JOINT BRIEF OF APPELLEES, DESOTO COUNTY, MS, TAX COLLECTOR OF DESOTO COUNTY, MS, and TAX ASSESSOR OF DESOTO COUNTY,MS

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1 E-Filed Document Aug :16: CA Pages: 23 IN THE SUPREME COURT OF MISSISSIPPI CASE NO CA SASS MUNI-V, LLC APPELLANT VS. MIC-ROCKY, LLC, ct al. APPELLEES JOINT BRIEF OF APPELLEES, DESOTO COUNTY, MS, TAX COLLECTOR OF DESOTO COUNTY, MS, and TAX ASSESSOR OF DESOTO COUNTY,MS ORAL ARGUMENT NOT REQUESTED APPEAL FROM THE CHANCERY COURT OF DESOTO COUNTY OF DESOTO COUNTY, MISSISSIPPI Respectfully submitted, /s/ Joseph D. Neyman, Jr. Joseph D. Neyman, Jr., MSB # Robert E. Quimby, MSB # SMITH, PHILLIPS, MITCHELL, SCOTT & NOWAK, LLP 2545 Caffey Street Hernando, MS (662) (662) (Facsimile) jody@smithphillips.com

2 SASS MUNI-V, LLC APPELLANT VS. MIC-ROCKY, LLC, ct al. APPELLEES IN THE SUPREME COURT OF MISSISSIPPI CASE NO CA-0l 490 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Sass Muni-V, LLC, Delaware limited liability company, Appellant; 2. Joey Treadway, Tax Collector of DeSoto County, Mississippi, Appellee; 3. Parker Pickle, Tax Assessor of DeSoto County, Mississippi, Appellee; 4. W. E. Davis, Chancery Clerk of DeSoto County, Mississippi, Appellee; 5. DeSoto County, Mississippi, Appellee; 6. City of I-lorn Lake, Mississippi, Appellee; 7. Marshall Investments Corporation a/k/a Marshall Investments Corporation of Minnesota, Appellee; 8. E. Franklin Childress, Jr., R. Spencer Clift, III and K. David Waddell, as Substitute Trustees, Appellees; 9. Mic-Roeky, LLC, Appellee; 10. Mr. Billy C. Campbell, Jr., Esq. Hunt, Ross & Allen Counsel for the Appellee, City of Hom Lake, Mississippi

3 11. Mr. Jake Dickerson, Esq. Baker, Donelson, Beannan, Caldwell & Berkowitz, P.C. Counsel for Appellees, Marshall Investments Corporation alk/a Marshall Investments of Minnesota; E. Frank Childress, Jr., R. Spencer Clift, III, K. David Waddell, as Substitute Trustees; and Mic-Rocky, LLC 12. Mr. Timothy Mitchell Kalom, Esq. Kalom Law Finn, PLLC Counsel for Appellant, Sass Muni-V, LLC 13. R. Hayes Johnson, Jr., Esq. Counsel for Appellant, Sass Muni-V, LLC 14. Joseph D. Neyman, Jr., Esq. Robert E. Quimby, Esq. Smith, Phillips, Mitchell, Scott & Nowak, LLP Counsel for DeSoto County Appellees 15. Joseph M. Gianola, Jr., Esq. K. Lee Stribling, Esq. Stribling Law Finn, PLLC Counsel for National Tax Lien Association 16. Honorable Mitchell M. Lundy, Jr., Chancellor Third Chancery Court District 17. State of Mississippi, nominal defendant 18. Mississippi State Tax Commission, nominal defendant SO CERTIFIED, this the 25 th day of August, SMITH, PHILLIPS, MITCHELL, SCOTT & NOWAK, LLP By: lsi Joseph D. Neyman, Jr. Joseph D. Neyman, Jr., MSB No Attorney for DeSoto County Appellees 11

4 TABLE OF CONTENTS Certificate of Interested Persons....i Table of Contents....iii Table of Authorities....iv Statement Regarding Oral Argument....,...,... 1 Statement of the Issues... 2 Statenlent of the Case... 3 A. Nature of the Case... 3 B. Statement of the Facts...,...,... 4 Sumnlary of the Argument... 6 Argument... 7 I. The Trial Court Correctly Dismissed Appellant's Complaint for Lack of Standing and Caveat Emptor... 8 II. III. The Trial Court Correctly Held that Appellant's Complaint was Barred by the Applicable Statute of Limitations The Trial Court Correctly Held that the Landowners, who did not Contest the Sale, were Properly Joined in the County and City'S Motions to Dismiss Conclusion Ccrti ficate of Service... "

