*1 PLEMONS, Linda Plemons Linda a/k/a
Buechler, Plaintiff-Appellee,
v. Q. GALE; TD,
Douglas trust, by and
Delaware business trustee, Defendants-Ap-
through its
pellants, Finance, Incorporated, Public
U.S. corporation,
a Delaware
Defendant. Association, Tax Lien Amicus
National
Supporting Appellants. Plemons, Plemons
Linda Linda a/k/a
Buechler, Plaintiff-Appellee, Q. Gale; Advantage TD,
Douglas trust, by and
Delaware business
through trustee, Defendants-Ap- its
pellants, Finance, Incorporated, Public corporation,
a Delaware
Defendant. Association, Tax Lien Amicus
National
Supporting Appellants. 04-1196,
Nos. 04-1499. Appeals, States Court of
United
Fourth Circuit.
Argued: Oct. 26, 2004. Feb.
Decided:
ARGUED: Edward Pope Tiffey, Charleston, Virginia, West for Appellants. Dinan, Hall, Estill, Hardwick, Donald R. Gable, Nelson, P.C., Golden & Washington, D.C., for Supporting Amicus Appellants. Glass, James Truman Cooper, Cooper & Charleston, Virginia, West Appellee. for NIEMEYER, MICHAEL, Before MOTZ, Judges. Circuit Vacated and by published remanded opinion. Judge MOTZ opinion, wrote the Judge joined. MICHAEL Judge NIEMEYER wrote a dissenting opinion. OPINION MOTZ, DIANA GRIBBON Circuit Judge:
Concluding that Linda Plemons had not received constitutionally adequate notice of right her to redeem certain property, real granted district court summary judg- ment to Plemons and set aside a deed to that through obtained the state procedure. tax-sale TD, tax lien purchaser, Gale, and Douglas Q. subsequently who acquired the deed from Advantage, appeal, asserting that constitu- and 928 property; mailing notice was tionally sufficient Charleston, follow, Street, we the address the reasons For Garden Plemons. court district Plemons. The judgment owned vacate another con- proceedings and remand to send notices -also directed Clerk list *3 opinion. this sistent and Echo “Occupant” at Road. to 2002, January the Clerk sent the late In
I. receipt by certified mail re- notices 1999, her Plemons and Linda August In agree that the Post quested. (who is Jerry Lipscomb partner, business undeliverable promptly returned as' Office purchased the appeal) party to not a Plemons, as well notices addressed to the Echo located on question, in property Occupant to at the the notices sent Charleston, Virginia, West in Road South had been Road Plemons Echo addresses.1 the deed. $55,000. They duly recorded living and subject property the renting out fi- 2000, obtained February 2001. Quarry Pointe since November on .Plemons in Bank the State Capital from nancing notices, After return of the mailed Ad- $45,000 off seller to pay amount the 12, April 2002 to vantage published, from mistakenly believed She property. the 26, 2002, redemption notice as April property paying the bank was newspapers and in two Charleston rights through an escrow property on the taxes door of the notice on the front posted nor the she Because neither account. County No one re- courthouse. Kanawha taxes, the Sheriff actually paid bank publications posting. to the sponded tax lien on County sold a Kanawha 7, 2002, the Clerk issued deed to May On Novem- 99 TD on property it On Novem- Advantage, recorded. of the 13, unaware .which 2000. Plemons was ber Advantage conveyed the from when, she moved May in ber sale Q. by quitclaim to tenants. Douglas and rented it Gale property Ac- deed, properly he recorded. which 2001, Advantage sought In December Plemons,. she first became cording to required As of a tax deed. the issuance in aware of sale Janu- law, Advantage “[p]re- Virginia West ary 2003. served with those be a list of pare[d] that list with redeem” and filed
notice to
County so that the
of Kanawha
Clerk
II.
right
of their
them notice
could send
Clerk
n
tax lien. See W.
timely
Va.Code
receive
her
Challenging
redeem
failure
2002).
(Michie
§Ann.
