177 So. 3d 1085
La. Ct. App.2015Background
- Darling owned property in New Orleans; taxes for 2008 went unpaid and the City conducted a tax sale in December 2009.
- Mailed pre-sale notices to Darling at the Constance Street address were returned as undeliverable. Two post-sale notices likewise were returned.
- Darling had moved to California in February 2008 and provided his forwarding address to the mortgagee, State Farm Acceptance, which had that address in its records.
- Darling produced affidavits showing the mortgagee had the current address and would likely have paid delinquent taxes if notified. The City’s affidavits established only that routine mailed notices were sent and returned.
- The City subcontracted Archon to perform locating efforts; Archon’s affidavit described generalized procedures (skip trace, phone calls, public-record searches) but did not state those efforts were actually performed for Darling or after notices were returned.
- The trial court granted partial summary judgment declaring the tax sale an absolute nullity; the court of appeal affirmed and remanded to determine purchaser reimbursement required to effect cancellation of the tax deed.
Issues
| Issue | Plaintiff's Argument (Darling) | Defendant's Argument (Surcouf/City) | Held |
|---|---|---|---|
| Whether pre-sale notice satisfied due process | Pre-sale notice was insufficient; mailed notices were returned undelivered and no additional reasonable steps were taken | Mailed notices and later proceedings cured notice defects | Court: Pre-sale notice was constitutionally required and was insufficient; sale is an absolute nullity |
| Whether post-sale service of Petition (years later) cures defective pre-sale notice | Post-sale notice does not cure lack of constitutionally adequate pre-sale notice | Post-sale service under La. R.S. 47:2157 A(2) is sufficient and bars annulment after statutory period | Court: Post-sale notice cannot cure prior constitutional defect; statutory language inapplicable to satisfy U.S. constitutional due process |
| Whether the City took additional reasonable steps after mailed notices were returned | City failed to take additional reasonable steps (e.g., contact mortgagee, mail to other recorded addresses) | City hired Archon and employed skip-tracing, phone campaigns, and public-record searches to locate interested parties | Court: Archon affidavit was conclusory and did not show specific additional steps taken for Darling after notices were returned; no genuine fact issue—no reasonable additional steps shown |
| Whether mortgagee notice was required / provided | Mortgagee (State Farm) had Darling’s address and should have been notified; City did not notify mortgagee | City argues mortgagee notice not required or was not necessary | Court: Because pre-sale notice was constitutionally deficient, Court did not need to fully resolve mortgagee-notice issue but noted City did not notify mortgagee despite publicly recorded mortgage showing current address |
Key Cases Cited
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (Notice must be reasonably calculated to inform interested parties)
- Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (When name and address are reasonably ascertainable, mail or other means certain to ensure actual notice required)
- Jones v. Flowers, 547 U.S. 220 (If mailed notice is returned undeliverable, state must take additional reasonable steps to provide notice if practicable)
- Mooring Tax Asset Group, L.L.C. v. James, 156 So.3d 1143 (La. 2014) (Judgment annulling tax sale not effective until purchaser reimbursed taxes, costs, and interest)
- Smitko v. Gulf South Shrimp, Inc., 94 So.3d 750 (La. 2012) (Failure to give notice to record owner violates due process and renders tax sale void)
- Brookewood Investments Co., L.L.C. v. Sixty-Three Twenty-Four Chef Menteur Highway, L.L.C., 108 So.3d 329 (La. App. 4th Cir. 2013) (Tax sale affects property rights; pre-sale notice required)