5 TABLE OF AUTHORITIES CASES Barrett v. Hinds Cnty., 545 So. 2d 734 (Miss. 1989)... 7 Davis v. Estate oftibiler, 107 So. 3d 181, (Miss. Ct. App. 2013)... 9 Everett v. Williamson, 143 So. 690 (Miss. 1932)... 7,9 Hall v. City of Ridgeland, 37 So. 3d 25 (Miss. 2010)....11,12 Holly Springs Realty Group, LLC v. BancorpSouth Bank, 69 So. 3d 19 (Miss. Ct. App. 2011)... 9 Miss. Tax Comm' n v. Veazey, 624 So. 2d 997 (M iss. 1993) Moore v. Marathon Asset Mgmt., LLC, 973 So. 2d 1021 (Miss. Ct. App. 2008) Parsons v. Marshall, 139 So.2d 833 (Miss. 1962)... 9,10 Rains v. Teague, 377 So. 2d 924 (Miss. 1979) Rebuild America, Inc. v. Johnson, 99 So. 3d 1154 (Miss. Ct. App. 2010)... 7,9,11,13 Steward v. Dogan, 21 So. 2d 292 (Miss. 1945)... 13, 14 STATUTES MISS.CODEANN (West2014)....4,7,11,13,15,16 MIss. CODE ANN (West 2014) MIss. CODE ANN (West2014)... 12,13 MIss. CODE ANN (West 2014) MIss. CODE ANN (West 2014)... 8, 11 MIss. CODE ANN (West 2014)... 3,6,10 MIss. CODE ANN (West 2014)... 6,10 MIss. CODE ANN (West 2014)....4,6,7,15 MIss. CODE ANN (West 2014)... 13,15 IV

6 RULES MIss. R. CIY. P. 12 (West 2014)....3,5,15 UNIF. CHANCERY CT. R. 1.10(A)... 5 MISSISSIPPI ATTORNEY GENERAL OPINIONS Miss. Att'y Gen. Op. Jacks (Oct. 14,2011),2011 WL Miss. Att'y Gen. Op. Ladner (March 21, 1997), 1997 WL Miss. Att'y Gen. Op. Scafide, Jr. (Nov. 5,2004),2004 WL OTHER AUTHORITIES 51 AM. JUR. Taxation, ,10 72 AM. JUR. 2D State and Local Taxation, Rights and Remedies of Purchaser 3. Against the Property Owner 953 (2001)... 9 v

7 STATEMENT REGARDING ORAL ARGUMENT The Appellees, Joey Treadway, Tax Collector of DeSoto County, Mississippi, W. E. "Sluggo" Davis, Chancery Clerk of DeSoto County, Mississippi, Parker Pickle, DeSoto County Tax Assessor, and DeSoto County, Mississippi, (hereinafter "DeSoto Appellees"), believe the issues presented to this Court in this appeal are clear issues of law which have been previously addressed by other courts and thus, do not present new or novel situations for interpretation or ruling. Accordingly, the aforesaid DeSoto Appellees do not believe that oral argument will be beneficial to the resolution of this matter unless the Court has specific questions which it would like addressed by counsel.

8 STATEMENT OF THE ISSUES 1. Whether a voluntary tax sale purchaser has standing under Mississippi law to file suit to set aside a tax sale when the landowner or the lienholder does not contest the sale. 2. Whether the Trial Court correctly held that the Appellant tax sale purchaser's suit to set aside the sale was barred by the applicable statute oflimitations. 3. Whether the landowner/lienholder Appellee, Marshall Investments, Inc. aik/a Marshall Investments of Minnesota, E. Frank Childers, Jr., R. Spencer Cliff, David Waddell, as substitute trustee, and MIC, Rocky, LLC (hereinafter "Corporate Appellees") were properly joined in the Motions to Dismiss of DeSoto Appellees and Appellee, City of Horn Lake, Mississippi, (hereinafter "City Appellee"). 2