11A-3-19
law
of state
and
notice as a violation
Constitution, Plemons filed
United States
interested
enumerated several
The list
Virginia state court
complaint
West
Plemons,
and
including
parties,
tax deed issued to
set aside the
seeking to
913 Echo
for Plemons:
addresses
three
the deed issued to
Advantage as well as
Charleston,
Road,
address of
South
Advantage,
Delaware business
deeds;
Gale.
relevant
subject property
trust,
Gale,
resident
Charleston,
a citizen and
Road,
Echo
South
w,asreturned on
State
Plemons at 928 Garden
Although
not disclose
the record does
sent to
the notice
February
these notices
precise
date on
all
returned,
prior
well
were returned
returned on
Occupant
all
Road was
917 Echo
were
redemp-
expiration
thé
publication and
February
‘
sent to
the notice
period.
It is clear that
tion
Florida,
(1983);
Mul
removed
case
federal court S.Ct.
return of Advantage “could any person If the address of entitled to have ascertained Ms. Plemons’ address ... purchaser is unknown to the through a number of different means”— by and cannot be discovered due dili- telephoning her at the number listed gence part purchaser, on the of the telephone local directory, asking Plemons’ by publication.... notice shall be served tenants for their in reaching assistance (Michie her, inquiring § or mortgagee. W. Ann. of Plemons’ Va.Code 11A-3-22 2002). Advantage A Because provision Virgi- related of West took “none of these nia person law allows a to set aside a tax- actions” to find Plemons after the notices if “by undeliverable, sale deed she shows clear were and con- returned as the court vincing evidence” that held that proved Plemons had that she had reasonably “failed to diligent exercise ef- not constitutionally received adequate no- forts to notice of his intention to tice of right to redeem property her acquire complaining par- such title to the granted summary her judgment. A-4-4(b) (Mi- ty.” § W. Va Code Ann. appeal. and Gale They do 2002). chie not they maintain that are entitled to sum- interpreted The district court these mary judgment. they But do assert that Virginia require pur- West a statutes the district court erred in granting sum- identify- chaser to exercise due mary judgment to Plemons. ing and locating parties entitled to notice and to publication only allow after III. court, diligence. exercise of such therefore, properly whether, reasoned that We must West determine as a Virginia’s statutory law, matter of requirements Plemons failed to receive parallel requirements constitutionally of the United sufficient notice before the States Constitution. See Mennonite Bd. issuance of the tax-sale deed that extin of Adams, Missions v. guished U.S. her interest.3 reason, 2. For this exacting court concluded that its notice than that mandated Constitution, reject arguments. resolution of the case obviated the need we their possible infirmity examine the constitutional only 3. The requires process Constitution due Virginia's of requirement plaintiff West that a government when the state or federal works prove adequate of failure clear deprivation property. Appropriately, of convincing evidence. To the extent that party disputes proce- neither that the tax-sale Advantage and Gale contend that the West action, dure in this case constitutes state al- do, could, Virginia require statutes less though charges private party state law a with (“Where mail. Id. at
A.
.:.
office addresses
are
post
names and
cases,
with
beginning
a series
hand,
disappear for resort
the reasons
&
Bank
Hanover
v. Central
Mullane
”).
the mails....
likely than
means less
Co.,
has set
Court
Supreme
Trust
constitutionally
requirements
forth
following Mullane have
Cases
impending depriva
of an
adequate notice
rule,
efforts
but reasonable
sharpened its
any proceeding
property.
“[I]n
tion
“actually
party
designed
inform[]”
finality,”
pro
due
accorded
to be
which is
possible depri
interest
reasonably calculat
“notice
cess requires
the touch
interest remain
vation
circumstances,
apprise
ed,
all the
under
notice.
constitutionally adequate
stone of
pendency
interested
Thus,
although
Id. at
70 S.Ct.
opportunity
them an
afford
action and
always
require
does
Constitution
Mtdlane, 339
objections.”
their
present
always
it does
receipt
actual
“reasonably calculated un
require
by publication
dealt with notice
Mullane
apprise”
circumstances to
der all the
trust. Com-
of a common
to beneficiaries
deprivation
party
pendency”
“of the
*5
York law governing
the New
plying with
States,
Dusenbery v.
property.
