MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             May 30 2018, 9:17 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT
Megan L. Craig
John R. Craig
Craig & Craig, LLC
Crown Point, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the 2013 Lake                           May 30, 2018
County, Indiana Real Estate Tax                          Court of Appeals Case No.
Sale:                                                    45A05-1711-MI-2674
                                                         Appeal from the Lake Circuit
Jennifer Brozak,                                         Court

Appellant-Respondent,                                    The Honorable Marissa J.
                                                         McDermott, Judge
and
                                                         The Honorable George C. Paras,
                                                         Judge
Barden Procurement Group, LLC,
                                                         The Honorable Alice A. Kuzemka,
Respondent,                                              Magistrate
                                                         Trial Court Cause No.
        v.                                               45C01-1308-MI-129

Wintering, LLC,

Appellee-Petitioner,


Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2674 | May 30, 2018            Page 1 of 8
      and

      BMO Harris Bank, NA,
      Appellee-Petitioner/Intervenor



      Crone, Judge.


                                             Case Summary
[1]   Jennifer L. Brozak appeals the trial court’s order, issued on October 6, 2016,

      that determined priority to and disbursement of tax sale surplus funds following

      the tax sale of certain Lake County property that was owned by her. Brozak

      asks that we vacate the October order and reinstate one of the court’s prior

      orders determining priority to and ordering disbursement of the same funds.

      We decline that request and affirm the court’s October final disbursement order.


                                 Facts and Procedural History
[2]   Brozak owned certain real property located in Merrillville (“the Property”). In

      August 2013, upon application by the Lake County Auditor, the trial court

      ordered that the Property be sold at tax sale to satisfy taxes, assessments,

      penalties, and costs due. The Property was sold to Wintering, LLC,

      (“Wintering”) at tax sale on September 24, 2013. Wintering acquired a tax

      deed to the property on December 12, 2014.


[3]   The sale bid and payment for the Property by Wintering exceeded the required

      minimum bid by the sum of $57,193.80, resulting in tax sale surplus funds. In

      Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2674 | May 30, 2018   Page 2 of 8
      January 2015, Brozak entered into an agreement with Braden Procurement

      Group, LLC (“BPG”), which granted BPG the right to pursue the tax sale

      surplus funds on her behalf. In exchange for obtaining the funds on Brozak’s

      behalf, BPG would receive ten percent of the net proceeds, or approximately

      $5719.38. Thus, on March 16, 2015, BPG filed a “Verified Petition for Order

      Directing the Auditor of Lake County, Indiana to Disburse Tax Sale Surplus.”

      Appellant’s App. Vol. 4 at 12. Three days later, FLRC Land Trust #6870 also

      filed a petition for disbursement of the tax sale surplus funds, stating that it had

      priority to the funds because it acquired rights to the Property via a quitclaim

      deed from Brozak. In addition, Wintering petitioned for reimbursement of

      $700 for taxes accrued between the date of sale of the Property and the end of

      the redemption date.


[4]   A hearing on the petitions for disbursement was held on February 2, 2016. On

      February 5, and before the trial court had issued any decision, BMO Harris

      Bank, NA (“BMO Harris”), filed an emergency motion to intervene as a

      petitioner as of right and a request for the trial court to freeze the tax surplus

      funds pending a determination of BMO Harris’s entitlement to those funds.

      BMO Harris claimed priority over the tax sale surplus funds as to Brozak based

      upon a 2007 recorded mortgage on the Property and a judgment lien obtained

      by foreclosure against Brozak in March of 2014.




      Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2674 | May 30, 2018   Page 3 of 8
[5]   Thereafter, on April 5, 2016, the trial court issued two orders.1 One order,

      which was based on the February hearing, purported to determine priority to

      and disburse the tax sale surplus funds as follows: $700 to Wintering, $5719.38

      to BPG, and $50,774.42 to Brozak.2 The other order granted BMO Harris’s

      emergency motion to intervene and ordered the Lake County Auditor to freeze

      the tax sale surplus funds until further determination by the court. The trial

      court held a hearing on July 14, 2016. During that hearing, the parties argued

      about the implications of the two April 2016 orders. The trial court took the

      matter under advisement and, on October 6, 2016, entered a final order lifting

      the freeze and disbursing the tax sale surplus funds as follows: $700 to

      Wintering, $5719.38 to BPG, and $50,774.42 to BMO Harris.


[6]   Brozak filed a motion to correct error asserting that the trial court’s April 2016

      disbursement order was a final judgment and that neither BMO Harris, nor any

      other party, ever filed a motion to correct error or a notice of appeal. Therefore,

      she argued, the trial court was without authority to enter the October 2016

      disbursement order. Following a hearing, the trial court entered its order

      denying the motion to correct error. Specifically, the trial court found in

      relevant part,


                 [T]he conflicting court actions of April 5, 2016 resulted in
                 jurisdiction continuing with this present court, which it exercised
                 in conducting the July 14, 2016 hearing to determine priority of


      1
          Neither order is time-stamped, but both orders were issued on the same day under the same cause number.
      2
          The court deemed FLRC’s deed and interest in the Property void.

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              claims, and in issuing the order on the priority of claims of
              October 6, 2016, which order contradicted, and thereby set aside,
              its previously entered April 5, 2016 order.


      Id. at 47. This appeal ensued.


                                     Discussion and Decision
[7]   We begin by acknowledging that no party has filed an appellee’s brief. Where

      an appellee fails to file a brief, we do not undertake to develop arguments on

      that party’s behalf; rather, we may reverse upon a prima facie showing of

      reversible error by the appellant. Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind.

