Kelber, LLC v. WVT, LLC

213 F. Supp. 3d 789, 2016 U.S. Dist. LEXIS 135182, 2016 WL 5680322
CourtDistrict Court, N.D. West Virginia
DecidedSeptember 30, 2016
DocketCIVIL ACTION NO. 1:15CV80
StatusPublished

This text of 213 F. Supp. 3d 789 (Kelber, LLC v. WVT, LLC) is published on Counsel Stack Legal Research, covering District Court, N.D. West Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelber, LLC v. WVT, LLC, 213 F. Supp. 3d 789, 2016 U.S. Dist. LEXIS 135182, 2016 WL 5680322 (N.D.W. Va. 2016).

Opinion

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 23] AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO, 25]

IRENE M. KEELEY, UNITED STATES DISTRICT JUDGE

Pending for consideration is the motion for partial summary judgment (dkt. no. 23) filed by the plaintiff, Kelber, LLC (“Kel-ber”). Also pending is the motion for summary judgment (dkt. no. 25) filed by the defendants, WVT, LLC (‘WVT”) and Oak Hall (“Hall”) (collectively “defendants”). For the reasons that follow, the Court GRANTS Kelber’s motion and DENIES the defendants’ motion.

I. BACKGROUND

In August 2011, Kelber purchased a rental property located at 796 Willey Street in Morgantown from Sunhersh, LLC (“Sunhersh”), for $384,000. Kelber, a Maryland limited liability company, obtained a mortgage with United Bank, which recorded the deed of trust in the Monongalia County Clerk’s office in September 2011. Kelber then contracted with a management company to oversee and maintain the property, which was occupied by several residential tenants.

When the first installment of the 2012 property taxes became due in September 2012, the Monongalia County Sheriff sent the bill to Sunhersh instead of to Kelber. Sunhersh, however, never paid the taxes because it no longer owned the property; nor did it forward the bill to Kelber. Consequently, Kelber never received and paid the bill, and it became delinquent on the rental property’s taxes.

In November 2013, the Sheriff sold the property at a tax lien sale, where WVT purchased it.1 West Virginia Code § 11A-3-19 requires a tax lien purchaser such as WVT to prepare a list of all persons or entities entitled to redeem the property by paying all monies owed. In particular, the statute requires the purchaser to prepare its list “after October 31 of the year following the sheriffs sale, and on or before December 31 of the same year.” W. Va. Code § 11A-3-19.

Rather than wait for the statutory time period, however, WVT prepared and submitted its list to the State Auditor (“Auditor”) immediately after purchasing the property at the tax foreclosure sale.2 WVT requested that notice be sent to the names on the list not only by certified mail, return receipt requested, but simultaneously by regular mail to those listed, by mail to the West Virginia Secretary of State’s office (“Secretary”), and by publication in the appropriate local newspaper (dkt. no. 25-3 at 4). WVT’s list included the former owner of the property, Sunhersh, as well as United Bank, which was listed as a mortgage holder on the property.3 Kelber [792]*792also was listed, but at an address in Sever-na Park, Maryland, where it was no longer located; at the time the list was created, Kelber had in fact relocated to a different, unknown address. WVT’s mailings to the Severna Park address were returned as “Not Known, Unable to Forward,” “Not Deliverable,” and “Unclaimed.” As a result, Kelber never received notice of the sale, and never had an opportunity to redeem the property by paying the delinquent taxes.

Sometime after April 1, 2015, in accordance with state statute, the Auditor delivered a quitclaim deed to WVT. WVT immediately recorded the deed, and the County Clerk filed it in the record book on April 7, 2015. Two days later, April 9, 2015, WVT’s agent, Hall, knocked on the door of the Willey Street property and asked a tenant for Kelber’s phone number. After obtaining the number, Hall called Kelber to advise it that WVT now owned the property and would be collecting revenues from the tenants from that point on. Apparently, Hall also contacted Kelber’s property manager on the same day. The property manager then began holding revenues from the property in escrow, and also retained outside counsel.

After being contacted by WVT, Kelber offered to pay the redemption amount pursuant to the state code, but WVT refused (dkt. nos. 24-4 at 4, 24-6 at 2). WVT then offered to return the property to Kelber for either $100,000 or “50 cents on the dollar” (dkt. nos. 24-4 at 4, 24-6 at 2). In addition, WVT posted a notice on the door of the property advising the tenants that they needed to “make contact with [WVT] so we can arrange to rent you the property. Should you fail to make contact with [WVT], [WVT] will be forced to take steps to evict you. Should you choose not to deal with [WVT] steps will be taken to evict you.”

On April 27, 2015, Kelber filed a complaint in the Circuit Court of Monongalia County, asserting that the returned mailings triggered additional duties on the part of WVT to attempt to ascertain Kelber’s new address. Kelber also contended that WVT was required to send notice to the 796 Willey Street address of the subject property. As well, Kelber’s complaint sought a preliminary injunction to set aside the tax-sale deed on the basis that WVT had failed to comply with W. Va. Code § llA-3-22(d) by not using “due diligence” to locate and contact Kelber during the redemption period. It also asserted that, in its efforts to notify Kelber of the tax sale, WVT had performed a state function, and, by its failure to provide due process, had violated Kelber’s constitutional rights. Finally, the complaint claimed that, by contacting its property manager and tenants, WVT had tortiously interfered with its contracts with those individuals.

WVT removed the case, with Kelber’s motion for preliminary injunction pending, to this Court on May 14, 2015. Given the state of the pleadings on removal, the Court denied Kelber’s motion for preliminary injunctive relief on May 20, 2015 (dkt. no. 14).

Thereafter, on October 2, 2015, Kelber moved for partial summary judgment, seeking to set aside the tax-sale deed and to obtain a declaration that it holds indefeasible title to the subject property, free and clear from any claims or interest of WVT (dkt. no. 28 at 1). WVT followed with its own motion for summary judgment, [793]*793seeking to dismiss the entire case with prejudice. Both motions are ripe for disposition. As explained below, the Court GRANTS Kelber’s motion for partial summary judgment and DENIES the defendants’ motion for summary judgment.

II. LEGAL STANDARD

Summary judgment is appropriate where the “depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials” establish that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed R. Civ. P. 56(a), (c)(1)(A). When ruling on a motion for summary judgment, the Court reviews all the evidence “in the light most favorable” to the nonmoving party. Providence Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000). The Court must avoid weighing the evidence or determining its truth and limit its inquiry solely to a determination of whether genuine issues of triable fact exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party bears the initial burden of informing the Court of the basis for the motion and of establishing the nonexistence of genuine issues of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

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Bluebook (online)
213 F. Supp. 3d 789, 2016 U.S. Dist. LEXIS 135182, 2016 WL 5680322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelber-llc-v-wvt-llc-wvnd-2016.