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Appeals Court of Massachusetts.

TOWN OF WARE & others 1 v. OWNERS UNKNOWN & another.2


Decided: March 19, 2021

By the Court (Vuono, Hanlon & Shin, JJ.3)


Over ten years after a tax lien foreclosure judgment entered in favor of the town of Ware (town), the intervener-defendant, Hull Forestlands LP (Hull Forestlands), filed a motion to vacate the judgment, asserting that Hull Forestlands now owns the subject property. A judge of the Land Court denied the motion, and Hull Forestlands appeals. We affirm.

Background. The judge made the following factual findings after an evidentiary hearing.

The subject property is an approximately thirty-four acre parcel of undeveloped, landlocked woodland. It was designated as a taxable parcel and placed on the town's tax assessors’ map no later than fiscal year 1998. During that fiscal year, the town applied to the Massachusetts Department of Revenue (DOR) for authorization to assess the subject property to “owners unknown,” in compliance with the former requirements of G. L. c. 59, § 11.4 After reviewing the town's efforts to identify the owner of the subject property, the DOR granted the requested authorization, and the town prepared the tax bills accordingly.

Although the tax bills were made public and clearly identified the subject property, no one came forward to claim it during the ensuing six years. Thus, in October 2003, the town took tax title by recording an instrument of taking in the registry of deeds. When still no claimant had come forward by July 2004, the town filed this action in the Land Court to foreclose the taxpayer's right of redemption. Despite further searches conducted by the town and a court-appointed title examiner, the owner of the subject property could not be identified, so, pursuant to court order, service was made by publication in the Ware River News. No one responded, and judgment foreclosing all rights of redemption entered in March 2006. The town promptly recorded the judgment in the registry of deeds.

In May 2008 Hull Forestlands purchased land abutting the subject property from one Catherine McLaughlin. Several months later, the town, seeking to sell the subject property, scheduled a tax-title auction and sent notice to abutters, including Hull Forestlands. Upon seeing the notice, Hull Forestlands's principal, William Hull (Hull), wrote to the town asserting his belief that the land that Hull Forestlands purchased from McLaughlin encompassed the subject property. The town canceled the auction in response, expecting to hear further from Hull.

For the next several years, Hull Forestlands took no steps toward proving ownership of the subject property -- for example, it did not have a title search or survey conducted, tender back taxes, or move to vacate the foreclosure judgment. As a result, the town rescheduled the subject property for auction in February 2013. Although Hull again wrote to the town claiming that Hull Forestlands owned the subject property, this time the town proceeded with the auction. Hull attended and placed a bid, but the winning bid was placed by the intervener-plaintiffs, who received and recorded a treasurer's deed in March 2013.

Hull Forestlands hired a surveyor over one year later, in late 2014 or early 2015. In June 2015 the surveyor produced a plan depicting the subject property as part of the land owned by Hull Forestlands.5 While promptly recording the plan, Hull Forestlands waited another year, until August 2016, before filing its motion to vacate the judgment.

Discussion. General Laws c. 60, § 69A, provides that any petition to vacate a foreclosure decree barring rights of redemption must be filed “within one year after the final entry of the decree.” Once the one-year period expires, “the judgment is final and can be vacated only upon a showing of a denial of due process.” Tallage Lincoln, LLC v. Williams, 485 Mass. 449, 453 (2020). See Andover v. State Fin. Servs., Inc., 432 Mass. 571, 577 (2000). This relief is “extraordinary in nature and ought to be granted only after careful consideration and in instances where [it is] required to accomplish justice.” Worcester v. AME Realty Corp., 77 Mass. App. Ct. 64, 67 (2010), quoting Lynch v. Boston, 313 Mass. 478, 480 (1943). We review a judge's decision on a motion to vacate under G. L. c. 60, § 69A, for abuse of discretion or error of law. See Worcester, supra.

Here, the judge declined to vacate the judgment on two grounds: Hull Forestlands failed to demonstrate a violation of due process; and, even if it had, it unreasonably delayed in bringing its motion to vacate. We discern no abuse of discretion or error of law in either ruling.

