Collector Revenue v. Holton
| Decision Date | 27 May 2014 |
| Docket Number | No. WD 76280.,WD 76280. |
| Citation | 428 S.W.3d 670 |
| Parties | In the Matter of FORECLOSURE OF LIENS FOR DELINQUENT LAND TAXES BY ACTION IN REM: Collector of Revenue, by and through the Director of Collections for Jackson County, Missouri, Respondent, v. Terry HOLTON, Appellant, and Christina McIntosh, Respondent. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Whitney S. Miller, Assistant County Counselor, Kansas City, MO, for Respondent Jackson County.
Bernard J. Rhodes, Kansas City, MO, for Appellant.
J. Casey Martin, Kansas City, MO, for Respondent McIntosh.
Before DIV III: KAREN KING MITCHELL, Presiding Judge, and LISA WHITE HARDWICK and GARY D. WITT, Judges.
Terry Holton appeals the trial court's judgment denying his Verified Motion to Vacate Judgment and Set Aside Deed. Holton claims that the trial court erred in denying his motion and confirming the sale of his condominium unit for delinquent property taxes because Jackson County failed to comply with due process requirements in that, after notices sent to Holton by mail were returned as undeliverable, the County failed to take adequate additional steps to provide notice of the tax sale to Holton. Because the County failed to take the additional, available, practicable step of mailing a notice letter addressed to “occupant” after it became aware that previous notice attempts had failed, Holton's due process rights were violated and the trial court erred in denying Holton's motion. We reverse the judgment of the trial court.
In December 2004, Holton purchased a condominium unit located at 600 East 8th Street, Unit 11S, Kansas City, Jackson County, Missouri (Property). There was no mortgage on the Property and Holton was the only named grantee.1 Holton never lived at the Property, and it was always used as a rental unit. Despite not living there, Holton listed the Property's address as his mailing address on the deed.2 Since November 2006, Holton lived at the same residence in Overland Park, Kansas. At trial, Holton acknowledged that the Property's address was never his mailing address, that “[t]here was no reason for any mail to be delivered to that address for [him],” and that he “assume [d]” any mail sent to him at the Property's address “would be returned undeliverable.” Holton never attempted to provide the County with his current mailing address.
From 2004 to 2007, Holton's son lived at the Property, and he occasionally brought Holton mail that was delivered to the Property and addressed to Holton. In November 2008, Holton leased the property to a new tenant. In July 2010, the second tenant moved out and the Property was leased to a third tenant. The third tenant renewed his lease in 2011 and again in 2012; he was contracted to pay rent to Holton through June 30, 2013. After Holton's son moved out in 2007, Holton was not forwarded any additional mail from his tenants.
Holton testified that he did not believe he owed any taxes on the Property because the building where the Property was located had been redeveloped into condominiums and the developer was granted tax abatement on the value of the improvements. Holton testified that he made all of the required PILOT (payment in lieu of taxes) payments to the condominium association, and he was unaware of any additional assessments billed annually by the City of Kansas City (City) to property owners that were not included in the Property's tax abatement. County records reflected that Holton paid all taxes and assessments owed in 2005, 2006, and 2007. And, in 2007, the records reflected that “Terry Holton” paid the County with an electronic check. After 2007, Holton made no additional payments to the County, and the Property became tax delinquent. Despite testifying that he was unaware of any unabated taxes or assessments, Holton does not dispute that the Property was tax delinquent for the years 2008, 2009, 2010, and 2011, or that, because of this delinquency, the property was subject to tax foreclosure.3
The County's petition, seeking judgment of foreclosure for unpaid taxes, was filed on May 24, 2011, pursuant to the Land Tax Collection Law, §§ 141.210 to 141.810 and 141.980 to 141.1015, after the Property had been tax delinquent for three consecutive years.4 On June 3, 2011, the County made its first notice attempt by certified mail, return receipt requested, to “Holton Terry” at the Property's address, notifying him of the filing of the foreclosure action. The first notice letter was returned to the County on June 11, 2011, and the envelope was marked: “RETURN TO SENDER—NOT DELIVERABLE AS ADDRESSED—UNABLE TO FORWARD.” On October 6, 2011, a judgment lien was entered against the Property for the unpaid taxes, special assessments, interest, penalties, attorney's fees, and costs, and a sale of the Property was ordered by the circuit court. On October 14, 2011, a second letter was sent by certified mail, return receipt requested, to “Holton Terry” at the Property's address, notifying him of the judgment. The second notice letter was returned on October 20, 2011, and the envelope was marked: “RETURN TO SENDER—ATTEMPTED–NOT KNOWN—UNABLE TO FORWARD.” Then, in June 2012, approximately two months before the scheduled tax sale, two additional letters were mailed to Holton, notifying him of the upcoming sale. On June 25, 2012, a notice letter was sent by certified mail, return receipt requested, to “Holton Terry” at the Property's address. The notice letter was returned on June 27, 2012, and the envelope was marked: “RETURN TO SENDER—ATTEMPTED–NOT KNOWN—UNABLE TO FORWARD.” Also on June 25, 2012, a notice letter was sent by regular first-class mail, to “Holton Terry” at the Property's address. On June 28, 2012, the regular-mail notice letter was returned and the envelope was marked: “RETURN TO SENDER—ATTEMPTED–NOT KNOWN—UNABLE TO FORWARD.”
