Opinion
21-P-404
05-11-2022
TOWN OF OXFORD v. JOHN A. SMITH.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Defendant John A. Smith appeals from the order of a deputy recorder of the Land Court denying his motion to vacate a default judgment against him in a tax title foreclosure proceeding brought by the town of Oxford (town). In doing so, he does not challenge the town's compliance with the statutory scheme governing tax lien foreclosures, G. L. c. 60 (statute). Instead, Smith argues that the statute's failure to provide him with actual and meaningful notice of critical steps in the foreclosure process and their effect denied him due process. Where the judgment at issue entered by default when Smith failed to appear in the Land Court after receiving notice of the foreclosure proceeding, we conclude that Smith has waived these arguments. Accordingly, we affirm.
The Supreme Judicial Court recently provided "a full discussion of the tax lien foreclosure process" in an Appendix to its opinion in Tallage Lincoln, LLC v. Williams, 485 Mass. 449, 450 (2020) . See id. at 460-470 (Appendix) .
The panel acknowledges the amicus brief provided by Professor Ralph D. Clifford, University of Massachusetts School of Law.
Background.
Except as noted, infra, the relevant facts and procedural history of the case are not disputed. Smith was the owner of a residential property at 36 Quobaug Avenue in Oxford (property). For reasons Smith attributed to a failing memory and his entrustment of certain of his affairs to his daughter, he failed to make timely payment of his 2011 property taxes; as a result, the town obtained a tax lien against the property in the amount of approximately $3, 055.
In June 2011, the town made demand on Smith for payment of the back taxes and, as permitted under the statute, then gave notice of its intent to execute a tax taking of the property by publication and posting. See G. L. c. 60, § 53 ("notice [of intention to exercise power of taking] may be served in the manner required by law for the service of subpoenas on witnesses in civil cases or may be published, and shall conform to the requirements of [G. L. c. 60, ] section forty") . The statute did not require the town to serve Smith with a copy of the notice, and the town did not do so. See G. L. c. 60, §§ 40, 53. The town executed an "instrument of taking" for the property on November 4, 2011, and recorded that document in the Worcester County registry of deeds. Having executed the taking, the town obtained "legal ownership of the property subject to [Smith's] right of redemption." Tallage Lincoln, LLC v. Williams, 485 Mass. 449, 451 (2020) (Tallage Lincoln), citing G. L. c. 60, § 53.
Under G. L. c. 60, § 40,
"[t]he collector shall give notice by publication of the time and place of sale of land for nonpayment of taxes. Such notice shall contain a substantially accurate description of the several rights, lots or divisions of the land to be sold, . . . the amount of the tax assessed on each, and the names of all owners known to the collector."
In his brief, Smith suggests (as he did in the Land Court) that he did not see the posted notice.
"By statute, the taxpayer is entitled to redeem the property for six months after the taking or sale; however, the right of redemption lasts unless and until it is foreclosed." Tallage Lincoln, LLC v. Williams, 485 Mass. 449, 467 (2020), citing G. L. c. 60, § 65.
Although Smith contends that he was unaware of the tax taking and its consequences at the time the town executed it, it is apparent from the record that he became aware of the taking well before the town sought to foreclose on the property. Indeed, during the three years following the taking, Smith and his son, as Smith's attorney in fact, attempted to negotiate the deficiency with the town, although the amount due continued to grow based primarily on the accrual of statutory interest on the unpaid tax amount. See G. L. c. 60, § 62. When those negotiations failed to result in a payment plan, and Smith failed to pay the amount due after the town made demand for payment in full in June 2014, the town petitioned the Land Court to foreclose Smith's right of redemption in the property. See G. L. c. 60, § 65.
