Wachovia Bank, N.A. v. Rebuild America, Inc.
| Docket Number: | 2009-CA-01703-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 02-15-2011 Opinion Author: Griffis, J. Holding: Reversed and remanded. |
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| Additional Case Information: |
Topic: Real property - Notice of tax sale - Section 27-43-5 - Statutory damages - Section 27-45-27(1) Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 09-21-2009 Appealed from: JONES COUNTY CHANCERY COURT Judge: FRANKLIN C. MCKENZIE JR. Disposition: CONFIRMED 2002 TAX SALE OF PROPERTY TO REBUILD AMERICA Case Number: 2006-0901 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Wachovia Bank, N.A., Successor In Interest To First Union National Bank, as Indenture Trustee, and Mid-State Trust VII |
JOSE BENJAMIN SIMO, W. STEWART ROBISON |
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| Appellee: | Rebuild America, Inc. | KIMBERLY PINE TURNER | ||
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 - Statutory damages - Section 27-45-27(1) |
| Summary of the Facts: | In 1998, Derrick and Sonja Whitlock executed a deed of trust for the benefit of Jim Walter Homes, Inc. The deed of trust granted a security interest in land that is located in Jones County and owned by the Whitlocks. Jim Walter Homes assigned its deed of trust to First Union National Bank. First Union was the actual lienholder at all times relevant to this case. However, First Union assigned its deed of trust to Mid-State Trust VII and Wachovia Bank, which were the lienholders at the time this action was filed. In 2003, the Whitlocks did not pay their 2002 ad valorem property taxes. The land was sold for taxes to Magnolia Investors, LLC. As required by law, the chancery clerk sent the Whitlocks and First Union statutory notice of the tax sale. However, neither the Whitlocks nor First Union exercised the right of redemption. Two years later, in 2005, the tax sale matured, and the chancery clerk issued a tax deed to Magnolia Investors. Magnolia Investors then conveyed title to Rebuild America. Wachovia Bank and Mid-State filed suit to set aside the tax sale and subsequent conveyances. The chancellor entered an order that confirmed the tax sale. Wachovia and Mid-State appeal. |
| Summary of Opinion Analysis: | Wachovia and Mid-State argue that the notice provided to the lienholder, First Union, was inadequate because it failed to identify the book, page number, and date the deed of trust was filed in the land records. Any deviation from the statutorily mandated procedure renders the tax sale void. Here, even Rebuild America admits that the clerk failed to follow the specific requirements of section 27-43-5. Instead, Rebuild America argues that these were minor technicalities. The chancery clerkâs notice clearly deviated from the statutorily mandated notice. On remand, Rebuild America may choose to either retain the property subject to the lien of Wachovia Bank and Mid-State or to relinquish its rights to the property and file a claim for a refund. Rebuild America further argues that, should it choose to file a claim for a refund instead of retaining the property, it is entitled to statutory damages pursuant to section 27-45-27(1). However, this section does not permit a purchaser to recover damages against a single lienholder whose lien survived the tax sale because of inadequate notice. |
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