TOWN OF ABINGTON v. MICHAEL G. WALSH, MAUREEN E. WALSH, ELIZABETH E. WALSH, MARYANNE SANDERS, and the heirs, devisees, or legal representatives of JOHN L. WALSH, Sr.

This action was filed by the Town of Abington (“Town” or “Plaintiff”) on June 16, 2009 seeking to foreclose all rights of redemption following a tax taking of property in Abington having an address of 227 Randolph Street. The complaint identified the instrument of taking sought to be foreclosed as having been made on June 13, 2005 and recorded at the Plymouth County Registry of Deeds on August 12, 2005 in Book 31122, Page 100. Named as Defendants in the complaint were “John L. Walsh (d), Michael G. Walsh and Maureen E. Walsh”.

As required by G. L. c. 60, § 65, a Land Court Title Examiner was appointed by the Court with instructions to “search the public records and examine the title to the land described in the ....complaint sufficiently to determine the person(s) who may be interested in the complaint” and to file a report of his search, “concluding with a list of all those persons and the nature of their interests...”

The Title Examiner filed his report on July 14, 2009, noting that John L. Walsh, Sr. had died on December 28, 1999, and that he had outlived his wife Evelyn S. Wilcox Walsh, with whom he owned the property; the report listed the following as his “heirs at law” and as parties entitled to notice:

- Michael G. Walsh, a grandson, who filed a petition in Plymouth Probate Court to probate the estate of John L. Walsh, Sr.

- Maureen Walsh, a granddaughter of John L. Walsh, Sr. She was later appointed Administratrix of his estate upon the death of Michael G. Walsh.

- Mary Ann Saunders, a granddaughter of John L. Walsh, Sr.

- John L. Walsh, Jr., a son who was not referenced in his father’s estate. [Note 1]

- Sovereign Bank, successor to the Abington Savings Bank, the holder at one time of a mortgage on the property.

The Town filed a motion on or about February 5, 2000 seeking to amend the complaint by striking John L. Walsh, Sr. and Michael G. Walsh as parties because they had passed away, and inserting in their place Elizabeth E. Walsh (the mother of the deceased Michael G. Walsh) and Maryanne Sanders. Following allowance of the motion, the Court set about to notify the parties about the foreclosure proceedings and of their right to file answers or objections, either by objecting to the foreclosure or by claiming their rights to redeem the property upon payment of taxes, costs and interest due.

Even before service was completed upon the parties deemed to have an interest in the proceedings, the Town filed a motion seeking the entry of a Finding establishing the rights to redeem and the amount necessary to do so, including attorney’s fees. Shortly thereafter, following service upon all parties recommended for notice, certain of the defendants responded with a motion seeking dismissal of the action pursuant to Mass. R. Civ. P. 12(b)(6) because of purported irregularities. Both motions were argued and taken under advisement on April 22, 2010, and are the matters currently before the Court.

Discussion.

In its Motion for Finding, Plaintiff asks the Court to set the terms under which an interested party can redeem the subject property, i.e., how much will it cost to redeem, and how much time does they have to pay it ? In the present case, the Town states that approximately eighteen thousand dollars ($18,000) is due in back taxes, interests, costs and attorney’s fees. Specifically, it seeks payment of $3,056.40 in legal fees and has submitted a memorandum setting out in detail how it arrived at that figure. Defendants dispute these fees and the amounts thereof.

In their Motion to Dismiss, brought pursuant to Mass. R. Civ. P. 12(b)(6), and in accompanying documents, Defendants Maureen Walsh, Individually and as Administratrix of the Estate of Michael Walsh, Elizabeth Walsh, and Maryanne Sanders allege that “the Plaintiff can prove no set of facts which will entitle it to establish that it has provided the notice required prior to the filing of the subject action.” In her affidavit, Maureen Walsh, a granddaughter of John L. Walsh, Jr., includes copies of several cancelled checks which she located among the papers of her late grandfather and states that she was never notified by the Town that the property known as 227 Randolph Street was “in Tax Title”. She also includes several copies of documents on file in the Probate Court case involving her grandfather which demonstrate who his heirs were, and that she served as administratrix of his estate.

