Opinion
Chancery No. 22098
09-24-2002
JOHN S. SHOURDS, et. al. Plaintiffs v. SOUTH RIDING PROPRIETARY, et. al. Defendants
MEMORANDUM OPINION AND ORDER
This is an action for declaratory and injunctive relief filed by a husband and wife owning real property in the South Riding community of Loudoun County. The South Riding Proprietary has previously had recorded among the land records of Loudoun County a lien memorandum in support of its claim for unpaid assessments levied against the lot owned by the plaintiffs. Subsequent to the filing of the lien and upon the failure of the Plaintiffs to discharge their obligation to the Proprietary, nonjudicial lien foreclosure proceedings were commenced pursuant to Va. Code Ann. §55-516. In accordance with the statute, notice of the sale in execution of the lien was given by mail. Thereafter, the property was sold.
Plaintiffs contend that they only learned of the foreclosure proceedings after the sale of the property. Central to their claim is their assertion that the Postal Service stopped delivery of mail to their home. In support of that contention, they have exhibited a letter from the Customer Service manager indicating that mail was held from
June 29, 2002 through August 30, 2002. Additionally, the mail was stamped in error as "moved left no address" rather than "unclaimed".
Named as defendants are the South Riding Proprietary, its designated foreclosing agent (Segan, Mason & Mason, P.C.), and the purchasers at the foreclosure sale (Beeren & Barry Investments, LLC., Tanel Beeren, and Camille Barry).
The defendants have filed an answer and grounds of defense.
The case is now before the Court upon the request of the plaintiffs for temporary relief to enjoin settlement on the property and the purchasers' pursuit of an unlawful detainer action they have commenced in the General District court. In evaluating the request of the plaintiffs, the Court must look to the likelihood of the plaintiff's prevailing merits, a balancing of hardships, irreparable injury to the plaintiffs should the relief not be granted, and public policy. Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977). Defendants have suggested that, like a foreclosure sale pursuant to Va. Code Ann. § 55-59.1, actual receipt of notice of the sale is not required- only that it be given. Principal Residential Mortgage; Secretary of Housing and Urban Development v. O'Neal, 55 Va. Cir. 250 (2001). However, unlike foreclosure proceedings predicated upon a default in payment of a note secured by a deed of trust, the General Assembly has provided that a failure to meet the advertising requirements in an action to enforce an assessment lien may render a sale voidable by the court. Va. Code Ann. § 55-516 (I)(5).
It has been observed that,
[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.Mullane v. Central Hanover Bank & Trust, Co. Trustee, 339 U.S. 306, 313 (1950).
In the instant case, notice was given by mail. There is a rebuttable presumption that the letters properly addressed and stamped were received by the plaintiffs. Davis v. American Interinsurance Exchange, 228 Va. 1 (1984). Plaintiffs have put forth exhibits that would mount a formidable challenge to the presumption and would strongly suggest a need for an evidentiary hearing to resolve the issue of whether notice was actually or constructively received.
The Court finds that the instant pleadings raise a novel legal issue and a factual dispute in which there is evidence of a failure to deliver by the Postal Service-circumstances that would cause the court to find that the failure to grant temporary relief would, as between the plaintiffs and the defendants, work an undue hardship on the plaintiffs with resulting irreparable injury to be suffered by them.
A temporary injunction against settlement on the property and the trial of the unlawful detainer action will issue upon the posting of a bond in the amount of $5,000.00, with surety. This injunction shall be effective upon the posting of said bond and shall expire on November 1, 2002, unless otherwise enlarged. This case will be continued.
It is so Ordered.
Entered this 24th day of September 2002.
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Thomas D. Horne, Chief Judge