessments, insurance premiums and any necessary expenses to preserve and protect the [R]eal [E]state[.]" (App. 104, 188). Additionally, the trial court ordered WM Mortgage's mortgage foreclosed on " Tract I" (a 4.5 acre tract of land) and " Tract II" (a 20-acre tract of land minus the Calhouns' 15.5 acres of property), and the trial court stated that WM Mortgage's mortgage was foreclosed as a " first and prior lien[.]" (App. 105, 189). The trial court also ordered the Real Estate to be sold at a sheriff's sale and directed the proceeds of the sale to be applied to the cost of the mortgage foreclosure action, followed by the payment of property taxes on the Real Estate, and then the payment of sums due to WM Mortgage. The trial court's order did not resolve the dispute between WM Mortgage and the Calhouns regarding the 15.5 acres of land.

Apparently, a sheriff's sale was not held, and neither Gresham nor WM Mortgage paid the property taxes due on the Real Estate. Due to the delinquent property taxes, the trial court, on October 22, 2009, entered a judgment against the Real Estate and authorized the Auditor to hold a tax sale on the Real Estate. Prior to the tax sale, the Auditor sent notice of the tax sale to Gresham, as owner of the Real Estate, as required by statute.

On October 29, 2009, Burgher purchased the Real Estate at the tax sale, and the Auditor issued a certificate of sale for the Real Estate to Burgher. Based on the date of purchase, the statutory one-year redemption period ended on October 29, 2010. See Ind. Code § 6-1.1-25-4.

Thereafter, on July 15, 2010, Burgher sent a notice of the right of redemption (" 4.5 Notice" ) to Gresham and WM Mortgage. Burgher's 4.5 Notice specified that the redemption period would expire on October 29, 2010, and indicated that he would petition the trial court for a tax deed after that date. Prior to sending the 4.5 Notice to WM Mortgage, Burgher checked the Indiana Secretary of State's Office for a resident agent for WM Mortgage, but he did not find a listing or business address. Burgher " mailed" the 4.5 Notice to WM Mortgage at the Rancho Cucamonga, California address contained in the county records. (App. 291). The 4.5 Notice to WM Mortgage was not returned to Burgher.

The Real Estate was not redeemed within the one-year statutory redemption period. On December 27, 2010, Burgher filed a verified motion for issuance of a tax deed for the Real Estate (" tax sale case" ). That same day, Burgher sent a notice of his petition for a tax deed (" 4.6 Notice" ) to Gresham via certified mail. Burgher also sent the 4.6 Notice to WM Mortgage via certified mail at the same California address as the 4.5 Notice. The notice sent to WM Mortgage was returned to Burgher as undeliverable. Specifically, the post office stamped the following on the envelope:

Return to Sender
Not Deliverable as ...

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