On July 13, 2012, the County attempted to post notice on the Property, but a signed affidavit indicated that the County was “unable to [post notice] because [the] parcel was land locked.” Notice was successfully published in The Pulse, a legal publication serving Jackson County, Kansas City, and Independence, in August 2012, for four consecutive weeks before the date of the sale. Holton does not dispute that notice was published, but testified that he never received notice, published or otherwise, of the impending tax foreclosure sale.
On August 28, 2012, the Property was sold at the County's tax foreclosure auction to the highest bidder, Christina McIntosh,for $30,000. As of the date of the sale, the amount of unpaid taxes was $743.12. On December 11, 2012, following a confirmation hearing, judgment was entered confirming the sale and ordering the Jackson County Court Administrator to execute and issue a deed to McIntosh. Holton first learned of the Property's delinquent tax status and the August 2012 tax sale in January 2013, when his tenant stopped payment on a rent check. At that point, Holton's wife contacted the tenant who informed her that McIntosh purchased the Property and had instructed that rent be paid to her. After receiving this information, Holton's wife went to the County's website and discovered that, as of the date of the August 2012 tax sale, the Property was tax delinquent for 2008, 2009, 2010, and 2011. On February 7, 2013, Holton filed a Verified Motion to Vacate Judgment and Set Aside Deed. On March 25, 2013, following a hearing, Holton's motion was denied.
In its judgment denying Holton's motion, the trial court issued findings related to the County's multiple attempts to notify Holton. The trial court found that the County “complied with, and exceeded[,] the notice requirements of the Missouri Land Tax Collection Law (Mo.Rev.Stat. § 141.440) by sending notification of the court-ordered sale for delinquent taxes ... to [Holton] at his address on the records of Jackson County via both certified and regular first[-]class mail.” 5 The court found further that “Jackson County took additional reasonable steps by mailing all correspondence to the Record Owner via both certified and regular first[-]class mail; searching the records of the State of Missouri and the Missouri Courts ( Case.net ) in an effort to find an address for the Record Owner; and, by attempting to post notice at the Property.” Regarding the attempt to post notice, the court found: “On July 13, 2012[,] representatives of the Jackson County Collector attempted to post notice of the court-ordered sale at the Property, but were unable to do so because the Property is located in a locked condominium building, into which they were unable [to] gain entry.” The court also found that notice was successfully published in The Pulse “for at least four consecutive weeks prior to the sale.” In denying Holton's motion, the trial court upheld and confirmed the judgment and deed transferring title to McIntosh in all respects. Holton now appeals.
The denial of Holton's motion “will be sustained unless there is no substantial evidence to support it or unless it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law.” In re Foreclosures of Liens for Delinquent Land Taxes v. Bhatti, 334 S.W.3d 444, 447 (Mo. banc 2011). “ ‘We must view the evidence and the inferences therefrom in the light most favorable to the judgment and disregard all contrary evidence.’ ” United Asset Mgmt. Trust Co. v. Clark, 332 S.W.3d 159, 163 (Mo.App. W.D.2010) (quoting CedarBridge, LLC v. Eason, 293 S.W.3d 462, 466 (Mo.App. E.D.2009)), abrogated on other grounds by Sneil, LLC v. Tybe Learning Ctr., Inc., 370 S.W.3d 562, 573 (Mo. banc 2012). Witness credibility and the weight to be given to testimony is for the trial court to determine, and the court can believe all, part, or none of...
To continue reading
Request your trial