Complaint filed in the Land Court
Department on May 20, 2014.
A motion for relief from judgment was heard
by Howard P. Speicher, J.
Kevin P. Geaney
for the plaintiff.
Brian T. Corrigan
for the defendant.
When judgment foreclosing a taxpayer's right of redemption enters in the
Land Court, "the taxpayer loses any equity he or she has accrued in the
property, no matter how small the amount of taxes due or how large the amount
of equity." Tallage Lincoln, LLC v.
Williams, 485 Mass. 449, 453 (2020) (Williams).
After a judgment of foreclosure has entered in a tax taking case, a
taxpayer may move to vacate the judgment if he or she has redeemed the property
within one year. G. L. c. 60,
§ 69A. Beyond this one-year period,
however, the judgment may be vacated only when a "party alleges a
violation of its rights to substantive or procedural due process." Worcester v. AME Realty Corp., 77 Mass. App.
Ct. 64, 67 (2010).
The plaintiff, Ithaca Finance, LLC
(Ithaca), appeals from an order of the Land Court allowing the motion of the
defendant, Francisca Leger, for relief from a judgment foreclosing her right
of redemption. Leger's motion was filed
more than one year after judgment had entered.
The judge determined that Ithaca violated Leger's due process rights by
failing to comply with various communication and notification requirements
contained in G. L. c. 60, § 2C.
We conclude that the special citation mailed to Leger by the Land Court,
which notified her of Ithaca's petition to foreclose, satisfied her right to
due process. Because, after one year has
passed, only a violation of Leger's right to due process may justify vacating
the foreclosure of the right of redemption, we reverse.
Statutory background. A brief overview of the tax taking process provides
context for the present appeal. See
generally Williams, 485 Mass. at 451-453.
A taxpayer who fails to pay their real
estate taxes enables a municipality or its assignee (as occurred here) to
conduct a tax taking. See G. L.
c. 60, §§ 2C, 53. Once the
assigned party provides the requisite notice of taking, it obtains tax title,
i.e., legal ownership, to the property subject to the taxpayer's right of
redemption, at the time and place designated in the notice. See G. L. c. 60, § 53. After the taking, the assigned party records
an instrument of taking in the registry of deeds, which notifies prospective
purchasers that the property is being taken.
See G. L. c. 60, § 54; Franklin v. Metcalfe, 307 Mass.
386, 389-390 (1940). The taxpayer then
has six months to "redeem" the property by paying the balance of
overdue taxes, fees, costs, and interest. See G. L. c. 60,
§§ 61, 65. If the taxpayer does not
redeem the property, the assigned party "may bring a petition in the
[L]and [C]ourt for the foreclosure of all rights of redemption." G. L. c. 60, § 65.
Once a petition for foreclosure is filed,
the taxpayer is notified of the obligation to appear and answer the
petition. G. L. c. 60,
§§ 65, 66. The taxpayer's failure
to respond or redeem permits the assigned party to move to foreclose the
taxpayer's right of redemption.
G. L. c. 60, § 67.
If the court renders a judgment of foreclosure, "strict foreclosure"
results and the assigned party takes absolute title to the property free and
clear from any and all encumbrances thereon.
Williams, 485 Mass. at 452. See
G. L. c. 60, §§ 64, 69.
Pursuant to G. L. c. 60,
§ 69A, however, the foreclosure judgment may be vacated if the taxpayer
pays the entire redemption amount, plus interest, within one year. Beyond one year, the judgment may be vacated
upon a showing that the taxpayer's due process rights were denied. See Williams, 485 Mass. at 453; Ithaca Fin.,
LLC v. Lopez, 95 Mass. App. Ct. 241, 243 (2019) ("Absent a showing of a
due process violation, strict adherence to this one-year period is
The following facts were found by the judge in a comprehensive
memorandum of decision or are undisputed in the record. On October 30, 2006, Plymouth Park Tax
Services LLC, doing business as XSPAND (collectively, Plymouth Park), offered
to purchase a portfolio of delinquent tax receivables that were owed to the
city of Lawrence (city). Plymouth Park's
offer outlined its plan to collect on delinquent taxes and how it intended to
communicate with the city's taxpayers.