9 ST ATEMENT OF THE CASE A. Nature of the Cnse Appellant, Sass Muni-V, LLC, (hereinafter "Sass Muni") is a tax sale purchaser who bid over $500, on a parcel of property expecting a huge return in the fornl of interest and penalties for unpaid 2007 property taxes. (R ). If redeemed, there would havc been a twenty-three percent (23%) return on the bid in the first year alone. MIss. CODE ANN (West 2014). However, the inherent risk in every tax sale purchase is that the owner of the property may simply walk away and fail to redeem the property within the statutory redemption period. Sass Muni, as a tax sale purchaser, had a remedy of securing title to the property, but failed to do so. (R ). Instead, Sass Muni waited until August 01'2011 to file the instant suit seeking to rescind the tax sale in spite of clearly unfavorable issues of timeliness, standing and, ultimately, caveat emptor. (R.4). Sass Muni filed an appeal of the July 31, 2013, Order of the DeSoto County Chancery Court granting the MISS. R. Clv. P. 12(b)(6) motions filed by DeSoto Appellees, and City Appellee to dismiss its Verified Complai11lto Set Aside, Cancel, and Void Tax Sale, Expunge Tax Sale Receipt and Related Documents, Compel Refund of All Amounts Paid on Void Tax Sale and DeclaralO1Y (.'iic) and Other Relief (R. 687). The landowner/lienholder Corporate Appellee, pursuant to the Mississippi Rules of Civil Procedure, filed a 12(b) Motion to Dismiss "in lieu of filing an answer" (R. 253) and also filed joinders in support of the DeSoto Appellees and City Appellee's request that the Appellant's Complaint be dismissed. (R. 483, 490). DeSoto Appellees pray that this Court affirm the Trial Court's 3

10 dismissal. B. Statement of Facts As set forth in Sass Muni's Complaint, on August 25, 2008, it was the highest bidder for the delinquent 2007 taxes in the amount of $530,508.00, for a parcel of property located in Hom Lake, DeSoto County, Mississippi, identified as tax parcel number (R ).1 The reputed owner of record, MIC- Rocky, LLC, (hereinafter "MIC-Rocky") did not redeem the taxes or file suit to set aside the sale, and the statutory redemption period set forth in MISS. CODE ANN expired. (lei). According to the thirty-two (32) year deraignment of title listed in Sass Muni's Complaint, it did not obtain a tax deed from the Chancery Clerk, nor did it file a suit to Quiet and Confirm Title pursuant to MISS. CODE ANN (R ). On August 30, 2011, Appellant filed its Complaint seeking a refund of its tax sale purchase based upon the following counts: 1. Refund of all amounts paid by Plaintiff at the 2007 Tax Sale due to an alleged failure to provide proper statutory notice; 2. Refund of all amounts paid by Plaintiff at the 2007 Tax Sale due to the alleged non-existence of the reputed owner of record, Defendant MIC-Rocky, LtC, prior to October 3, 2008; and 3. Refund of all amounts paid by Plaintiff at the 2007 Tax Sale, due to an alleged violation of the Fifth and Fourteenth Amendments to the U.S. Constitution on the basis that the tax levy was grossly and egregiously disproportionate to the true value of the property. (R. 29 to 52). DeSoto Appellees filed their Answer on October, 10, (R. 232). On October 28,2011, Corporate Appellees filed a Motion 10 Dismiss pursuant to I Sass Muni's bid included $476, for city/curb gutter tax; $2, for gross city taxes; $6, for county gross taxes; $98.02 for county drainage fee; $34, for interest owed; $3.00 printer fee; and $10, for excess bid. (It!). 4

11 Rule 12(b)(6) in lieu of filing an answer. (R. 253). City Appellee filed its Answer on December, 2, (R. 266). On March 30, 2012, Sass Muni served discovery on Corporate, DeSoto and City Appellees (R ). On April 18, 2012, Corporate Appellees filed their Motion and Supporting Memorandum of Law for Protective Order to Stay DiscovelY. (R. 358). On April 20, 2012, DeSoto Appellees filed their combined Motionfor Protected Order Stating DiscovelY and Strike Plaintiff's Discovel)' Request on the basis that Sass Muni did not timely submit its discovery requests to the DeSoto Appellees within ninety (90) days of service of DeSoto Appellees' Answer pursuant to UNIF. CHANCERY CT. R. l.10(a) (West 2014). (R.364). On April 23, 2012, City Appellee also filed a Motion for Protective Order Staying DiscovelY and Strike Plaintiff's DiscovelY Requests. (R. 370). Subsequently, on June 19,2012, Sass Muni filed a Motionfor Enlargement of DiscovelY Deadline and Motion to Compel or Opposition to Motions for Protective Orders or Orders Seeking to Stay or Quash Discovely. (R ). The parties' respective motions were heard by the Chancery Court on July 17,2012, and on August 13,2012, an Order on Defendant's Motions For Protective Order 10 Slay DiscovelY and Strike Plainl{ff's DiscovelY Requests, Plaintiff's Motionfor Enlargement of DiscovelY Deadline and MoJiol1to Compel was entered wherein the Court granted Sass Muni's Motion and denied the DeSoto Appellees and City Appellee's Motionsfor Protective Orders. (R ). However, the Court also held that discovery was stayed for a period of ninety (90) days from July 20, 2014, so that "DeSoto Defendants and Defendant, City of Hom Lake, Mississippi may... file any dispositive motions pursuant to Rule 12." 5

