Wells Fargo Credit Corp. v. Selby

2001 OK CIV APP 78, 26 P.3d 774, 72 O.B.A.J. 2175, 2001 Okla. Civ. App. LEXIS 46
CourtCourt of Civil Appeals of Oklahoma
DecidedMarch 9, 2001
Docket95,291
StatusPublished
Cited by6 cases

This text of 2001 OK CIV APP 78 (Wells Fargo Credit Corp. v. Selby) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wells Fargo Credit Corp. v. Selby, 2001 OK CIV APP 78, 26 P.3d 774, 72 O.B.A.J. 2175, 2001 Okla. Civ. App. LEXIS 46 (Okla. Ct. App. 2001).

Opinions

BUETTNER, Presiding Judge:

1 1 In 1994 the Yorks failed to pay the ad valorem tax on their property located in Tulsa County, Oklahoma. George and Gerald Selby (Selby) bought a tax certificate on that property from the Tulsa County Treasurer in October 1995. In 1996, the Yorks defaulted on their mortgage with Wells Fargo Credit Corporation which sued Yorks to foreclose the mortgage July 14, 1997. On January 22, 1998, Selby served notice of his application for tax deed on Wells Fargo's service agent. Sometime prior to January 28, 1998, Wells Fargo filed a lis pendens. Selby received the tax deed certificate March 30, 1998. The trial court granted summary judgment in [776]*776favor of Selby, finding that the foreclosure action did not prohibit the County Treasurer from issuing the tax deed. We affirm.

1 2 Wells Fargo claims that the trial court erred in refusing to invalidate the tax deed because the notice given to Plaintiff violated due process. It also contends that the court erred in refusing to invalidate the tax deed on the ground that its issuance was prohibited by the doctrine of lis pendens.1

Notice

T8 Wells Fargo did not have an Oklahoma office, but did retain a service agent in Oklahoma. After being served with the Notice of Application for Tax Deed, the service agent forwarded the Notice to Wells Fargo in Walnut Creek, California. Wells Fargo argues that because Selby did not give notice of the application to the lawyer representing Wells Fargo in the foreclosure suit, that notice of the application was invalid.

When no one has redeemed the lands within two years from the issuance of the tax certificate, the certificate holder who wants to procure the deed must serve notice of application for tax deed on the owner of the land, the person in possession of the land, if occupied, and upon all mortgagees of ree-ord. 68 0.8.1991 § 3118(a). Further, "Talll service and return shall be made in the same manner as that of summons in courts of record." 68 0.8.1991 § 3118(b). Service of summons on a corporation may be made by certified mail, return receipt requested, delivery restricted to addressee, on an authorized service agent. 12 0.8.1991 § 2004(C)(1)(c)(8) and (C)(2)(c). There is no provision for service on a lawyer. It has been held that "in matters pertaining to tax sales, the statutes prescribing the manner of service of notice of application for tax deeds and the issuance of tax deeds thereunder are mandatory and not directory." Martin v. Bastion, 1967 OK 25, 424 P.2d 1, 3.2

15 Wells Fargo urges the court to extend the statutorily mandated procedures for service because due process requires such an extension. It claims that Selby was aware of the foreclosure or action and therefore knew that Wells Fargo had a lawyer in Oklahoma, and that failing to serve the Notice for Application for Tax Deed on that lawyer deprived Wells Fargo of the opportunity to redeem during the two year redemption period. "Notice is a jurisdictional requirement and a sine gua non clement of due process. The latter notion requires notice reasonably calculated, under all the cireum-stances, to apprise interested parties of the pendency of the action and to afford them an opportunity to present their objections." Shamblin v. Beasley, 1998 OK 88, 967 P.2d 1200, 1209. In the case at bar, the statutory method for service of process was followed. There is no dispute but that Wells Fargo received the notice from its service agent. Wells Fargo did not inform any of its Oklahoma attorneys of the application for tax deed nor did it do anything to redeem the certificates before the redemption period passed. The fault is theirs.3

16 In effect, Wells Fargo asks the court to amend the statute to require service of the notice for application of tax deed on any known lawyer for a mortgagee (and presumably owners and persons in possession). It argues that due process would require service of the notice on a known Wells Fargo attorney, even when that service would not have complied with the statutory service requirements. Due process requires notice which was accomplished by service on Wells Fargo's appointed service agent. Once mini[777]*777mum due process requirements are met, this court may not legislate service requirements:

Lis Pendens

17 After the Yorks failed to pay the ad valorem taxes for 1994, the Tulsa County Treasurer sold the tax certificate on that property to Selby in October 1995. The Yorks defaulted on their mortgage in 1996, and Wells Fargo filed a foreclosure action July 14, 1997. Sometime prior to January 23, 1998, Wells Fargo filed a lis pendens pertaining to the property in the foreclosure action. On January 22, 1998, Selby served Notice of Application for Tax Deed and applied for the tax deed on January 28, 1998. Selby received the tax deed on March 30, 1998. Wells Fargo amended its petition in the foreclosure action to add Selby as a defendant on June 15, 1998.4

¶8 The common law doctrine of lis pen-dens is codified at 12 0.8.1991 $ 2004.2 and states in part:

A. Upon the filing of a petition, the action is pending so as to charge third persons with notice of its pendency. While an action is pending, no third person shall acquire an interest in the subject matter of the suit as against the prevailing party's title;. ...
# # o
B. Except as to mechanics and materi-alman lien claimants, any interest in real property which is the subject matter of an action pending in any state or federal court, aequired or purported to be acquired subsequent to the filing of a notice of pendency of action as provided in subsection A of this section, or acquired or purported to be acquired prior to but filed or perfected after the filing of such notice of pendency of action, shall be void as against the prevailing party or parties to such action.

¶9 A tax certificate operates as a lien on real property. "Taxes upon real property are hereby made a lien for seven (7) years from the date upon which such tax became due and payable." 68 0.S.1991 § 3101. If there are no bidders on the property, the county in which the property lies is authorized to bid off the real property for the amount of taxes due, plus penalties and other costs due, thereby acquiring the legal and equitable interests any other purchaser would have acquired. 68 O.S8. Supp.1992 § 3108. A person may buy the county's interest by purchasing a certificate from the county by paying the amount of all the taxes, penalties, interest, and costs of sale and transfer up to the date of the purchase of the certificate. Upon the purchase of the tax certificate, the county transfers its rights and interests in the real property. 68 0.8. Supp. 1992 3108. Owners of real property sold for taxes, or anyone who has a legal or equitable interest in the property, may redeem the property from the lien resulting from tax sale "at any time before the execution of a deed of conveyance therefor by the county treasurer, by paying to the county treasurer, if the tax sale certificate is held by an individual purchaser, the sum paid to the county for such certificate...." 68 O.S. Supp.1992 § 8118.

1 10 There is a two year redemption period. 68 O.S. Supp.1992 $ 3118.

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Wells Fargo Credit Corp. v. Selby
2001 OK CIV APP 78 (Court of Civil Appeals of Oklahoma, 2001)

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Bluebook (online)
2001 OK CIV APP 78, 26 P.3d 774, 72 O.B.A.J. 2175, 2001 Okla. Civ. App. LEXIS 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wells-fargo-credit-corp-v-selby-oklacivapp-2001.