COA judge cites to Kenny Rogers in voided tax sale case

A judgment for owners of a property wrongly redeemed after a tax sale was affirmed in part by the Indiana Court of Appeals Wednesday, with Judge Terry Crone appropriating a Kenny Rogers classic to introduce a 31-page decision that reduced the attorney fees and other relief to which owners were entitled.

“Attorneys, like gamblers, should ‘know when to hold ’em [and] know when to fold ’em.’ Instead of walking away from litigation that was essentially over, attorneys representing the owners of property that was sold for nonpayment of taxes racked up thousands of dollars in fees and costs trying to keep (Wiper) from receiving a refund for its tax sale purchase, which had been invalidated,” Crone wrote.

The owners of a Warrick County property that was redeemed after a tax sale but later voided because the deed buyer failed to provide proper notice are entitled to relief the trial court ordered, but not all the legal fees.

 Wiper Corp. bought a tax sale deed to property James Zwickel grew up in. Zwickel had moved to Tennessee and was the legal owner, but taxes went unpaid after another owner was supposed to pay them but didn’t. Wiper Corp. President Vinod Gupta purchased the tax sale deed in 2010 and sought a deed to the property, though he failed to provide statutory notice to Zwickel and misrepresented to the court that he had.

Ultimately, the owners sued and won. The trial court entered an order affirming county officials who voided the sale; applying the $6,800 Gupta paid for the tax deed to the owners’ past tax obligations and denying him a refund; barring Gupta from participating in the next county tax sale; and awarded the owners attorney fees of more than $72,000.

The panel ruled the trial court had no authority to deny Wiper a refund for its invalidated tax sale and apply the purchase money to the owners’ tax obligations. Likewise, the trial court abused its discretion in awarding attorney fees after Wiper withdrew its petition for a tax deed. The award of fees is justified only to the point when Wiper ceased a claim of ownership of the property. The owners also waived any claim that the trial court erred by failing to impose sanctions against Wiper’s attorney, Vivek, who is Gupta’s son.

The matter was remanded and the COA ordered a recalculation reducing the amount of attorney fees the owners are entitled to receive from Wiper.
“We are sensitive to the Owners’ indignation at Wiper’s attempt to obtain their ancestral home by less than scrupulous means. And we strongly condemn Wiper’s efforts to deceive the trial court and frustrate the discovery process. But once Wiper finally withdrew its petition for tax deed, the Owners’ counsel no longer had any basis for holding Wiper’s feet to the fire, except perhaps to pursue an independent claim, which they did not do,” Crone wrote.

The case is In re Petition of Wiper Corporation for Tax Deed,Wiper Corporation v. Patricia E. Godwin, Barbara S. Sanders, Joseph Kaufman, James Zwickel, Thad Fischer, Trent Fischer, and Trina Fischer Boden,  87A01-1512-MI-2335.