12 (lei). The Order further held "in the event dispositive motions are filed during the temporary stay by DeSoto Defendants and/or the City of Hom Lake Defendant, discovery shall commence upon the expiration [of] (sic) the temporary stay." (lei). On September 19, 2012, DeSoto Appellees filed their Combined Motions to Dismiss. (R 479).2 On September 27,2012, City Appellee filed its Motion to Dismiss. (R. 486).3 Notwithstanding the filing of the motions and expiration of the stay of discovery, Sass Muni did not serve discovery upon any of the Appellees. Subsequently, oral argument was heard and on July 31, 2013, the DeSoto County Chancery Court entered an order granting the motions to dismiss on the basis of lack of standing, caveat emptor and for failing to comply with the requisite statute of limitations (R ). The Court specifically held "County Defendants' and City Defendant's motions to dismiss, which the Corporate Defendants have properly joined, are sustained, and this cause of action be, and the same is hereby dismissed". (lei). Sass Muni timely filed its appeal pursuant to the Mississippi Rules of Appellant Procedure. Summary of the Argument The trial Court's dismissal of the Appellant's lawsuit for lack of standing, caveat emptor, and failure to comply with the applicable statute oflimitations should be affirmed as MISS. CODE ANN and do not authorize the tax sale purchaser to attempt to set aside a tax sale. MISS. CODE ANN expressly defines those with the right to redeem the property as "[t]he owner, or any persons for him with his consent, or any person interested in the land sold for taxes." 2 Corporate Appellees filed ajoinder to DeSoto Appellees' Combined Molionlo Dismiss on September 24, (R. 483). 3 Corporate Appellees filed ajoinder in support of the City of Hom Lake's Molionlo Dismiss on October 5,2012. (R. 498). 6

13 MIss. CODE ANN It is well settled in Mississippi that a tax sale purchaser has no actual right of possession of property purchased at tax sale until the expiration of the period of redemption by the former owner. Barrett v. Hinds Cnty., 545 So.2d 734 (Miss. 1989). Under Mississippi law, when a tax sale purchaser makes its winning bid it is legally presumed that the bidder has fully investigated the circumstances surrounding the sale, and by making the bid it affirms that all statutory requirements of the tax sale, including notice, where met. Everell v. Williamson, 143 So. 690, 692 (Miss. 1932). When a landownerllienholder fails to redeem the property, the only statutory remedy given to the purchaser is to file suit to Quiet and Confirm Title of the property pursuant to MIss. CODE ANN The tax sale purchaser cannot use a purported lack of notice to the landownerllienholder to procure a refund of its bid as "no remedy exists to the purchaser in an invalid tax sale unless a remedy is specifically created by statute." Rebuild America, Inc. v. Johnson, 99 So. 3d 1154, 1159 (Miss. ct. App. 2010). Accordingly, Sass Muni has no standing to proceed. Further, as discussed in detail below, the Trial Court correctly held that the Sass Muni's Complaint was barred by the applicable statute of limitations. Finally, the Trial Court's dismissal of Sass Muni' s suit fully extinguished the matter, and as a consequence, any claims Sass Muni may have had against the Corporate Appellees were also dismissed, as the Court correctly found that the Corporate Appellees properly joined and argued their Molio/110 Dismiss with the other Appellees' Motions. Argument The Appellant filed its original Complaint based upon the following counts: A. Count I - Refund of all amounts paid by Appellant at the 2007 Tax Sale due to an alleged failure to provide proper statutory notice; 7