United
trusts,
pub-
Hanover Bank
such
Central
168-171,
122
151
S.Ct.
534 U.S.
in-
to
in a local newspaper
lished notice
(2002).
a
re
party
When
L.Ed.2d
In ad-
of a settlement.
form beneficiaries
a
notice knows that
quired
give
to
mailed
this
sufficiency of
dressing
reason,
has,
in
failed to
notice
some
for
that “when no-
emphasized,
Supreme Court
holding property
a
interest
person
form a
due,
process
person’s
which
tice is a
deprivation, the
impending
notice
Id. at
process.”
due
gesture is not
mere
muster. See
pass
does not
constitutional
Rather, the means used
652.
70 S.Ct.
Hanrahan,
38, 40, 93
409 U.S.
Robinson v.
one
“must be such as
notice
provide
to
(1972) (holding
34 L.Ed.2d
S.Ct.
actually informing
absentee
desirous
to address
of forfeiture sent
State
it.”
accomplish
to
reasonably adopt
might
or defective insuffi
knew to be inaccurate
reasonable, tak-
a method that is
Only
Id.
Somers,
cient);
351 U.S.
Covey v. Town of
pe-
practicalities
account “the
ing into
146-47,
100 L.Ed.
76 S.Ct.
case,”
adequate.
will be
culiarities of
(1956)
taxpayer
(holding notice mailed
314-15,
The Court
S.Ct. 1340
marks and
omitted).
reason,
B.
citation
For
“legiti-
Court has held that even a state’s
Here, Advantage examined the title to
mate
in expeditious
interest
resolution” of
the property
identify
and locate those
probate proceedings
justify
does not
the with interests in
arranged
it'and then
failure to mail notice of a “nonclaim” pro-
send
by
certified mail return receipt
bate proceeding to a creditor when the
requested to the addresses that it found.
identity of the creditor
“reasonably
was
Each of the notices addressed to Plemons
through “reasonably
ascertainable”
dili-
(or
Occupant
subject
property)
489, 491,
gent
efforts.” Id.
promptly
returned as undeliverable.
question
before us is
what
In 1983 the Court
application
considered
must be
party
made
charged with
principles
these
the context of a tax
giving notice of irrevocable
proper-
loss of
sale, specifically,
sale,
whether
ty
is,
“constructive no-
via a
be,
tax-
when it
or should
tice
publication” to a mortgagee suf-
apparent from the initial mailings’ prompt
ficed
mortgagee
to inform the
of a pending
they
return that
have failed to
any
tax
sale of
which it had an
notice to the intended recipient.
Mennonite,
interest.
*6
Supreme
the
Although
Court has not
S.Ct. 2706. The Court held that when the
directly addressed
question,
this
it has
identity and location of a mortgagee can be
guidance
some
in Covey and Rob-
obtained through examination
public
of
inson.
