Department of Finance of Sussex County v. Smith ( 2022 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
DEPARTMENT OF FINANCE OF )
SUSSEX COUNTY, )
)
Plaintiff, )
)
v. ) CA No. S21T-10-019 MHC
)
JERRY SMITH, )
)
Defendant. )
ORDER
Submitted: August 11, 2022
Decided: October 13, 2022
Upon Consideration of Motion to Set Aside Sheriff’s Sale,
DENIED.
Ryan T. Adams, Esq., Moore & Rutt, P.A., Georgetown, Delaware, Attorney for
Plaintiff Department of Finance of Sussex County.
Jerry L. Smith, Frankford, Delaware, Pro Se.
CONNER, J.
FACTUAL AND PROCEDURAL BACKGROUND
(1) On August 4, 2006, Defendant Jerry Smith (“Defendant”)
acquired an interest in 23 Honolulu Road Frankford, Delaware (the “Property”).
Sussex County records indicate that the Property is co-owned by Rachel Houston,
Chevelle Goslee and Defendant. However, according to Defendant, both Houston
and Goslee have been deceased for over one and one-half years. Plaintiff Department
of Finance of Sussex County (the “County”) avers that “no estates have been opened
for either [Houston or Goslee], and their deaths cannot be ascertained through a title
search.”1
(2) At oral argument Defendant stated that he does not live at the
Property and he has never paid property taxes on the Property. In 2011, the County
received notice that a proper address to send the tax bills was 11494 Old School
Road, Mardela Springs, Maryland. No other address has been provided to the County
as a point of contact for tax payment. Taxes on the Property have not been paid for
the years 2008-2021.
(3) On October 26, 2021, the County filed a complaint for entry of
judgment on monition. At that time the delinquent taxes on the Property totaled
$2,261.98. On October 28, 2021, the Prothonotary issued a writ of monition. On
1
Pl.’s Resp. to Def.’s Mot. ¶ 2.
2
November 1, 2021, the Sheriff posted the writ of monition on the Property. On
February 16, 2022 the Prothonotary issued a writ of venditioni exponas monitions.
(4) On April 1, 2022, notice that a public sale of the Property had
been advertised in connection with a sheriff’s sale was mailed to parties that may
have had an interest in the Property. Most relevantly, notice was mailed to
Defendant, Houston and Goslee at the Maryland address, and also mailed to the
Property. On April 7, 2022, notice was posted on the Property.
(5) On April, 19, 2022, the Property was sold at a sheriff’s sale to a
third party. On May 11, 2022, Defendant filed a motion to set aside the sheriff’s sale
under Superior Court Civil Rule 69(g).
(6) Defendant argues that the sale should be set aside because he
received no notice of the sheriff’s sale. Specifically, Defendant contends that the
County should have mailed notice to his primary residence or to his P.O. Box.
(7) On May 26, 2022, the County filed a response to the motion to
set aside the sale. It contends that notice was not sent to Defendant’s primary
residence address because neither County records nor a title search connected the
Property with Defendant’s primary residence. The County claims it had no records
showing that Defendant was the same Jerry Smith who lived at Defendant’s primary
residence. Moreover, the County acknowledged that the 2006 deed which created
Defendant’s interest in the property listed Defendant’s P.O. Box address, but the
3
County argues that it did not send notice to Defendant’s P.O. Box because it
“reasonably believed [the P.O. box address] was an outdated address.”2 The County
states that a review of Property documentation indicated that Defendant, Houston
and Goslee all lived at the Maryland address.
(8) The Delaware Supreme Court has recognized this Court’s broad
discretion in confirming sheriff’s sales.3 The Court must determine whether there
was “some defect or irregularity in the process or mode of conducting the sale, or [
] neglect of duty, or misconduct on the part of the Sheriff or some other sufficient
matter ... whereby the rights of parties to, or interested in the sale are, or may have
been, prejudiced.”4 There is a “strong public interest in the finality
of sheriff's sales,”5 and subsequent motions to set aside such sales will be untimely
“unless the court finds lack of notice or other basis to relieve the party of the
consequences of unexcused delay.”6
(9) Superior Court Civil Rule 69(g) states in pertinent part:7
No sheriff's sale of real estate shall be held unless at least seven (7) days before the
sale the plaintiff or his counsel of record shall send by certified mail, return receipt
requested to . . . . The notice shall be addressed to persons having an equitable or
legal interest of record at the last known available or reasonably ascertainable
address of such person . . . .
