Opinion
C.A. No. 03L-11-007WLW.
Submitted: May 17, 2005.
Decided: July 14, 2005.
Defendants' Motion to Set Aside Sheriff's Sale. Granted.
Stephen P. Doughty, Esquire of Lyons Doughty Veldhuis, P.A., Wilmington, Delaware; attorneys for the Plaintiff.
Timothy J. Wilson, Esquire of Margolis Edelstein, Wilmington, Delaware; attorneys for the Defendants.
ORDER
Before the Court is Defendant Dorothy Clark's Motion to Set Aside the Sheriff's sale. Defendant alleges that she did not receive notice of the sale until after the sale had occurred. Because the Court finds that the plaintiff did not fulfill its duty to make a reasonably diligent effort to ascertain the correct address to which to mail notice to Dorothy Clark, the Court will grant the defendant's Motion to Set Aside the Sheriff's Sale.
FACTS
Defendant Dorothy Clark has moved to set aside the sheriff's sale of real property located at 44 Carver Road, Dover, Delaware because she alleges she did not receive notice of the sale as required by Superior Court Civil Rule 69(g). The property was sold at a sheriff's sale on October 7, 2004. Ms. Clark states that she became the record owner of the property on October 16, 2002. Ms. Clark lives in Pennsylvania and asserts that she received no notice until after the sale took place. Ms. Clark argues that because Plaintiff did not contact her directly at her Pennsylvania address the sheriff's sale should be set aside.
The docket reflects that the sheriff served notice of the underlying scire facias action on defendants Marie Daniels and Dorothy Clark by serving "Deborah Moore, caretaker," at the subject property on November 12, 2003. Plaintiff, Household Bank, states that it also mailed notice of the filing of the action via first class mail to the 44 Carver Road property on December 12, 2003 and that the first class mail was not returned.
Plaintiff attempted to give Defendant notice of the sheriff's sale on August 26, 2004 by mailing letters of notice via certified mail and first class mail to Ms. Daniels and Ms. Clark at the 44 Carver Road address. The certified mail was returned to sender, "attempted-not known." Plaintiff also posted the property with notice of the sheriff's sale on August 27, 2004.
Plaintiff contends that Ms. Clark was properly notified of the sale by the sheriff's service on "Deborah Moore, caretaker" on November 12, 2003 and by posting of notice of the sale on the property at 44 Carver Road. Plaintiff admits that the certified notice of the sheriff's sale, sent August 26, 2004, was returned unclaimed. Plaintiff maintains, however, that the first class mailing containing the notice of the scire facias action sent to Defendant Clark at the property on December 12, 2003 was not returned. Plaintiff argues that, based on the fact that the sheriff served Deborah Moore and the fact that the first class mailing sent December 12th was not returned, "there was no reason for plaintiff to make any further investigation or effort to locate Defendant Clark."
Defendant contends that the plaintiff did not fulfill its duty to ascertain her correct address. She argues that she never received the notice from Deborah Moore and, at oral arguments on this motion, questioned whether Ms. Moore was even legally on the property at the time service was made. Ms. Clark further argues that her address in Pennsylvania was "reasonably ascertainable" under Superior Court Civil Rule 69(g) because she routinely received communications at her Philadelphia address about her real estate taxes and other communications from the city of Dover concerning the Carver Road property.
Ms. Clark further avers that she informed Plaintiff of her address in Philadelphia on September 23, 2002 when she went to Household Bank's Dover office with Marie Daniels (the former owner of the property), to inform Household Bank that she had assumed power of attorney for Marie Daniels. Ms. Clark states that, on that date, she spoke to a Household employee, Mr. Bath, and asked him to contact her at her Philadelphia address about any issues surrounding the loan with Household.