On or about September 26, 2008, the city and Plymouth Park entered into
a purchase and sale agreement whereby Plymouth Park became the city's assignee
of the right to collect on tax delinquencies.
One such delinquency pertained to property located at 116 Bunkerhill
Street (property), which was owned by Felicia Hilario.
Hilario owed the city $3,229.66 in taxes
for the 2008 and 2009 fiscal years. On
February 16, 2010, Plymouth Park recorded an instrument of taking against the
property for unpaid taxes, interest, and incidental expenses for those fiscal
years in the registry of deeds. Leger
purchased the property from Hilario on July 31, 2012. During the
transaction, an attorney for the mortgagee bank neglected to obtain a municipal
lien certificate from the city or otherwise inquire as to the status of
outstanding taxes owed on the property.
Leger was not aware of any tax liens on the property at the time of the
On May 24, 2013, the city recorded a
second instrument of taking against the property for unpaid taxes during the
2012 fiscal year, which incorrectly listed Hilario as the owner of the
property. On or around March 21, 2014,
Plymouth Park assigned its right, title, and interest in the property to Ithaca
On March 31, 2014, Ithaca sent a single
letter, titled "Notice of Assignment of Real Estate Tax Lien," to the
property address; the letter was addressed to both Hilario and Leger, who both
lived at the property at that time. Ithaca then filed the present tax taking
action on May 20, 2014. Because Ithaca
did not name Leger as a defendant and incorrectly listed Hilario as the
property's owner, it was given leave to amend its petition to list Leger as a
defendant. The Land Court subsequently
issued a special citation notifying Leger that Ithaca had filed a petition to
foreclose her right of redemption to the property. The special citation explained that a
"complaint . . . to foreclose all rights of redemption
concerning" the property had been filed against Leger, set forth how to
respond and the date by which to respond, and stated that a failure to appear
would result in a default. Leger failed
to respond, and Ithaca's motion for default was allowed on May 19, 2016. Final judgment foreclosing Leger's right of
redemption entered on May 31, 2016.
On June 16, 2017, approximately two weeks
after the one-year statutory redemption period had expired, Ithaca notified
Leger by letter that it was "the owner of the property which you currently
occupy" and directed her to begin making payments "for use and
occupancy charges" to Ithaca. Leger
thereafter filed a motion for relief from the judgment of foreclosure.
Following a two-day evidentiary hearing,
the judge granted Leger's motion. The
judge concluded that Ithaca violated Leger's right to due process by failing to
abide by various provisions of G. L. c. 60, § 2C, as we outline
infra. The judge determined that
"[t]he denial of due process caused by Ithaca's and Plymouth Park's combined
failures to comply with the conditions of assignment and the requirements of
the statute was not cured by [Leger's] receipt of the special citation served
on her by the Land Court upon the initiation of the tax foreclosure
proceeding." This appeal
On appeal, Ithaca claims, inter alia, that
Leger was afforded due process because the Land Court provided her with notice
of Ithaca's petition to foreclose, to which she ultimately failed to respond.
Standard of review. "General
Laws c. 60, § 69A, and related case law, govern petitions to vacate
judgments of foreclosure."
Worcester, 77 Mass. App. Ct. at 67.
"[A] petition to vacate a prior decree foreclosing the right of
redemption under a tax title is 'extraordinary in nature and ought to be
granted only after careful consideration and in instances where . . .
[it is] required to accomplish justice.'"
Sharon v. Kafka, 18 Mass. App. Ct. 541, 542 (1984), quoting Lynch v.
Boston, 313 Mass. 478, 480 (1943).
"Allowance of a petition rests 'largely but not entirely in the
discretion of the trial judge.' . . .
