Orleans District Redevelopment Corp. v. Ocwen Loan Servicing, L.L.C.

|, At issue in this appeal is the validity of the November 10, 2003 tax sale by the City of New Orleans (“the City”) to Mr. Allen Borne (“Mr. Borne”) of immovable property located at 4121 and 4121 ½ State Street. The matter arises from two cases that were consolidated in the district court for a trial. In the first case, Orleans District Redevelopment Corporation (“ODRC”) filed a petition to quiet tax title against Ocwen Loan Servicing, L.L.C. (“Ocwen”), as the mortgage loan servicer for Lehman Brothers Holdings Inc. (“Lehman Brothers”), the current owner of the promissory note secured by the mortgage on the property. In the second case, Lehman Brothers filed a petition to annul tax sale against ODRC and its predecessor-in-interest, Mr. Borne, alleging the lack of pre-sale notice.

Following the trial, the district court rendered a judgment in favor of ODRC, quieting title to the property and denying the petition to annul the tax sale. Ocwen and Lehman Brothers appealed the judgment. ODRC has filed a motion to dismiss the appeal. For the reasons that follow, we reverse.

| .¿Tanya Shay Stafford (“Ms. Stafford”) acquired the property at issue on July 31, 1995, by Act of Cash Sale, which was recorded in the Orleans Parish Conveyance Office on August 4, 1995. On June 25, 1999, Ms. Stafford executed a mortgage on the property in favor of New Century Mortgage Corporation (“New Century”). The mortgage was recorded in the Orleans Parish Mortgage Office on June 30,1999.

In August 2001, Ocwen began servicing the mortgage loan for New Century. In November 2001, New Century assigned its interest in the promissory note secured by the mortgage to Firstar Bank of Milwaukee, N.A. (“Firstar Bank”); the act of notarial endorsement and assignment of mortgage note and mortgage was recorded in the Orleans Parish Mortgage Office on November 27, 2001. Firstar Bank later merged with U.S. Bank N.A., which assigned its interest in the promissory note secured by the mortgage to Lehman Brothers on April 30, 2007, more than three years after the November 10, 2003 tax sale.

Following the tax sale, the collector of ad valorem taxes for the City executed a tax deed on January 12, 2004, in favor of Mr. Borne, transferring Ms. Stafford’s right, title and interest in and to the property for non-payment of taxes for the years 1996 through 2002, totaling $3,040.19. The tax deed stated that the owner could redeem the property at any time within three years of the filing of the deed in the Orleans Parish Conveyance Office. The sheriff recorded the tax deed conveying the property to Mr. Borne in the Orleans Parish Conveyance Office on March 11, 2004. On May 11, 2004, Mr. Borne sent Ms. Stafford a “redemption *107laletter” via certified mail advising her that unless she redeemed the taxes within three (3) years of the tax sale deed recor-dation as per La. Const. Article VII, § 251 , he would move to quiet title to the property. The certified mail envelope containing the redemption letter was returned to Mr. Borne marked “unclaimed.”

On October 13, 2004, Ms. Stafford sold her interest in the property to Douglas Castro (“Mr. Castro”) by Act of Cash Sale that was later recorded in the Orleans Parish Conveyance Office on April 19, 2005.

|40n March 25, 2009, Mr. Borne transferred all of his right, title and interest in and to the property by quitclaim deed to ODRC. The act of transfer was recorded in the Orleans Parish Conveyance Office on March 30, 2009. On April 3, 2009, ODRC filed its petition to quiet tax title2 pursuant to La. R.S. 47:2266.3

*108In the meantime, Ocwen had sent a certified letter to Mr. Borne on March 2, 2009, offering to redeem the property, but received no response. Lehman Brothers then filed suit to annul the tax sale, arguing that it is null and void because the City failed to give the required tax sale notice to Ms. Stafford, the record property IfiQwner, or to Firstar Bank, its predecessor-in-interest and the record mortgagee at the time of the sale, citing La. R.S. 47:2121(B).4

In its reasons for judgment validating the tax sale and quieting title to the property, the trial court stated that Lehman Brothers was precluded from raising any state or federal due process objections to the tax sale because the petition for nullity was filed beyond the five-year peremptive period set forth in La. Const. Art. VII, § 25. The court determined that since Lehman Brothers was assigned the promissory note and mortgage in 2007, before the expiration of the five-year peremptive period, it would be estopped from challenging the sale and/or deemed as having tacitly ratified that sale, given that the tax sale deed had been filed in the public record since March 2004. Thus, the court concluded any deficiencies regarding the pre-sale notice had been cured.

