Plemons v. Gale

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LINDA PLEMONS, a/k/a Linda 
Plemons Buechler,
Plaintiff-Appellee,
v.
DOUGLAS Q. GALE; ADVANTAGE 99
TD, a Delaware business trust, by
and through its trustee,
Defendants-Appellants,
 No. 04-1196
and
U.S. PUBLIC FINANCE, INCORPORATED,
a Delaware corporation,
Defendant.
NATIONAL TAX LIEN ASSOCIATION,
Amicus Supporting Appellants.

2 PLEMONS v. GALE
LINDA PLEMONS, a/k/a Linda 
Plemons Buechler,
Plaintiff-Appellee,
v.
DOUGLAS Q. GALE; ADVANTAGE 99
TD, a Delaware business trust, by
and through its trustee,
Defendants-Appellants,
 No. 04-1499
and
U.S. PUBLIC FINANCE, INCORPORATED,
a Delaware corporation,
Defendant.
NATIONAL TAX LIEN ASSOCIATION,
Amicus Supporting Appellants.

Appeals from the United States District Court
for the Southern District of West Virginia, at Charleston.
Joseph Robert Goodwin, District Judge.
(CA-03-418-2)
Argued: October 26, 2004
Decided: February 3, 2005
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Vacated and remanded by published opinion. Judge Motz wrote the
opinion, in which Judge Michael joined. Judge Niemeyer wrote a dis-
senting opinion.
PLEMONS v. GALE 3
COUNSEL
Edward Pope Tiffey, Charleston, West Virginia, for Appellants. Don-
ald R. Dinan, HALL, ESTILL, HARDWICK, GABLE, GOLDEN &
NELSON, P.C., Washington, D.C., for Amicus Supporting Appel-
lants. James Truman Cooper, COOPER & GLASS, Charleston, West
Virginia, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Concluding that Linda Plemons had not received constitutionally
adequate notice of her right to redeem certain real property, the dis-
trict court granted summary judgment to Plemons and set aside a deed
to that property obtained through the state tax-sale procedure. Advan-
tage 99 TD, the tax lien purchaser, and Douglas Q. Gale, who subse-
quently acquired the deed from Advantage, appeal, asserting that
constitutionally sufficient notice was provided to Plemons. For the
reasons that follow, we vacate the judgment of the district court and
remand for further proceedings consistent with this opinion.
I.
In August 1999, Linda Plemons and her business partner, Jerry
Lipscomb (who is not a party to this appeal) purchased the property
in question, located on Echo Road in South Charleston, West Vir-
ginia, for $55,000. They duly recorded the deed.
In February 2000, Plemons obtained financing from Capital State
Bank in the amount of $45,000 to pay off the seller of the property.
She mistakenly believed that the bank was paying the property taxes
on the property through an escrow account. Because neither she nor
the bank actually paid the taxes, the Sheriff of Kanawha County sold
a tax lien on the property to Advantage 99 TD on November 13,
2000. Plemons was unaware of the sale when, in May 2001, she
moved from the property and rented it to tenants.
4 PLEMONS v. GALE
In December 2001, Advantage sought the issuance of a tax deed.
As required by West Virginia law, Advantage "[p]repare[d] a list of
those to be served with notice to redeem" and filed that list with the
Clerk of Kanawha County so that the Clerk could send them notice
of their right to redeem the tax lien. See W. Va. Code Ann. § 11A-3-
19 (Michie 2002).
The list enumerated several interested parties, including Plemons,
and provided three addresses for Plemons: 913 Echo Road, South
Charleston, the address of the subject property in the relevant deeds;
917 Echo Road, South Charleston, the mailing address of the prop-
erty; and 928 Garden Street, Charleston, the address of another prop-
erty owned by Plemons. The list also directed the Clerk to send
notices to "Occupant" at 913 and 917 Echo Road. In late January
2002, the Clerk sent the notices by certified mail return receipt
requested. The parties agree that the Post Office promptly returned as
undeliverable the notices addressed to Plemons, as well as the notices
sent to Occupant at the Echo Road addresses.1 Plemons had been rent-
ing out the subject property and living on Quarry Pointe since
November 2001.
