Kirsch, J.
M & M Investments, LLC (“M & M”) appeals the trial court’s order denying its petition for a tax deed as to property of which Monroe Bank was the mortgagee. M & M raises two issues, which we restate as:
I. Whether the trial court erred when it failed to certify Monroe Bank’s challenge to the constitutionality of Indiana Code section 6-1.1-24-3(b) to the Attorney General of Indiana (“Attorney General”), which would have allowed the Attorney General to intervene in the action; and
II. Whether Indiana Code section 6-1.1-24-3(b), which governs the notice to be given a mortgagee when real property had been scheduled to be sold at tax sale, violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution when a mortgagee has a publicly recorded mortgage.
We affirm.
….
… When a mortgagee has a publicly recorded mortgage, as in the present case, we conclude, under the holdings of both Mennonite and Jones, that due process requires that the government must supplement notice by publication with pre-tax sale notice mailed to the mortgagee’s last known available address or by personal service, regardless of whether the mortgagee has requested such notice. [Footnote omitted.]
Further, pursuant to the holding of Jones, adequate notice under the Due Process Clause does not allow the government to fail to take additional steps when it knows that notice has failed. There, the Court concluded that the State should have taken additional steps to notify the property owner, if practicable to do so, when the original notice was returned unclaimed. 547 U.S. at 234. In the present case, the second sentence of Indiana Code section 6-1.1-24-3(b), which states that the failure of the auditor to mail the requested notice or the fact that such notice was undelivered for any reason does not affect the validity of the tax sale, is in contravention to the holding in Jones because it excuses the auditor from providing pre-tax sale notice by mail, even when it has been requested. We therefore conclude that the Indiana pre-tax sale notice statute violates the Due Process Clause of the Fourteenth Amendment because it does not require the government to provide sufficient notice prior to the tax sale either by mail or by personal service to mortgagees who have publicly recorded mortgages, even if such notice is not requested by the mortgagees, and because it provides that, even if the government fails to mail the requested notice or the notice is undeliverable for some reason, the validity of the tax sale will not be affected. [Footnote omitted.] The trial court correctly denied M & M’s petition for a tax deed.
Affirmed.
BAKER, J., and BROWN, J., concur.