14 B. Count II -Refund of all amounts paid by Appellant at the 2007 Tax Sale due to the alleged non-existence of the reputed owner of record, Defendant MIC-Rocky, LLC, prior to October 3,2008; and C. Count III - Refund of all amounts paid by Appellant at the 2007 Tax Sale, due to an alleged violation of the Fifth and Fourteenth Amendments to the U.S. Constitution on the basis that the tax levy was grossly and egregiously disproportionate to the true value of the property. CR ). After dissecting and analyzing the assertions of each Count alleged in Sass Muni's Complaint, the Court must conclude that the Trial Court correctly dismissed all three of Sass Muni's Complaint's counts as to all parties. 4 I. The Trial Court correctly dismissed all of Appellant's Counts for Lack of Standing & Caveat Emptor: As stated above, Sass Muni's Count I requested the Court refund all amounts voluntarily paid at the 2007 tax sale, including the voluntary overbid, due to the DeSoto Appellees' alleged failure to provide statutory notice to the landowners and lienholders as required by MIss. CODE ANN et seq. (lei). In its brief, Sass Muni asserts that the tax sale in issue is void due to an alleged lack of proper notice, and it is entitled to a refund even though the landowner of record did not contest the sale. Contrary to Sass Muni's arguments, the issue is not whether the tax sale in issue was void; rather, it is whether Mississippi Law allows a voluntary tax sale purchaser to use the statutory protections afforded landowners and lienholders as a means to back out of its bad investment when the landowner or lienholder does not redeem the property or contest the sale. The law in Mississippi is well settled that Sass Muni has no cause of action. 4 DeSoto Appellees note that this Court's standard of review ofa trial court's granting ofa MIss. R. CIV. P. 12(b) Motion to Dismiss as outlined in Sass Muni's Briefis correct. See Appel/ant's Br

15 Specifically, in 1932, the Mississippi Supreme Court in the case of Everell v. Williamson, 143 So. 690 (Miss. 1932) held: [a]t a tax sale the bidders or purchasers of the land or property offered for sale are chargeable with notice and knowledge of the existing statutory requirements for a valid sale, and the statutory conditions upon which a valid deed may be acquired; and must be held to have purchased subject to such statutory provisions. Everell, 143 So. at 692 (emphasis added). In other words, the tax sale purchaser is by law presumed to have fully investigated the circumstances surrounding the sale, and by making the bid it affirms that all statutory requirements of the tax sale, including notice, were met and is, therefore, prohibited from subsequently claiming otherwise. Id. See also Davis v. Estate oftibiler, 107 So. 3d 181, (Miss. Ct. App. 2013). Further, Sass Muni's suit is barred by the doctrine of caveat emptor (let the buyer beware) as "no remedy exists to the purchaser in an invalid tax sale unless a remedy is specifically created by statute." Rebuild America. inc., 99 So. 3d at In Parsons v. Marshall, 139 So. 2d 833 (Miss. 1962), the Mississippi Supreme Court stated: [T]he purchaser at a tax sale buys strictly under the rule of caveat emptor. In the absence of any statutory provision to the contrary, there is no warranty on the part of the state, or any other public body making the sale if the purchaser's title proves defective for want of compliance with the law in proceedings leading up to the sale or in the conduct of the sale, he has no affirmative remedy other than what is provided by statute. If he fails to secure good title to the property he attempts to purchase, because of the invalidity of the tax sale, he cannot recover the amount paid thereof, either from the taxing authorities or from the owner of the land, unless some statute in term provides such remedy. 5 The Mississippi Court of Appeals has recently held that in a suit by a tax-sale purchaser against the property owner the rule of caveat emptor is "strictly applied against the purchaser." Holly Springs Realty Group. L.L.c., v. BancOIpSouth Bank, 69 So.3d 19, 28 (Miss. Ct. App. 20 I 0) (quoting 72 AM. JUR. 20 State and Local Taxation, Righls and Remedies of Purchaser 3 Against/he Property Owner 953 (200 I». 9