After return of the mailed notices, Advantage published, from
April 12, 2002 to April 26, 2002, notice as to redemption rights in two
Charleston newspapers and posted the notice on the front door of the
Kanawha County courthouse. No one responded to the publications
or posting. On May 7, 2002, the Clerk issued a deed to Advantage,
which it recorded. On November 22, 2002, Advantage conveyed the
property to Douglas Q. Gale by quitclaim deed, which he properly
recorded. According to Plemons, she first became aware of the sale
of the property in January 2003.
1
Although the record does not disclose the precise date on which all
of these notices were returned, all were returned well prior to publication
and the expiration of the redemption period. It is clear that the notice sent
to Plemons at 928 Garden State was returned on February 14, 2002, and
the notice sent to Occupant at 917 Echo Road was returned on February
17, 2002.
PLEMONS v. GALE 5
II.
Challenging her failure to receive timely notice as a violation of
state law and the United States Constitution, Plemons filed a com-
plaint in West Virginia state court seeking to set aside the tax deed
issued to Advantage as well as the deed issued to Gale. Advantage,
a Delaware business trust, and Gale, a citizen and resident of Florida,
removed the case to federal court on the basis of diversity jurisdiction.
On Plemons’ motion for summary judgment, the district court
examined West Virginia’s statutory scheme for tax sales of property.
Section 11A-3-22 provides in relevant part:
As soon as the clerk has prepared the notice . . . , he shall
cause it to be served upon all persons named on the list gen-
erated by the purchaser . . . .
....
If the address of any person entitled to notice . . . is
unknown to the purchaser and cannot be discovered by due
diligence on the part of the purchaser, the notice shall be
served by publication . . . .
W. Va. Code Ann. § 11A-3-22 (Michie 2002). A related provision of
West Virginia law allows a person to set aside a tax-sale deed if she
shows "by clear and convincing evidence" that the purchaser "failed
to exercise reasonably diligent efforts to provide notice of his inten-
tion to acquire such title to the complaining party." W. Va Code Ann.
§ 11 A-4-4(b) (Michie 2002).
The district court interpreted these West Virginia statutes to require
a purchaser to exercise due diligence in identifying and locating par-
ties entitled to notice and to allow publication notice only after the
exercise of such diligence. The court, therefore, properly reasoned
that West Virginia’s statutory notice requirements parallel the require-
ments of the United States Constitution. See Mennonite Bd. of Mis-
6 PLEMONS v. GALE
sions v. Adams, 462 U.S. 791 (1983); Mullane v. Central Hanover
Bank & Trust Co., 339 U.S. 306 (1950).2
The court concluded that "[w]hen notice sent by certified mail is
returned unclaimed, the reasonable diligence standard requires the
purchaser to make further inquiry reasonably calculated to locate the
interested party’s correct address." The district court found that in this
case, after return of the notices, Advantage "could have ascertained
Ms. Plemons’ address through a number of different means" — tele-
phoning her at the number listed in the local telephone directory, ask-
ing Plemons’ tenants for their assistance in reaching her, or inquiring
of Plemons’ mortgagee. Because Advantage took "none of these
actions" to find Plemons after the notices were returned as undeliver-
able, the court held that Plemons had proved that she had not received
constitutionally adequate notice of the right to redeem her property
and granted her summary judgment.
Advantage and Gale appeal. They do not maintain that they are
entitled to summary judgment. But they do assert that the district
court erred in granting summary judgment to Plemons.
III.
We must determine whether, as a matter of law, Plemons failed to
receive constitutionally sufficient notice before the issuance of the
tax-sale deed that extinguished her property interest.3
2
For this reason, the court concluded that its resolution of the case
obviated the need to examine the possible constitutional infirmity of
West Virginia’s requirement that a plaintiff prove the failure of adequate
notice by clear and convincing evidence. To the extent that Advantage
and Gale contend that the West Virginia statutes do, or could, require
less exacting notice than that mandated by the Constitution, we reject
their arguments.
