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August 9, 1984

James G. BENDER, Jr., Individually and as Successor Administrator of the Estate of James G. Bender, Sr., Plaintiff,

The opinion of the court was delivered by: TELESCA


TELESCA, District Judge.

 In this case, the plaintiff claims that the notice provisions found in the City of Rochester in rem tax foreclosure statute do not provide adequate notice to property owners where that notice was mailed only to the last known address of the owner listed on the tax roles and not to the Administrator of the property owner's estate. Plaintiff claims that as the deceased's representative, he was entitled to actual notice of the pending foreclosure proceeding. Both parties move for summary judgment and for the reasons stated below, I dismiss the plaintiff's complaint and hold that the City's foreclosure statute, and particularly the notice provision thereof, is constitutionally sufficient.


 The relevant facts are not in dispute. James Bender, Sr., plaintiff's father, was the owner of a parcel of property located at 27 Pembroke Street in the City of Rochester until his death in December of 1979. Thereafter, plaintiff's brother, Robert Bender, was granted Letters of Administration for the estate of James G. Bender, Sr., but Robert died in November of 1981 before the estate was distributed. Thereafter, plaintiff became the successor administrator of his father's estate.

 From December of 1979 to November of 1981 Robert Bender resided at the home located at 27 Pembroke Street. After Robert's death, the house was left vacant.

 On November 3, 1982 the City commenced an in rem tax foreclosure proceeding against the property at 27 Pembroke Street. (This action was simultaneously commenced against 2,867 other parcels of property upon which back taxes were also owed for a period exceeding one (1) year). According to the City, some One Thousand Three Hundred One and 20/100 Dollars, ($1,301.20) in back taxes was owed on the Pembroke Street property. Plaintiff does not dispute this figure.

 Pursuant to Article Nine, Part E, Title 4 of the Rochester City Charter, *fn1" the City Treasurer filed a list of properties to be foreclosed upon in the Monroe County Clerk's Office on November 3, 1982. On the same date, the list was published in two (2) local newspapers, and a notice was sent to the owner of each parcel at the last known address as reflected in the City Treasurer's records. According to these records, the owner of the property located at 27 Pembroke Street was plaintiff's decedent, James Bender, Sr., and his address was the same as the address of the property. Accordingly, a Notice of Foreclosure was sent to 27 Pembroke Street (which at this time was unoccupied).

 Under the terms of the City Charter, property owners of foreclosed properties are permitted to redeem these properties by paying all back taxes and additional expenses of the foreclosure before the judgment of foreclosure is entered. Once the redemption period had expired in this case, (during which no objection to the foreclosure was raised or redemption attempted), a judgment of foreclosure for the Pembroke Street property was signed on January 18, 1983 and was filed some three (3) days later. The property was thereafter sold at auction.

 According to the plaintiff, and for the purposes of these motions it must be assumed to be true, neither he nor his two co-owners, (his sister and sister-in-law) ever received actual notice of the foreclosure action until after the redemption period had expired, the judgment entered and the property sold.


 The plaintiff contends that since actual notice was not given to any of the three (3) co-owners of the property prior to the foreclosure, the subsequent foreclosure and sale were constitutionally defective. In support of his position, plaintiff relies upon Mullane v. Central Hanover Bank and Trust Company, 339 U.S. 306, 313, 70 S. Ct. 652, 656, 94 L. Ed. 865 (1950) and Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S. Ct. 2706, 77 L. Ed. 2d 180 (1983).

 In Mullane, the Supreme Court held that a state could not affect an individual's constitutionally protected interest in life, liberty or property without providing "notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections". 339 U.S. at 314, 70 S. Ct. at 657. The Court rules that published notice in a newspaper of an action to settle the account of a common trust fund was insufficient, where the beneficiaries names and addresses were actually known to the trustees.

 Recently, in Mennonite, supra, the Supreme Court again examined the constitutional sufficiency of notice under the due process clause of the Fourteenth Amendment. There, an Indiana tax foreclosure statute (substantially similar to the statute at issue here) came under attack by the mortgagee of the foreclosed property. The parcel of property was sold by the County at foreclosure after the County Treasurer had sent notice to the property owner and published notice to the public according to the statute. The mortgagee of the property, however, did not actually learn about the sale until after the redemption period had expired, and thereafter brought an action to vacate the sale, alleging that the foreclosure statute violated due process because it did not require that adequate notice be given to a mortgagee of record. The ...

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