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Orange County Commissioner of Finance v. Helseth

February 23, 2009


The opinion of the court was delivered by: Lewis J. Lubell, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

The novel issue presented in this challenge to a Real Property Tax Law Article 11 in rem tax lien foreclosure proceeding is whether the foreclosing municipality afforded the property owners adequate notice of their constitutionally protected right of redemption where such notice of same is forwarded to the property owners merely by way of certified mail, return receipt requested, where said mailing is returned to the municipality "as not deliverable as addressed". The Court answers the question in the negative.

On November 20, 1997, Jeanette Helseth and Ola Helseth purchased a four-acre parcel of property on Sutton Road, Warwick, New York. Approximately one year later, they subdivided the property into two two-acre lots. They improved Lot "1" with a home into which they moved. Lot "2" remains unimproved.*fn1

Thereafter, the Helseths sold Lot "1", vacated the house, and moved into an apartment at 1 Amity Road, Warwick, New York, (the "Amity Road Address" or "Amity Road Apartment"). The Helseths retained ownership of vacant Lot "2" which is the subject of this application by the Helseths for, among other things, an Order affording them the opportunity to retain Lot "2" upon their payment to the County of Orange of back taxes and interest due thereon.*fn2

The Helseths currently stand before the Court as the successful bidders at the foreclosure sale of Lot "2" with a winning bid of $150,000.00, which is some $125,000.00 over the $25,000.00 minimum bid set forth in the underlying tax foreclosure auction brochure.*fn3

In or about 2002, the Helseths moved out of the Amity Road Apartment to reside with Mrs. Helseth's mother at 90 Sanfordville Road, Warwick, New York (the "Sandfordville Road Address") where they have continuously resided there since their move from the Amity Road Address. For at least the last two years, Lot "2" has been listed for sale with a real estate broker.

Mrs. Helseth claims that in 2004, approximately two years after having moved out of her Amity Road Apartment, her former Amity Road landlord advised her that he was in possession of mail addressed that was addressed to her and Mr. Helseth at the Amity Road Address and which had been delivered there. Upon retrieving the mail, Mrs. Helseth observed that it was a property tax bill for Lot "2". In response, Mrs. Helseth claims to have filed a change-of-address form with the Assessor's Office of the Town of Warwick thereupon indicating her then current and still viable Sanfordville Road Address.*fn4 Mrs. Helseth further contends that when on September 14, 2005 she attempted to pay delinquent taxes at the Receiver of Taxes Office of the Town of Warwick, she was told that there existed a tax delinquency and, as such, she would have to pay the taxes at the Office of the Commissioner of Finance for the County of Orange. Upon paying the taxes as and where directed, Mrs. Helseth avers that she also gave the Orange County Commissioner of Finance her Sandfordville Road Address.*fn5

Notwithstanding her asserted change-of-address notifications, Mrs. Helseth contends that she has not received a tax bill for Lot "2" since she last paid the property taxes in 2005, i.e, almost three years before the filing of this order to show cause. Admittedly, "[a]lthough [she] knew that [she] owed taxes, [she] always had the property for sale, and . . . thought that [she] would be able to pay the back taxes as soon as [she] sold it" (par. "14" to Affidavit in Support of Jeanette Helseth sworn to August 18, 2008). Mrs. Helseth claims to have first received notice of the tax lien foreclosure proceeding when on August 14, 2008 she was told by her real estate broker.

In opposition to the motion, respondent County of Orange notes that there is proof before the Court that on October 16, 2007, a Notice of Foreclosure and Petition of Foreclosure were forwarded by certified mail, return receipt requested, and ordinary first class mail to the Helseths at their Amity Road Address, i.e., the address as appears on the Town of Warwick's tax rolls. Although the certified mailing came back "unclaimed", the ordinary first class mail was not returned.

In addition to these mailings, the County indicates that a Notice of Foreclosure in the prescribed form was published in each of three non-consecutive weeks in a two-month period in at least three newspapers so designated for such publication. Furthermore, a Notice of Foreclosure was posted at the counter at the Department of Finance located at the Orange County Government Center, Goshen, New York, as well as on a bulletin board located in the public area of the Orange County Courthouse which is also located in the Orange County Government Center. Thereafter, a Notice of Foreclosure was posted on the subject property. Upon the Helseths' default, a judgment awarding title and possession of the property to the County of Orange was signed on June 11, 2008.

On June 16, 2008, a June 12, 2008 letter enclosed in an envelope addressed to the Helseths at the Amity Road Address containing a form letter addressed to "To Whom it May Concern" was forwarded to the Helseths by certified mail, return receipt requested. Among other things, the enclosed form letter advises the intended recipients of the conveyance of title to "the above captioned parcel" to the County of Orange and of the opportunity of "the previous owner of record [the intended recipients] to purchase his or her parcel back from the County through the release of the County's interest" as may be permitted by the Orange County Department of Finance. A final property redemption date of August 7, 2008 is noticed therein, the procedures one would need to follow to effectuate the purchase, and at what price.*fn6

An examination of this form letter reveals not only the absence of any identified "above captioned parcel", but also the lack of the name or address of the intended recipients thereof. More significantly, however, the envelope in which this mailing was enclosed was eventually returned to the County of Orange as "not deliverable as addressed."

Pursuant to the Judgment of Foreclosure, Lot "2" was conveyed to the County on August 7, 2008 which, as noticed in the letter of June 12, 2008, was the last day to redeem the "above captioned parcel". August 7, 2008 is also a mere one week before Mrs. Helseth first ...

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