First Sav. and Loan Ass'n of Central Indiana v. Furnish

• Citation: 367 N.E.2d 596,174 Ind.App. 265
• Decision Date: 19 September 1977
• Docket Number: No. 2-476A102,2-476A102
• Parties: FIRST SAVINGS AND LOAN ASSOCIATION OF CENTRAL INDIANA, Appellant (Plaintiff below), v. Alfred E. FURNISH and D. Louise Furnish, Appellees (Defendants below).
• Court: Court of Appeals of Indiana

Page 596

367 N.E.2d 596

174 Ind.App. 265

FIRST SAVINGS AND LOAN ASSOCIATION OF CENTRAL INDIANA, Appellant (Plaintiff below), v. Alfred E. FURNISH and D. Louise Furnish, Appellees (Defendants below).

No. 2-476A102.

Court of Appeals of Indiana, Second District.

Sept. 19, 1977.

Charles H. Dickmann, James E. Freeman, Jr., Sansberry, Dickmann, Dickmann & Freeman, Anderson, for appellant.

John D. Wagoner, Wagoner & Cochran, Marion, Patrick J. Roberts, Cole, Haig & Roberts, Peru, for appellees.

CASE SUMMARY

BUCHANAN, Judge.

Plaintiff-appellant First Savings & Loan Association of Central Indiana (First Savings), as a mortgage lienholder, appeals from the granting of Summary Judgment in favor of Appellees, Alfred E. and D. Louise Furnish (Furnish) quieting title in Furnish as tax sale purchaser, claiming the judgment was contrary to the evidence and pre-sale notice by publication was in violation of the Due Process Clauses of the United States and Indiana Constitutions. ¹

We affirm.

FACTS

The facts and evidence most favorable to the judgment of the trial court are:

On August 12, 1968, Donmar Realty Corporation (Donmar) executed a mortgage on land it owned in Grant County, Indiana, in favor of Twin City State Bank (Twin City), which then recorded the mortgage in the Recorder's office of Grant County and subsequently assigned it to First Savings of Madison County, Indiana, on September 13, 1968. First Savings recorded the assignment in Grant County on October 2, 1968. ²

Some time after the assignment, Donmar, the mortgagor, defaulted in its principal payments and also became delinquent in payment of real estate taxes. As a result the land, on August 14, 1972, was sold at a tax sale to Furnish after notice of the impending sale was sent to Donmar, the owner, by certified mail. ³ Notice was also posted on the Grant County Courthouse and, pursuant to statute, ⁴ published in a newspaper of local circulation in Grant County for three consecutive weeks. ⁵ No notice was sent to First Savings.

The record indicates First Savings did not have actual knowledge of the real estate tax delinquency before the tax sale took place, but it is undisputed it had knowledge thereof during the period of redemption. In fact, on November 27, 1972, about three and one-half months after the sale, First Savings filed in the Grant Circuit Court an action to foreclose the mortgage naming Donmar (the original owner), Twin City (original mortgagee), and Furnish (tax sale buyer) as Defendants.

First Savings did not attempt to redeem the land pursuant to the right given lienholders by the statute then in effect, ⁶ and After the action was venued to Miami County, Indiana, on March 9, 1973, and, following the subsequent failure by First Savings to redeem, Furnish filed, on December 24, 1974, a counter-claim against First Savings to quiet title to the real estate. On October 8, 1975, First Savings filed a Consolidated Motion for Declaratory Judgment ⁸ against the counter-claim of Furnish. Furnish responded by an oral Motion for Summary Judgment ⁹ and the trial court granted Furnish's motion.

title was conveyed ⁷ to Furnish on August 16, 1974.

This appeal followed.

ISSUES

Two issues ¹⁰ are presented for our disposition:

(1) Does First Savings have standing to raise lack of due process (constructive notice only) under the 14th Amendment to the United States Constitution and art. 1, § 12 to the Indiana Constitution?

(2) Does failure to give a mortgagee actual notice of a tax sale constitute a denial of due process?

PARTIES' CONTENTIONS First Savings argues it has standing to assert lack of due process because it has suffered harm and, further, that the landmark decision in Mullane v. Hanover Bank & Trust Co. ¹¹ requires that a mortgagee whose lien is recorded must be given actual notice prior to the sale of the mortgaged land for tax delinquency.

Furnish responds that First Savings lacks standing to raise the constitutional issue as First Savings had actual knowledge of the sale within the redemption period and therefore was not harmed. Alternatively, Furnish argues that the statute pertaining to notice ¹² is reasonably calculated to apprise any interested party of the pendency of the sale, thus satisfying the requirements of due process.

DECISION

ISSUE ONE

CONCLUSION First Savings has standing to raise the constitutional question of lack of due process.

A threshold question is raised by Furnish's assertion that First Savings has no right to raise the constitutional question inasmuch as it was not harmed because the property could have been redeemed during the period of redemption.