DISCUSSION
The Court's power to set aside a sheriff's sale "derives from the inherent control of the court over its own process `for the correction of abuses or the prevention of injury.'" When reviewing a sheriff's sale, the Superior Court must determine whether there was "some defect or irregularity in the process or mode of conducting the sale, or for neglect of duty . . . or some other sufficient matter . . . whereby the rights of parties to, or interested in the sale are, or may have been prejudiced." Failure to provide notice of the sale, either through the Sheriff or through advertising the sale "are perhaps among the most usual grounds on which sales are set aside." The court's power in this area is "broad and discretionary." The resolution of this case turns on whether Defendant fully complied with the provisions of Superior Court Civil Rule 69(g) in attempting to give actual notice to Dorothy Clark. While notice was not sent directly to Ms. Clark's Pennsylvania address, Plaintiff alleges that it nonetheless complied with the requirements of Superior Court Civil Rule 69(g) by mailing a copy of the notice of the sheriff's sale to the 44 Carver Road property and by posting notice of the sale at the same address. Superior Court Civil Rule 69(g) states that "[n]o sheriff's sale of real estate shall be held unless at least seven (7) days before the sale the plaintiff or his counsel of record shall send by certified mail, return receipt requested to . . . record owners acquiring title to such real estate . . . at least thirty (30) days prior to the sheriff's sale. . . ." Subsection (g) indicates that notice:
Burge v. Fidelity Bond and Mortgage Co., 648 A.2d 414, 420 (Del. 1994) (quoting Petition of Seaford Hardware Co., 132 A. 737, 738 (Del.Super.Ct. 1926)).
Petition of Adair, 190 A. 105, 107 (Del.Super.Ct. 1936) (internal citations omitted).
Id. (citing 2 Victor B. Woolley, Practice in Civil Actions in Delaware, §§ 1104, 1115, 1119, 1120 (1906)).
2 Victor B. Woolley, Practice in Civil Actions in Delaware, § 1108 (1906).
shall be addressed to persons having an equitable or legal interest of record at the last known available or reasonably ascertainable address of such person.
Rule 69(g) further requires that notice of the sale be posted on the property. Finally, Rule 69(g) requires that an affidavit verifying the fulfillment of such notice requirements be filed. If the address of a record owner of the property cannot be reasonably ascertained, the affidavit must give "a description of the reasonably diligent efforts that were made to ascertain such identity or address."
It does not appear to the Court that the phrase "reasonably ascertained" has been defined by any other court in the context of Rule 69(g). The affidavit requirement in Rule 69(g), however, specifies that the party attempting to complete service must give a description of the "reasonably diligent efforts" made to ascertain the address of the party to be served. The United States Supreme Court has also described the "reasonably ascertainable" standard as requiring "reasonably diligent efforts." Black's Law Dictionary defines "reasonable diligence" as "[a] fair degree of diligence expected from someone of ordinary prudence under circumstances like those at issue." As a general rule, notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action."
See Mennonite Board of Missions v. Adams, 462 U.S. 791, 798 n. 4 (1983) (discussing the notice requirements that must be met in order to conduct a tax sale).
Black's Law Dictionary 468 (7th ed. 1999).
Mullane v. Central Hanover Bank Trust, Co., 339 U.S. 306, 314 (1950); New Castle County v. Gallen, 2003 WL 21739069 (Del.Super.), at *4, aff'd, 839 A.2d 665 (Del. 2003).
In the Court's view, the Plaintiff's efforts in ascertaining Dorothy Clark's address were not reasonably diligent. Plaintiff knew that Dorothy Clark held an interest in the land because Plaintiff addressed its mailings to the subject property to both Dorothy Clark and Marie Daniels. Plaintiff should have had some cause for concern that notice was not given, however, when the sheriff was only able to serve notice at the property on an individual identified only as a "caretaker." In addition, the certified mailings were consistently returned to Plaintiff in this case which should have also given pause to Plaintiff.
While Plaintiff clearly attempted to comply with Superior Court Civil Rule 69(g), the Court finds that Plaintiff's efforts were not reasonably calculated to notify Dorothy Clark of the upcoming sale. Cases of this nature are understandably very factually driven. The Court, therefore, holds that Plaintiff did not put forth a reasonably diligent effort to ascertain the correct address of Dorothy Clark whom Plaintiff knew to be a holder of interest in the property. Neither did the Plaintiff provide a modicum of proof that it took any other steps to ascertain Dorothy Clark's correct address.
CONCLUSION
In the Court's view, service on an unknown caretaker on the property and the fact that a first class mailing was not returned, do not constitute a sufficient effort to "reasonably ascertain" the correct address of the record owner of the property. In addition, Plaintiff was aware that its certified mailings addressed to Marie Daniels and Dorothy Clark at the property were returned unclaimed. Finally, there is no proof that either Marie Daniels or Dorothy Clark had actual notice of the sheriff's sale which might overcome the deficiencies in service of process. Therefore, Defendant's Motion to Set Aside the Sheriff's Sale is granted.
IT IS SO ORDERED.