In re Foreclosure of Tax Liens

38 Misc. 3d 296
CourtNew York County Courts
DecidedNovember 9, 2012
StatusPublished

This text of 38 Misc. 3d 296 (In re Foreclosure of Tax Liens) is published on Counsel Stack Legal Research, covering New York County Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Foreclosure of Tax Liens, 38 Misc. 3d 296 (N.Y. Super. Ct. 2012).

Opinion

OPINION OF THE COURT

Timothy J. Lawliss, J.

By deed recorded in the Clinton County Clerk’s Office on October 17, 2008, Greenpoint Assets, Ltd., a corporation established under the laws of the British Virgin Islands with a mailing address of 16th Floor On Hing Building, I On King Terrace, Central Hong Kong, purchased land in the Town of Altona, County of Clinton, New York. The purchased land is identified as three separate, but contiguous, parcels on the Clinton County tax maps. Greenpoint specified its mailing address on both the recorded deed and Greenpoint’s real property transfer report filed with the deed. Greenpoint paid its 2009 real property tax bill; however, Greenpoint failed to pay its 2010 and 2011 real property tax bills with respect to the subject parcels.

On October 7, 2011, Clinton County mailed a combined notice of petition and foreclosure to Greenpoint by both first-class mail and certified mail, return receipt requested. The first-class mailing was never returned; however, the certified mail was returned with Chinese characters. At the time, the County did not seek an interpreter to translate the Chinese characters. After the instant action was commenced, at the request of the court, an individual interpreted the characters for the County. The characters translated to “No Building Located.” It appears that the County inadvertently misaddressed the October 7, 2011 mailings.

On November 15, 2011, in an effort to provide further notice, the County sent additional notices to Greenpoint, again one by first-class mail and the other by certified mail, return receipt requested. Both of these mailings were returned with Chinese characters written on the faces of the envelopes. Again, the characters were not translated at the time, but after the instant action was commenced, an individual translated the characters for the County. The Chinese characters indicated that the ad[298]*298dress lacked a room number and that Greenpoint could not be located at that address. The November 15, 2011 mailings were sent to the proper address specified by Greenpoint at the time of purchase.

Following the return of both mailings sent out on November 15, 2011, the County then proceeded to attempt to satisfy the posting requirements of Real Property Tax L&w § 1125 (1) (c). Only one of the three contiguous tax map parcels borders a public highway. Pursuant to the County’s past practices, the County posted the requisite notice on a telephone pole located on the northeast bounds of the parcel that bordered a public highway. It is undisputed that this notice was clearly visible from the nearest road. It is also undisputed that two of the contiguous parcels are landlocked and are not visible from any public road.

In addition, the County took several steps in an effort to identify an alternate address for Greenpoint. A member of the Clinton County Treasurer’s Office reviewed the local telephone books to determine if Greenpoint had a local number or address. The Treasurer’s Office contacted the Clinton County Real Property Office to determine if that office had any knowledge concerning an alternate address. The County filed a request of change of address verification form with the United States Postal Service. The Treasurer’s Office reviewed a list of alternative addresses that it maintained in its own files. The Treasurer’s Office reviewed documents filed in the Clinton County Clerk’s Office and noted that at the time that Green-point purchased the subject parcels, Greenpoint’s attorney’s name was not referenced on the documents filed with the County Clerk. The County Treasurer’s Office ordered and reviewed a title search to determine if any clues regarding an alternate address could be found. All of the above efforts failed to locate any address other than the address listed on the deed and the real property equalization assessment form filed with the deed.

Ultimately, the County commenced this foreclosure action and, on March 12, 2012, this court (McGill, J.) signed an order and judgment pursuant to Real Property Tax Law § 1136 (hereinafter the foreclosure judgment) which, among other things, ordered, adjudged and decreed that the motion of Clinton County for judgment of foreclosure pursuant to section 1136 of the Real Property Tax Law be granted and awarded the County possession and title to a list of real property, including the three subject tax parcels owned by Greenpoint. It is undisputed that [299]*299the court’s foreclosure judgment was entered in the Clinton County Clerk’s Office on March 12, 2012.

On August 8, 2012, Greenpoint moved this court by order to show cause seeking an order vacating the foreclosure judgment as it relates to Greenpoint’s parcels and dismissing the underlying complaint as it relates to Greenpoint’s parcels. In general terms, Greenpoint argues that the County failed to provide it with the notice required by article 11 of the Real Property Tax Law, and the County seized the property without providing Greenpoint due process.

Real Property Tax Law Article 11

Real Property Tax Law § 1125 (1) (a) specifies notice must be given to property owners, among others, of the commencement of foreclosure proceedings for nonpayment of taxes. The first step that the County must take is to send the requisite notice by both certified mail and ordinary first-class mail to the owners. The statute provides that the notice shall be deemed received unless both the certified mailing and the ordinary first-class mailing are returned within 45 days of the mailing. (RPTL 1125 [1] [b] [i].) Greenpoint argues that the October 7, 2011 mailings were invalid because the County failed to use Green-point’s complete and correct address. Greenpoint further argues that the November 15, 2011 mailings were ineffective because both the certified mailing and first-class mailing were returned.

Article 11 requires that in the event that both mailings are returned, the County must attempt to obtain an alternative mailing address from the United States Postal Service. (RPTL 1125 [1] [b] [i].) If an alternative address is found, the County must cause notices to be mailed to the owner at such alternative address by both certified mail and ordinary first-class mail. There is no claim in this case that the County was able to obtain an alternative address from the United States Postal Service, or by any other means. (RPTL 1125 [1] [b] [ii].)

If no alternative mailing address is found, the County must, with respect to the owner, post notice of the proceeding “on the property.” (RPTL 1125 [1] [b] [iii].) The statute provides that the posting of the notice shall be deemed sufficient if it is, among other options, attached to a vertical object such as a tree, post or stake, and plainly visible from the road. (RPTL 1125 [1] [c].) Greenpoint argues that the County failed to satisfy this requirement with respect to two of the three parcels because the posting was not “on the property.” It is undisputed that because of [300]*300the requirement that the posting be plainly visible from the road and two of the parcels are landlocked and not visible from any road, plainly visible posting was only physically possible on one of the parcels.

In response, the County argues, among other things, that Greenpoint’s motion to vacate the default judgment entered against Greenpoint in this action based upon a failure to comply with the statute is barred by Real Property Tax Law § 1131. The court agrees. Real Property Tax Law § 1131 reads as follows:

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Related

Mullane v. Central Hanover Bank & Trust Co.
339 U.S. 306 (Supreme Court, 1950)
Jones v. Flowers
547 U.S. 220 (Supreme Court, 2006)
In re the Foreclosure of Tax Liens
17 A.D.3d 914 (Appellate Division of the Supreme Court of New York, 2005)
In re the Foreclosure of Tax Liens by County of Clinton
29 A.D.3d 79 (Appellate Division of the Supreme Court of New York, 2006)
Oneida Indian Nation v. Madison County
665 F.3d 408 (Second Circuit, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
38 Misc. 3d 296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-foreclosure-of-tax-liens-nycountyct-2012.