City of Boston v. James

• Decision Date: 05 December 1988
• Docket Number: No. 87-1265,87-1265
• Citation: City of Boston v. James, 530 N.E.2d 1254, 26 Mass.App.Ct. 625 (Mass. App. 1988)
• Parties: CITY OF BOSTON v. Shirley JAMES, administratrix. 1
• Court: Appeals Court of Massachusetts

Page 1254

530 N.E.2d 1254

26 Mass.App.Ct. 625

CITY OF BOSTON v.Shirley JAMES, administratrix. ¹

No. 87-1265.

Appeals Court of Massachusetts Suffolk.

Argued Oct. 13, 1988.

Decided Dec. 5, 1988.

Thomas M. Dailey(Henry C. Dinger, Boston, with him) for Shirley James, administratrix.

Patrick J. Costello, Asst. Corp.Counsel, South Boston, for City of Boston, submitted a brief.

Before ARMSTRONG, KAPLAN and DREBEN, JJ.

KAPLAN, Justice.

After acquiring a tax title (seeG.L. c. 60, § 37) to a property in Dorchester, the city of Boston brought a petition to foreclose rights of redemption therein (see§ 65) and attempted to serve process (see§ 66) upon the owners of the equity, Reverend Claude James and Gladys James.After entry of a final decree of foreclosure, Gladys James, as surviving owner, moved to set aside the decree for the reasons that neither she nor her (now deceased) joint owner had in fact received any notice of the foreclosure proceedings and that the attempt to make service was so ineffectual as to deprive her of due process of law.She offered, as a condition of securing relief, to make good the arrears.A judge of the Land Court, upon findings of fact and a conclusion of law, allowed the motion on the condition mentioned.The city of Boston appeals.We affirm.

We follow the findings, supplemented by details from the record appendix.

Upon the filing of the foreclosure petition on September 22, 1983, the court as required by G.L. c. 60, § 66(quoted in part in the margin), ² appointed an examiner who, on March 6, 1984, rendered a report of examination of title.On the first sheet, the report listed owners and mortgagees.Reverend Claude James and Gladys James were shown as the owners and under their names appeared "400 Columbus Avenue, Boston."This owners' entry referred the reader to sheet 3 and instrument 7.Shown there was note of a quitclaim deed to the two persons "as joint tenants, both of 4 Waterlow Street, Dorchester, MA 02124."

The city of Boston attempted service by certified mail, return receipt required, to the owners at 400 Columbus Avenue, Boston, and to them also at 9 Inwood Street, Dorchester, the latter appearing on the examiner's report as the address of the property involved.These attempts failed; the record exhibits a copy of the mailing to 9 Inwood Street postmarked September 28, 1984, and stamped "Attempted Not Known."As far as appears, the owners never lived at either address.

In January, 1985, the city acknowledged the unsuccessful service and informed the court that "further investigation" revealed that the two owners could be served at 4 Waterlow Street."Special notice" was attempted by certified mail, return receipt required, to the owners at that address.This attempt failed; the mailing, postmarked February 19, 1985, was stamped "Unclaimed."In fact, although both persons had resided at the Waterlow address from 1969 onward, a period comprising, more particularly, the time when service upon them was vainly attempted at the Columbus Avenue and Inwood Street addresses, by 1985they had left Boston and moved to Pennsylvania, the move being occasioned by the grave illness of Reverend Claude James.

In May, 1985, the city acknowledged this unsuccessful service.It stated that Claude James and Gladys James were husband and wife and that Claude had died on November 26, 1966, and it proposed that "sheriff service" be made on Gladys James at the Waterlow Street address.The year 1966 was fourteen years before the acquisition of the property by Reverend Claude James and Gladys James, as shown in the examiner's report.The deceased Claude was the husband of Gladys James; Reverend Claude was Gladys's son.³

On July 15, 1985, the sheriff service on Gladys James was attempted by leaving notice at the Waterlow Street address as her supposed "last and usual place of abode."This of course was futile; there was no response.

Upon the city's motion for general default of September 26, 1985, a final decree of foreclosure was entered dated January 31, 1986.Gladys filed her motion to vacate the decree on June 15, 1987.⁴

1.If the city had not attempted to notify the owners named in the examiner's report, a decree of foreclosure purporting to bind these owners would deprive them of due process.SeeChristian v. Mooney, 400 Mass. 753, 761, 511 N.E.2d 587(1987), app. dism. & cert. denied, 484 U.S. ----108 S.Ct. 1003, 98 L.Ed.2d 970(1988), referring to Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180(1983).The owners claim that the notification actually attempted was so deficient and uninforming as to call for the like result.

In the case of Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865(1950), Justice Jackson wrote: "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."Id. at 314, 70 S.Ct. at 657."But when notice is a person's due, process which is a mere gesture is not due process.The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it."Id. at 315, 70 S.Ct. at 657.⁵

The city of Boston did not carry out this duty of making a conscientious and reasonably efficient effort to provide notice to the owners.The examiner's report pointed clearly to the Waterlow address, but this was ignored.Had that address been availed of at the time service was first attempted, all difficulty would have been avoided.The city was chargeable with knowledge that people have a propensity for changing residences; hence the chance of actually reaching a person by mailed notice tends to diminish with time.Here certified mail addressed to Waterlow Street was not used for seventeen months after the institution of the foreclosure proceedings, eleven months after the filing of the examiner's report, and five months after the failure of the first attempted service.When that mailing failed, the city ceased any meaningful activity and (still at a leisurely pace) indulged in the formal "gesture" of sheriff service, known in advance to be a futility--a method indeed less promising of any result than publication might have been.⁶

It is true that where more efficacious service is shown to be unattainable within reason, publication (or the like) may be held adequate as due process.Mullane, 339 U.S. at 317, 70 S.Ct. at 658-59.Here the showing is lacking: the city is chargeable with flaccid behavior up to the point of the "unclaimed" mailed notice to Waterlow Street; added to this is its omission, after that failure, to follow any plausible lead to the owners' whereabouts.There is no indication that the city made an effort to reach the mortgagees of the property who might be expected to know about the owners' location: the addresses as well as the names of the mortgagees of two mortgages on the property appeared in the very examiner's report.There was surely a duty to pursue any suggestive source or piece of information disclosed in the papers the city had immediately in hand.The cases, indeed, suggest a duty according to particular circumstances to go further and consult public records or make other ordinary, simple inquiries.Cf.Schroeder v. New York, 371 U.S. 208, 210, 83 S.Ct. 279, 281, 9 L.Ed.2d 255(1962);Mennonite Bd. of Missions v. Adams, 462 U.S. at 798 n. 4, 103 S.Ct. at 2711 n. 4;Matter of Jones, 379 Mass. 826, 836, 401 N.E.2d 351(1980);Giacobbi...