2
Pl.’s Answer to Jerry Smith’s Resp. ¶ 4.
3
Burge v. Fidelity Bond and Mortgage Co., 648 A.2d 414, 420 (Del. 1994).
4
Id. at 419 (citing Petition of Adair, 190 A. 105, 107 (Del. Super. 1936)).
5
Shipley v. New Castle Cnty., 975 A.2d 764, 770 (Del.2009).
6
Id.(quoting Deibler v. Atlantic Properties Group, Inc., 652 A.2d 556, 558 (Del. 1995)).
7
Super. Ct. Civ. R. 69(g).
4
(10) Additionally, such notice must satisfy the Due Process Clause.
In Mennonite Bd. of Missions v. Adams, the U.S. Supreme Court stated that
“[p]rior to an action which will affect an interest in life, liberty, or property
protected by the Due Process Clause of the Fourteenth Amendment, a State must
provide notice reasonably calculated, under all circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to present
their objections.”8
DISCUSSION
(11) In Department of Finance of Sussex County v. Tyler,9 notice of
an impending sheriff sale was mailed to the property owner at two addresses. The
first was an incorrect address for the property owner’s place of residence, which was
not received. Notice was also mailed to the address provided as the tax billing
address for the property in question. Thus, the only address that the County properly
sent notice to was the address provided to the County for sending tax bills. The
Superior Court held that the County provided sufficient notice of the impending
sheriff’s sale because “it [was] clear that the notice given was reasonably calculated
8
Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 795, 103 S. Ct. 2706, 2709, 77 L. Ed. 2d
180 (1983).
9
Tyler v. Dep't of Fin. of Sussex Cnty., Del. Super., C.A. No. S16T-09-007 RFS, Stokes, J. (Jun.
4, 2018), aff’d, 202 A.3d 510 (Del. 2019).
5
to inform Defendants of the pending monition sale.”10 The decision was affirmed on
appeal to the Delaware Supreme Court.
(12) Moreover, the text of Superior Court Civil Rule 69(g) provides
further support for the determination in Tyler that in certain circumstances, sending
notice that the property will be exposed to a sheriff’s sale to the address provided as
the property tax billing address may provide sufficiently reasonable notice to the
individual responsible for paying the tax bill. As previously stated, Rule 69(g)
requires the County to send notice to “persons having an equitable or legal interest
of record at the last known available or reasonably ascertainable address of such
person.”11 In contrast, the subsection of 69(g) concerning the requisite notice for
lienholders states, “[t]he notice shall be addressed to holders of liens at the address
which appears upon the recorded or filed instrument creating the lien or upon the
record of the lien.”12 Had they wished, the drafters could have included language in
both subsections requiring notice to be sent to an address which appears upon the
recorded or filed instrument, but they did not. Thus, a plain reading of Rule 69(g)
indicates that persons having an equitable or legal interest of record are entitled
under the rule to receiving reasonably calculated notice of a sheriff’s sale. The rule
10
Id. at 2.
11
Super. Ct. Civ. R. 69(g).
12
Id.
6
does not necessarily require such notice to be sent to an address which appears upon
the recorded or filed instrument in every circumstance.
CONCLUSION
(13) Under the specific set of circumstances presented here, the notice
given was reasonably calculated to inform all persons having an equitable or legal
interest of record in the Property of the pending sheriff’s sale. Accordingly,
Defendant’s Motion to Set Aside the Sheriff’s Sale is DENIED.
IT IS SO ORDERED.
/s/ Mark H. Conner
Mark H. Conner, Judge
cc: Prothonotary
7