On March 16, 2015, the town served Smith by certified mail, return receipt requested, with the Land Court citation notifying him of (1) the foreclosure proceeding and (2) a deadline of April 20, 2015, to appear and answer. See G. L. c. 60, §§ 65-67. The citation included a notice that "[u]nless [Smith's] appearance [was] filed, [his] default [would] be recorded, the . . . complaint [would] be taken as confessed and [he] may be forever barred from contesting [the] complaint or any judgment entered thereon." Smith signed the green card acknowledging receipt of that delivery but did not appear in the foreclosure action. Although the town was entitled to move the court to enter a judgment of foreclosure of Smith's right of redemption immediately on Smith's default, see Tallage Lincoln, 485 Mass. at 468, it did not do so, opting instead to place the case on hold for the remainder of 2015 and 2016, to allow Smith additional time to pay the delinquency in full. Smith did not make the payment required by the town, and on October 24, 2017, the town moved for general default. Final judgment entered in the Land Court on May 4, 2018, and with it, the town obtained absolute title to the property. The docket does not reflect that Smith was provided with contemporaneous notice of the entry of judgment; on October 31, 2018, however, almost six months after judgment entered but more than six months before the one-year redemption deadline under G. L. c. 60, § 69A, the town wrote to Smith advising him of the town's intent to sell the property at auction and enclosed a copy of the judgment. In its letter, the town advised Smith that "[i]n order to avoid [the sale], it is of the utmost importance that [he] contact th[e] office to make arrangements to pay the taxes due to the [t]own." The one-year redemption period under § 69A passed without Smith's having made full payment of the amount due to the town.
The mailing also included a Limited Assistance Representation form.
The entry of judgment began the one-year window within which Smith, as the taxpayer, was permitted by the statute to move to vacate the judgment on payment in full of the redemption amount and accrued interest. See Tallage Lincoln, 485 Mass. at 469, citing G. L. c. 60, § 69A.
On January 15, 2021, more than two and one-half years after the entry of judgment in the tax foreclosure action, Smith filed a motion to vacate that judgment under G. L. c. 60, § 69A, and Mass. R. Civ. P. 60 (b) (4), 365 Mass. 828 (1974). Smith argued that the judgment against him was void because the town failed to provide him with constitutionally required notice before taking the property, reasoning that G. L. c. 60 was invalid because it failed to afford him due process, and the citation provided to him by the town "was so uninformative that it failed to satisfy due process requirements." After a hearing, a deputy recorder of the Land Court rejected Smith's argument and denied as untimely his motion to vacate the judgment. This appeal followed.
Discussion.
As an initial matter, we are not persuaded by Smith's argument that our review of the order denying his motion to vacate the default judgment must be conducted de novo. It is undisputed that, at a minimum, Smith had actual notice of the town's petition to foreclose his right of redemption in the property following the town's tax taking. We conclude that for the purposes of determining the applicable standard of review, Smith has failed to demonstrate that the requirements of due process were not met here. See Ithaca Fin., LLC v. Leger, 99 Mass.App.Ct. 368, 373-374 (2021), quoting Andover v. State Fin. Servs., Inc., 432 Mass. 571, 575 (2000) (where return receipt indicated that notice of tax foreclosure proceeding was received, such notice "was 'all due process requires'"). We thus review the deputy recorder's denial of the motion to vacate the default judgment only for an abuse of discretion, mindful that "[a] petition to vacate a prior decree foreclosing the right of redemption under a tax title is 'extraordinary in nature and ought to be granted only after careful consideration and in instances where . . . [it is] required to accomplish justice.'" Ithaca Fin., LLC, supra at 372, quoting Sharon v. Kafka, 18 Mass.App.Ct. 541, 542 (1984).
There was no abuse of discretion here. While we are sympathetic to Smith's arguments about the potentially Draconian impact of the statutory scheme governing tax takings, see Tallage Lincoln, 485 Mass. at 450 (characterizing process of tax lien foreclosure as "archaic and arcane"), the development of those arguments depended on Smith's participation in the foreclosure proceeding. When he defaulted, he waived his opportunity to press them. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006). What remains is the undisputed fact that that despite being aware of the judgment against him within the final year-long window for postjudgment redemption of the property, and presumably also aware of any due process concerns arising from the foreclosure process, Smith waited two and one-half years from the date of the judgment to move to vacate it.See G. L. c. 60, § 69A. We discern no abuse of discretion in the deputy recorder's conclusion that in this circumstance, the town's interest in finality mitigated in favor of denying Smith's motion to vacate the default judgment.
To the extent that Smith relies on the fact that the town did not notify him of the judgment when it entered, we note that "[it] had no legal obligation to [do so]." Ithaca Fin., LLC, 99 Mass.App.Ct. at 374, citing Tallage Lincoln, 485 Mass. at 469 (Appendix).
The town's request for attorney's fees and costs is denied.
Order denying motion to vacate judgment affirmed.
The panelists are listed in order of seniority.