942 N.E.2d 889
Ind. Ct. App.2011Background
- Beneficial Indiana, Inc. holds a recorded mortgage on real estate owned by the Ostens.
- Ostens default on mortgage and property taxes; property becomes eligible for 2008 Allen County tax sale.
- Tax sale certificate issued to Plymouth Park Tax Services for $46,000; tax deed issued after redemption period expires.
- Auditor holds $42,462.20 in tax sale surplus following Plymouth Park's tax deed.
- Ostens deed the property to Joy Properties I, LLC via quitclaim on Jan. 27, 2010, recorded Jan. 28, 2010.
- Beneficial seeks court order to declare entitlement to surplus; trial court orders surplus disbursed to Joy Properties; Beneficial appeals to reverse.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the surplus should be disbursed to Joy Properties. | Beneficial asserts it has priority lien and superior interest. | Joy Properties argues it holds a valid, superior interest as owner divested by tax deed. | Beneficial has priority; court erred in disbursing surplus to Joy Properties. |
Key Cases Cited
- Lake County Auditor v. Burks, 802 N.E.2d 896 (Ind.2004) (statutory framework and declaratory judgment approach to tax sale surplus; priority of liens)
- Brewer v. EMC Mortgage Corp., 743 N.E.2d 322 (Ind.Ct.App.2001) (former statute allowed broader routes to surplus but not exclusive)
- CANA Investments, LLC v. Fansler, 832 N.E.2d 1103 (Ind.Ct.App.2005) (interest in real property may pursue surplus outside administrative procedure)
- Moore v. Boxman, 245 N.E.2d 866 (Ind.Ct.App.1969) (proceeds of sale take place of property and attach to security interests)
- Fawcett v. Gooch, 708 N.E.2d 908 (Ind.Ct.App.1999) (declaratory judgments; rights determined in equity context)
- Merritt v. State, 829 N.E.2d 472 (Ind.2005) (statutory construction to favor public convenience)
- Johnson v. Johnson, 920 N.E.2d 253 (Ind.2010) (interpretation of statutes via de novo review in declaratory judgments)