Tuesday, December 18, 2012

I Am Not Going to Tell You Again

The New York Court of Appeals decided that Warren County, NY did enough to notify  a delinquent taxpayer before foreclosing on his property.  In MacNaughton v. Warren County, the court considered the lament of the owner of a piece of undeveloped real property in Warren County who lost the property at a tax foreclosure sale.  The MacNaughtons lived in New Jersey.  They moved in 1993, their forwarding order at the post office expired in 1994, the last year they paid any property tax.  In 1998 the county sent a notice of foreclosure to the MacNaughton's last known address by mail which was returned as "undeliverable-- forwarding order expired."  The county began foreclosure procedings and sold the property at auction in 1999 for $3,700.  The MacNaughton's learned of the sale in 2003, and two years later sued the county claiming that the sale was void as a violation of their due process and equal protection rights.  They lost at trial and on appeal and  before New York's highest court.

In Jones v. Flowers (2006), the U.S. Supreme Court considered what process is due to a delinquent taxpayer before a foreclosure sale.  It held "that when mailed notice of a tax sale is returned unclaimed, the [taxing authority] must take additional reasonable steps to attempt to provide notice to the properyt owner before selling his property, if it is practicable to do so" but that the steps required "must be such as one desireous of actually informing the absentee might reasonably adopt to accomplish it."

The New York court distinguished Jones and held that the county did enough.  It would have been futile in this case to send notice of foreclosure to "occupant" at the MacNaughton's last known address.  Moreover, MacNaughtons did not show that had the county would have discovered their current address if it had consulted the post office.  (New York law tax foreclosure law changed to become more tax payer protective since the foreclosure sale, and under the new law, the county would have been required to check with the post office for the MacNaughton's current address.) 

The MacNaughton's were peeved that Warren County personally served notice of foreclosure sale on Warren County residents whose mailed notices were returned as undeliverable but for out of county taxpayers, did nothing to locate them.  The Court of Appeal's simply noted that MacNaughton's equal protection claim was without merit.

Didn't the MacNaughton's wonder about the taxes on their property in Warren County when they received no bill, and paid no tax year after year?  It's not relevant in the cosntitutional due process analysis (what process the county owes the taxpayer), but MacNaughton's clearly could have saved themselves a heap of aggravation by making sure the county had their current address.  

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