In its motion to vacate, Hull Forestlands asserted a due process violation based on the town's failure to identify McLaughlin as the then-owner of the subject property and to send her notice of the foreclosure action. Due process, however, does not require actual notice to a property owner before a governmental taking. See Jones v. Flowers, 547 U.S. 220, 226 (2006). Rather, notice is constitutionally sufficient if it is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id., quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). See Andover, 432 Mass. at 575. In the circumstances here, the judge did not err in finding that notice by publication was reasonably calculated to apprise all interested parties of the foreclosure action.6 As the judge found, the town conducted an unsuccessful search for the owner in 1997; the DOR deemed the town's efforts sufficiently thorough to warrant an assessment to “owners unknown”; after the action was commenced, a court-appointed title examiner conducted an independent search and also could not identify the owner; the notice was published in a local newspaper of general circulation; and, in a small town such as Ware, it is reasonable to expect that interested parties would have been aware of the notice.7 These factors, among the others detailed in the judge's thoughtful decision, support his conclusion that notice by publication was adequate to satisfy due process. Indeed, Hull Forestlands does not argue otherwise on appeal.

Instead, to the extent Hull Forestlands addresses the issue of due process at all, its argument appears to be twofold: the town was on notice no later than December 2008 that Hull Forestlands claimed ownership of the subject property; and the town had no basis for assessing the subject property as a separate parcel. Even assuming these arguments are preserved, neither demonstrates an entitlement to relief. Hull Forestlands fails to explain how its assertion of ownership in 2008 is relevant to whether the foreclosure action -- commenced in 2004 and concluded in 2006 -- comported with due process. Likewise, Hull Forestlands does not explain why errors in the underlying assessments, if any exist, would warrant vacating the judgment. While devoting much of its brief to discussing these purported errors, Hull Forestlands cites no authority supporting the proposition that they resulted in a denial of due process, which is the sole basis on which the judgment can be vacated. See Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011) (arguments unsupported by legal argument and supporting authority are waived).

Furthermore, the judge was within his discretion to find in the alternative that Hull Forestlands unreasonably delayed in bringing its motion to vacate. “[T]he 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.” Brewster v. Sherwood Forest Realty, Inc., 56 Mass. App. Ct. 905, 906 (2002). Rather, “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.” Id. It is uncontested that Hull Forestlands had actual knowledge of the judgment no later than fall of 2008. Yet for the next five years, Hull Forestlands did not move to vacate the judgment or take any steps to prove that it owned the subject property. Only after the subject property was sold to the intervener-plaintiffs in 2013 did Hull Forestlands conduct a survey and title search. Then, Hull Forestlands did not file its motion to vacate until August 2016, nearly eight years after it learned of the judgment. The judge was well warranted in finding this eight-year delay to be unreasonable, especially when considering the resulting prejudice to the intervener-plaintiffs. See id.

Arguing that this appeal is frivolous, the intervener-plaintiffs request appellate attorney's fees and double costs under Mass. R. App. P. 25, as appearing in 481 Mass. 1654 (2019). An appellate court has the discretion to find an appeal frivolous “[w]hen the law is well settled, [and] when there can be no reasonable expectation of a reversal.” Avery v. Steele, 414 Mass. 450, 455 (1993), quoting Allen v. Batchelder, 17 Mass. App. Ct. 453, 458 (1984). Here, Hull Forestlands's brief does not even cite the controlling statute, G. L. c. 60, § 69A, nor does it mention, let alone discuss, the relevant case law. The brief also fails to address the grounds on which the judge found no due process violation. For these reasons, among others, we conclude that the appeal is frivolous. The intervener-plaintiffs may submit a petition for appellate attorney's fees and double costs, together with supporting materials to the clerk of this court within fourteen days of the date of this decision. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004). Hull Forestlands shall then have fourteen days to respond. See id.

Order dated January 31, 2020, denying motion to vacate judgment, affirmed.


4.   Prior to an amendment that took effect on January 1, 2017, G. L. c. 59, § 11, provided that “[w]henever the commissioner [of revenue] deems it proper he may, in writing, authorize the assessment of taxes upon real property to persons unknown, provided that the assessors certify to the commissioner that they cannot by reasonable diligence ascertain the name of the parties appearing of record.”

5.   The surveyor initially concluded that Hull Forestlands did not own the subject property, but produced the June 2015 plan after consulting with a title attorney, retained by Hull Forestlands, who was of a contrary belief.

6.   We will assume, without deciding, that Hull Forestlands has standing to challenge the judgment even though it did not acquire McLaughlin's land until May 2008, over two years after the judgment entered and was recorded in the registry of deeds.

7.   Hull Forestlands presented no evidence whatsoever as to McLaughlin's state of knowledge, which we think was fatal in itself to Hull Forestlands's claim of a due process violation.

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