McChesney v. Penn

698 So. 2d 705, 1997 WL 471965
CourtLouisiana Court of Appeal
DecidedAugust 20, 1997
Docket29776-CA
StatusPublished
Cited by6 cases

This text of 698 So. 2d 705 (McChesney v. Penn) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McChesney v. Penn, 698 So. 2d 705, 1997 WL 471965 (La. Ct. App. 1997).

Opinion

698 So.2d 705 (1997)

H. Donald McCHESNEY, Plaintiff-Appellant,
v.
Karen McFerren PENN, Defendant-Appellee.

No. 29776-CA.

Court of Appeal of Louisiana, Second Circuit.

August 20, 1997.

*706 Frederick L. Miller, Baton Rouge, for Appellant.

Smitherman, Lunn, Chastain & Hill by Donald Lee Brice, Jr., Shreveport, for Appellee.

Before BROWN, GASKINS and CARAWAY, JJ.

GASKINS, Judge.

The plaintiff, H. Donald McChesney, appeals from a trial court judgment finding that the defendant, Karen McFerren Penn, is the owner of a tract of immovable property acquired pursuant to a tax sale from the City of Shreveport in 1986. For the following reasons, we affirm.

FACTS

The plaintiff claims to be the holder in due course of a promissory note for $30,000.00 executed on October 31, 1985 by Prabhudas and Associates, Inc. (Prabhudas) and payable to the holder. The note was secured by a mortgage on Lot 14, Woodland Springs Addition, Caddo Parish, the property at issue here. The note was also secured by an assignment of rents and leases on the property from Prabhudas to the plaintiff.

The property changed ownership six times from May 31, 1985 until October 13, 1996. Relevant events in the history of the disputed tract are as follows:

• May 31, 1985—Title conveyed from John M. Croft, et ux. to Michael Alan Simpson, et al.
• August 20, 1985—Title conveyed from Michael Alan Simpson, et al. to P. Carter Rogers, et ux.
• October 31, 1985—Title conveyed from P. Carter Rogers, et ux. to Prabhudas and Associates, Inc.
• October 31, 1985—Prabhudas and Associates, Inc. executed a mortgage on the property in favor of "Any Future Holder" in the amount of $30,000.00
• October 31, 1985—Prabhudas and Associates, Inc. executed an assignment of rents and leases to the plaintiff
• July 14, 1986—Title conveyed from Prabhudas and Associates, Inc. to P. Carter Rogers, et ux.
• July 15, 1986—Title conveyed from P. Carter Rogers, et ux. to J.R. Dawson, et ux.
• October 13, 1986—Title conveyed from J.R. Dawson, et ux. to P. Carter Rogers, et ux.

The 1985 city and parish taxes were not paid on this property. On May 27, 1986, after advertising the pending tax sale and notifying the record owner, the parish sold the property to Claude Dance, III. On June 4, 1986, after the required publication, the city also sold the same property to Penn Development Company for unpaid taxes. On July 15, 1988, Penn Development Company transferred its interest in the property to Michael J. Penn and the defendant, Karen M. Penn. On March 31, 1989, Michael J. Penn transferred his interest in the property to Karen M. Penn, in a community property settlement. On March 12, 1996, Claude Dance, III transferred to Karen McFerren Penn (now Slagle) all his right, title and interest in the property, thereby unifying the tax title in the defendant.

The plaintiff, H. Donald McChesney, filed suit against the defendant on February 12, 1993, alleging that, as mortgagee of the property, he did not get notice of the impending city tax sale, rendering that sale a nullity. In the alternative, he sought to have the mortgage on the property recognized. The plaintiff eventually amended his claim to include the alleged invalidity of the parish tax sale as well. The plaintiff alleged that under the Due Process Clause of the Fourteenth Amendment and the holding of the United States Supreme Court in Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), as a mortgage holder on the property, he was entitled to notice of the impending sale of the property *707 and that the failure by the city and parish to so inform him violated due process, rendering both sales absolute nullities.

The defendant argued that the plaintiff failed to establish that he was entitled to notice under La. R.S. 47:2180.1. The statute provides that the tax collector must address notice of tax delinquency to all mortgage holders who have notified the tax collector of a recorded mortgage and have paid a fee of five dollars annually per tax assessment. The notice is to be sent to each person holding a properly recorded mortgage on property for which taxes are delinquent by certified mail, return receipt requested, or by personal or domiciliary service on the mortgagee. The statute also provides that, notwithstanding any law to the contrary, a tax sale shall not be annulled or set aside due to lack of notice to the mortgagee.

The plaintiff acknowledged that La. R.S. 47:2180.1 provides that a mortgage holder may request notice of impending sales of property from the city or parish taxing authorities and that he did not request such notice. However, he amended his petition to allege that this statute is unconstitutional in light of the holding in Mennonite, supra. The plaintiff essentially argues that La. R.S. 47:2180.1 is unconstitutional if construed to mean that the state has shifted the burden of ensuring adequate notice from the taxing authority to the mortgagee.

A hearing on this case was held in the trial court on April 4, 1996. The parties stipulated to the chain of title, mortgage certificate, publication of notice of the city and parish tax sales, the amount of taxes paid by the defendant since the tax sales, the amount paid by the defendant in improvements, and the amount the defendant paid Mr. Dance for his interest in the property.

The plaintiff testified that he is a resident of Pennsylvania and is the holder of a promissory note from Prabhudas for $30,000.00, executed on October 31, 1985. The note was secured by a mortgage and by an assignment of rents and leases on the property at issue here. The plaintiff claimed that a local bank held the note for collection and that no payments had been made on the note since December 27, 1989. He testified that he first became aware in November or December, 1992 that the property had been sold for unpaid taxes. He asserted that he got no notice of the impending tax sales. He argued that Mennonite requires that a mortgagee receive actual notice of a tax sale, not simply constructive notice by publication.

The trial court rejected the plaintiff's claims and declared the defendant to be the owner of the property. In written reasons for judgment filed on August 7, 1996, the trial court found that this matter was controlled by Mennonite, supra, which stated that, because a mortgage holder has a legally protected property interest, due process requires that he receive reasonable notice of an impending tax sale. However, the trial court found that the form of the notice differed depending on whether the mortgage holder is reasonably identifiable in the mortgage.

The trial court reasoned that, under Mennonite, supra, if the mortgage holder is identified in the mortgage, the constructive notice by publication must be supplemented by notice mailed to the mortgage holder's last known address or by personal service. However, if the mortgage holder is not reasonably identifiable, then constructive notice by publication is sufficient. In this case, the mortgage reflects only that it is payable to "any future holder." The trial court noted that there is no named representative of the mortgage holder or an address identifying him in the mortgage document.

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Cite This Page — Counsel Stack

Bluebook (online)
698 So. 2d 705, 1997 WL 471965, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcchesney-v-penn-lactapp-1997.