Covey,
146-47,
In
575 government ... a when mentous event meaningful no- receipt of- ensure erwise property citizen’s forfeiture subjects a Dey, 665 S.W.2d v. tice.” Schwartz 507 Pa. of taxes.”. non-payment (en banc). (Mo.1984) Adopting 935 (1985); see 1339 also A.2d of mailed notice prompt rule that Christian Antiochian Orthodox George St. reasonable follow- make duty a triggers 90, 603 326 Md. A.2d Aggarwal, Church v. comport to best would seem up (1992) of (noting importance “the due that in Mullane instruction with involved right that is “reasonably calcu- requires efforts process redemption”). Be- right a of of foreclosure par- interested actually “apprise lated” of the importance cause of -is, that deprivation; possible ties” at a mini- requires ... process right, “due that of “one desirous consistent actually land be an owner of mum that absentee,” rather informing actually reasonably pos- if by government, notified gesture.” a “mere are but that than efforts forfeited sible, his land is before 314-15, Mullane, Thus, at 1339. Tracy, 489 A.2d state.” precisely reached have courts Most has not been mailed notice “where the they have after case In case conclusion.4 inaccurate ad- because an delivered diligence standard' that the reasonable held a reason- dress, authority must make with notice charged party requires identity to ascertain able effort re- mailing has been ' up when follow owner(s).” Id. at whereabouts As or undeliverable. as unclaimed turned York Court Similarly, the New 1338-39.' of Appeals Court of Columbia the District that, when explained has Appeals certified remarked, return of the “The has undeliverable, “the enforc- as returned is have should ‘unclaimed’ marked than if position in no different ing officer some action.” flag for a red been roll had [tax] an initial examination (D.C. Robinson, A.2d Malone Generally; when address. yielded no v. Giant 1992); America also Bank see undeliverable, the tax is returned Ctr., Inc., Cal Empire R.V. Inland search conduct reasonable district should Cal.Rptr.2d .App.4th Kennedy v. Mossa record.” public (“[Ojnce aware (2000) County became 759 N.Y.S.2d fa, 100 N.Y.2d *7 regarding notice received had not Bank (2003). 607, 611 N.E.2d made have sale, County ... should the tax legion. are Indeed, holding courts so the renotify Bank about efforts reasonable County, 375 F.3d See, Akey v. Clinton e.g., address.”). alternate at tax sale an Cir.2004) (“In (2d light of the return, required County was Pennsylva notice’s Court Supreme ascer- ‘reasonably diligent efforts’ Chester, Tax use County Tracy in v. nia, address.”); Rosenberg v. tain correct [the] mo- Bureau, that “it is a reminds Claim notion, rejected the Su- rely on a cases contrary. See Tsann hold A few cases Court, 110, party’s failure preme that an interested Campbell, 355 Ark. Co. v. Enters. Kuen interests, by registering protect such its (2003); v. on Smith 822 129 S.W.3d Cliffs govern- with the 420, Assoc., or new address a corrected 617 463 Mich. Bay Condominium w$th ment, charged Trownsell, party (2000); 576 relieves v. Dahn 536 N.W.2d provide notice. duty to constitutional (S.D.1998); of its Island Hutchinson 535 N.W.2d 799, Mennonite, Inc., at Ventures, 867 See Realty, Inc. v. Babcock steps ability to safe- (“[A] take parly’s 2706 do not (Fla.Dist.Ct.App.2004). We So.2d 528 State relieve the address, does not guard interests even its persuasive. None them find (emphasis add- obligation.”) Covey cite, holdings its constitutional Supreme in Court’s ed). Moreover, contrary these Robinson. 576
Smidt, (Alaska 778, 1986) 727 P.2d 781-83 mailed proof but the receipt was in (requiring, case notice was treasurer, never received “the act unclaimed, returned as the exercise of due of mailing without proof receipt of no- diligence address); to determine a correct tice falls short of the exercise of reason- 447, v. Langel, Schmidt 874 P.2d 450 able diligence notice”); assuring actual (“ (Colo.Ct.App.1993) ‘Diligent inquiry’ re- 204, Good v. Kennedy, 291 S.C. 352 S.E.2d that if a quires returned, notice has been (Ct.App.1987) that, 711 (holding when county treasurer must re-examine the undelivered, was returned county records to check the address for required further efforts to uncover a cor- accuracy and for an look alternative ad- address). rect dress.”); Hall, Giacobbi v. 109 Idaho Likewise, many circuits, of our sister (1985) P.2d (holding 408-09 a different analogous context, but have the return of mailed notice as undelivered required party that the charged with no- imposed a duty on county to make tice follow up once it is clear