16 Parsons, 139 at 837 (quoting 51 AM. JUR. Taxation, 1135). In its brief, while arguing MIss. CODE ANN and allow a purchaser to set aside the tax sale, Sass Muni admits that it cannot cite any Mississippi statutory or case law in support. Rather, Sass Muni cites three (3) Attorney General Opinions. Sass Muni cites Miss. All y Gen. Op. Ladner (March 21, 1997), 1997 WL , where a tax sale purchaser, who did not file suit to set aside the tax sale, requested the City of McComb void a sale and refund the purchase price after it was discovered that the city failed to properly notify a lienholder. Id. The AG opined that since the city did not contest the fact that the lienholder was not noticed the city had the discretion to void the tax sale and refund the bid to the purchaser. Id. The opinion did not state that the purchaser had a right to file suit and was conditioned upon a finding that notice was not given to the lienholder. Id. The opinion is distinguishable to this case as the landownerllienholder does not claim lack of notice. Sass Muni then relies upon Miss. All y Gen. Op. Seq/ide, Jr. (Nov. 5, 2004), 2004 WL , in which the AG opined the city that conducted the tax sale was an "interested party" with standing to "initiate and participate" in a lawsuit to declare the tax sale void. Id. The Seafide opinion very straightforwardly states that "[ilt is the right of a private landowner to file a suit to have such a deed declared void." Id. Lastly, Sass Muni relies upon Miss. All y Gen. Op. Jaeks (Oct. 14,2011),20]] WL , which states a municipality has discretion to seek a declaration that a tax sale is void. Id. None of these opinions gives a tax purchaser the right to use an alleged lack of notice to recover its voluntary bid when the actual landowner or lienholder declined to redeem the taxes or contest the sale. 6 6 Even if the Attorney General's Opinions indicated a purchaser could file suit, he would be incorrect as 10

17 Under Mississippi law, standing only exists when a party asserts a "colorable interest in the subject matter of the litigation or experiences an adverse effect from the conduct ofthe Defendant or as otherwise provided by law." Hall v. City of Ridgeland, 37 So. 3d 25, 33 (Miss. 2010). See also Miss. Tax COl1lm 'n v. Veazey, 624 So.2d 997, 1001 (Miss.1993) (holding a litigant is prohibited from raising another's legal rights).7 Tax sales are creatures of statute in Mississippi, and the notice provisions of MISS. CODE ANN et.seq. were designed to protect the landowner and lienholders, not tax sale purchasers. See Moore v. Marathon Asset Mgmt., LLC, 973 So.2d 1021, 1021 (Miss. Ct. App. 2008). Unless the legislature has given the purchaser that right to contest, the right does not exist. Rebuild America, Inc., 99 So. 3d at Sass Muni attempts to assert that it has standing to bring this cause of action because it allegedly suffered an adverse effect from the alleged lack of notice to the landowner making it impossible for it to obtain good title to the real property. (R. 11). This purported harm asserted by Sass Muni is impossible. Sass Muni wishes for the Court to ignore the fact that it, as a tax sale purchaser, could have made a demand for a tax deed and filed suit to Quiet and Confirm Title pursuant to MISS. CODE ANN I, where any alleged title problems, including an alleged lack of notice at the tax sale, would be remedied by the Court's Order. Sass Muni simply chose not to seek this remedy. (R.98-99). Sass Muni asserted in its Count II that it was entitled to be refunded the funds it paid due to the alleged non-existence ofmic-rocky prior to October 3,2008. (R.39- only the Mississippi Legislature can give someone a right to file under its statutory cause of actions. Rebuild America, Inc., 99 So. 3d at An interest is colorable when it appears to be "true, valid or righl." Hall, 37 So. 3d at n.6 (internal citation omitted). I I

18 48). According to the Complaint, the purported owner of record, MIC-Rocky, a Minnesota limited liability company, acquired title to the property by virtue of a Substitute Trustee's Deed recorded in Deed Book 527, Page 470 as a result of it being the highest bidder at a foreclosure sale that occurred on November 13,2007. (lei). Sass Muni asserts that since MIC-Rocky did not file its Articles of Organization with the Minnesota Secretary of State until October 3, 2008, it did not exist on the date of the aforementioned foreclosure and the Substitute Trustee's Deed is invalid, and thus the tax sale is void. (lei). Sass Muni further asserts that, since the foreclosure was invalid, the actual owner at the time of the tax sale was another Defendant, DeSoto County Development, LLC, and because DeSoto County Development, LLC did not receive the notice, Sass Muni argues, the 2007 tax sale is void. (lei). Sass Muni's Count II is totally without merit, and it was properly dismissed for lack of standing. Sass Muni is attempting to set aside a foreclosure sale it was not a party to and create a retroactive lack of notice issue. The thirty-two (32) year deraignment of title listed in Sass Muni's Complaint did not list any attempt by the mortgagor, DeSoto County Development, LLC, to set aside the November 13,2007, foreclosure sale. (R.98-99). Sass Muni cannot proceed on Count II because it had no alleged colorable interest in the property at the time of the foreclosure sale. Hall. 37 So. 3d at 33. Further, under Mississippi law, a purported title issue or notice not being sent to the actual title holder will not invalidate a tax sale. MIss. CODE ANN provides in part: [i]t shall not be necessary to the validity of any assessment or of a sale of land for taxes that it shall be assessed to its true owner, but the taxes shall be a charge upon the land or personal property tax and the sale shall be a proceeding against the things sold and shall vest title in the purchaser without regard to who may own the land. 12