Defendants contend that the tax taking is invalid because it contains “irregularities”. Specifically, they contend that the property was taken for non-payment of taxes from the wrong party or parties. I disagree. At the time of the taking, on June 13, 2005, record title to the property was in the name of John L. Walsh, Jr., with a life estate for John L. Walsh, Sr. and Evelyn Walsh. Apparently unknown to the Town, Evelyn W. Walsh had passed away while a resident of Abington on August 10, 1997, John L. Walsh, Sr. had passed away in 1999, and John Walsh, Jr. had passed away on October 26, 1999. A probate of the later’s estate was opened in Suffolk County Probate Court on June 30, 2000, listing as “interested parties” Elizabeth Walsh, Maryanne Sanders, Michael Walsh and Maureen Walsh.

John L. Walsh, Sr. passed away December 28, 1999. A petition for administration of his estate was filed in Plymouth County Probate Court on or about June 14, 2000 listing his heirs and/or beneficiaries as Maryanne Sanders, Michael Walsh and Maureen Walsh. Michael Walsh, the initial executor of the estate of John Walsh, Sr., died April 2, 2005. The estate of Michael Walsh, filed for probate in Suffolk County, listed his widow, Elizabeth Walsh, and his sisters, Maryanne Sanders and Maureen Walsh, as interested parties.

Defendants, as noted, contest the validity of the tax taking on grounds that it purports to take the property from at least one deceased person. They also contend that the taking is invalid because the amount for which the land was taken ($921.07) had previously been paid by various members of the Walsh family. Finally, they contend that they were never notified that the property was “in tax title” prior to the recording of the taking and that they never received the “demand” notice from the town.

Standard of Review

When ruling on a motion to dismiss filed pursuant to Mass. R. Civ. P. 12(b)(6), the “court accept[s] as true the allegations in the complaint, and draw[s] all reasonable inferences in favor of the party whose claims are the subject of the motion.” Fairneny v. Savogran Co., 422 Mass. 469 ,470 (1996). “Pleadings must stand or fall on their own. Oral representations and extraneous material not incorporated by reference can neither add to nor detract from them.” Mmoe v. Commonwealth, 393 Mass. 617 , 620 (1985). Before allowing a rule 12(b)(6) motion, “it must appear with certainty that the pleader is entitled to no relief under any combination of facts which could be proved in support of [its] claim.” Bahceli v. Bahceli, 10 Mass. App. Ct. 446 , 451 (1980). At this stage of the proceedings, this court does not find that the amended complaint on its face fails to state a cause of action “under any combination of facts which could be proved” by plaintiff. Id.

Alleged Irregularities.

G. L. c. 60, § 54 states the requirements of an instrument of taking. The statute states, in pertinent part:

The instrument of taking...shall contain a statement of the cause of taking, a substantially accurate description of each parcel of land taken, the name of the person to whom the same was assessed, the amount of the tax thereon, and the incidental

expenses and costs to the date of taking. Such an instrument of taking shall not be valid unless recorded within sixty days of the date of taking. If so recorded it shall be prima facie evidence of all facts essential to the validity of the title so taken....

The description within an instrument of taking is adequate if it “is reasonably accurate and fairly designates the property for the information of those interested.” City of Lowell v. Boland, 327 Mass. 300 , 302 (1951). The purpose behind requiring a substantially accurate description is to provide notice to the owners and prospective buyers that the parcel is being taken. Town of Franklin v. Metcalf, 307 Mass. 386 , 389-390 (1940). G. L. c. 60, § 37 states : “[n]o tax title and no item included in a tax title account shall be held to be invalid by reason of any error or irregularity which is neither substantial nor misleading...” Accordingly, an error will not invalidate the instrument or its associated tax taking account unless it is “substantial” or “misleading.”

