Andover v. STATE FINANCIAL SERVICES, INC

• Decision Date: 07 September 2000
• Citation: 432 Mass. 571,736 NE 2d 837
• Parties: TOWN OF ANDOVER v. STATE FINANCIAL SERVICES, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

432 Mass. 571

736 NE 2d 837

TOWN OF ANDOVER v. STATE FINANCIAL SERVICES, INC.

Supreme Judicial Court of Massachusetts, Suffolk.

September 7, 2000.

October 17, 2000.

Present: MARSHALL, C.J., ABRAMS, GREANEY, IRELAND, SPINA, COWIN, & SOSMAN, JJ.

Thomas J. Urbelis (Jacqueline L. Allen with him) for the plaintiff.

Kevin L. Quinlan for the defendant.

COWIN, J.

This appeal presents the issue whether the due process clause of the Fourteenth Amendment to the United States Constitution requires landowners to receive actual notice of foreclosure proceedings barring rights of redemption. We hold that it does not.

1. Background. We summarize the facts found by a Land Court judge supplemented by uncontested documentary materials in the record. On October 10, 1990, State Financial Services, Inc. (State Financial), acquired the property at issue, an island in Fosters Pond located in the town of Andover (town), by a mortgage foreclosure deed. The foreclosure deed identified State Financial's address as 280 Friend Street, Boston. At the time State Financial acquired the property, taxes on the property for 1989 and 1990 were unpaid. Although it is not clear when the town initially assessed taxes against State Financial, it is undisputed that no taxes were paid for the property from 1989 until January 19, 1995. In September, 1991, a tax taking was recorded with the registry of deeds, which listed State Financial as the "[s]upposed subsequent owner" of the property. On April 15, 1994, the town sent State Financial a letter "by regular mail," explaining that it intended to foreclose the right of redemption and that State Financial had until May 6, 1994, to respond. The United States Postal Service did not return the letter to the town as "undeliverable." In June, 1994, the town filed a petition in the Land Court against State Financial to foreclose the right of redemption under the provisions of G. L. c. 60, § 65. On October 3, 1994, a citation with notice of the petition to foreclose all rights of redemption in the land was sent by certified mail to State Financial at 280 Friend Street, Boston, as required by G. L. c. 60, § 66,¹ and G. L. c. 4, § 7, Forty-fourth.²

From the time State Financial acquired the land until February, 1995, State Financial had an office on the fifth floor at 280 Friend Street, Boston. At the time the citation with notice of the petition to foreclose was mailed, the building was under renovation and vacant, except for State Financial's office. During renovation, the building's elevators were often blocked. Because of the renovations and an absence of mailboxes or any place to leave mail, the postal service sometimes delivered State Financial's mail to the contractors working on the building and requested that a worker deliver the mail. State Financial was aware of this mail delivery problem.

On October 4, 1994, the postal service delivered the certified letter containing the citation to a contractor working on the renovation project. The contractor, who was not an agent, officer, or employee of State Financial, signed the return receipt for the certified letter and then "forgot about it or otherwise lost or misplaced" the letter. The green certified mail receipt card was returned to the town, bearing the initials of the contractor. No answer or appearance was filed in the Land Court; default entered, and, on December 29, 1994, the Land Court judge entered a decree barring all rights of redemption. See G. L. c. 60, §§ 67, 69.

Despite this foreclosure by the town in December, 1994, State Financial remained the assessed owner of the property until the tax bill for August 1, 1996, and the town continued to send State Financial tax assessments for 1995 and 1996. The only tax payments State Financial made on the property were from January 19, 1995 until April, 1996.

Sometime in 1996, State Financial learned through "a rumor" that the town had taken the land for unpaid taxes. In July, 1996, State Financial's attorney sent letters to the town's tax collector and the board of selectmen, requesting clarification of any tax delinquency and an opportunity to redeem the property and pay the taxes owed. The town received, but did not respond to, these two letters. Approximately eleven months later, on June 16, 1997, State Financial filed a motion for relief from the Land Court judgment.