3
The Constitution only requires due process when the state or federal
government works the deprivation of property. Appropriately, neither
party disputes that the tax-sale procedure in this case constitutes state
action, although state law charges a private party with providing notice.
Under West Virginia’s statutory scheme, the State is the initial seller of
the tax lien; thereafter, the State provides the tax lien purchaser with the
PLEMONS v. GALE 7
A.
In a series of cases, beginning with Mullane v. Central Hanover
Bank & Trust Co., the Supreme Court has set forth the requirements
for constitutionally adequate notice of an impending deprivation of
property. "[I]n any proceeding which is to be accorded finality," due
process requires "notice reasonably calculated, under all the circum-
stances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections." Mullane, 339
U.S. at 314.
Mullane dealt with notice by publication to beneficiaries of a com-
mon trust. Complying with the New York law governing such trusts,
Central Hanover Bank published notice in a local newspaper to
inform beneficiaries of a settlement. In addressing the sufficiency of
this notice, the Supreme Court emphasized that "when notice is a per-
son’s due, process which is a mere gesture is not due process." Id. at
315. Rather, the means used to provide notice "must be such as one
desirous of actually informing the absentee might reasonably adopt to
accomplish it." Id. Only a method that is reasonable, taking into
account "the practicalities and peculiarities of the case," will be ade-
quate. Id. at 314-15. The Court held that notice by publication suf-
ficed for those beneficiaries "whose interests or whereabouts could
not with due diligence be ascertained." Id. at 317. But notice by publi-
cation did not suffice for those identifiable beneficiaries whose loca-
tion was ascertainable; that class of beneficiaries should have been
notified by mail. Id. at 318 ("Where the names and post office
addresses . . . are at hand, the reasons disappear for resort to means
less likely than the mails . . . .").
Cases following Mullane have sharpened its rule, but reasonable
efforts designed to "actually inform[ ]" a party with a property interest
mechanism to provide notice to interested parties. The State also extin-
guishes the owner’s rights to the property by issuing the tax deed to the
property. In order to accomplish a tax sale, then, private parties must
"make use of state procedures with the overt, significant assistance of
state officials," and, thus, there is state action. Tulsa Prof’l Collection
Servs., Inc. v. Pope, 485 U.S. 478, 486 (1988).
8 PLEMONS v. GALE
of possible deprivation of that interest remain the touchstone of con-
stitutionally adequate notice. Id. at 315. Thus, although the Constitu-
tion does not always require actual receipt of notice, it does always
require efforts "reasonably calculated under all the circumstances to
apprise" a party "of the pendency" of the deprivation of property.
Dusenbery v. United States, 534 U.S. 161, 168-171 (2002). When a
party required to give notice knows that a mailed notice has, for some
reason, failed to inform a person holding a property interest of the
impending deprivation, the notice does not pass constitutional muster.
See Robinson v. Hanrahan, 409 U.S. 38, 40 (1972) (holding notice of
forfeiture sent to address State knew to be inaccurate or defective
insufficient); Covey v. Town of Somers, 351 U.S. 141, 146-47 (1956)
(holding notice mailed to taxpayer known to be incompetent insuffi-
cient to afford her notice).
Of course, "consideration should be given to the practicalities of
the situation" in each case. Tulsa Prof’l Collection Servs., 485 U.S.
at 489-90. However, "actual notice is a minimum constitutional pre-
condition to a proceeding which will adversely affect the liberty or
property interests of any party, whether unlettered or well versed in
commercial practice, if its name and address are reasonably ascertain-
able." Id. at 485 (internal quotation marks and citation omitted). For
this reason, the Court has held that even a state’s "legitimate interest
in expeditious resolution" of probate proceedings does not justify the
failure to mail notice of a "nonclaim" probate proceeding to a creditor
when the identity of the creditor was "reasonably ascertainable"
through "reasonably diligent efforts." Id. at 489, 491.