G. L. c. 60, § 53 authorizes municipalities to commence tax takings. It states, in part:

If a tax on land is not paid within fourteen days after demand therefor...the collector may take such land for the town, first giving fourteen days’ notice of his intention to exercise such power of taking, which notice may be served in the manner required by law for the service of subpoenas on witnesses in civil cases or may be published...

See also G. L. c. 60, § 37 (“Said taxes, if unpaid for fourteen days after demand therefor, may, with such charges and fees, be levied by sale or taking of the real estate...”).

Validity of the Taking

There is no dispute that the land described in the tax taking is, in fact, the Walsh property. The title examiner’s report indicates that John L. Walsh, Sr. and Evelyn W. Walsh became the owners of the property known as 227 Randolph Street in 1951. In 1991, they transferred title to the parcel to John L. Walsh, Jr., but reserved to themselves a life estate. Evelyn Walsh died in 1997, and John L. Walsh Sr. passed away on December 28, 1999, thus apparently vesting title in John L. Walsh, Jr. However, an action was filed in this Court on August 28, 2003 by Maureen Walsh, Administratrix of the Estate of John L. Walsh, Sr., praying that the deed into John L. Walsh, Jr. be declared null and void. (See Land Court Case No. 03 MISC 292308). Judgment entered in that case on December 8, 2005 voiding that deed. As a result, title to the property passed through the estate of John L. Walsh, Sr. For unknown reasons, this Judgment was not recorded in a timely manner and is not referenced in the report of the Land Court title examiner.

Defendants were in contact with the Abington tax collector’s office on several occasions over the years. Several cancelled checks were introduced into evidence indicating that payments were made toward delinquent taxes and toward water bills. Nevertheless, Defendants claim they had no notice the property was “in tax title” and were unaware that demand had been made by the town for payment of the overdue taxes. I do not credit this argument. The fact that several payments were made indicates that the family members were aware that back taxes were due. Even assuming, arguendo, that no tax bill was sent to any member of the Walsh family, the fact remains that the tax was due and payable when it was committed to the collector. G. L. c. 59, § 57. “An omission to send a notice under this section shall not affect the validity either of a tax or of the proceedings for its collection.” G. L. c. 60, § 3.

Accuracy of the Complaint

Defendants contend that the complaint filed by the Town in this action contained substantial inaccuracies. By this, they mean that two of the parties named in the complaint as having an interest in the subject property were deceased. Even if this is true, it is not a fatal error. Once the title report was filed, the town moved to correct the mistakes and insert the names and add as Defendants parties having an interest in the property. The proper parties have been properly notified of the foreclosure proceedings and have filed responsive pleadings. No evidence has been produced to indicate they were prejudiced in any way by the Town’s failure to list them as defendants in the complaint as originally filed.

Defendants also contend that the Taking was not duly exercised because of their claim that the Town has not produced evidence that a demand was ever made upon them. However, in making this assertion, Defendants are again in error. A copy of the demand made upon members of the Walsh family is not necessary. The instrument of taking, once properly record, is prima facie evidence of all facts essential to the validity of the tax title, including the demand. G. L. c. 60, § 54. Thus, I find that demand was properly made and that the tax taking is valid. The Court also notes that the Town of Abington, in Plymouth County, is not charged with notice of probate proceedings which took place in Suffolk County. In the end, all parties have received proper notice of the foreclosure proceedings. The Motion to Dismiss is DENIED.

The amount due to redeem.

The Town seeks entry of a Finding determining the amount which must be paid in order for the Defendants to redeem the property from the tax taking, and has submitted a Memorandum in support thereof and affidavits from its counsel and by Leo E. Provost, Jr., Treasurer-Collector of the Town of Abington. A review of these documents discloses that real estate taxes were assessed against John L. Walsh, Sr. and Evelyn W. Walsh in Fiscal Year 2004, that the town took the property pursuant to G. L. c. 60, §§ 53 and 54, on June 13, 2005 following the passage of fourteen days from the date of demand with the taxes remaining unpaid, that the taking instrument was properly recorded at the Plymouth County Registry of Deeds in Book 31122, Page 110, that taxes were thereafter assessed against the property and bills issued by the Town in each of the Fiscal Years 2004 through 2009. It further appears that a partial payment in the amount of $860 was made toward the real estate taxes on July 5, 2005 and that taxes continued to be assessed against the property and bills issued therefor.

