TOWN OF BREWSTER v. OWNERS UNKNOWN and LEWIS R. GAMMONS.

This case comes before the court on the petition of Lewis R. Gammons (“Gammons”) to vacate a final judgment of foreclosure of a tax lien. The judgment of foreclosure entered over twenty-five years ago on certain property located off Long Pond Road in Brewster, Massachusetts, shown as Lot 36 on Assessor’s Map 47 (“Locus”). Plaintiff, the Town of Brewster (the “Town”) obtained the 1991 judgment after a five-year proceeding to foreclose on its tax lien against “unknown owners.” Now, Gammons claims a title interest in Locus along with the heirs of William H. Maker (the “Maker heirs”) citing to an 1851 deed. He asserts that the lack of notice to the Maker heirs violated due process, thus entitling Gammons to vacate the judgment and redeem locus by paying any taxes properly due. However, even if I assume that the Maker heirs were entitled to notice, and that such lack of notice constituted a violation of due process, because Gammons waited too long to bring this petition after learning of the foreclosure judgment, his petition to vacate must be denied.

FACTS & BACKGROUND

The 1986 Tax Lien Foreclosure Action

This case was commenced on August 12, 1986. Prior to that, by instrument dated September 20, 1974, recorded in the Barnstable County Registry of Deeds in Book 2099, Page 94, the Town took locus for unpaid taxes. Locus had been assessed to “owners unknown,” a designation pursuant to G.L. c. 59, § 11, ¶ 3, that the Associate Commissioner of Corporations and Taxation authorized the Town to make by letter dated November 20, 1972.

On November 7, 1986, a Land Court examiner, William M. O’Brien, [Note 1] filed a title report pursuant to G.L. c. 60, § 66. The report identified Marian E. Murray, [Note 2] Raymond R. Kendall, and Virginia C. Kendall, Trustees of the Standish Realty Trust as “parties interested and entitled to notice.” On November 18, 1986, the court (Trombly, R.) sent a notice to the Town requesting that the Town “submit a letter in some detail, as to the steps taken to locate the owners. If the owners are unknown, request citation by publication issue.” The court’s notice further requested the Town to “[p]rovide the current address for: Marian E. Murray[,] Raymond R. Kendall[,] Virginia C. Kendall, Trs. of Standish Realty Trust[,] See Bk 294[,] Pg 54.”

On July 12, 1988, through its counsel, the Town filed a letter stating, in relevant part:

The records and plans of the Board of Assessors were checked as far back as possible, as were the plans, records and atlases at the Barnstable County Registry of Deeds. Where possible, deeds of owners of abutting lots were checked for any mention of the owners of this parcel. The records of the Brewster Town Clerk were checked, but it was impossible to identify any owner or possible owner. Inquiries were made of older residents of the Town who might have had some knowledge of the owners, but none could be found.

The Town’s letter further provided addresses for Marian E. Murray, Raymond R. Kendall, and Virginia C. Kendall in Lakeworth, Florida, and “requested that the citation in this case be by publication and certified mail.”

The citation, noting a return date of October 31, 1988, was published in the Cape Cod Times on September 29, 1988. On October 5, 1988, the court (Trombly, R.) certified that attested copies of the citation were sent by certified mail, return receipt required, to Marian E. Murray, Raymond R. Kendall, and Virginia C. Kendall, Trustees of the Standish Realty Trust. The case file contains return receipts (green slips) dated October 12, 1988, for Raymond R. Kendall and Virginia C. Kendall, both appearing to be signed by “Ray R. Kendall.” No return receipt for Marian E. Murray appears in the case file. On November 1, 1998, the Town’s Motion for General Default was allowed.

At some point, the court requested an updated address for Marian E. Murray. [Note 3] On July 19, 1991, the Town, through its counsel, filed a letter regarding the court’s request, stating, in relevant part:

…a request has been made for a better address for Marion E. Murphy, [Note 4] Trustee of Standish Realty Trust.

A search of the 1991 Lakeworth, Florida, street and telephone listings, as well as the probate records of Barnstable County, and the records of the Massachusetts Bureau of Vital Statistics, on the chance that she may have returned to Massachusetts, have all been unsuccessful.

It is, therefore, respectfully requested that she be deemed to come within the confines of the citation by publication already issued in this case.

