Slattery v. Friedman

• Decision Date: 01 September 1991
• Docket Number: No. 276,276
• Parties: Edward J. SLATTERY, Jr., et al. v. Alan M. FRIEDMAN. ,
• Court: Court of Special Appeals of Maryland

Page 106

99 Md.App. 106

636 A.2d 1

Edward J. SLATTERY, Jr., et al. v. Alan M. FRIEDMAN.

No. 276, Sept. Term, 1991.

Court of Special Appeals of Maryland.

Jan. 26, 1994.

Clyde H. Sorrell, Bethesda, argued (Susan Berg, Washington, DC, on the brief), for appellants.

Hillel Abrams, Rockville, argued, for appellee.

Argued before MOYLAN, WENNER and FISCHER, JJ.

WENNER, Judge.

The genesis of this appeal is the entry of a judgment of foreclosure of the rights of appellants, Edward J. Slattery, Jr., Nancee C. Slattery, Thomas M. Slattery, and Nancy B. Slattery (the Slatterys), to redeem property purchased at a Montgomery County tax sale by appellee, Alan Friedman (Friedman). Friedman's attempts to notify the Slatterys of the filing of his complaint to foreclose their rights of redemption both by mail and by personal service, were unsuccessful. Thus, the circuit court entered judgment of foreclosure in favor of Friedman without the Slatterys' knowledge. After the Slatterys' motion to vacate the judgment was denied by the Circuit Court for Montgomery County, this appeal was noted. We have restated the issues presented on appeal by the Slatterys:

I. Whether Friedman's attempts to serve the Slatterys with a copy of the complaint for foreclosure of the Slatterys' right of redemption satisfied the requirements set forth in Maryland Code, Tax-Property Article, § 14-839.

II. Whether, when the balance of the purchase price and any further taxes due are not paid within 90 days following entry of the judgment of foreclosure as required by Maryland Code, Tax-Property Article, § 14-847(d), but are paid before a motion to vacate is filed, the court retains power to reopen a judgment of foreclosure under that section.

For the reasons set forth below, we shall vacate the judgment and remand this case to the circuit court for further proceedings. ¹

Facts

In July 1974 the Slatterys purchased Parcel 26, Block 23, "CAPITAL VIEW PARK", designated as 3108 Lee Street in Silver Spring, Montgomery County, Maryland (the property). ² The tax account number for Parcel 26, Block 23 was 995230. Shortly after the Slatterys had purchased the property, they learned that the Maryland National Capital Park and Planning Commission (MNCPPC) had a proposed plan to straighten Capital View Avenue, cutting through the middle of Parcel 26, Block 23. Thomas Slattery wrote the MNCPPC, explaining that the Slatterys had intended to subdivide the property, and that this was now not possible. He therefore sought to have "all or a reasonable part of the land described above be placed in reservation with commensurate relief from tax payments."

MNCPPC approved his request, and a plat entitled "RELOCATION CAPITAL VIEW AVENUE" was prepared and placed on record. The proposed relocation of Capital View Avenue was designated on the plat as "Parcel B" and placed in reservation for public use pursuant to Montgomery County Code Sec. 50-31. Section 50-31, subsection (a)(3) provides:

Taxes. The board shall advise taxing and assessing bodies of all public reservations, and such public reservations shall be exempt from all state, county and local taxes during the reservation period.

Parcel B was assigned tax account number 1705866, was designated tax-exempt, and remained in reservation for nine years. The remainder of the Slatterys' property, which we shall call "Parcel A," consisted of a parcel on each side of Parcel B and retained tax account number 995230.

In 1974, Thomas Slattery's mailing address was 10201 Meredith Avenue, Silver Spring, Maryland, the return address that appears on the deed to the Slatterys. It is not clear to us whether this address was ever entered on the tax rolls of Montgomery County. We do know, however, that at the time Parcel B was removed from reservation in 1984, the tax roll for Parcel B contained an incorrect mailing address for the Slatterys--600 Broadwood Drive, Rockville, Maryland.

According to the Slatterys, 600 Broadwood Drive, Rockville, Maryland had at one time been entered as their address on the initial tax account number for the property, the number now assigned to Parcel A. Although the Slatterys' mailing address for Parcel A had been corrected, their mailing address for Parcel B had not. We have not, however, been provided with any information about when entry of the incorrect mailing address was made or discovered; how it was discovered; when and by whom it was discovered; at what point or by whom it was corrected for Parcel A; and what the Slatterys' correct mailing address was at that time.