It is true that standing to raise a constitutional question is determined by the existence of harm which occurred because of the operation of the statute or act which is asserted as unconstitutional. Board of Commissioners of Howard County v. Kokomo City Plan Commission (1975), Ind., 330 N.E.2d 92; Lamb v. State (1975), Ind., 325 N.E.2d 180; State v. Clark (1966), 247 Ind. 490, 217 N.E.2d 588; Wells v. State (1976), Ind.App., 351 N.E.2d 43.

Harm is demonstrated, says First Savings, and we agree, because by redeeming after the sale a greater sum of money would have to be paid, consisting of penalties and interest. ¹³

That such payments of penalties and interest constitute harm is consistent with the case law on this subject. Johnson v. United States, 422 F.Supp. 958 (N.D.Ind.1976); Cottongim v. Congleton (1964), 245 Ind. 387, 199 N.E.2d 96; Pennington v. Stewart (1937), 212 Ind. 553, 10 N.E.2d 619. And further, a determination of the constitutional question is necessary to a complete determination of the rights of the parties. Shigley v. Whitlock, supra; Garcia v. Slabaugh, supra; Saloom v. Holder, supra note 13.

ISSUE TWO

CONCLUSION Due process does not require that a mortgagee be given actual notice of a tax sale.

The precise question is whether due process entitles a mortgagee to actual notice of a tax sale rather than constructive notice (publication).

The trial court concluded, properly, that Indiana statutes relating to the sale of tax delinquent real estate contemplate a mortgagee only receiving constructive notice (posting and publication).

The general notice statute provides that notice be given by publication and posting without reference to whom it shall apply:

To the list of real property described in §§ 601 (6-1-56-1) shall be attached a notice stating that each parcel of real property listed will be sold at public auction to the highest bidder; that said sales shall be an amount not less than the sum of delinquent special assessments and taxes (whether or not delinquent for more than fifteen months), taxes and special assessments due and payable in the year of the sale (whether or not delinquent), penalties which may be due thereon, or due from the owner thereof with respect thereto, and five dollars ($5.00) costs; that said sale shall be conducted at a designated place in the courthouse or on the courthouse grounds; and that said sale shall be commenced at 10:00 A.M., on the second Monday in August next thereafter and continue from day to day until all the real property is sold.

The County Auditor shall cause a copy of the aforesaid notice to be posted in a public place of posting in the courthouse at least three (3) weeks before the date of sale, and shall also give notice by publication once each week for three (3) consecutive weeks before such sale. The expense of such printing shall be paid out of the County general fund without prior appropriation therefor.

The County Auditor shall, on or before the day of the sale, attach a copy of such notice to the list required by § 601 and certify on this record the manner and length of time the notice was printed and posted. (Acts 1963, ch. 280, § 602, p. 426.) (Emphasis supplied) (hereinafter referred to as the general notice statute). IC 6-1-56-2 (64-2256).

But significantly the very next section specifically requires actual notice be given by certified mail to the "owner or owners." No reference is made to any other interested person:

6-1-56-3 (64-2257). Notice of sale to owner. In addition to the notice required to be given by §§ 602 (6-1-56-2), the County Auditor shall send a notice of such sale to the owner or owners of such real property listed for sale for delinquent taxes or special assessments, at the last known address by certified mail at least 21 days prior to the date set for the sale. Such notice shall be in a form prescribed by the State Board of Accounts.

The County Auditor shall, on or before the day of sale, certify on his record that such notice was mailed as herein provided.

(Acts 1963, ch. 280, § 603, p. 426). (Emphasis supplied) (hereinafter referred to as the special notice statute).

And then the statutory scheme of sale and redemption of tax delinquent real estate allows a lienholder, among other persons having an interest in real estate, the right to redeem:

6-1-57-1 (64-2276). Redemption. The owner, occupant, lienholder or any other person having any interest in real property sold pursuant to Article VI (6-1-56-1 6-1-56-14) of this act may redeem the property sold at any time before deed is issued therefor by paying to the county treasurer the amount required by this article (6-1-57-1 6-1-57-16) for redemption. (Acts 1963, ch. 280, § 701, p. 426). (Emphasis supplied) (hereinafter referred to as the redemption statute).

Giving the words of these three statutes their "plain or ordinary and usual sense" as we are required to do, the plain implication is that only an owner of real estate is entitled to the actual notice of the special notice statute. IC 1-1-4-1; State ex rel. Bynum v. LaPorte Superior Court No. One (1973), 259 Ind. 647, 291 N.E.2d 355; Sutto v. Board of Medical Registration & Examination (1962), 242 Ind. 556, 180 N.E.2d 533; State v. Bress (1976), Ind.App., 349 N.E.2d 229; Jenkins v. Stotts (1976), Ind.App., 348 N.E.2d 57; Sekerez v....