On July 29, 1991, the court (Kilborn, J.) issued a final judgment in the case, adjudging and ordering that all rights of redemption were forever foreclosed and barred under the deed to the Town given by the Collector of Taxes for the Town. No further activity occurred in the case for over twenty-four (24) years.

The 2015 Petition to Vacate

On October 28, 2015, Gammons filed a petition to vacate the final judgment. Therein, Gammons claims a title interest in locus through a claimed genealogical connection to the Maker family. [Note 5] He further asserts that the last title instrument pertaining to locus was a deed from William Maker Sr., dated April 29, 1851, and recorded in the Barnstable County Registry of Deeds in Book 51, Page 391. [Note 6] According to the petition,

[i]t was not until 2012, in connection with an Equity action brought in the Barnstable Probate Court regarding an abutting parcel that [Gammons and] the Maker heirs first became aware of the taxing of Locus, the Taking and the Foreclosure Decree against Owners Unknown.

Gammons seeks determinations that (1) the Town’s tax title is invalid by reason of substantial and misleading errors and irregularities in the proceedings of the Collector or the Town Assessors, pursuant to G.L. c. 60, § 37, and (2) the tax foreclosure proceeding pursued by the Town violated the due process rights of Gammons and the Maker heirs, because the Makers heirs’ interests in locus could have been located. Gammons asks the court to vacate the final judgment of foreclosure to permit him and/or the Maker heirs to redeem Locus by payment of unpaid taxes properly due to the Town.

On November 10, 2015, the Town submitted its opposition to the petition to vacate. Therein, the Town contends that Gammons is not entitled to the requested determinations and a reopening of the case. It grounds this contention in two arguments. First, that, even assuming arguendo a due process violation took place, Gammons waited too long after learning of the foreclosure judgment to bring this petition. See G.L. c. 60, § 69A; Town of Brewster v. Sherwood Forest Realty Inc., 56 Mass. App. Ct. 905 (2002) (failure to take any action to vacate a foreclosure decree, despite knowledge thereof for at least twenty-three years barred property owner’s motion to vacate). Specifically, The Town avers that Gammons admits he learned of the tax taking and foreclosure decree in 2012, in connection with a Barnstable Probate Court action, and yet waited over three years to petition the court to vacate the judgment. Second, the Town asserts that no due process violation took place because the Maker heirs never owned locus and thus were not entitled to notice.

I held a hearing on the petition to vacate on November 12, 2015, at which time the petition was taken under advisement pending the parties filing of further briefs. Gammons, on December 11, 2015, and the Town, on December 18, 2015, filed their respective memoranda of law, as ordered.

In his brief, Gammons maintains that “given the unique circumstances in this matter[,] he has not waited an unreasonable time period” to institute his petition to vacate. He argues that “at the time [he] became aware of the foreclosure in 2012, he and other Maker heirs, along with the Town of Brewster, were involved in litigation in the Barnstable Probate Court with a third party,” and that the “commencement of litigation in this court [to vacate the judgment] … would have most likely impeded the settlement of that [Probate Court] matter.”

The Town, in its brief, reiterates that Gammons concedes that he had actual notice of the foreclosure proceedings in 2012, three years before filing this petition, but further, that Gammons settled the Barnstable Probate Court case by an agreement signed on February 27, 2014, ending his involvement in that litigation twenty months before filing this petition.

DECISION

After reviewing the papers filed by the parties, and following argument and subsequent briefing, I conclude that Gammons filed the petition to vacate the judgment of foreclosure too late. Accordingly, the petition must be denied.

General Laws c. 60, § 69A provides that “[n]o petition to vacate a decree of foreclosure entered under section sixty-nine . . . shall be commenced by any person other than the petitioner except within one year after the final entry of the decree . . . .” The one-year period within which a party must petition to vacate a foreclosure of the right of redemption ordinarily is conclusive and strictly applied. However, strict observance of the one-year time limit can be excused if a party’s right to due process has been violated. See Christian v. Mooney, 400 Mass. 753 , 760, (1987); Sharon v. Kafka, 18 Mass. App. Ct. 541 , 544 (1984). The failure to provide notice of a tax title foreclosure proceeding to a party entitled to such notice can constitute a denial of due process. See Sherwood Forest, 56 Mass. App. Ct. at 906.