After a hearing, the Land Court denied State Financial's motion, holding (1) that the town's mailing of the certified letter complied with due process because it was reasonably calculated, in the circumstances, to notify State Financial of the foreclosure proceedings; and (2) that State Financial's motion for relief from judgment, having been filed more than one year from the date of the decree, was barred by G. L. c. 60, § 69A.³ The Land Court judge concluded that "[g]iven the volume of tax delinquencies, the limited resources of municipalities in terms of investigating non-receipted communications or the authority of receipts by agents, and the assumption that owners know they must pay their taxes and that enforcement will ensue if they do not ... the notice given in this case [was] constitutionally sound."⁴ Following an appeal by State Financial, the Appeals Court reversed the Land Court decision, ruling that due process entitled State Financial to "actual notice" because its identity and address were known at the time notice issued for the foreclosure proceedings. Andover v. State Fin. Servs., Inc., 48 Mass. App. Ct. 536, 540 (2000). We granted the town's application for further appellate review.

2. Due process. "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Applying this constitutional standard to a government sale of private land for failure to pay taxes, the Court explained that "[n]otice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable." Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800 (1983). See Tulsa Professional Collection Servs., Inc. v. Pope, 485 U.S. 478, 491 (1988) (using same standard); Commonwealth v. Olivo, 369 Mass. 62, 68-69 (1975) (noting due process standard); Lamontagne v. Knightly, 30 Mass. App. Ct. 647, 653-654 (1991) (same). The Supreme Court has deemed first class mail as a means "reasonably calculated" to provide the quality of notice the due process clause requires in other instances in which the government seeks to take a property interest. See, e.g., Schroeder v. City of N.Y., 371 U.S. 208, 212-214 (1962) (requiring means of notice as likely as "the mails" to give notice of condemnation proceedings); Walker v. Hutchinson, 352 U.S. 112, 116 (1956) ("letter would have apprised" the property owner of condemnation proceedings); New York v. New York, N.H. & H.R.R., 344 U.S. 293, 296-297 (1953) (suggesting mailed notice would have satisfied due process in discharging creditor's claim in bankruptcy proceeding). While recognizing first class mail as "reasonably calculated" to provide actual notice comporting with due process, the Court has implicitly accepted the fallibility of mail delivery and the possibility that some interested parties may not in fact receive notice delivered by this method. See Tulsa Professional Collection Servs., Inc. v. Pope, supra at 489-490 (noting provision of actual notice "need not be inefficient or burdensome" and recognizing "mail service is an inexpensive and efficient mechanism that is reasonably calculated to provide actual notice"); Mennonite Bd. of Missions v. Adams, supra at 800 (mailing of letter would have satisfied due process notice requirement in foreclosure sale for nonpayment of taxes); Weigner v. City of N.Y., 852 F.2d 646, 651 (2d Cir. 1988), cert. denied, 488 U.S. 1005 (1989) (identifying Supreme Court's explicit awareness of risk). Cf. Mullane v. Central Hanover Bank & Trust Co., supra at 319 (approving of "notice reasonably certain to reach" interested parties and accepting "reasonable risks" notice may not reach every party).

The notice provision of our tax title foreclosure law, G. L. c. 60, § 66, requires that notice of the petition to foreclose be sent to interested parties by certified mail. G. L. c. 60, § 66. G. L. c. 4, § 7, Forty-fourth. By requiring certified mail, as opposed to first class mail, our notice statute not only satisfies due process, but provides greater assurance to our property owners that notice will actually be received. Compare G. L. c. 60, § 66, and G. L. c. 4, § 7, Forty-fourth, with Mennonite v. Adams, supra at 800. See Weigner v. City of N.Y., supra at 650-651 (recognizing certified mail's superiority to regular first class mail for providing notice). Sending notice by certified mail with a return receipt increases the likelihood the letter will reach its intended recipient. See id. at 650 (explaining advantages of certified mail). In this case, the town sent the Land Court notice...