19 MISS. CODE ANN See Rains v. Teague, 377 So. 2d 924, 926 (Miss. 1979) (holding that a tax sale is still valid even though it was assessed to persons who were not the actual title holders of record). Sass Muni, as a tax sale purchaser, is assumed to have exercised due diligence and cannot use an alleged defect in the chain of title as a means to set aside the sale or recover funds it lost as a result of its voluntary participation in the sale. See Rebuild America, Inc., 99 So. 3d at Again, ifthere was a defective foreclosure sale as alleged, Sass Muni's remedy was to request a tax deed pursuant to MISS. CODE ANN , redeem the subsequent year's taxes, and file a suit to Quiet and Confirm Title pursuant to MISS. CODE ANN In its Count III, Sass Muni argues that it is entitled to a full refund of the funds it voluntarily paid at the 2007 tax sale based upon an alleged violation of the 5 1h and 14th Amendments of the Constitution of the United States due to an alleged improper assessment. (R ). Sass Muni asserts that the 2007 levy by the Appellee, City of Horn Lake and the Appellee, DeSoto County against the subject property was "so grossly and egregiously disproportionate to the true value of the subject property as to render it invalid, void and of no effect." (ld). When a party purchases property at a tax sale it becomes a record owner of the land without the right of possession and subject to the taxpayer's right of redemption. Steward v. Dogan,21 So. 2d 292 (Miss. 1945). It is undisputed that the 2007 levy in issue went into effect on January 1, 2007, and Sass Muni was the highest bidder of the property at the August 25, 2008, tax sale. Accordingly, Sass Muni does not have standing to allege an adverse effect from the assessment 13

20 because it had no interest in the parcel at the time the levy was made. Id. Further, Sass Muni should be equitably estoped from claiming an invalid assessment because it voluntarily paid the assessment when it made its high bid at the tax sale in issue. II. The Trial Court Correctly Held that Appellant's Complaint was Barred by the Applicable Statute of Limitations. As argued above, Sass Muni has no standing to bring its suit on all three (3) of its Counts. However, assuming arguendo that the Appellant does have standing to bring its Complaint, this Court should affirm the Trial Court's dismissal of Appellant's Counts II and III, as both Counts are barred by the applicable statute of limitations. As to Appellant's Count II, taking the assertions contained in the Appellant's Complaint as true, it is undisputed that the alleged defective foreclosure of the parcel occurred November] 3,2007, and the mortgagor did not seek to set aside the alleged defective sale. (R ). The three (3) year statute of limitations period to set aside the foreclosure lapsed on November 13,20]0, prior to the filing of the Appellant's action on August 30, 20] ], and as a consequence, the foreclosure sale cannot be set aside. MIss. CODE ANN. 15-] -49. As to Sass Muni's Count IJI, pursuant to MIss. CODE ANN , the 2007 assessment in issue went into effect on January 1,2008, and any alleged due process claim arising from that assessment is subject to the general three (3) year statute of limitations, which ran on January], 20 II, eight (8) months prior to the August 30,2011, filing of the instant action. See MISS. CODE ANN Accordingly, the Trial Court's ruling should be affirmed. III. The Trial Court Correctly Held that the Landowners. who did not Contest the Sale, were Properly Joined in the County and City's Motion to Dismiss DeSoto Appellees would simply assert that under the Mississippi Rules of Civil ]4

