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Tax Deeds 1, Adverse Possession 0

adverse possession

Tax Deeds 1, Adverse Possession 0


A recent Indiana Supreme Court decision decided the relative rights of a tax deed purchaser versus a party with an adverse possession claim against real estate.  The result: tax deeds defeat adverse possession claims.

In Bonnell v. Cotner et al, a 35 foot wide strip of land was sold at tax sales in 1993 and 2011.  The Pulaski County Board of Commissioners purchased the parcel at the second tax sale, then sold the property to Bonnell.  Bonnell believed that the 35 foot wide strip of land ran along adjacent farmland to the east of an old fence.  However, a survey revealed that the strip of land was actually on the west side of the fence.  The property owners to the west of the strip of land, including Cotner, believed that their properties extended east to the fence line and had treated the 35 foot strip of land as their own property since the 1960s.

Under Indiana common law, the doctrine of adverse possession permits a party to take title to a property that the party has treated as its own despite not having held legal title to the property.  In order to take title, the party must demonstrate that (i) it has had control of the property, (i) it has had an intent to own the property, (iii) others had notice of the intent to take ownership of the property, and (iv) the possession has been for a sufficient duration of time.  In Bonnell, it was undisputed that all of these common law requirements were satisfied.  In addition to the common law requirements, Indiana Code § 32-21-7-1 also requires that the adverse possessor must have paid property taxes on the disputed parcel, or at least have had a good faith belief that he paid such taxes.  Here, Cotner had been paying taxes on a barn partially constructed on the parcel since 1968, which the Court found to be sufficient to demonstrate a good faith belief that he was paying all taxes assessed against such parcel.  Therefore, Cotner met all the requirements under Indiana law necessary to take title to the disputed parcel through the doctrine of adverse possession.

Nevertheless, this did not end the analysis given that the parcel was transferred by tax deed before Cotner had legally established ownership of the parcel through adverse possession by filing a quiet title action.  Under Indiana Code 6-1.1-25-4(f) and 6-1.1-25-4.6(g), a tax deed “vests in the grantee an estate in fee simple absolute, free and clear of all liens and encumbrances created or suffered before or after the tax sale.”  Accordingly, the Pulaski County Board of Commissioners obtained “fee simple absolute” in the parcel, free and clear of any and all encumbrances, including Cotner’s adverse possession claims to the parcel.

Furthermore, the trial court’s attempt to craft an equitable remedy by granting Cotner an easement to access his barn on the disputed parcel was also impermissible given that the property was transferred by tax deed.  Under Indiana Code § 6-1.1-25-4(g), a tax deed transfers a property free of any easement that is not shown by public record.  Because the Cotner’s use of the disputed parcel was not pursuant to a recorded easement, the tax deed transferred the property free from any easement rights held by Cotner, and it was an error for the trial court to grant an easement in favor of Cotner.

While this decision is an important development in Indiana real estate law, it also contains a very practical lesson for all litigants.  Bonnell offered to sell the disputed parcel to Cotner for $890.  Cotner refused that offer and instead chose to litigate.  The expense of that litigation for each party, including appeals to the Indiana Court of Appeals and the Indiana Supreme Court, significantly dwarfed the value of the property.  And after paying those litigation costs, Cotner does not own the parcel and has a barn encroaching onto Bonnell’s property without an access easement.  While it is always easy to second guess decisions in hindsight, there was virtually no possibility that even if Cotner was successful with his litigation, it would be resolved for less than the $890 asking price.  The impracticality of the litigation was noted by the Indiana Court of Appeals when it stated in its conclusory paragraph that “[a]fter more than three years of litigation and two vigorous appeals, Mr. Bonnell now owns a 35-foot-by-100-foot section of land in the Cotners’ backyard, predominately covered with a pole barn, which Bonnell values at approximately $890.”


Say What You Mean; Mean What You Say

hagenow2When a person files bankruptcy, the law allows for certain “exemptions” so that the person can keep certain things that the legislature has determined are the bare necessities of life in order to make a fresh start.  Any property that is not “exempt”, and assuming it is of sufficient value, is to be gathered and then sold for the benefit of the creditors of the person filing bankruptcy.