In January, 2006, counsel for the Estate of John L. Walsh, Sr. contacted the Town and advised it of the death of Mr. Walsh as well as Evelyn Walsh. At that time, counsel was notified that the property was in tax title, and a payment of $3,000 was made to the Town shortly thereafter. At that point, there remained a balance due of approximately $640. The Town then reassessed the property to “The Estate of John L. Walsh & Evelyn W. Walsh, c/o Michael & Maureen Walsh”. Thereafter, tax bills and demands were sent to 38 Alicia Road in Dorchester, the address appearing on the most recent check sent to the Town. This was also the address of Maureen Walsh as set forth in the Probate Court file.

Following the payment made in January of 2006, no real estate taxes were paid for the years 2006 through 2009. Taxes and other costs due for those years were added to the tax title account in accordance with G. L. c. 60, § 61. The present complaint seeking to foreclose the rights of redemption was filed in this Court on June 16, 2009. In an affidavit filed February 10, 2010, Treasurer/Collector Provost submitted documentation establishing that as of that date, the tax title account for the property had “grown to $17,836.68, comprised of unpaid real property taxes on the Property, as well as interest and costs accrued thereon.” He further stated that the indebtedness increases at the per diem rate of $5.7899 for each day the taxes remain unpaid after February 3, 2010, and that Fiscal Year 2010 taxes are now due in the amount of $3,123.64. I credit the affidavit and computations of Mr. Provost, kept and maintained as they were in the ordinary course of business. As a result of the above, I conclude that the amount now due to effectuate redemption from the tax title, exclusive of Court costs and attorneys’ fees, is $20,960.32, plus a per diem of $5.79 from February 3, 2010 to the date of payment.

Court Costs and Attorneys’ Fees.

The Town also seeks payment of its Court costs and attorneys’ fees. In support of its motion, Plaintiff provides a very detailed account of legal services performed between June 3, 2009 and January 29, 2010, seeking to recover legal fees in the amount of $2,786.40. It also seeks to recover an additional $270 which it estimates as fees and costs which will be necessary to close out the matter. Accordingly, the total amount of legal fees sought is $3,056.40.

This court may, upon motion, order the payment of legal fees to a city or town, which amount shall be added to the tax title account of the land to which the right of redemption is being foreclosed; in no event shall the legal fees awarded exceed the actual costs incurred and the judge shall consider the taxpayer’s ability to pay said fees in any such award.

G. L. c. 60, § 65. Such an order is permitted to the extent the costs and attorney’s fees are reasonable. See G. L. c. 60, § 68. After reviewing Plaintiff’s rundown of legal services performed in context of the facts and legal issues involved in this matter, I find $3,056.40 is a reasonable amount for legal fees and order that $3,056.40 to be added to the amount required for the redemption of the Property, discussed supra. In addition to this amount, the expenses of this court in the processing of this action amount to $417.16. This amount, too, shall be added to the amount required to redeem the property.

In sum, this court finds that demand having been properly made, the tax taking and the foreclosure complaint do not contain substantial or misleading errors or irregularities and are, therefore, valid. The lien has not been redeemed or discharged and Plaintiff is entitled to rely upon its tax title account in setting the amount required for redemption. Therefore, I find that Defendants may redeem the Property upon payment to the Plaintiff, on or before August 2, 2010, of the sum of $ 20,960.32, plus a per diem of $5.79 since February 3, 2010, in addition to legal fees in the amount of $3,056.40 and court costs of $417.16.

For the reasons discussed above, Plaintiff’s Motion for Entry of a Finding is ALLOWED and Defendants’ Motion to Dismiss is DENIED. If payment of the above amounts is not made to the Town on or before August 2, 2010, it shall constitute just cause for Plaintiff to request immediate entry of a Judgment of Foreclosure.

Charles W. Trombly, Jr.

Justice

Dated: June 23, 2010