Nevertheless, “the fact that the one-year limit for redemption gives way in the face of a clear due process violation does not mean that the time is extended indefinitely.” Id. There is a strong public policy interest in giving conclusiveness to judgments foreclosing tax titles, and the many reported decisions thereon have repeatedly stressed the importance of this consideration. See id. (and cases cited therein); see also Town of Norwell v. Owners Unknown, 12 LCR 101 , 102 (2004) (Tax Lien Case No. 86811) (Piper, J.) (citing Andover v. State Fin. Servs., Inc., 432 Mass. 571 , 576-77 (2000)).

In this case – even assuming arguendo that a denial of due process occurred because the Maker heirs were entitled to notice of the tax foreclosure proceedings and did not receive it – Gammons improvidently slept on his claim, once he learned of it. Although it might fairly be stated that Gammons was unaware of the foreclosure proceedings and judgment for at least twenty years, he admits that he became aware of it during his involvement in a litigation that commenced in 2012. While the court could excuse the failure to act for twenty years while Gammons remained in the dark, once the facts came to light, Gammons had some obligation to act to protect his purported interest. Sherwood Forest, 56 Mass. App. Ct. at 906 (“[O]ur decisions have stressed repeatedly that the time factor is properly weighed against the party challenging the tax title, … especially where … the party making the challenge has sat on his rights for years after hearing of the foreclosure.” (internal citations omitted)). I thus conclude that the timeliness of the petition to vacate must be assessed from the point at which Gammons gained actual knowledge of the foreclosure judgment, i.e. in 2012.

Gammons urges that his failure to act for three years was reasonable in light of the on- going Probate Court litigation; however, that explanation folds once his involvement in that litigation ended in 2014. [Note 7] I am thus left to answer whether waiting an additional twenty months to seek to vacate the foreclosure judgment was excusable.

In light of the overarching concern and strong legislative policy for promoting stable and reliable tax titles, I conclude that Gammons’s twenty-month delay was not excusable. Andover, 432 Mass at 841 (“[T]he Legislature clearly intended to ‘limit the time during which a decree could be challenged’ to one year. … This [one-year] bar protects the public’s ‘need for an efficient and final determination of any dispute regarding a public taking, so that title to the land taken can be settled.’ Any public policy issues have been resolved by this enactment. The Legislature has determined that ‘the public interest in marketable titles for tax takings ‘outweighs considerations of individual hardship’ after one year.’”); Sherwood Forest, 56 Mass. App. Ct. at 906 (“The public policy interest in giving ‘conclusiveness [to] decrees foreclosing tax titles,’ must be weighed in the balance; and thus our decisions have stressed repeatedly that the time factor is properly weighed against the party challenging the tax title, … especially where … the party making the challenge has sat on his rights for years after hearing of the foreclosure.” (internal citations omitted, first alteration in original)). I recognize that Gammons’s twenty- month delay is not as long as the delays at issue in the cases cited herein. See, e.g., Sherwood Forest, 56 Mass. App. Ct. at 905 (twenty-three-year delay); Town of Norwell, 12 LCR at 102 (seven-year delay). Nonetheless, bearing in mind the strong and clear legislative directive, I am persuaded that the one-year period prescribed in G.L. c. 60, § 69A is instructive on the question of how promptly a party must move to vacate a judgment upon learning of a foreclosure. See Town of Brewster v. Sherwood Forest Realty, Inc., 7 LCR 141 , 144 (1999) (Misc. Case No. 245679) (Green, J.). The statute contemplates the filing of a petition to vacate within one year of the judgment by a party with notice of the foreclosure. I can see no reason why a party who eventually gains actual notice of the judgment may wait longer than a year from learning of it to petition to vacate the judgment. Such a holding would undermine “the public’s ‘need for an efficient and final determination of any dispute regarding a public taking, so that title to the land taken can be settled.’” Andover, 432 Mass at 841.

I thus conclude that even if Gammons were successful in demonstrating a due process violation associated with the tax title foreclosure in this case, his petition to vacate must be denied as untimely.

CONCLUSION

For all the reasons set forth above, it is ORDERED that the Petition of Lewis R. Gammons to Vacate Decree of Foreclosure of Rights of Redemption is DENIED.

SO ORDERED.