In any case, the taxes for Parcel B were not paid in 1984. In June of 1985, Friedman purchased Parcel B at tax sale for $3000, and paid the overdue taxes--$136.60. Friedman was not required to pay the remainder until the Slatterys' right to redeem Parcel B was foreclosed. ³ In June of 1987, Friedman filed a complaint in the Circuit Court for Montgomery County seeking to foreclose the Slatterys' right of redemption.

Friedman sent a copy of the complaint by certified mail, return receipt requested, to each of the Slatterys at 10201 Meredith Avenue, Silver Spring, Maryland 20901; and at 600 Broadwood Drive, Rockville, Maryland 20850. All of the letters were returned marked "undeliverable." Friedman then attempted to have summonses served upon Edward and Nancee Slattery at the Meredith Avenue address; the summonses were returned non-est. Friedman also attempted to have summonses served upon Thomas and Nancy Slattery at the Broadwood Avenue address. These summonses were also returned non-est. Finally, Friedman attempted to serve all of the Slatterys at the Broadwood Avenue address, and these summons were returned non-est. On November 5, 1987, judgment was entered in favor of Friedman, foreclosing the Slatterys' right of redemption and vesting fee simple title to Parcel B in Friedman. Nevertheless, Friedman failed to pay the balance due from the tax sale.

The Slatterys contend that when Parcel B was removed from reservation, the collector of taxes should have consolidated Parcels A and B and re-assigned tax account number 995230 to Parcel B. According to the Slatterys, they believed this had been done, did not expect to receive a tax bill for Parcel B, and believed they were paying taxes on the entire property in 1984 and subsequent years. The Slatterys assert that they first learned in late February of 1989 that Parcel B had been sold at tax sale, upon receiving a call from one William Gries of the MNCPPC.

On May 5, 1989, Friedman paid the balance due from the tax sale. On May 11, 1989, the Slatterys moved to Strike Final Judgment. On October 31, 1990, the Slatterys' filed an Amended Motion of Interested Parties to Strike and/or Vacate Final Judgment. The amended motion was denied on January 2, 1991.

The Statutory Scheme

Maryland Code, Tax-Property Article, Title 14, Subtitle 8, Part III (§§ 14-808 through 14-854) (1986, 1992 Cum.Supp.), provides the procedure for a tax sale. ⁴ Notice is given to the owner at the last address shown on the tax roll, § 14-812, and by publication. § 14-813. Sale is to the highest bidder at public auction. The successful bidder is required to pay an amount sufficient to cover taxes due on the property, interest, penalties, and sale expenses on the date of the sale; the remainder need not be paid until the owner's right of redemption has been foreclosed. §§ 14-817, 14-818. The successful bidder receives an assignable certificate of sale setting forth the bidder's rights. § 14-820. The property may be redeemed by the owner until the owner's right of redemption has been foreclosed. §§ 14-827, 14-828, 14-820(b).

With certain exceptions, the holder of the certificate of sale may petition the circuit court to foreclose the owner's right of redemption within two years from the tax sale. § 14-833. The holder of the certificate of sale is the plaintiff; the owner of the property and the owner of the leasehold title, mortgagees, and trustees under deeds of trust recorded against the property, if any, are defendants. § 14-836. Service is made upon the defendants according to § 14-839, which reads in pertinent part:

(a) Notice to defendants.--(1) The plaintiff shall show in the title of the complaint the last address known to the plaintiff or to the attorney filing the complaint of each defendant, as obtained from:

(i) any records examined as part of the title examination;

(ii) the tax rolls of the collector who made the sale, as to the property described in the complaint; and

(iii) any other address that is known to the plaintiff or the attorney filing the complaint.

(2) Paragraph (1) of this subsection does not require the plaintiff or the attorney for the plaintiff to make any investigations or to search any other records or sources of information other than those stated.

....

(b) Same--Declared reasonable and sufficient.--The provisions of this section as to notice to persons who may have an interest in property sold for nonpayment of taxes, coupled with the order of publication and the other publicity and notices as ordinarily accompanies the sale of such property, as well as the knowledge of the taxes and the consequences for nonpayment of the taxes is declared:

(1) to be reasonable and sufficient under all of the circumstances involved, and necessary in light of the compelling need for prompt collection of taxes; and

(2) to supersede any other requirement in other cases or civil causes generally.

Notice that a petition for foreclosure has been filed is published when the summons is issued. § 14-840. A final judgment foreclosing the owner's right of redemption and vesting fee simple title in the plaintiff is entered after the limit set in the order of publication and time to respond to the summons have expired. § 14-844. The judgment may be reopened only on the ground of lack of jurisdiction or of fraud in the conduct of the foreclosure proceeding. No judgment may be reopened on the ground...