CITY OF FALL RIVER vs. ETHEL GOLDBERG

On May 27, 1975 the petitioner, City of Fall River, (City) filed a petition under G. L. c. 60, § 65 to foreclose all rights of redemption under a tax title on property in Fall River described in the petition as located at "Pleasant NS N-3-27 4,147 sq. ft." (locus). Ethel Goldberg of New Bedford, the respondent, was named in the petition as the owner of the property and the only person known to have any interest in it. [Note 1]

There followed an examination of title and notice by registered mail to the respondent owner as required by G. L. c. 60, § 66.

On September 12, 1975 the respondent, through counsel, filed an appearance and answer which alleged that said locus was overassessed in that a value was placed thereon which was "grossly greater than its fair cash value at the time of said assessment." This counsel filed a withdrawal of his appearance only on September 30, 1975. By letter received on September 15, 1975, the respondent herself alleged that "a serious and valid dispute exists ... as to the amount owed the petitioner." An accounting as to the amount of taxes owed was requested but no offer to redeem was ever made by or on behalf of the respondent. The respondent also requested an extension of time before hearing to engage new counsel. The court obliged.

Since October 1, 1975, when the City's motion to assign for trial was allowed, this case has, on motions for continuances, been before each of the three judges of this court. Some of the requests for continuance were made by the City, but the majority of them were made by the respondent, either through counsel who appeared for that purpose, or through the respondent's daughter who has made a valiant attempt to assist her mother.

The judges of this court have repeatedly urged the respondent and her daughter to obtain counsel in this matter and have been generous in granting continuances for this purpose. One attorney, who did not file an appearance, has on various occasions contacted either the City or the office of the Deputy Assistant Clerk of this court requesting continuances in an effort to assist the respondent in reaching a settlement of the taxes owed to the City. His efforts resulted in the City abating nearly 50% of the amount owed for the years 1973, 1974 and 1975. The respondent attempted to obtain legal aid representation without any apparent success.

On each of the occasions when the respondent and her daughter appeared in court they advanced oral representations that they were not satisfied with the substantial abatements granted by the City, that the property in question was vacant, non-income producing land and that it was overvalued for assessment purposes. The court, in each instance, advised them that the issue of the assessed valuation of the locus was one over which this court was without jurisdiction in this type of proceeding. The court went to great lengths to advise them that the statutory proceedings for abatement under G. L. c. 59, §§ 59, 64 and 65 were the exclusive remedy for overassessment of real property.

On March 9, 1977 the respondent and her daughter appeared with new counsel who filed an appearance on behalf of the respondent and requested a further continuance to April 20th to determine if a settlement with the City by way of abatement might be effected. On April 20, 1977 said counsel caused a motion for leave to withdraw as counsel to be filed which was allowed. An affidavit accompanying the motion disclosed that counsel had been hospitalized and was convalescing. The affidavit further stated that the relationship between counsel's office and the respondent had become such that the office could no longer effectively represent the respondent's best interests. By request of the respondent, the case was again continued for hearing until June 8, 1977 with an order that no further continuances be granted. The respondent was urged by the court to seek new counsel, and she was referred to various bar associations for assistance.

On June 8, 1977, hearing on companion Case No. 50165 was commenced and was completed on July 6, 1977 at which time hearing in this case was held. The respondent and her daughter appeared at the hearing without counsel. The respondent represented herself with the vigorous assistance of her daughter.

Before the hearing concluded, the court had lengthy lobby conferences attended by the city treasurer and tax collector, the chairman of the board of assessors, who was requested by the court to be present, counsel for the City, the respondent and her daughter, in an effort to assist the respondent in effectuating a reasonable settlement of the outstanding tax account. After lengthy lobby discussion, the City proposed a settlement of the entire tax account, including current 1977 taxes, in this and a companion case involving an abutting parcel also owned by the respondent (Case No. 50165) in the amount of $12,500.00 and further proposed to recommend the reduction of the combined assessment on the locus and the abutting property in future years from $31,000.00 to $8,500.00. The respondent would not agree to the City's offer and chose to proceed to hearing.

No procedural issues of demand, notice, service or description of the property were raised by the respondent nor has she made an offer to redeem the locus under G. L. c. 60, § 68. One witness, the City treasurer and tax collector, appeared for the City. He gave testimony as to taxes owed on the locus for the years 1973 through 1977 inclusive together with accrued interest due. Three exhibits were admitted in evidence, the Instrument of Taking, and two official records of the tax title account on the locus kept by the treasurer-tax collector's office.

The respondent was permitted the opportunity to put relevant questions to the treasurer-tax collector and offered her daughter as her sole witness. Her only questions related to alleged overassessed valuation of the locus, a line of questioning not permitted by the court upon objection of the City. The respondent was given the opportunity at the hearing to present any other witnesses and to offer material and relevant evidence. She did not do so.

