Make Believe Due Process Screws 91-Year-Old

Divided Court Rejects Challenge by Illiterate Taxpayer to Sale Notice
The New York Law Journal by Joel Stashenko  -  February 24, 2012

While saying they "sympathize" with the plight of an illiterate, 91-year-old man who lost his home to tax foreclosure, three of five judges on a state appeals court have nevertheless decided that the owner received adequate notice of the impending loss of his property to the city of Rochester. Two dissenters said the homeowner's due process rights were violated because the city did not do more to guarantee that he understood, given his disabilities, that he faced the imminent loss of the home in which he had lived for 46 years unless he settled a bill for $600 in back taxes.  The majority of the Appellate Division, Fourth Department, concluded in Matter of City of Rochester (Duvall), 11-01162, that the city's notification by regular mail of the outstanding tax bill and the impending foreclosure was sufficient to preserve Mitchell Duvall's property interests.

The panel observed in an unsigned opinion that due process is a "flexible concept" requiring a case-by-case analysis of the reasonableness of a municipality's efforts to inform people when their property rights are in jeopardy.  The court found that notice sent by regular mail has been deemed "reasonably calculated to inform interested parties that their property rights are in jeopardy" under the due process clause of the Fourteenth Amendment, quoting Weigner v. City of New York, 852 F2d 646 (2nd Cir. 1988).  Despite his advanced age and inability to read, Mr. Duvall was not incompetent mentally and could have asked either his daughter or his lawyer to read him the notices he received by first-class mail at his home in the weeks leading up to the March 2010 sale of his property, the majority said. He had used both his daughter and the lawyer in the past to read his mail, the majority said.  "It was reasonable for respondent [the City of Rochester] to believe that petitioner had someone read his mail to him," the court ruled. "To hold that a municipality must provide notice other than by ordinary mail to persons it knows to be illiterate, or who it knows cannot read English, would place an unreasonable burden on the municipality."  The court added in its Feb. 17 ruling, "We sympathize with petitioner's situation, inasmuch as he has lived at the property since 1964 and has not abandoned it, he relies on limited income to pay his bills, and the amount of tax due was a small percentage of the market value of his property."  Still, the court said the city showed that the property was the subject of six prior tax foreclosure actions and that Mr. Duvall must have had some inkling of the possibility of losing the property because five payments on back taxes were made between April 2009 and January 2010 before they stopped.  According to the ruling, the city sent foreclosure notices to Mr. Duvall via regular mail on Dec. 16, 2009, and on Feb. 26, 2010, telling him the property would be sold or taken by the city on March 19, 2010, if it was not redeemed from foreclosure by March 18, 2010. No further payments were received.  On March 19, no one bid on the property, and the city assumed ownership. A tax foreclosure deed was recorded on April 29, 2010.  Mr. Duvall was served with a 10-day notice to vacate the premises on May 6, 2010, at which point he asked the process server to read the notice to him, the court said.  Mr. Duvall immediately reached out to his attorney, Angelo T. Calleri, but Mr. Calleri was told by the city's corporation counsel that nothing could be done to reverse the foreclosure or to allow Mr. Duvall to redeem the property by paying outstanding back taxes and any other obligations.  Monroe County Supreme Court Justice John J. Ark denied Mr. Duvall's motion to vacate the judgment of foreclosure and the tax foreclosure deed in January 2011. Mr. Duvall's eviction was stayed pending his appeal.  Presiding Justice Henry J. Scudder and Justices John V. Centra and Edward D. Carni joined in the majority ruling upholding Justice Ark.

'Reasonably Calculated'?

In an unsigned dissenting memorandum, Justices Eugene M. Fahey and Rose H. Sconiers  said Justice Ark acted "improvidently" when he concluded he was "powerless" to vacate the foreclosure that was entered upon Mr. Duvall's default.  The Supreme Court has the "inherent authority" to vacate a default judgment for "sufficient reason and in the interests of substantial justice," the dissenters wrote, quoting Woodson v. Mendon Leasing Corp., 100 NY2d 62 (2003).  The dissenters said the city had deprived Mr. Duvall of his due process rights by failing to adopt a means of notification "reasonably calculated" to inform him that his rights to the property were in jeopardy.  When a municipality is aware that the normal process of notification would be inadequate, it has an "obligation" of government to take additional steps to effect notice in a meaningful way that would not deprive people of their property, Justices Fahey and Sconiers agreed.  "Here, respondent was or should have been aware that petitioner was illiterate, and his illiteracy was a significant circumstance or condition that weighed against a 'reasonable calculat[ion]' that the usual method of mailing the foreclosure notice would apprise petitioner of the foreclosure action," the dissenters wrote, quoting Walker v. City of Hutchinson, 352 US 112 (1956). "Put differently, '[n]o one desirous of actually informing' the elderly, illiterate petitioner that his house was in foreclosure would reasonably think that sending him a letter would give him notice of the impending foreclosure."  The losing party in a 3-2 civil decision in the Appellate Division have an automatic appeal by right to the Court of Appeals.  Mr. Calleri of Rochester, who argued for Mr. Duvall in the Fourth Department, said in an interview that Mr. Duvall's was a "very good case" on appeal.  Of the foreclosure papers mailed to Mr. Duvall, Mr. Calleri said, "You might just as well have sent him a blank piece of paper."  "He literally cannot read anything," Mr. Calleri said. "This is not a scenario, where people cannot read Spanish or Italian. He might well be able to decipher a letter or a number alone, but when you put that number against the letter 'q' he cannot make sense of it together with the other."  However, he said that the ruling also could have a bearing on foreclosure notices delivered solely in English to non-English speakers.  Mr. Calleri said Mr. Duvall's home and property were valued at $25,000 when it was foreclosed on in 2010. Mr. Duvall, who moved to New York from Florida and worked as a laborer, raised four children in the house, according to his lawyer.  Assistant Rochester Corporation Counsel John M. Campolieto argued for Rochester.  Joel Stashenko can be contacted at jstashenko@alm.com.