that initial reasonable to find inquiry the owner’s cor- mailings have failed provide notice. See address); Bryant Enters., rect v. T.C.B. Ritchie, United States 342 F.3d So.2d 825-26 (La.CtApp.1981) (9th Cir.2003) (“We join Second, now [the (requiring, after mailed notice was re- Third, Fifth, Seventh, Tenth, and D.C.] turned, further effort on part that, in holding [CJircuits when initial per- tax collector to inform tax debtors of delin- sonal notice letters are returned taxes); undeliv- quent George St. Or Antiochian ered, government must make Church, thodox Christian reason- at 490- A.2d able additional efforts to personal (holding that when the initial investiga- notice.”). tion of the tax rolls the incorrect address, and was returned as unde- As all of these cases recognize, ini
liverable, should have made tial reasonable efforts mail notice to one efforts to address); discover correct threatened with loss of will nor City James, Boston v. 26 Mass.App.Ct. mally satisfy the requirements of (1988) due pro 530 N.E.2d (requir- However, cess. ing when return prompt of an inquiries when notice was re- turned); initial mailing makes Rice, clear that original Patrick v. 112 N.M. effort failed, P.2d notice has (Ct.App.1991) party (holding charged that the of mailed must make notice did not reasonable mean that to learn the correct the correct address before reasonably constructive ascertainable and notice will be voiding deemed suffi tax sale in which cient. “A reasonable person presented issue was *8 sold); O’Brien v. Port a letter Lawrence that Title & has been returned to Co., (Ohio Trust 688 N.E.2d sender will ordinarily 1145 attempt to it resend 1997) Common Ct. if it (ruling practicable Pleas is that do so.” Small v. county’s States, failure to up follow notice United 136 once F.3d 1337 was (D.C.Cir.1998). returned as Thus, undeliverable “fell far the district court short o.f reasonable diligence properly re- held that the reasonable quired”); Fargo Wells Credit Corp. v. Zie- standard mandated Mullane and its gler, (Okla.1989) (hold- 780 P.2d 705 progeny required followup some effort ing, in a case in county which the treasurer here.5 hold, We do not nor argue, does Plemons that Virginia the West statutory scheme vio-
577
c.
it
here. Because
unreasonable burden
an
notice sent to Occu-
that the
undisputed
not
set
need
be
However,
tax sale"
mailing
address
property’s
at the
pant
at-
initial
in which
every case
in
aside
undeliverable,
a reason-
it was
returned
no
failed and
have
at mailed
tempts
investigation
further
assumption that
able
Mullóme
notice is sent.
mailed
be unsuccessful.
would
at
that address
of a
circumstances”
“all the
that
instructs
require contact-
efforts
Nor do reasonable
pecu-
case, including
“practicalities
its
bank,
in
at
least
ing
mortgagee
in determin-
liarities,”
considered
be
noted
Supreme Court
As the
case.
sufficiency of notice.
the constitutional
ing
Mennonite,
and mort-
owner
may
There
at
and,
normal
privity,
are not
under
gagee
follow-up ef-
reasonable
when
be instances
circumstances,
expected
cannot be
one
address; no different
yield
would
forts
tax
impending
of an
communicate notice
only requires reasonable
the Constitution
799, 103
462 U.S. at
sale to the' other.
aof
efforts,
the circumstances
all of
given
that
is no evidence
2706. There
case,
actual notice.
receipt of
not
particular
relationship
enjoyed
special
Plemons
con
case,
court
the district
In this
attempting
that
bank such
with the
efforts.
follow-up
possible
several
sidered
led to
discov-
help
have
its
would
enlist
checking
noted that
initially
it
Although
location.
ery of her correct
reasonable,
would be
public
records
initially re-
But,
court
as the district
have deter
seem to
not
the court does
addressing this
marked,
cases
and as most
Instead, the
here.
if
was done
mined
that
least,
is,
very
it
at the
recognize,
situation
it
three
other methods
pointed
court
(or re-
require
examination
reasonable
have,
reasonably could
believed
examination)
records
public
available
of all
Plemons’
not,
pursue
obtain
did
but
promptly
have been
mailings
initial
when
mail
receiving
returned
after
address
Akey,
See
as undeliverable.
returned
directory,
telephone
consulting the
ings:
(“
typ-
‘[Extraordinary efforts’
F.3d at 237
prop
Road
at the Echo
asking the tenants
beyond
public
ically describe searches
mortgagee
inquiries
making
erty, or
rec-
public
record, not searches
reasonable
agree that
not
We do
bank.
ord.”);
Rosenberg, 727
see also
in this
P.2d at
such
follow-up compelled
County
780;
Co.
& Valentine
Sinclair
local tele
checking the
Although
case.