On all the evidence the court finds the following facts: By Instrument of Taking dated April 1, 1974, recorded on the same date in the Bristol County Registry of Deeds, Fall River District, Book 1099, Page 38, the petitioner, under the provisions of G. L. c. 60, §§ 53 and 54 took property described in said Instrument of Taking as "Pleasant NS N-3-27 4,147 sq. ft." (locus) for nonpayment of 1973 real estate taxes assessed thereon to the respondent as owner. The 1973 taxes which remained unpaid on the date of taking were $1,358.05. Added to this sum was interest of $54.17 and costs of $12.20 to said date, resulting in a total sum of $1,424.42 due as of the date on which the locus was taken. The Instrument of Taking was introduced as an exhibit and, being duly recorded, was under G. L. c. 60, § 54, prima facie evidence of all facts essential to the validity of the title so taken. The locus is a vacant lot of land. Subsequent to the taking, the City granted an abatement on the amount of taxes due for the year 1973 by agreement with one of the respondent's former counsel. The amount of the abatement was $759.17 leaving a balance due for 1973 taxes in the amount of $665.25. Interest accrued to July 6, 1977 was $217.25. None of the amount due for 1973 has been tendered or paid by the respondent.

The fol1owing amounts for subsequent taxes were added to the tax title account of the City in accordance with the provisions of G. L. c. 60, § 61 for the years 1974 (a six month tax year due to conversion to the new fiscal year basis), fiscal 1975, fiscal 1976 and fiscal 1977: Taxes together with interest to the time of certification for the year 1974 on the locus were $691.83 of which the City, by agreement, subsequently abated $371.91, leaving a balance of $319.92 due. Interest accrued to July 6, 1977 was $93.78. None of this sum has been tendered or paid by the respondent. Taxes together with interest to the time of certification for fiscal 1975 on the locus were $1,403.29 of which amount the City subsequently abated $754.33 leaving an unpaid balance due of $648.96. Interest accrued to July 6, 1977 was $135.84. None of the 1975 taxes were tendered or paid by the respondent. Taxes together with interest to the time of certification for fiscal 1976 on the locus were $1,403.30. The City was prepared to give an abatement on this amount providing former counsel for the respondent would put the balance due in escrow. Since this was not done, no abatement on 1976 taxes was ever given. Interest accrued to July 6, 1977 was $154.17. None of the 1976 taxes were tendered or paid by the respondent. Taxes together with interest to the time of certification for fiscal 1977 on the locus were $2,054.75. Interest accrued to July 6, 1977 was $3.38. There has been no abatement on the 1977 taxes and no payment has been made or tendered on the amount due.

The following is a summary of unpaid taxes on the locus including interest to July 6, 1977 the date of hearing:

The total unpaid taxes due on the locus from 1973 to the date of hearing together with accrued interest to July 6, 1977, redemption costs, and Land Court costs are the following:

This case involves the unfortunate situation in which, for whatever reason, the respondent has passed through a succession of legal counsel, none of whom have chosen to continue to represent her in this matter, although certain of her former counsel were successful in obtaining substantial abatements of taxes for the years 1973, 1974 and 1975. Since at the time of hearing the respondent could not obtain counsel, the court expended considerable time in conferring with all interested parties in an effort to reach a reasonable settlement for the respondent. As heretofore indicated the respondent would not agree to the proposed settlement and, under the circumstances, the court had no alternative but to bring the case to a conclusion. The court can reasonably infer that the respondent has not accepted the advice of former counsel to settle the tax account on agreements they had reached with the City.

The respondent has engaged at all stages of this case in a persistent and very vocal effort to protest the City's assessed valuation of the locus. Her total effort has been expended in attempting to have this court in this proceeding reduce the assessed valuation of the locus in a substantial amount. The case law is well settled that this cannot be done. The Legislature has provided a complete administrative remedy under G. L. c. 59, § 59 et seq. and judicial review of administrative remedies is provided by G. L. c. 58A. § 13. See Sears, Roebuck and Co. v. Somerville, 363 Mass. 756 (1973). See also Boston v. DuWors, 339 Mass. 772 , 773. (1959); Codman v. Assessors of Westwood, 309 Mass. 433 (1941).

Accordingly, the court finds that there is due to the City from the respondent the sum of $5,768.10 for taxes, interest and costs on the locus for the years 1973 through 1977 inclusive. Although the respondent has not made any specific offer to redeem, the court, in its discretion, orders that she be allowed to redeem the locus upon payment to the petitioner of the aforesaid amount on or before December 30, 1977 with any additional interest allowed by statute from the date of this decision to the date of payment. If there has been no redemption upon the terms set forth herein on or before December 30, 1977, a decree foreclosing all rights of redemption is to issue forthwith without further notice.