132 A.3d 680
R.I.2016Background
- Property at 93–105 Manton Ave. was sold at tax sale for unpaid sewer fees; Victor Realty bought the property and later filed a Superior Court petition ( § 44-9-25 ) to foreclose owners’ rights of redemption.
- Petition notices were sent by certified mail with return receipt requested to John Izzo (owner) at his business addresses and to Carmel Izzo (mortgagee) at her Johnston address.
- Certified-mail receipts show Carmel’s son Carl signed for Carmel’s mail on June 18, 2013; John’s employee signed for notices at the business and John later found the notices behind a cash register and called Victor Realty’s counsel for the redemption amount.
- A hearing was held August 9, 2013 without the plaintiffs receiving notice of the hearing, and a final decree foreclosing redemption rights was entered.
- Plaintiffs filed a separate action under the statute to vacate the decree, alleging inadequate notice amounting to a due-process violation; the Superior Court vacated the decree. Victor Realty appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of notice to John of the petition | John lacked effective notice of the petition and/or its consequences | John had actual notice and thus cannot later challenge notice | Court: John had actual notice and is estopped by statute from challenging notice; trial court erred |
| Whether John was entitled to notice of the August 9 hearing | Even with petition notice, John effectively entered appearance (call to counsel) and thus should have been notified of the hearing | Because John did not file the required written appearance/answer, he was not entitled to hearing notice | Court: John did not file written appearance or answer; he was not entitled to hearing notice under the statute |
| Adequacy of notice to Carmel (mortgagee) where son signed return receipts but Carmel claims she never saw notices | Carmel never received actual notice and thus was denied due process | Victor complied with statutory notice (certified mail with return receipt) to Carmel’s last known address; actual receipt not required | Court: Statutory certified-mail service to Carmel’s last known address (signed by relative) satisfied due process; notice was adequate |
| Whether vacatur was warranted on due-process grounds | Plaintiffs argue inadequate notice to either or both amounted to denial of due process requiring vacatur | Victor argues statutory compliance and estoppel bar relief; vacatur improper | Court: Vacatur was improper; Superior Court order vacating decree reversed and remanded to reinstate judgment in accordance with opinion |
Key Cases Cited
- Kildeer Realty v. Brewster Realty Corp., 826 A.2d 961 (R.I. 2003) (standard of review for challenges to tax-foreclosure decrees is de novo)
- Johnson v. QBAR Associates, 78 A.3d 48 (R.I. 2013) (actual notice of petition defeats due-process challenge to tax-foreclosure notice)
- Olamuyiwa v. Zebra Atlantek, Inc., 45 A.3d 527 (R.I. 2012) (clear statutory language must be applied literally)
- ABAR Associates v. Luna, 870 A.2d 990 (R.I. 2005) (failure to answer petition bars later contest of tax title)
- Amy Realty v. Gomes, 839 A.2d 1232 (R.I. 2004) (certified-mail notice to last known abode satisfies notice requirement for tax matters; actual notice not required)
- Flynn v. Al-Amir, 811 A.2d 1146 (R.I. 2002) (service by certified mail signed by a relative can be constitutionally adequate)
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process requires notice reasonably calculated to inform interested parties)
- Jones v. Flowers, 547 U.S. 220 (2006) (actual receipt is not always required; reasonableness of mailed notice is the test)
- Mortgage Electronic Registration Systems, Inc. v. DePina, 63 A.3d 871 (R.I. 2013) (statutory notice scheme balances governmental and private property interests)