Different States have different laws about what exemptions are allowed.  While there are many similarities, each State is allowed to make its own laws concerning what is exempt and what is not or it can utilize the exemptions created by Congress.  In Illinois, one of those things that a person is allowed to keep is a bible.  In a recent case, we were again reminded that courts, when faced with unambiguous language in a law (similar to what courts will do with a contract) will enforce the exact terms of the law and not attempt to infer any intent from those words or give those words any different meaning other than their plain and ordinary meaning.

In the recent case, the person who filed bankruptcy (“debtor”) had a bible.  But it was no ordinary bible.  It was a first edition Book of Mormon from 1830.  Everyone agreed that the bible was worth $10,000.  The bankruptcy trustee, and the bankruptcy court, said that the debtor should not be allowed to keep this very rare bible, but instead it should be sold for the benefit of her creditors.  It was also noted that she had several additional copies of the Book of Mormon in different forms.  The bankruptcy court ruled that allowing her to exempt (keep) this particular bible would violate the intent and purpose of the statute, which the bankruptcy court said was to protect a bible of “ordinary value” so as to not deprive a debtor of a worship aid.

The 7th Circuit Court of Appeals reversed the bankruptcy court, and ruled that when looking at a statute, the court first looks at the language itself.  It is only when the meaning of the statute is unclear from the language used that the court may look past that language and consider the purpose (intent) behind the law.  Because the statute does not say there is any limitation on the value of the bible that can be exempted, it is not the court’s role to read into the statute this additional element of a bible “of limited value”.

Therefore, even though this particular bible would have likely raised enough money to pay back approximately half of the debt that was discharged by the debtor, the 7th Circuit allowed the debtor to keep the very valuable bible rather than having it sold and the money distributed to her creditors.

The lesson in all of this, again, is something that has been discussed extensively throughout this blog, which is when the courts look at either a statute or a contract, the court will enforce the plain meaning of the words used either in that contract or in the statute.  It is only when contracts or statutes are ambiguous or unclear that the court is to look at what was the parties’ intent.  Therefore, while most people reading this blog will not likely be involved in drafting laws, they will be drafting or reading contracts, and this case serves as yet another reminder to use plain, ordinary language that truly states what the parties want from the particular agreement.  The cost of taking the time to draft contracts like that and spend a little more time doing so will save everyone to the contract a lot of time, expense, and heartache that comes from the litigation that would ensue over an uncertain agreement.


Ag Lending: Could Selling Crops Be a Crime?


Ag Lending: Could Selling Crops Be a Crime?

hagenow2In an agriculture heavy state such as Indiana, lenders necessarily will have a certain portion of its lending dedicated to agricultural and farming operations.   There are certain protections for lenders under both Indiana law and federal law, which, while easy to follow, may not often be employed by lenders.

The Uniform Commercial Code (“UCC”) was written to provide guidance concerning commercial transactions, and has been adopted in some fashion throughout the United States, including Indiana.  States are free, however, to adopt certain other provisions or deviations from the UCC.  As a general rule under the UCC, someone who buys a product in the “ordinary course” of the seller’s business buys that product free from any security interest or lien that a lender may have attached to that product.  This is true even if the lien is perfected and the buyer knows about the lien.

Historically, there was an exception to this rule for “farm products”, which includes crops.  Therefore, under the UCC, a wholesale buyer of a farmer’s crops bought those crops subject to any lender’s lien.

Congress, however, passed a federal law in 1985 to override this UCC exception, and stated that a buyer who in the ordinary course of business buys a farm product from a seller engaged in farming operations buys that farm product free of any lender’s lien.

As with every rule, there are exceptions, and this one is no different.  This same federal law provides that the buyer of farm products will take the farm products subject to the lender’s lien if the buyer has been provided specific written notice of that lien within one year before the sale.

