Plaintiff City of Woburn filed a verified Complaint to Foreclose Tax Lien on March 3, 2005 for property that it took for non-payment of taxes and owned by Defendant William J. Hawkins as Trustee of Virginia Realty Trust. A citation was issued on August 2, 2005, returnable September 5, 2005. Defendant filed an Answer on September 2, 2005, objecting to the validity of the Instrument of Taking for his property (Locus) [Note 1] and asking this court to dismiss the Complaint or alternatively declare that Defendant is ready and willing to redeem the tax taking upon such terms as may be fixed by this court. On September 6, 2006, Plaintiff filed a Motion for Entry of Finding and Award of Attorneys Fees and Court Costs, together with a Statement of Facts, supporting memorandum, and Affidavits of Donald N. Jenson (the Treasurer-Collector for the City of Woburn), and Attorney John D. Finnegan. On September 18, 2006, Defendant filed a memorandum in opposition to Plaintiffs motion, a Response to Plaintiffs Statement of Facts, and an Additional Statement of Facts. A hearing on Plaintiffs motions was held on September 19, 2006, and this court (Breuer, Deputy Recorder) issued an Order on April 10, 2007 (the Order) finding, in part, that: (1) Plaintiff possesses a valid tax lien on the registered portion of Locus only; (2) the scriveners errors made by Plaintiff were neither substantial nor misleading; (3) Defendant should have been aware that the taking recited on the Memoranda of Encumbrances for his Certificate of Title referred to Locus; and (4) the taking was timely and without procedural defect.
The Order also required Plaintiff to submit an affidavit from the Treasurer of the City of Woburn as to the amount owed for redemption of the registered portion of Locus. In accordance with the Order, on April 24, 2007, Plaintiff filed Affidavits of Donald N. Jenson (Treasurer-Collector of the City of Woburn) (Jenson) and Andrew Creen (Chief Appraiser in the Office of the City Assessors of the City of Woburn) (Creen) calculating the amount required for Defendant to redeem the registered portion of Locus. In response, Defendant filed an objection to the redemption amount specified in the affidavits on May 2, 2007, and a notice of appeal of the Order on May 8, 2007. Plaintiff filed a Response to Defendants objection on May 10, 2007, and a motion to strike the notice of appeal on May 11, 2007.
On May 21, 2007, this court (Sands, J.) held a status conference and set a date for the filing of a joint stipulation of agreed upon facts and motions for summary judgment. The Joint Stipulation of Facts, Agreed Upon List of Exhibits, and Defendants Motion for Summary Judgment with supporting memorandum were filed on July 6, 2007. Plaintiff filed an opposition to Defendants motion and cross-motion for summary judgment on August 3, 2007, together with supporting memorandum, Separate Statement of Legal Elements, and Appendix. On August 17, 2007, Defendant filed a Separate Statement of Legal Elements and Statement of Issues Presented. This court held a hearing for both motions on September 6, 2007. A Decision of todays date has been issued.
In accordance with that Decision it is:
ORDERED and ADJUDGED that the transposition of the street numbers in the two takings (as hereinafter defined), relative to Locus and Lot 3 (15-17 Virginia Avenue), is not substantial and Plaintiff provided an adequate description for both Taking 1 [Note 2] and Taking 2. [Note 3]
ORDERED and ADJUDGED that Taking 1 did not contain a substantial or misleading error in the description of Locus, and that Taking 1 was duly exercised by Plaintiff.
ORDERED and ADJUDGED that Municipal Lien Certificate No. 904 (issued by Plaintiff on August 14, 1995), Municipal Lien Certificate No. 14164 (issued by Plaintiff on October 3, 2005), and Municipal Lien Certificate No. 14378 (issued by Plaintiff on November 9, 2005) apply to Lot 3 and do not apply to Locus.
ORDERED and ADJUDGED that as of August 23, 2006, the unpaid real estate taxes (including interest and costs) owed on the 10,843 sq. ft. registered portion of Locus totaled $97,464.98. This amount shall increase $24.37 per day for each day the taxes remain unpaid after April 23, 2007.
ORDERED and ADJUDGED that in context of the facts and legal issues involved in this matter, $6,275 is a reasonable amount for legal fees and ORDER $6,275 to be added to the amount required for the redemption of Locus.
ORDERED and ADJUDGED that Defendant may redeem Locus upon payment to Plaintiff, on or before thirty days from the date of this Judgment, of the sum of $97,464.98, plus a per diem of $24.37 since April 23, 2007, in addition to $6,275 of legal fees.
ORDERED and ADJUDGED that Defendants Motion for Summary Judgment is DENIED, and Plaintiffs Cross Motion for Summary Judgment is ALLOWED.
By the court. (Sands, J.)
[Note 1] Locus contains 12,068 sq. ft., has an address of 11-13 Virginia Avenue, Woburn and is comprised of a registered portion containing 10,843 sq. ft. and an unregistered portion containing 1,225 sq. ft.
[Note 2] On September 28, 1992, Plaintiff registered an Instrument of Taking (Taking 1) dated September 28, 1992, as to a portion of the J&B Lot. Taking 1 showed a total amount owed, as of that date, of $1157.04 (including interest and expenses). Taking 1 was not recorded on the recorded side of the Registry, but was noted on the Memoranda of Encumbrances to the J&B Certificate as Document 882090. Taking 1 described the land taken as:
J & B Builders
About 12,068 square feet of land with building located at 15-17 Virginia Avenue, situated in Woburn, as recorded in South Middlesex Registry of Deeds, Book 1043, Page 68. Taxes for the year 1990 - $819.60
Taking 1 states that Plaintiffs demand for unpaid 1990 taxes was made on J&B on September 7, 1990. A copy of Plaintiffs demand is not available, having been lost or replaced.
[Note 3] On September 28, 1992, Plaintiff registered an Instrument of Taking (Taking 2) dated September 23, 1992, as to a portion of the J&B Lot. Taking 2 showed a total amount owed, as of that date, of $1157.04 (including interest and expenses). Taking 2 was noted on the Memoranda of Encumbrances to the J&B Certificate as Document No. 882091. Taking 2 described the land taken as:
J & B Builders
About 12,015 square feet of land with building located at 11-13 Virginia Avenue situated in Woburn, as recorded in South Middlesex Registry of Deeds, Book 1043, Page 68. Taxes for the year 1990- $819.60
Taking 2 states that Plaintiff's demand for unpaid 1990 taxes was made on J&B on September 7, 1990. A copy of Plaintiff's demand is not available, having been lost or replaced.