In its motion to dismiss the appeal, ODRC contends that Ocwen, “a loan servicing company, does not have standing to raise defenses or actions that are admittedly the actions/defenses of a mortgage holder, Lehman Brothers, an entity that did not appeal the judgment at issue.”

Contrary to ODRC’s contention, the record reflects that “Lehman Brothers Holdings Inc., c/o Ocwen Loan Servicing, LLC” timely filed a motion for suspensive appeal *109of the November 12, 2010 judgment and furnished the ^appropriate security. Given that ODRC named Ocwen, in its capacity as the mortgage servicing agent for Lehman Brothers, as a defendant in the suit to quiet tax title, and that suit was consolidated with Lehman Brothers’ suit to annul the tax sale for the trial, and Lehman Brothers was cast in judgment, Ocwen, as Lehman Brothers’ agent, may appeal the judgment. See La. C.C.P. art. 964.

Next we address whether or not the tax sale was valid.

“Under the Fourteenth Amendment to the United States Constitution and La. Const. Art. I, § 2, a person is protected against a deprivation of his life, liberty or property without ‘due process of law.’ ” Hamilton v. Royal International Petroleum Corporation, 2005-846, p. 9 (La.2/22/06), 934 So.2d 25, 32 (citation omitted). The fundamental requirement of procedural due process is notice and the opportunity to be heard at a meaningful time and in a meaningful manner. Id.

In Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), the U.S. Supreme Court interpreted the Due Process Clause with respect to the rights of a mortgagee and the notice requirements of an Indiana statute. In that case, the Mennonite Board of Missions (“Mennonite”) was the mortgagee of record of a certain parcel of property. The property owner failed to pay her taxes and the property was sold at a tax sale. Indiana law did not require that notice be given by mail or personal service to a mortgagee and Mennonite was not given any notice of the impending tax sale.5 Relying on its earlier decision in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), the Supreme Court held that “a mortgagee possesses a substantial property interest that is significantly affected by a tax sale” and therefore “is entitled to notice reasonably calculated to apprise him of a pending tax sale.” Mennonite, 462 U.S. at 798, 103 S.Ct. at 2711. Regarding the publication of notice of the impending tax sale in a newspaper and the posting of notice in the county courthouse, the Court stated:

When the mortgagee is identified in a mortgage that is publicly recorded, constructive notice by publication must be supplemented by notice mailed to the mortgagee’s last known available address, or by personal service. But unless the mortgagee is not reasonably identifiable, constructive notice alone does not satisfy the mandate of Mul-lane.

Id. (Footnote omitted). The Court further held that:

Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable. Furthermore, a mortgagee’s knowledge of delinquency in the payment of taxes is not equivalent to notice that a tax sale is pending.

Id., 462 U.S. at 800, 103 S.Ct. at 2712.

In its Petition to Quiet Tax Title, ODRC alleges that Mr. Borne had purchased the *110property at a tax sale conducted by the City. La. Const. Art. VII, § 25 requires that prior to conducting a tax sale of property for nonpayment of taxes, the city must give notice to the delinquent owners in the manner provided by |slaw. At the time of the tax sale in question, former La. R.S. 47:21806 provided the manner of giv*111ing notice to delinquent owners regarding immovable property.

| ¡¡Furthermore, pursuant to the Supreme Court’s holding in Mennonite, supra, a mortgagee, who is reasonably ascertainable, is entitled to prior notice of an impending tax sale. See also Padilla v. Schwartz, 2006-1517, pp. 8-9 (La.App. 4 Cir. 3/11/09), 11 So.3d 6, 12-13.

