Windy City Acquisitions, LLC v. Simms

• Decision Date: 24 June 2021
• Docket Number: Court of Appeals Case No. 20A-TP-2347
• Citation: 173 N.E.3d 675
• Court: Indiana Appellate Court
• Parties: WINDY CITY ACQUISITIONS, LLC, Appellant-Petitioner, v. ESTATE OF Leland SIMMS, et al., and Brentwood Equitable Trust #1003-061387, and Green Leaf Enterprises, LLC, Appellees-Respondents.

173 N.E.3d 675

WINDY CITY ACQUISITIONS, LLC, Appellant-Petitioner,

v.ESTATE OF Leland SIMMS, et al., and Brentwood Equitable Trust #1003-061387, and Green Leaf Enterprises, LLC, Appellees-Respondents.

Court of Appeals Case No. 20A-TP-2347

Court of Appeals of Indiana.

FILED June 24, 2021

Attorneys for Appellant: Tony Walker, Lukas Cohen, Indianapolis, Indiana

Attorney for Appellee Brentwood Equitable Trust #1003-061387: James W. Ensley, Greencastle, Indiana

Tavitas, Judge.

Case Summary

[1] Windy City Acquisitions, LLC ("Windy City") appeals the trial court's denial of its petition for a tax deed for property owned by Leland Simms, who is deceased. The trial court found that Windy City was not entitled to a tax deed for the property because the notices provided by Windy City and its predecessor did not substantially comply with Indiana Code Section 6-1.1-25-4.5 and Indiana Code Section 6-1.1-25-4.6. Concluding that Windy City substantially complied with the notice statutes, we reverse and remand.

Issue

[2] Windy City raises one issue, which we restate as whether the trial court properly found that the tax sale certificate holder failed to substantially comply with Indiana Code Section 6-1.1-25-4.5 and Indiana Code Section 6-1.1-25-4.6 when it provided the required notices.

Facts

[3] Leland Simms ("Leland") owned a residence located at 2865 Dallas Street in Gary ("Dallas Street Property"). Leland also owned the adjacent ten-foot-wide strip of vacant land, which has an official address of 5820-36 W. 29th Avenue ("Vacant Lot"). The Vacant Lot appears to be part of the yard of the Dallas Street Property and is immediately adjacent to the residence on the right side if looking at the residence from the street. The Dallas Street Property containing the residence and the Vacant Lot are surrounded by a chain link fence. The relationship of the properties is shown in Figure 1 below.

[4] Leland died in January 2013, and his estate was probated in 2013. The Dallas Street Property was sold in 2013.¹ The Vacant Lot, however, was never transferred out of Leland's name. The Lake County Assessor's office still lists Leland as the owner of the Vacant Lot and lists Leland's address as 2865 Dallas Street in Gary. After Leland's death, Leland's brother, Lloyd Simms, arranged for Leland's mail to be forwarded to Lloyd's address on Burr Street in Gary. Lloyd, however, never opened Leland's mail and merely threw the mail in the trash.

[5] Property taxes related to the Vacant Lot in the amount of $2,870.92 were not paid, and the Lake County Commissioners obtained a tax sale certificate on September 11, 2018. On May 22, 2019, Alexander Petrovski purchased an "Assignment of Commissioner Owned Tax Sale Certificate" for the Vacant Lot.

[6] Petrovski's counsel, Attorney Kevin Marshall ("Attorney Marshall"), had a title search for the Vacant Lot performed. Attorney Marshall was unaware that Leland was deceased. Through the title search, however, Attorney Marshall discovered an additional address for Leland on Burr Street in Gary, which is Lloyd's residence.

[7] According to Attorney Marshall, on August 1, 2019, he sent the notice of redemption required by Indiana Code Section 6-1.1-25-4.5 ("4.5 Notice") to Leland at the Dallas Street Property and Burr Street addresses by first-class mail and by certified mail.² The post office documentation provided by Attorney Marshall, however, does not indicate that Attorney Marshall sent the 4.5 Notice to Leland at the Burr Street address by either certified mail or first-class mail. The 4.5 Notice sent to Leland at the Dallas Street Property address by certified mail was returned to Attorney Marshall as "attempted not known unable to forward." Exhibit Vol. p. 25. The 4.5 Notice sent to the Dallas Street Property by first-class mail was not returned. Petrovski also posted the notice in front of the chain link fence along Dallas Street on August 13, 2019, as identified in Plaintiff's Exhibit G. The redemption period expired on September 19, 2019, without the property being redeemed.