Consequently we review the denial of the petition for abuse of
discretion and error of law."
Worcester, supra, quoting Lynch, supra.
Whether Leger was afforded due process by her receipt of the Land Court
special citation. The due process clause
of the Fourteenth Amendment to the United States Constitution provides that no
State shall "deprive any person of life, liberty, or property, without due
process of law." "An
elementary and fundamental requirement of due process in any proceeding which
is to be accorded finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust
Co., 339 U.S. 306, 314 (1950).
"Applying this constitutional standard to a government sale of
private land for failure to pay taxes, the [United States Supreme] Court
explained that '[n]otice by mail or other means as certain to ensure actual
notice is a minimum constitutional precondition to a proceeding which will
adversely affect the liberty or property interests of any party
. . . ." Andover v.
State Fin. Servs., Inc., 432 Mass. 571, 574 (2000), quoting Mennonite Bd. of
Missions v. Adams, 462 U.S. 791, 800 (1983).
"[General Laws] c. 60,
§ 66, requires that notice of the petition to foreclose be sent to
interested parties by certified mail. G.
L. c. 60, § 66. G. L. c. 4, § 7,
Forty-fourth. By requiring certified
mail, as opposed to first class mail, our notice statute not only satisfies due
process, but provides greater assurance to our property owners that notice will
actually be received." Andover, 432
Mass. at 575. Leger does not dispute
that she was given notice of the petition to foreclose her right of redemption
by the Land Court by special citation.
Indeed, her signature appears on the green certified mail receipt card
indicating that she received the notice, a point she does not dispute on
The focus of the judge's decision was
Ithaca's pursuit of an inequitable foreclosure that resulted in the deprivation
of Leger's due process rights.
Essentially, the judge determined that an entity Leger had never heard
of took title to her property on the basis of Hilario's failure to pay the
property taxes. The judge specifically found that Ithaca did not communicate
with Leger from the time it acquired "the tax receivable on the
Property" in 2014 until it mailed Leger a letter in June 2017 informing
her that she no longer owned the property and was to begin making payments to
Ithaca. Additionally, the judge ruled
that Ithaca violated G. L. c. 60, § 2C, by failing to abide by
the terms of its assignment from Plymouth Park, which had predicated its
purchase of delinquent tax receivables from the city on communicating with
taxpayers and assisting in their repayment efforts prior to commencing a
foreclosure. See G. L. c. 60,
§ 2C (c) (1) (iii) (assigned tax receivables shall be sold
"to the most responsible and responsive offeror" subject to
consideration of "the offeror's plan for communicating with the
taxpayers"); G. L. c. 60, § 2C (g) (3) (assigned tax
receivables must be transferred "under the same terms and conditions and
in the same manner as originally assigned and transferred"). Finally, the judge found that Ithaca violated
an explicit statutory obligation to notify the city and Leger of the assignment
from Plymouth Park within twelve days.
See G. L. c. 60, § 2C (c) (9).
While we empathize with Leger's plight
under the unfortunate circumstances of this case, binding precedent requires us
to conclude that due process was satisfied.
The failure to give notice to an interested party of a tax foreclosure
proceeding in Land Court constitutes a due process violation. See, e.g., North Reading v. Welch, 46 Mass.
App. Ct. 818, 819-820 (1999); Boston v. James, 26 Mass. App. Ct. 625, 630
(1988). We are not aware of any case
that stands for the proposition that a foreclosing entity's violation of the
tax lien statute's assignment and communication procedures, as the judge found
here, amounts to a denial of due process.
To the contrary, the Supreme Judicial Court has reasoned that sending
the Land Court notice to the taxpayer by certified mail, return receipt
requested, was "all due process requires," at least where, as here,
the return receipt indicated that the notice was received. Andover, 432 Mass. at 575.
