Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bender v. City of Rochester

June 10, 1985

JAMES G. BENDER, JR., INDIVIDUALLY AND AS SUCCESSOR ADMINISTRATOR OF THE ESTATE OF JAMES G. BENDER, SR., PLAINTIFF-APPELLANT,
v.
CITY OF ROCHESTER, NEW YORK, DEFENDANT-APPELLEE



Appeal from a judgment of the District Court for the Western District of New York (Michael A. Telesca, Judge) challenging the City of Rochester's foreclosure of its tax lien and its subsequent sale of property to a third party. Affirmed.

Author: Newman

Before: NEWMAN, PRATT, and PECK,*fn* Circuit Judges.

JON O. NEWMAN, Circuit Judge:

The question presented on this appeal concerns the constitutionality of procedures followed by the City of Rochester, New York, (the "City") to notify owners of real property that the City has instituted tax foreclosure proceedings against their property. Specifically, we must decide whether the City satisfied the requirements of due process by mailing notice of a tax foreclosure proceeding addressed to the person listed on the land records as the owner of real property, but who in fact was deceased, or whether the City was required to identify and give notice to the distributees of the decedent's estate. For reasons that follow, we hold that the procedures used by the City in this case were constitutionally sufficient.

James G. Bender, Jr. ("Bender" or "James") brought this suit in the District Court for the Western District of New York (Michael A. Telesca, Judge) challenging the City's foreclosure of its tax lien on a parcel of real property located in the City and its subsequent sale of the property to a third party. Bender brought the action on his behalf as a tenant in common of the property and as administrator of the estate of his father, representing the other co-tenants. The complaint included a cause of action to quiet title to the property, alleging that the foreclosure sale was void on the ground that the City had deprived the co-tenants of due process of law by selling their property without prior notice. On cross-motions for summary judgment, the District Court ruled that the City's notice procedures satisfied due process and dismissed the complaint. This appeal followed.

BACKGROUND

The City's Charter authorizes it "summarily" to foreclose tax liens that are "at least one . . . year old." Rochester City Charter § 9-121. Foreclosure proceedings begin when the City's Corporation Counsel files a "foreclosure list" in the Monroe County Clerk's Office identifying the parcels of real property that the Corporation Counsel intends to foreclose.*fn1 Id. § 9-123. The Corporation Counsel then selects a redemption deadline. Id. § 9-125(B). Up to that date any person may redeem property on the foreclosure list by paying delinquent taxes and other fees. Id. § 9-129(A). Moreover, a person with an interest in a parcel on the foreclosure list may serve on the Corporation Counsel a notice of interest or an answer alleging a legal defense to the foreclosure.*fn2 Id. § 9-131(A), (B). If a person with an interest in property to be foreclosed fails to redeem or to serve a notice of interest or answer by the redemption deadline date, his interest in the property or defense to the foreclosure is extinguished. Id. § 9-133.

To provide persons an opportunity to protect their interests in property on the foreclosure list, the Corporation Counsel is required to give notice of foreclosure. Notice to the public is provided through publication of a "notice of foreclosure" for six successive weeks in two City newspapers.*fn3 Id. § 9-125(A), (C). The Corporation Counsel also is obligated to mail a copy of the notice "to the last known address of the owner of each parcel of property on the foreclosure list, as it appears upon the records in the office of the City Treasurer." Id. § 9-127(A).

The City Treasurer's records of property ownership are maintained by the City Assessor. The information contained in these records, which includes the names and mailing addresses of the owners of parcels of real property, is largely derived from deeds recorded in the Monroe County Clerk's Office. When a deed is recorded, the City Assessor obtains a copy and enters the grantee's name on the City Treasurer's records as the new owner of the property. If the deed contains a mailing address for the grantee, the City Assessor records it as well. Otherwise, the Assessor assumes that the mailing address is the same as the property address.*fn4 While the City has adopted these procedures to learn of changes in ownership accomplished through inter vivos transfer, it takes no steps to obtain information concerning changes in ownership effected through devise or descent. When a property owner dies, the City Assessor learns of the death and the identity of the new owner and changes the City Treasurer's records accordingly only if notified by the decedent's personal representative.*fn5

The following circumstances gave rise to this controversy. James G. Bender, Sr. ("Bender Sr.") owned a parcel of real property located at 27 Pembroke Street in Rochester. The City Treasurer's records listed Bender Sr. as the owner of the property and 27 Pembroke Street as the mailing address for tax bills. Bender Sr. died intestate on December 5, 1979, leaving as his heirs his three children, Robert, James, and Mary Margaret.

Thereafter, Robert Bender filed with the Monroe County Surrogate's Court Clerk's Office a petition for Letters of Administration for his father's estate. Robert's petition, which was indexed in the Monroe County Clerk's Office, listed the names and addresses of his father's distributees and described his father's real property as 27 Pembroke Street. Robert obtained Letters of Administration on February 19, 1980. Since Robert did not notify the City Assessor's office of his father's death, the City Treasurer continued to mail tax bills to Bender Sr. at 27 Pembroke Street. Robert, who resided at 27 Pembroke Street, paid one tax bill that had been issued before his father's death. Robert died on November 19, 1981.

Following Robert's death, James Bender, Jr. applied for, and on October 18, 1982, obtained, successor Letters of Administration for his father's estate. Bender's petition, which was filed and indexed in the same manner as Robert's, also identified Bender Sr.'s distributees and described his real property. Bender failed to inform the City Assessor of the death of Bender Sr. Therefore, the City Treasurer continued to send tax notices to 27 Pembroke Street addressed to Bender Sr. However, after Robert's death, the house at 27 Pembroke Street was left unoccupied, and Bender apparently made no arrangements to pick up mail delivered to that address or to have it forwarded to him.

On November 3, 1982, the City instituted tax foreclosure proceedings against a large number of parcels including the 27 Pembroke Street property. The tax lien on the Pembroke Street parcel was in the amount of $1,301.20, representing unpaid taxes for 1980-1981 and 1981-1982. Publication of the foreclosure list began on November 3, 1982, and the City mailed a notice of foreclosure, addressed to Bender Sr., to 27 Pembroke Street. The notice was not received by any of the tenants in common. An affidavit submitted by the City Treasurer states that the Post Office did not return the notice as "undeliverable." In addition to mailing the notice, the City Treasurer attempted to contact the owner of the Pembroke Street property by sending an official to visit the property on two occasions. That effort, along with an attempt to locate the owner's telephone listing, was unsuccessful. After the redemption deadline date passed with no one coming forward to redeem or file a notice of interest or answer,*fn6 judgment of foreclosure was entered, and, on January 31, 1983, the City took title to the property. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.