1021, 247 Cal.
Cal.App.3d
Angeles,
a Los
may
reasonable
directory
be
phone
Schmidt,
(1988);
P.2d
Rptr.
situation,
Small,
136 F.3d at
see
given
409;
Giacobbi,
St.
451;
707 P.2d at
in at
been an exercise
it
have
n.
here would
Christian
Orthodox
that,
George Antiochian
both at
shows
futility. The record
490;
Church,
v. Corne-
Fulton
out,.as
well
A.2d
were sent
the notices
at
the time
(Ct.
lius,
758 P.2d
107 N.M.
returned, Plemons was
were
they
as when
Kennedy, 759 N.Y.S.2d
App.1988);
at the number
reachable
O’Brien,
612;
N.E.2d
N.E.2d
calls to
directory, and
current
in the
listed
Requiring
A.2d at 1339.
1144; Tracy, 489
being for
longer
no
number were
information
available
Moreover,
publicly
perusal
phone.
mobile
warded
her
subject the tax lien
does not
seems
*9
Road
Echo
tenants
contacting the
any
by
con-
diligence required
Rather,
reasonable
we hold that
lates
Constitution.
the case
was exercised
scheme,
scheme
by
stitutional
interpreted
statutory
hand,
proceed-
for
remand
we must
court,
"isconstitution-
supra note
see
district
ings.
However,
whether
it is
because
unclear
al.
the “impracticable and extended
sonably
searches
apprise
calculated” to
the land
not required
[that] are
in the name of due
sale,
owner of the pending
339 U.S. at
Mullane,
process.”
317-18,
rv.
ers to bear a fair share of the cost of
government.”
§
W. Va.Code
11A-3-1.
The district court’s order
sum-
granting
purpose
One
given for the statute is
mary
“[t]o
judgment to Plemons is vacated and
provide for
speedy
and expeditious
remanded
further proceedings consis-
enforcement of the tax claims
tent
of the state
with this opinion.
and its subdivisions” and for “the transfer
VACATEDAND REMANDED
of delinquent and nonentered lands to
to,
those more responsible
or better able
NIEMEYER,
Judge,
Circuit
dissenting:
bear,
the duties of citizenship than were
The
case,
issue
stated slightly
the former owners.” Id.
differently than
majority
opinion
it,
Under the
frames
§
whether
scheme
established
11A-3-22 of
statute,
West Virginia
when the
provides
Code
owner of
constitution-
real
ally
becomes delinquent
deficient notice
payment
to a
landowner of her
of tax-
es,
right to redeem
publishes
sheriff
property that
a
is subject to
notice of a tax
a sale
lien against
for the
pay
failure to
the property
taxes.
and
proposed
not,
issue is
as the
sale.
majority
it,
would have
provides
sheriff
whether
name of
the tax
the person
lien en-
charged with the
gaged in
payment
taxes,
reasonable
notify
efforts to
a description of the
landowner. The
property,
standard for
disposing of
the amount of taxes owed.
the issue before us is established
Notice of the
in Mul
proposed
lien and
sale is
lane v. Central
given
Hanover Bank
by publication
& Trust
mail,
certified
Co.,
sent
L.Ed.
to' the last known address of the
(1950)
and Mennonite
landowner,
Board Mis-
as well as to each person hold-
Adams,
sions v.
ing
a lien on the property.
§Id.
11A-3-2.
(1983).
the name redemption her of her notice to
es where particular, to be sent.
rights was addresses clerk three gave the purchaser America, STATES UNITED (the address Echo Road Plemons: for Plaintiff-Appellee, the record- contained in property as (the mailing deed); Echo Road ed the address SMITH, address of Defendant- Dennis Deon book); telephone in the Plemons given for Appellant. Street, (the and 928 Garden 04-4311. No. Plemons). owned another the clerk directed that Appeals, also Court States United the two “Occupant” notices Circuit. send Fourth Moreover, the rec- Road addresses. Echo 3, Dec. Argued: any pub- other no evidence contains ord Feb. Decided: address for Plemons. licly available no- actually received Plemons Whether providing scheme
tice under this