Leger received notice from the Land Court
of Ithaca's petition to foreclose her right of redemption. She signed the card indicating her receipt
thereof. She did not respond, and strict
foreclosure entered against her. With
the one-year redemption period running, Ithaca had no legal obligation to
notify Leger of the foreclosure judgment.
See Williams, 485 Mass. at 469 (Appendix) ("If a taxpayer fails to
file a timely response to the petition to foreclose and if the owner of the tax
title moves the Land Court to enter a judgment of foreclosure of the right of
redemption, there is no statutory requirement that the taxpayer be notified of
the foreclosure judgment"). After
one year, the command of G. L. c. 60, § 69A, which protects the
public's "need for an efficient and final determination of any dispute
regarding a public landtaking, so that title to the land taken can be
settled," Sharon, 18 Mass. App. Ct. at 543, quoting Whitehouse v.
Sherborn, 11 Mass. App. Ct. 668, 671 (1981), bars relief absent a due process
violation. "The Legislature appears
to have determined that the public interest in marketable titles for tax
takings 'outweighs considerations of individual hardship' after one year."
Sharon, supra, quoting Hardisty v. Kay, 268 Md. 202, 208 (1973).
In sum, because Leger was afforded
constitutionally acceptable notice of Ithaca's foreclosure petition pursuant to
G. L. c. 60, § 66, we "may not subject the legislative
judgment to a judicial review of its equity." Andover, 432 Mass. at 576.
Conclusion. The order allowing the motion for relief from
the judgment of foreclosure is vacated, and the case is remanded with direction
to deny the motion.
 Ithaca named a number of parties as
defendants. Leger is the only defendant
participating in this appeal and, therefore, is the only defendant to which we
 Interest accrues at fourteen percent
annually from the time taxes are due until the time of the taking and increases
to sixteen percent annually thereafter.
See G. L. c. 59, § 57; G. L.
c. 60, § 62.
 We cannot overstate the severity of
the impact that a tax foreclosure judgment may have on the taxpayer. "See Tallage LLC vs. Meaney, Mass. Land
Ct., No. 11 TL 143094 (June 26, 2015) (failure of taxpayers to pay municipal
water and sewer bills amounting to $492.51 resulted in foreclosure on property
with fair market value of $270,000)."
Williams, 485 Mass. at 453.
 Since she purchased the property,
Leger has faithfully paid her real estate taxes.
 The record indicates that the property
was a multi-family building.
 Ithaca raises additional claims in its
appellate brief. In light of our
conclusion, however, we need not address them.
 Nevertheless, tax liens attach to the
property and not the person. See Luchini
v. Commissioner of Revenue, 436 Mass. 403, 406 (2002).
 The present case implicates rather
unusual circumstances. For instance, the
foreclosing entity here is a private party, not a municipality. As one Land Court decision explained,
"[s]uch entities are responsible to their investors, not the citizens of a
city or town, and their goals and incentives are not the same. Maximizing return on investment may not
include accommodation to individual circumstance to the same extent a municipality,
acting for itself, might otherwise deem warranted." Tallage LLC vs. Meaney, Mass. Land Ct., No.
11 TL 143094 (June 26, 2015). Actions
taken by private entities are not afforded the traditional level of judicial
discretion and deference that a public entity enjoys. See Navy Yard Four Assocs., LLC v. Department
of Envtl. Protection, 88 Mass. App. Ct. 213, 223 (2015).
Moreover, as the judge concluded and as we
have outlined in this opinion, Ithaca's violations of several provisions of
G. L. c. 60, § 2C, resulted in an inequitable foreclosure. We note that established case law requires
the provisions of c. 60 to be strictly construed in favor of protecting the
taxpayer's right of redemption. See
Williams, 485 Mass. at 457, citing Snow v. Marlborough, 301 Mass. 422, 426-427
(1938). We question whether, in light of
the severe consequences a taxpayer faces in these proceedings, the Legislature
fully considered the desirability of completely prohibiting relief after one
year in a circumstance where a private entity repeatedly violated explicit