Green Tree Servicing, LLC v. Dukes
| Docket Number: | 2009-CA-00422-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 12-08-2009 Opinion Author: KING, C.J. Holding: REVERSED AND RENDERED |
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| Additional Case Information: |
Topic: Real property - Notice of tax sale - Section 27-43-5 Judge(s) Concurring: MYERS, P.J., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ. Non Participating Judge(s): IRVING, J. Concurs in Result Only: LEE, P.J. Procedural History: Dismissal Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 02-25-2009 Appealed from: Adams County Chancery Court Judge: Kennie Middleton Disposition: COMPLAINT TO SET ASIDE TAX SALE DISMISSED Case Number: 2004-457 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | GREEN TREE SERVICING, LLC |
JEFFREY DALE RAWLINGS,
JON JERDONE MIMS |
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| Appellee: | LINDA KAY DUKES APPELLEE | WILLIAM ERNEST MURRAY |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Real property - Notice of tax sale - Section 27-43-5 |
| Summary of the Facts: | Francis Sullivan purchased some property from R. Garrett Stephens. Sullivan borrowed money from Conseco Bank, Inc., to make the purchase. The loan was secured by a deed of trust on the property. Conseco Bank, Inc., located at 2825 East Cottonwood Parkway, Suite 230, Salt Lake City, Utah 84121, assigned all its rights, title, and interest in the deed of trust to Conseco Finance Servicing Corporation located at 1400 Turbine Drive, Rapid City, South Dakota 57703. The land was later sold by the Adams County tax collector in a tax sale to Mississippi Land Co., Inc., for delinquent ad valorem taxes for the year 2000. Pursuant to section 27-43-3, the chancery clerk attempted to provide the owner(s) and lienholder(s) notification of the tax sale and their right of redemption. The Adams County Chancery Clerk, by certified mail, sent to Sullivan, what was styled “Notice of Forfeiture.” However, that notice was returned not deliverable as addressed, unable to forward. A copy of this notice was sent by certified mail to Conseco Finance Service Corporation, 1400 Turbine Drive, Rapid City, South Dakota 57703. The returned delivery receipt indicates that Lana Aker signed for the letter. There is no evidence in the record indicating the identity of Aker or her association with Conseco Finance Service Corporation. The clerk caused to be published in The Natchez Democrat, a public newspaper of the county, a description of the aforementioned property as land having been sold for delinquent county and city taxes for year 2000. The chancery clerk then filed an affidavit indicating that further search and inquiry was conducted to locate and notify the owner(s) or lienholder(s) of the tax sale and of the right of redemption. After receiving no response from the landowner(s) or lienholder(s), a tax deed was issued to Mississippi Land Co., Inc. Mississippi Land Co., Inc., conveyed the property to Linda Kay Dukes by quitclaim deed. Sullivan conveyed by a quitclaim deed her interest in the real property to Dukes. Green Tree Servicing, LLC, filed a complaint to set aside and void the tax sale. Green Tree has successor interest to Conseco Finance Servicing Corporation. The chancellor entered a final judgment denying relief to Green Tree and dismissing the complaint. Green Tree appeals. |
| Summary of Opinion Analysis: | Green Tree argues that the tax sale should be held invalid and set aside because the clerk failed to provide personal service, failed to strictly comply with tax-sale procedures, and failed to mail the correct statutorily-proscribed notice. Green Tree argues that the book and page number for the deed of trust or assignment and lienholder’s name were not found on the face of the notice. The chancery clerk has an affirmative duty under section 27-43-5 to examine the records of mortgages and deeds of trust maintained in his office, for a period of six years prior to the date of a tax sale and to identify lienholders with an interest in any property which was sold for delinquent taxes. After conducting the search the chancery clerk uses a form and the language set out in section 27-43-5 to send to the lienholder of the real property sold delinquent taxes. Any deviation from the statutorily mandated procedure renders the tax sale void. Here, there is a clear deviation from the statutorily mandated notice. The notice sent to the lienholder was merely a duplicate of that notice sent to the property owner. The notice, which was sent to the lienholder, did not state it was in fact intended for the lienholder, as opposed to having been sent in error. The notice was directed to R. Garrett Stephens, c/o Francis Sullivan. The notice did not identify any interest purportedly held by the lienholder in the property that was the subject of the notice. The notice did not indicate that Green Tree, or any other entity might hold or be the beneficiary of a deed of trust on the subject property. Nor did the notice identify the source of any interest purportedly held by the lienholder in the subject property. The notice did not state the date of any document creating an interest in the lienholder, nor did it state the book and page number where any document was recorded. Thus, the tax sale as it pertains to any interest in the subject property held by Green Tree is reversed and set aside. |
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