Department of Finance of Sussex County v. Smith

• Court: Superior Court of Delaware
• Decided: October 13, 2022
• Docket: S21T-10-019 MHC
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DEPARTMENT OF FINANCE OF ) SUSSEX COUNTY, ) ) Plaintiff, ) ) v. ) CA No. S21T-10-019 MHC ) JERRY SMITH, ) ) Defendant. )

ORDER

Submitted: August 11, 2022 Decided: October 13, 2022

Upon Consideration of Motion to Set Aside Sheriff’s Sale, DENIED.

Ryan T. Adams, Esq., Moore & Rutt, P.A., Georgetown, Delaware, Attorney for Plaintiff Department of Finance of Sussex County.

Jerry L. Smith, Frankford, Delaware, Pro Se.

CONNER, J. FACTUAL AND PROCEDURAL BACKGROUND

(1) On August 4, 2006, Defendant Jerry Smith (“Defendant”)

acquired an interest in 23 Honolulu Road Frankford, Delaware (the “Property”).

Sussex County records indicate that the Property is co-owned by Rachel Houston,

Chevelle Goslee and Defendant. However, according to Defendant, both Houston

and Goslee have been deceased for over one and one-half years. Plaintiff Department

of Finance of Sussex County (the “County”) avers that “no estates have been opened

for either [Houston or Goslee], and their deaths cannot be ascertained through a title

search.”1

(2) At oral argument Defendant stated that he does not live at the

Property and he has never paid property taxes on the Property. In 2011, the County

received notice that a proper address to send the tax bills was 11494 Old School

Road, Mardela Springs, Maryland. No other address has been provided to the County

as a point of contact for tax payment. Taxes on the Property have not been paid for

the years 2008-2021.

(3) On October 26, 2021, the County filed a complaint for entry of

judgment on monition. At that time the delinquent taxes on the Property totaled

$2,261.98. On October 28, 2021, the Prothonotary issued a writ of monition. On

1 Pl.’s Resp. to Def.’s Mot. ¶ 2. 2 November 1, 2021, the Sheriff posted the writ of monition on the Property. On

February 16, 2022 the Prothonotary issued a writ of venditioni exponas monitions.

(4) On April 1, 2022, notice that a public sale of the Property had

been advertised in connection with a sheriff’s sale was mailed to parties that may

have had an interest in the Property. Most relevantly, notice was mailed to

Defendant, Houston and Goslee at the Maryland address, and also mailed to the

Property. On April 7, 2022, notice was posted on the Property.

(5) On April, 19, 2022, the Property was sold at a sheriff’s sale to a

third party. On May 11, 2022, Defendant filed a motion to set aside the sheriff’s sale

under Superior Court Civil Rule 69(g).

(6) Defendant argues that the sale should be set aside because he

received no notice of the sheriff’s sale. Specifically, Defendant contends that the

County should have mailed notice to his primary residence or to his P.O. Box.

(7) On May 26, 2022, the County filed a response to the motion to

set aside the sale. It contends that notice was not sent to Defendant’s primary

residence address because neither County records nor a title search connected the

Property with Defendant’s primary residence. The County claims it had no records

showing that Defendant was the same Jerry Smith who lived at Defendant’s primary

residence. Moreover, the County acknowledged that the 2006 deed which created

Defendant’s interest in the property listed Defendant’s P.O. Box address, but the

3 County argues that it did not send notice to Defendant’s P.O. Box because it

“reasonably believed [the P.O. box address] was an outdated address.”2 The County

states that a review of Property documentation indicated that Defendant, Houston

and Goslee all lived at the Maryland address.

(8) The Delaware Supreme Court has recognized this Court’s broad

discretion in confirming sheriff’s sales.3 The Court must determine whether there

was “some defect or irregularity in the process or mode of conducting the sale, or [

] neglect of duty, or misconduct on the part of the Sheriff or some other sufficient

matter ... whereby the rights of parties to, or interested in the sale are, or may have

been, prejudiced.”4 There is a “strong public interest in the finality

of sheriff's sales,”5 and subsequent motions to set aside such sales will be untimely

“unless the court finds lack of notice or other basis to relieve the party of the

consequences of unexcused delay.”6

(9) Superior Court Civil Rule 69(g) states in pertinent part:7

No 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 . . . . The notice 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 . . . .