21 Procedure, in lieu of fil ing an answer a Defendant may file a Rule 12(b) motion. The Corporate Appellees timely filed their 12(b) motion and argued for their dismissal as a party. The Trial Court's dismissal of Sass Muni's Complaint against the other Appellees extinguished the suit against the Corporate Appellees, and the Trial Court correctly stated in its Order that the Corporate Appellees were properly joined. (R ). Accordingly, this Court should affirm the Trial Court's ruling that also dismissed Sass Muni's claims against the Corporate Appellees. Conclusion The issue in this suit is not whether the tux sale in issue was void; rather, it is whether Sass Muni, a voluntary tax sale purchaser, can use the statutory protections provided a landowner and lienholder to void a tax sale when the landowner or lienholder does not redeem the property's taxes or contest the sale. Under Mississippi Law, a purchaser in a tax sale has no remedy unless it has been specifically created by the Legislature. The only remedy the Appellant had was to demand a tax deed from the Chancery Clerk, redeem the subsequent year's taxes pursuant to MISS. CODE ANN and file a suit to quiet and confiml title under Mississippi Code , which it admittedly did not do per its deraignment of title. (R ). Pursuant to MISS CODE ANN , had the Corporate Appellees redeemed the property, Sass Muni would have been paid the amount of all taxes for which the land was sold with five percent (5%) damages plus interest from the date the costs accrued at a rate of one and one-half percent (1 Y:! %) per month, and Sass Muni would have made a substantial profit from its purchase. ld. A tax sale purchase is considered to be a low risk investment because the purchaser will either get the benefit of 15

22 the return of its funds paid plus penalties and interest or, if the property is not redeemed, it will then have a legal means to become the fee simple owner of the property via a suit to quiet and confirm under MISS. CODE ANN Notwithstanding Sass Muni's assertions, its actions show that it voluntarily bid a significant sum of money for property it did not wish to own hoping for the financial windfall of redemption. Unfortunately for Sass Muni, the Corporate Appellees neither redeemed the taxes nor exercised their rights to contest the sale. Rather than taking possession of the parcel as afforded by Mississippi Law, Sass Muni now attempts to step in the landowner's shoes to back out of a purchase it voluntarily made. Buyer's remorse is not a legally recognized cause of action in Mississippi. As a consequence, Sass Muni has no cause of action or standing to bring this suit, and the Trial Court's ruling dismissing Sass Muni's suit should be affirmed. Respectfully Submitted, this the 2ih day of August, Respectfully submitted, DESOTO APPELLEES lsi Joseph D. Neyman, Jr. JOSEPH D. NEYMAN, JR., MSB #10399 Smith, Phillips, Mitchell, Scott & Nowak 2545 Caffey Street, P. O. Box 346 Hernando, Mississippi (662) ; (662) Fax jody@smithphillips.com 16

23 CERTIFICATE OF SERVICE I, Joseph D. Neyman, Jr., Attorney for the DeSoto Appellees, do hereby certify that I have this day filed a true and correct copy of the above and foregoing Brief electronically via MEC, which electronically noticed registered participants. Additionally, the above and foregoing Brief was mailed this day, vial U.S. Mail, postage prepaid, to the following: Mr. Billy C. Campbell, Jr., Esq. Hunt, Ross & Allen 5740 Getwell Rd., Bldg. 2 Southaven, MS Counsel for the City of I-lorn Lake, Mississippi Mr. Jake Dickerson, Esq. Baker, Donelson, Bearman, Caldwell & Berkowitz, P.e. 165 Madison Ave., Suite 2000 Memphis, TN Counsel for Appellees, Marshall Investments Corporation alk/a Marshall Investments of Minnesota; E. Frank Childress, Jr., R. Spencer Clift, III, K. David Waddell, as Substitute Trustees; and Mic-Rocky, LLC Mr. Timothy Mitchell Kalom, Esq. Kalom Law Firm, PLLC P. O. Drawer 527 Biloxi, MS Counsel for Appellant, Sass Muni-V, LLC R. Hayes Johnson, Jr., Esq. P. O. Box 717 Long Beach, MS Counsel for Appellant, Sass Muni-V, LLC Joseph M. Gianola, Jr., Esq. K. Lee Stribling, Esq. Stribling Law Firm, PLLC 6555 Highway 98 West, Suite 3 Hattiesburg, MS Counsel for National Tax Lien Association Honorable Mitchell M. Lundy, Jr., Chancellor P. O. Drawer 471 Grenada, MS This, the 27'h day of August, lsi Joseph D. Neyman, Jr. JOSEPH D. NEYMAN, JR.