Opinion
14-P-397
05-15-2015
TOWN OF BROOKLINE v. LEONARD GOLDER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
Leonard Golder appeals from a final judgment of the Land Court foreclosing the right of redemption to the subject property after the town of Brookline (Brookline) conducted a tax taking pursuant to G. L. c. 60, § 53, in 2007. Golder now claims that the property was foreclosed without due process of law and that the Land Court should have ordered Brookline to accept a payment plan. We affirm.
Brookline points out, and they are correct, that Golder's two arguments on appeal were not raised below and are therefore waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006). We will, however, address briefly the arguments since the outcome remains the same.
Golder claims that a taking pursuant to G. L. c. 60, § 37, is invalid if it is based on errors in notice that are "substantial" or "misleading." Golder argues that notice was mailed to him at 60 Old Bolton Road. His actual address is 67 Old Bolton Road and he claims that he did not receive the notice. Golder cites to § 37 which deals with tax takings but the lack of notice he complains of pertained to the filing of the petition to foreclose which is controlled by section 75. Notwithstanding this fact, there is nothing in the record that would indicate that Golder had been prejudiced by this error or that he lacked adequate notice of either the tax taking in 2007 or the complaint to foreclose in 2011. Actually the notice he complains about was not required to be sent to him at all. General Laws c. 60, § 75, as amended, St. 1973, c. 575, § 2, provides only that "Notice of filing the petition shall be recorded in the registry of deeds. . . ." Brookline recorded its notice of filing the petition to foreclose in the Norfolk County Registry of Deeds on March 7, 2012. There was no further requirement that this notice be mailed to anyone. Golder did receive adequate notice of the tax taking as well as the foreclosure, and he actively participated in the foreclosure proceedings in the Land Court. There was no violation of due process requirements.
Finally, Golder argues that the Land Court should have required Brookline to accept his payment plan to redeem the property based on G. L. c. 60, § 62A. Actually, G. L. c. 60, § 65, provides that the petition for the foreclosure of all rights of redemption cannot be filed until six months from the sale or taking. General Laws c. 60, § 62, provides that the town "may extend the time during which proceedings for the foreclosure of all rights of redemption may not be instituted, for a period not exceeding 2 years beyond the time period provided by section 65." (Emphasis added) In addition, the payment plan proposed by Golden would not have paid the amount owed within the two year time frame. There was no obligation on the part of the Land Court to order that Brookline accept the payment plan.
Judgment affirmed.
By the Court (Kantrowitz, Trainor & Fecteau, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: May 15, 2015.