      2008). Prima facie error is error “at first sight, on first appearance, or on the

      face of it.” Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014). This

      “prima facie error rule” relieves this Court from the burden of controverting

      arguments advanced for reversal, a duty which remains with the appellee.

      Simek v. Nolan, 64 N.E.3d 1237, 1241 (Ind. Ct. App. 2016).


[8]   This Court has stated that a petition seeking tax sale surplus funds is essentially

      an action for declaratory judgment. Beneficial Ind., Inc. v. Joy Props., LLC, 942

      N.E.2d 889, 891-92 (Ind. Ct. App. 2011) (citing Lake Cty. Auditor v. Burks, 802

      N.E.2d 896 (Ind. 2004)), trans. denied. In a declaratory judgment action, the

      trial court determines the specific rights, duties and obligations of the respective

      parties at the time of trial. Fawcett v. Gooch, 708 N.E.2d 908, 910 (Ind. Ct. App.

      1999). Declaratory orders generally have the force and effect of a final

      judgment, and are reviewed in the same manner as other judgments. Johnson v.

      Johnson, 920 N.E.2d 253, 255 (Ind. 2010).
      Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2674 | May 30, 2018   Page 5 of 8
[9]    The crux of Brozak’s argument on appeal is that the trial court has issued

       dueling declaratory final orders regarding the distribution of the tax sale surplus

       funds, one in April 2016 which granted her a large portion of the funds, and one

       in October 2016 which granted BMO Harris those funds. She characterizes the

       October order as an improper “second final judgment” and urges this Court to

       vacate it. Appellant’s Br. at 9. We disagree with Brozak and decline to do so.


[10]   It is well settled that trial courts have ample authority to alter, amend, or

       modify their judgments any time before a motion to correct error is required to

       be made, or with or as part of a motion to correct error. Deen-Bacchus v. Bacchus,

       71 N.E.3d 882, 885 (Ind. Ct. App. 2017) (citing Ind. Trial Rule 52(B)); see also

       State ex rel. Rans v. St. Joseph Super. Ct. No. 2, 246 Ind. 74, 78, 201 N.E.2d 778,

       779-80 (1964) (“[A] court may, upon motion to reconsider or rehear, upon its

       own motion or the suggestion of a party, vacate, set aside, amend or modify a

       ruling entered in the same term of court, since such a matter is in fieri”). Here,

       on the same day it issued its order determining priority to and disbursement of

       the tax sale surplus funds as between Brozak and certain petitioners, the trial

       court also granted BMO Harris’s motion to intervene as of right and froze those

       same funds in order for the court to determine priority to and disbursement of

       the tax sale surplus funds as between Brozak and BMO Harris. The trial court’s

       order granting the motion to intervene and freezing the tax sale surplus funds

       was a timely and proper exercise of the trial court’s power to reconsider and

       modify the disbursement of the tax sale surplus funds. That order constituted a

       clear signal to the parties that the disbursement order issued that same date was


       Court of Appeals of Indiana | Memorandum Decision 45A05-1711-MI-2674 | May 30, 2018   Page 6 of 8
       effectively stayed, and the matter remained in fieri pending further

       determination of the court regarding the ultimate disbursement of the funds.


[11]   Contrary to Brozak’s assertion, the trial court has issued only one declaratory

       final order here, that being the October 2016 disbursement order. Significantly,

       the relevant facts supporting that final order are undisputed. In its emergency

       motion to intervene, BMO Harris informed the trial court that it holds a

       judgment against Brozak in the amount of $108,587.37 under trial court cause

       number 45D05-1302-MF-54, based upon its foreclosure of a mortgage secured

       by the Property. A copy of the foreclosure judgment and mortgage was

       attached to BMO Harris’s motion as Exhibit A. Appellant’s App. Vol. 4 at 30.

       These facts are not, and have never been, contested by Brozak. 3 Accordingly,

       there is no question that BMO Harris has “a substantial interest in the real

       estate by virtue of its foreclosure judgment,” and that judgment has “priority

       over the interest of the owner, [Brozak].” CANA Invs., LLC v. Fansler, 832

       N.E.2d 1103, 1107-08 (Ind. Ct. App. 2005). The judgment “was a lien against

       the real estate subject to the tax sale,” and “followed the proceeds of the sale

       and attached to the [tax sale] surplus.” Id. Brozak has failed to show any error,

       much less prima facie error, in the trial court’s final order granting BMO Harris

       the lion’s share of the tax sale surplus funds.




       3
        Indeed, Brozak did not object to BMO Harris’s motion to intervene nor request to bring an interlocutory
       appeal from the trial court’s order granting that motion. Similarly, Brozak did not challenge the validity of
       BMO Harris’s judgment lien at any time during the July 2016 hearing, or during the subsequent hearing on
       her motion to correct error.

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[12]   We further note that an action for declaratory judgment is generally equitable in

       nature, and equity seeks the avoidance of a windfall. Beneficial of Ind., 942

       N.E.2d at 894 (citing Neu v. Gibson, 928 N.E.2d 556, 560 (Ind. 2010)). By

       requesting that we reinstate the trial court’s April 2016 disbursement order,

       Brozak attempts to receive a windfall by obtaining tax sale surplus funds to

       which BMO Harris undisputedly holds a superior claim. We reject her attempt,

       and affirm the disbursement of the tax sale surplus funds as provided in the trial

       court’s October 2016 final order.


[13]   Affirmed.


       Bailey, J., and Brown, J., concur




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