Baker, J.
Indiana Land Trust Company, f/k/a Lake County Trust Company TR #4340 (Trust 4340), appeals the judgment of the trial court denying its motion to set aside a tax deed and quiet title judgment issued to XL Investment Properties, LLC (XL Investment). Trust 4340 argues that the trial court erroneously determined that the motion to set aside was untimely filed and the tax sale notice process employed by the LaPorte County Auditor (the Auditor) was statutorily and constitutionally insufficient. Finding that the motion to set aside was not untimely and that the notice process was constitutionally insufficient, we reverse and remand for further proceedings.
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Before the legislature amended Indiana Code section 6-1.1-24-4 in 2015, it was well established that due process required county auditors to search their own records. E.g., City of Elkhart v. SFS, LLC, 968 N.E.2d 812, 817 (Ind. Ct. App. 2012) (noting that due process “requires the county auditor to search the records that it maintains” in its office); Hullett v. LaFevre, 926 N.E.2d 524, 528 (Ind. Ct. App. 2010) (same); Edwards, 898 N.E.2d at 349 (same); Reeder Assocs. II v. Chicago Belle, Ltd., 778 N.E.2d 828, 834 (Ind. Ct. App. 2002) (same). [Footnote omitted.] This caselaw does not condition the records search on other events, nor does it deem it a factor in a totality of the circumstances type of determination as to whether proper tax sale notice has been provided. Instead, it is black and white: an auditor is charged with knowledge of the contents of its records and is constitutionally obligated to search those records.
It is axiomatic that the General Assembly may not legislate away constitutional due process protections…
Therefore, regardless of the language of Indiana Code section 6-1.1-24-4, the Auditor is charged with knowledge of the contents of its records and is constitutionally obligated to search those records. Here, it is undisputed that it did not do so.
The attempts the Auditor made to locate Trust 4340 were constitutionally insufficient. First, the Auditor published notice of the sale in a local newspaper, but notice by publication is looked on with extreme disfavor in a tax sale situation. Jones, 547 U.S. at 237-38 (noting that publication is adequate only where it is not reasonably possible or even practicable to give more adequate warning). Second, the Auditor, through SRI, conducted an additional search after the certified mailing was returned as undeliverable. But a search of other records and databases does not comport with due process where the Auditor failed to search its own records first. See Reeder Assocs. II, 778 N.E.2d at 835 (holding that while “a county auditor may go beyond the minimum requirements of due process and engage in a search of outside records, it may not do so in lieu of a search of its own record”).
Third, the fact that the Auditor mailed a notice by first class mail (which was not returned) in addition to certified mail is not enough to satisfy due process given that the certified mail attempts were returned as undeliverable….
It is true that here, in addition to being stamped as undeliverable and unable to forward, the first certified mail attempt was returned bearing the word “refused” in handwriting. Not only is there no indication of who wrote it or who “refused” it, the official Post Office stamp indicates that the mail was not deliverable. Given such a conflict and our preference for erring on the side of due process protections, we believe that the official Post Office stamp and label must control. Here, the Post Office deemed the notice to be not deliverable as addressed and unable to forward; therefore, the act of sending the notice via first class mail was insufficient to comply with constitutional due process.
It has long been settled in Indiana that to comply with due process in tax sale proceedings, county auditors are charged with the knowledge of their own records and are required to search those records. [Footnote omitted.] The General Assembly does not have the authority to codify away constitutional protections. Therefore, despite the language of Indiana Code section 6-1.1-24-4, the Auditor was required to search its records for a better address for Trust 4340 after the certified mail notice was returned as not deliverable. [Footnote omitted.] Under these circumstances, the trial court erred by denying Trust 4340’s motion to set aside the tax deed and quiet title judgment. Consequently, we reverse and remand. [Footnote omitted.]
The judgment of the trial court is reversed and remanded for further proceedings.
May, J., and Tavitas, J., concur.