TLC 77875

September 26, 1990

Suffolk, ss.



The defendant Charles W. Kanell seeks to vacate a judgment entered by this court on May 11, 1987 foreclosing all rights of redemption under a deed given by the Collector of Taxes for the City of Boston dated July 29, 1980 and recorded with Suffolk Deeds in Book 9520, Page 112. The petition to vacate was filed on September 12, 1990, more than one year after the entry of the decree and accordingly is hereby denied.

The defendant argues that he had no notice of the pendency of the tax title proceedings and that therefore he is deprived of his constitutional right to due process by the procedure followed by the City of Boston. The facts are not in dispute and on the record before me I find and rule as follows:

1. The vacant lot in question was purchased by the parents of the defendant in 1978 from one Maria Rosa Brogna by deed dated September 25, 1978 and duly recorded with said Deeds in Book 9100, Page 469. Title ran to the defendant, however, since his parents who at the same time purchased the adjoining house lot from third parties had been advised that it would be wise to own the abutting property in a different name.

2. The defendant's parents mortgaged the premises at 179 Florence Street to a lending institution to whom the tax bills on both properties were referred for payment. It was assumed that the bank was paying the taxes not only on the mortgaged premises but on the adjacent lot, but in fact this proved not to be the case.

3. The City ultimately took the locus for the nonpayment of real estate taxes by deed dated July 29, 1980 and recorded in Book 9520, Page 112. Subsequently, in 1986, the present proceedings were commenced which resulted in the decree which the defendant now seeks to vacate.

4. Service was first attempted on the defendant at 179 Florence Street which is the adjoining property on which a house is located. When this effort was unsuccessful service was attempted at 37 Pershing Road, the mailing address given in the deed to the defendant. Both residences are in Boston.

5. At the time of the foreclosure proceedings the defendant no longer lived at the address given in the deed, but he had not notified the Assessing Department of the City of Boston that he had moved. Ultimately his parents with whom he had previously lived and who resided on Pershing Road moved to Yarmouth where the defendant also now lives.

6. The defendant claims that it is denial of due process to foreclose the rights of redemption without service having been made upon him. However, as pointed out in Sharon v. Kafka, 18 Mass. App. Ct. 541 (1984), G.L. c. 60, §69A provides that petitions to vacate decrees of foreclosure entered under §69 must be commenced within one year after the final entry of the decree. This was not done here. Nonetheless, there are circumstances which justify the vacation of a decree foreclosing rights of redemption even though the petition is not seasonably filed. Lack of capacity or mental illness would serve as a ground to exercise discretion; failure of service under certain circumstances is another. Boston v. James, 26 Mass. App. Ct. 625 (1988). Here, however, the City attempted to serve the defendant first at the adjoining property to which locus logically belonged and secondly, and compellingly, at the address given in the deed. However, he had moved from the latter address before service was attempted. Under such circumstances the City short of hiring a private detective, had no way of locating the defendant. There was no mortgage on the property, the holder of which might have been consulted. The Court was satisfied at the time of the foreclosure, and now, that the City had made all reasonable efforts to locate the defendant. Accordingly due process requirements were met by the publication. James, supra, at page 629. I find and rule that the defendant is not constitutionally entitled to have the decree vacated. Accordingly the petition was filed too late, G.L. c. 60, §69A, and I must deny relief.

Judgment accordingly.