[8] Rich Zeigler, authorized agent of Windy City, spoke with Lloyd in Lloyd's driveway at the Burr Street address sometime after the redemption period expired and learned that Leland was deceased. On December 11, 2019, Petrovski assigned the tax sale certificate to Windy City. Windy City then filed a verified petition for a tax deed. On December 17, 2019, Windy City sent the notice of filing for tax deed required by Indiana Code Section 6-1.1-25-4.6 ("4.6 Notice") to Leland at the Vacant Lot's address, the Dallas Street Property address, and the Burr Street address by first-class mail and by certified mail. The certified mail sent to the Vacant Lot's address was returned as "no such street unable to forward"; the certified mail sent to the Dallas Street Property address was unclaimed; and the notice sent to the Burr Street address was returned as "insufficient address unable to forward." Id. at 47, 55, 65. Also, on December 20, 2019, Windy City posted the notice in front of the chain link fence along Dallas Street, slightly to the right of the residence.

[9] Windy City then re-sent the notices by certified mail. Certified mail sent to the property address and the certified mail sent to the Dallas Street address were returned as "no such number unable to forward." Id. at 48, 52. On January 18, 2020, however, Lloyd received and signed for the certified mail that was addressed to Leland and sent to the Burr Street address.

[10] Brentwood Equitable Trust No. 1003-0613837 ("Brentwood")³ , successor to Lloyd, filed an objection to the issuance of the tax deed. Brentwood argued that Lloyd was an heir of Leland and that Lloyd was entitled to proper notice regarding the tax sale by the Lake County Auditor, the Lake County Treasurer, the Lake County Commissioners, Petrovski, and Windy City, which he did not receive.

[11] A bench trial was held in October 2020. Among other evidence, Windy City presented testimony from a surveyor that, in his opinion, the notice signs were placed on the Vacant Lot. Lloyd, however, testified that the fence was not on the Vacant Lot. Lloyd saw a notice posted after October 2019, but he thought the notices were posted on the Dallas Street Property and "didn't even stop to read it." Tr. Vol. I p. 136.

[12] Windy City argued that Lloyd did not have a substantial interest in the vacant lot and, to the extent Lloyd was entitled to notice as an heir or potential heir, Lloyd received notice. Further, Windy City argued that it properly served the notices and that service on the Burr Street address was merely "extra" notice and not required. Id. at 148.

[13] Brentwood argued that the 4.5 Notice was required to be sent to the Burr Street address and that there is no record that Petrovski's 4.5 Notice was sent to that address. Brentwood further argued that, based on Lloyd's testimony, the notices were posted on the Dallas Street Property, rather than the Vacant Lot. According to Brentwood, the information that Leland was deceased was readily accessible on the internet.

[14] After the bench trial, the trial court issued, sua sponte, findings of fact and conclusions thereon denying Windy City's petition for a tax deed and granting Brentwood's objection. The trial court found:

69. Failure to send the 4.5 Notice to the Burr Street address results in the failure to meet the "practicalities and peculiarities" standard of [ McBain v. Hamilton Cty., 744 N.E.2d 984 (Ind. Ct. App. 2001),] and the [ Mennonite Bd. of Missions v. Adams , 462 U.S. 791, 103 S. Ct. 2706, 77 L.Ed.2d 180 (1983),] standard since Petrovski (original tax sale purchaser) had the Burr Street address readily available to him yet failed to successfully utilize it. This error is compounded by the fact that when [Windy City] sent the 4.6 Notice to the Burr Street address, Lloyd Simms (brother of Leland M. Simms) received it and followed up on its purpose with Attorney Anthony Walker.

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74. No evidence was presented to demonstrate that Lloyd Simms (brother of Leland M. Simms) had actual notice of the tax sale proceeding until after the redemption period had expired.

75. The Court finds Lloyd Simms (brother of Leland M. Simms) was not entitled to notice under Indiana Law, as a person with a substantial property interest of public record and therefore was not entitled to notice of the tax sale proceeding for the subject property.

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76. The Court finds that Lloyd Simms (brother of Leland M. Simms) did not have actual notice of the tax sale prior to the tax sale redemption period expiring.

77. Both Petrovski (original tax sale purchaser) and [Windy City] testified that they posted the 4.5 and 4.6 Notices on a signpost in front of a vacant piece of land, which they understood to be the subject property. Further, [Windy City] argued that the only address that they needed to send notice to was 2865 Dallas Street and that when the mail came back as undeliverable, pursuant to Jones v. Flowers [547 U.S. 220, 126 S. Ct. 1708, 164 L.Ed.2d 415 (2006) ], the additional reasonable step that they took was to post the notice on a Vacant parcel of land. The Court questions the level of "desire" of [Windy City] or Petrovski in performing this method of noticing when they could have simply posted the notice on the home located at 2865 Dallas Street, the intended recipient of the notice, which was adjacent to the subject property in question. It would have taken no additional time to post notice of the tax sale proceeding on the residence at which they believed Leland M. Simms to be receiving mail.

78. The Court heard testimony from Alexander Petrovski (original tax sale purchaser) that he posted the 4.5 Notice of Sale and testimony from Rich Ziegler of Windy City Acquisitions, LLC that he posted the 4.6 Notice. As in [ Marion County Auditor v. Sawmill Creek , 964 N.E.2d 213, 221 (Ind. 2012) ], when noticing is done on a vacant parcel of land, it is considered suspicious noticing. The

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