At trial, Mr. Walter O’Brien, Finance Operations Manager of the Bureau of the Treasury, Department of Finance for the City, testified that the City had contracted with the law firm of Linebarger, Goggan, Blair & Sampson, LLP, to conduct the tax sales of immovable property for 2003, including the tax sale at issue. He testified that although the City had received a subpoena to produce all documents related to the tax sale of the State Street property, including any pre-sale notices to the property owner and any mortgage holders, the Linebarger firm had those records. Mr. O’Brien testified the Linebarger firm had provided him with the “green cards” for the properties sold at the November 10, 2003 tax sale; he had reviewed all of them and found none that showed a pre-sale notice had been sent to either Ms. Stafford or Firstar Bank. He also testified that the City had no proces verbal for the tax sale conducted by the Linebarger firm.

| xpThe parties submitted into evidence the deposition testimony of Ms. Phillipa Bowers, the Linebarger firm’s managing partner who coordinated and conducted the November 10, 2003 tax sale for the City. Regarding pre-sale notice procedures, Ms. Bowers explained that the firm sent notification letters by certified mail, return receipt requested, to the record property owners and any lienholders of record, and that it advertised the properties and sale date in the Times-Picayune and Louisiana Weekly at least four times prior to the date of the sale. According to her, the City provided the law firm with the necessary and relevant information on the properties to be auctioned. She also explained that because Firstar Bank, the mortgagee of record, had not registered in advance with the City to receive notice of any tax sales on the mortgaged property, no pre-sale notice was or would have been sent to it. Although the Linebarger firm did not have the returned green card, evidencing that Ms. Stafford had received a pre-sale notification letter, Ms. Bowers produced a redacted excerpt from the firm’s ledger that indicated the notice “should have been” mailed to a “Miss Tan-ja [sic] S. Stafford 4121 State Street Drive” in August 2003. Nonetheless, Ms. Bowers acknowledged that she had no personal knowledge as to whether or not notice was, in fact, sent to Ms. Stafford.

The tax sale deed, which was introduced into evidence, includes attestations by the City’s tax collector that the tax sale was properly advertised and that he “made out and mailed to the said Tonja [sic] S. Staf*112ford by certified letter of a notice [of tax sale] in conformity with the Laws of the State.” These attestations, however, fail to give the date of the purported mailing or the address to which the notice was sent. Moreover, the tax deed does not indicate that any pre-sale notice was given to the mortgagee of record, Firstar Bank.

_Jj_iAfter reviewing the record, we find the evidence indicates the City failed to satisfy the notice requirements of former La. R.S. 47:2180. The evidence, clearly and convincingly, establishes that the City failed to give Firstar Bank, the record mortgagee at the time of the tax sale, notice prior to the tax sale. The evidence also demonstrates that the City failed to provide Ms. Stafford, the record property owner, with proper notice prior to the sale.

The Louisiana Supreme Court has held that failure to provide the requisite notice of the tax sale to each co-owner of record deprives the owners of due process and renders the tax sale null and void in its entirety, with regard to all co-owners, including a co-owner who received notice of the tax sale. See C & C Energy, L.L.C. v. Cody Investments, L.L.C., 2009-2160, p. 1 (La.7/6/10), 41 So.3d 1134, 1136. In view of our finding that the City failed to give Ms. Stafford and Firstar Bank the requisite notice of the tax sale, depriving them of due process, the tax sale is null and void in its entirety.

In its reasons for judgment, the trial court based its decision upholding the tax sale upon the expiration of the five-year peremptive period in La. Const. Art. VII, § 25(C), citing Welsch v. Carmadelle, 264 So.2d 341, 344 (La.App. 4th Cir.1972), where the Court explained that Louisiana law at that time treated a failure to provide notice of delinquency as a relative nullity that could be cured by the expiration of the five-year prescriptive period for annulling tax sales. Since that case was decided, however, the U.S. Supreme Court in Mennonite has held that the failure to provide notice of delinquency to an owner or mortgagee offends the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution and, consequently, renders the tax sale an absolute nullity, such that neither peremption 112nor prescription can save the sale. And the Louisiana Supreme Court has followed Mennonite in C & C Energy, L.L.C. v. Cody Investments, supra, and Lewis v. Succession of Johnson, 05-1192 (La.4/4/06), 925 So.2d 1172, holding the tax sales in those cases to be absolute nullities for failure to provide the required notice of the tax sale. Therefore, we find the trial court erred in upholding the validity of the November 10, 2003 tax sale and quieting the tax title to the subject property.

DECREE

Accordingly, for the aforementioned reasons, we reverse the judgment of the trial court. We declare the November 10, 2003 tax sale to Mr. Allen Borne to be an absolute nullity. We, therefore, annul the tax sale subject to La. Const. Art. VII, § 25(C) and its included provision that “[n]o judgment annulling a tax sale shall have effect until the price and all taxes and costs are paid, and until ten percent per annum interest on the amount of the price and taxes paid from date of respective payments are paid to the purchaser,” Mr. Borne.

REVERSED