So what happens in the situation where a farmer has borrowed money, pledged a security interest (granted a lien) in his crops, has provided a list of the people to whom he intends to sell those crops, but then, not wanting to repay the lender, sells those crops to a buyer not shown on the list?  Under the federal law, that farmer would be fined the greater of $5,000 or 15% of what the farmer received for those farm products.

In 2001, Indiana took this “written notice” concept from the federal law and incorporated a version of it into the Indiana UCC.  Under the Indiana law, a buyer in the ordinary course of business takes free of a lien granted by the seller, even if the lien is perfected and the buyer knows of its existence.  This applies to farm products as well unless the lender has followed the same notice provisions as are identified in the federal law.  If the lender does provide that notice, Indiana says that a farmer who then sells his crops to someone not on the list of buyers or fails to pay the proceeds of that sale to the lender within fifteen days of the sale, has actually committed a crime (Class C misdemeanor).  In addition, any purchaser who has received notice from the lender of the lender’s lien and fails to issue a jointly payable check (to include the lender) takes those farm products subject to the lien.

So what does this all mean for lenders making agricultural loans?  First, the security agreement should include language that requires the farmer/borrower to provide a list of all of the buyers to whom the farmer intends to sell in the next year.  The lender needs to update this list each year.  After receiving that list of potential buyers, the lender should notify those potential buyers of the lender’s security interest in any farm products delivered by the particular borrower.  By taking these two relatively simple steps, the lender can better protect its security interest, and also create additional remedies to be repaid its loan.

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Priority of Purchase-Money Mortgage


Priority of Purchase-Money Mortgage


Under Indiana law, a “purchase-money mortgage” is given as security for a loan used by the mortgagor (buyer) to acquire legal title to a property.  Indiana Code § 32-29-1-4 provides that “[a] mortgage granted by a purchaser to secure purchase-money has priority over a prior judgment against the purchaser.”  Therefore, if a mortgage is considered a purchase-money mortgage, it has priority over a previously recorded judgment lien. This issue was recently addressed by the Indiana Court of Appeals.

In Amici Resources, LLC; et al. v. The Alan D. Nelson Living Trust; et al. (, Sabine Matthies (“Matthies”) obtained a judgment against Solid Foundation Investment Properties, Inc. (“SFIP”) in December 2012.  In April 2013, SFIP purchased real estate in Indianapolis.  SFIP financed the purchase of the property through a loan from The Alan D. Nelson Living Trust (the “Trust”), and SFIP executed a promissory note and mortgage in favor of the Trust to evidence and secure repayment of that loan.  At the time of the closing, SFIP also entered into an agreement with Amici Resources, LLC (“Amici”) whereby Amici agreed to finance renovations and improvements to the property with a loan to be secured by a second mortgage against the property.

Matthies brought an action to enforce her judgment lien, and argued that her judgment lien should be deemed “senior”, or “first”, among all of the liens.

Matthies argued that the Trust’s mortgage was not a purchase-money mortgage because it was signed the day before SFIP closed on the purchase of the real estate.  If the Court had agreed with Mattheis, her lien would have been first in line.  However, the Court did not agree.  While the Court noted that there is case law that indicates that the mortgage must be executed “simultaneously” with the deed in order to be considered a purchase money mortgage, literally requiring simultaneous execution can be impractical and the more important question is whether the deed and real estate acquisition are part of the same transaction.  Here, the Trust wired money for the acquisition of the real estate to SFIP and the mortgage was executed on April 29, while the note and deed were executed and loan proceeds delivered to the seller on April 30.  Therefore, the court determined that the lending of the money and the execution of the mortgage were all part of the same transaction, and the Trust’s mortgage constituted a purchase-money mortgage that had lien priority over Matthies’ prior recorded judgment lien.

Amici’s second priority mortgage secured future advances for the improvement of the real estate after its acquisition, rather than the acquisition itself.  Accordingly, the second mortgage was not a purchase-money mortgage, which meant that it was subject to the general rule that interests in real estate take priority based on the order in which they are recorded.  The judgment lien in favor of Matthies and against SFIP instantly attached to the property upon SFIP recording the deed to the property and therefore had priority over any subsequently recorded mortgage (other than a purchase-money mortgage).  Therefore, the Court determined that the Trust’s mortgage was first; Matthies’ judgment lien was second; and Amici’s was third.

