Home TONY B. BAHNAN VS. PHNB REALTY, INC., & others [Note 1]

48 Mass. App. Ct. 909

November 17, 1999

The case was submitted on briefs.

John W Spillane for the plaintiff.

Barry S. Fischer & James B. Fox for Thomas J. Mahan & another.

The relevant facts are that the plaintiff Bahnan obtained a default judgment and a levy of execution against the defendant PHNB Realty, Inc. (PHNB), with respect to certain property in Worcester and duly recorded the execution on May 21, 1993. Approximately two months prior to the recording of the execution, PHNB conveyed the property to the Federal Deposit Insurance Corporation (FDIC) which, on the same day, conveyed it to the defendants Mahan. Those deeds were not recorded until May 28, 1993, one week after the recording of the execution. Thereafter, on July 20, 1993, Bahnan purchased the property at a sheriffs sale, notice of which was published and posted pursuant to G. L. c. 236, s. 28. A Superior Court judge granted partial sum-

Page 910

mary judgment to the Mahans, setting the sheriff's sale aside on the ground that neither the FDIC nor the Mahans received prior notice of the sale. We affirm.

This court in Teschke v. Keller, 38 Mass. App. Ct. 627 (1995), held that a sheriff's sale conducted pursuant to G. L. c. 236, s. 28, without actual notice to a junior mortgagee violated its due process rights afforded by the Fourteenth Amendment to the United States Constitution. The judge correctly rejected Balman's attempt to narrowly confine Teschke on the basis that this case does not involve a junior mortgage interest. In Teschke, we relied on Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800 (1983), in which the Supreme Court stated 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 . . . if its name and address are reasonably ascertainable." See Teschke v. Keller, supra at 633. Given that the defendants possessed a fee interest in the property and that the execution and sheriff's sale here involved constituted "State action necessary to implicate the due process protections of the Fourteenth Amendment," ibid, the Mahans were entitled to notice of the sheriffs sale. The deed to them was recorded prior to the scheduled time of the sale, and their identity and addresses were reasonably ascertainable from the registry records. We find no merit to the other contentions of the plaintiff.

Judgment affirmed.


[Note 1] Thomas J. Mahan and Paul J. Mahan, as trustees of the Mahan Family Realty Trust.