2 Pl.’s Answer to Jerry Smith’s Resp. ¶ 4. 3 Burge v. Fidelity Bond and Mortgage Co., 648 A.2d 414, 420 (Del. 1994). 4 Id. at 419 (citing Petition of Adair, 190 A. 105, 107 (Del. Super. 1936)). 5 Shipley v. New Castle Cnty., 975 A.2d 764, 770 (Del.2009). 6 Id.(quoting Deibler v. Atlantic Properties Group, Inc., 652 A.2d 556, 558 (Del. 1995)). 7 Super. Ct. Civ. R. 69(g). 4 (10) Additionally, such notice must satisfy the Due Process Clause.

In Mennonite Bd. of Missions v. Adams, the U.S. Supreme Court stated that

“[p]rior to an action which will affect an interest in life, liberty, or property

protected by the Due Process Clause of the Fourteenth Amendment, a State must

provide notice reasonably calculated, under all circumstances, to apprise interested

parties of the pendency of the action and afford them an opportunity to present

their objections.”8

DISCUSSION

(11) In Department of Finance of Sussex County v. Tyler,9 notice of

an impending sheriff sale was mailed to the property owner at two addresses. The

first was an incorrect address for the property owner’s place of residence, which was

not received. Notice was also mailed to the address provided as the tax billing

address for the property in question. Thus, the only address that the County properly

sent notice to was the address provided to the County for sending tax bills. The

Superior Court held that the County provided sufficient notice of the impending

sheriff’s sale because “it [was] clear that the notice given was reasonably calculated

8 Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 795, 103 S. Ct. 2706, 2709, 77 L. Ed. 2d 180 (1983). 9 Tyler v. Dep't of Fin. of Sussex Cnty., Del. Super., C.A. No. S16T-09-007 RFS, Stokes, J. (Jun. 4, 2018), aff’d, 202 A.3d 510 (Del. 2019). 5 to inform Defendants of the pending monition sale.”10 The decision was affirmed on

appeal to the Delaware Supreme Court.

(12) Moreover, the text of Superior Court Civil Rule 69(g) provides

further support for the determination in Tyler that in certain circumstances, sending

notice that the property will be exposed to a sheriff’s sale to the address provided as

the property tax billing address may provide sufficiently reasonable notice to the

individual responsible for paying the tax bill. As previously stated, Rule 69(g)

requires the County to send notice to “persons having an equitable or legal interest

of record at the last known available or reasonably ascertainable address of such

person.”11 In contrast, the subsection of 69(g) concerning the requisite notice for

lienholders states, “[t]he notice shall be addressed to holders of liens at the address

which appears upon the recorded or filed instrument creating the lien or upon the

record of the lien.”12 Had they wished, the drafters could have included language in

both subsections requiring notice to be sent to an address which appears upon the

recorded or filed instrument, but they did not. Thus, a plain reading of Rule 69(g)

indicates that persons having an equitable or legal interest of record are entitled

under the rule to receiving reasonably calculated notice of a sheriff’s sale. The rule

10 Id. at 2. 11 Super. Ct. Civ. R. 69(g). 12 Id. 6 does not necessarily require such notice to be sent to an address which appears upon

the recorded or filed instrument in every circumstance.

CONCLUSION

(13) Under the specific set of circumstances presented here, the notice

given was reasonably calculated to inform all persons having an equitable or legal

interest of record in the Property of the pending sheriff’s sale. Accordingly,

Defendant’s Motion to Set Aside the Sheriff’s Sale is DENIED.

IT IS SO ORDERED.

/s/ Mark H. Conner Mark H. Conner, Judge

cc: Prothonotary