There are a couple of takeaways from this case.  First and most obviously, a lender financing improvements to a property rather than the acquisition of the property must complete a judgment lien search pre-closing because that lender does not enjoy any type of super-priority over prior judgment liens in the same way that a purchase-money mortgage lender would.

With that being said, even if a lender has a purchase-money mortgage, that lender should still determine whether there are any judgment liens outstanding against the borrower.  Even though the purchase-money mortgage enjoys priority over the prior recorded judgment lien, the judgment lien is still a lien that must be released in order to complete the sale of the property.  Therefore, the judgment lien holder has leverage to require a payment before releasing the judgment lien even if the judgment lien does not attach to any equity in the property given the superior mortgage.  Although that does not appear to have been an issue in this case due to an agreement of the parties that facilitated a sale of the property, it would be in the borrower’s and lender’s best interest if the borrower could sell the property without litigation and/or making any payments on the judgment lien.

As an aside, although it is not covered in the appellate decision, it would be interesting to know why SFIP closed on the real estate acquisition with the judgment lien outstanding rather than forming a new limited liability company for the sole purpose of owning this one property.  Had it created a separate limited liability company, it would have avoided the judgment lien attaching to the real estate and left the Amici mortgage in second position.

Let me know what you think about this recent Indiana Court of Appeals decision below:


Mediation? Arbitration? Same Thing, Right?


Mediation? Arbitration? Same Thing, Right?


There is often some confusion on the part of business clients concerning the differences between mediation and arbitration.  Some people tend to use the terms interchangeably, but in actuality mediation and arbitration are quite different.

In a mediation, typically the parties hire a third party “neutral” person who, while she may be a lawyer, does not need to be in order to help facilitate settlement discussions.  Sometimes the attorneys involved will suggest a mediation as a way to have their clients listen to a neutral third party describe the strengths of the opponent’s case and the weaknesses of their own client’s case so that the parties can try to reach a resolution before incurring significant costs.  As previously noted in this blog, you are not sacrificing anything legally by engaging in mediation or other forms of settlement negotiations.  That is because if the case does not settle at mediation, any judge or jury who ultimately tries the case in court will never hear what offers of compromise may have been made by the parties.

It is important to remember that in a mediation, the mediator makes no decisions.  Rather, all of the ultimate decisions about whether to settle, and for how much, are left to the parties.  The mediator cannot force a settlement on anyone.  The mediator can make suggestions, and the parties can agree on different ways to mediate.  However, ultimately it is up to the parties to decide if the case will settle or not.  This is one of the big advantages of mediation, because the parties control their own destinies.  After a case goes to court, there are simply no guarantees about what may happen.

 In an arbitration, the parties hire a third party to hear the testimony, examine evidence, and then decide the result of the case, similar to what a judge or jury might do.  In some situations the parties may hire a panel of three arbitrators.  What would typically happen is each side selects an arbitrator, and then those two arbitrators select a third.  A major difference with arbitration (versus a mediation) is that you actually present the full case to the arbitration panel, and the arbitrator(s) decide who wins and loses.  The parties share in the expense of paying the arbitrators.

An arbitration is sometimes thought of as a “mini trial”, because an arbitration often can be completed in less time than a typical jury trial would take.  However, that is not always the case, and to effectively present the case for arbitration, the parties will likely need to engage in the same amount of discovery that they would have conducted if the case was going to be tried in court.

So the big difference is that in a mediation, the parties are trying to settle the case and the parties control the ultimate outcome.  In an arbitration, the parties do not control the outcome; rather, the arbitrators decide who wins and who loses.  Because an arbitration is so similar to trying a case in court, it is subject to the same uncertainties of outcome as a trial, and again this is why so many cases ultimately settle before the parties allow a disinterested third party to decide their ultimate fate.


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