In 1983 the Court considered application of these principles in the
context of a tax sale, specifically, whether "constructive notice by
publication" to a mortgagee sufficed to inform the mortgagee of a
pending tax sale of property in which it had an interest. Mennonite,
462 U.S. at 798. The Court held that when the identity and location
of a mortgagee can be obtained through examination of public
records, "constructive notice alone does not satisfy the mandate of
Mullane." Id. Moreover, "a party’s ability to take steps to safeguard
its interests does not relieve the State of its constitutional obligation."
Id. at 799. Although a party required to provide notice need not "un-
dertake extraordinary efforts to discover . . . whereabouts . . . not in
the public record," it must use "reasonably diligent efforts" to dis-
PLEMONS v. GALE 9
cover addresses that are reasonably ascertainable. See id. at 798 &
n.4.
In sum, Mullane and its progeny teach that a party charged with
giving notice must be reasonably diligent in doing so. In the case of
a tax sale of property, diligence requires that reasonable efforts be
made to identify and locate parties with an interest in the property.
Once those parties are located, they must be provided notice of the
impending sale using a method reasonably calculated, under all of the
circumstances, to actually inform them of the sale.
B.
Here, Advantage examined the title to the property to identify and
locate those with interests in it and then arranged to send notice by
certified mail return receipt requested to the addresses that it found.
Each of the notices addressed to Plemons (or to Occupant of the sub-
ject property) was promptly returned as undeliverable. The question
before us is what efforts must be made by a party charged with giving
notice of irrevocable loss of property via a tax sale, when it is, or
should be, apparent from the initial mailings’ prompt return that they
have failed to provide any notice to the intended recipient.
Although the Supreme Court has not directly addressed this ques-
tion, it has provided some guidance in Covey and Robinson. In Covey,
351 U.S. at 146-47, when a town had mailed notice of its intent to
foreclose on a tax lien to a person whom the town knew to be men-
tally incompetent, the Court held that such notice was constitutionally
insufficient. Because the town was aware that, as a consequence of
the incompetence, the mailing did not actually provide notice, the
foreclosure constituted a deprivation of property without due process
of law. See also Robinson, 409 U.S. at 40 (holding that mailing that
the government knew would not accomplish notice was insufficient).
These cases, as one state supreme court has noted, "suggest that when
the party seeking to affect a property interest is itself on notice of the
failure of mailed notice to inform an interested party, the party must
take further action to determine a more accurate address or otherwise
ensure receipt of meaningful notice." Schwartz v. Dey, 665 S.W.2d
933, 935 (Mo. 1984) (en banc). Adopting the rule that prompt return
of mailed notice triggers a duty to make reasonable follow-up efforts
10 PLEMONS v. GALE
would seem to best comport with the instruction in Mullane that due
process requires efforts "reasonably calculated" to actually "apprise
interested parties" of the possible deprivation; that is, notice consis-
tent with that of "one desirous of actually informing the absentee,"
rather than efforts that are but a "mere gesture." Mullane, 339 U.S. at
314-15.
Most courts have reached precisely this conclusion.4 In case after
case they have held that the reasonable diligence standard requires a
party charged with notice to follow up when a mailing has been
returned as unclaimed or undeliverable. As the District of Columbia
Court of Appeals has remarked, "The return of the certified notice
marked ‘unclaimed’ should have been a red flag for some further
action." Malone v. Robinson, 614 A.2d 33, 38 (D.C. 1992); see also
Bank of America v. Giant Inland Empire R.V. Ctr., Inc., 93 Cal. Rptr.
2d 626, 635 (Cal. Ct. App. 2000) ("[O]nce County became aware that
Bank had not received notice regarding the tax sale, . . . County
should have made reasonable efforts to renotify Bank about the tax
sale at an alternate address.").
The Supreme Court of Pennsylvania, in Tracy v. County of Ches-
ter, Tax Claim Bureau, reminds that "it is a momentous event . . .
when a government subjects a citizen’s property to forfeiture for the
non-payment of taxes." 489 A.2d 1334, 1339 (Pa. 1985); see also St.
George Antiochian Orthodox Christian Church v. Aggarwal, 603
A.2d 484, 490 (Md. 1992) (noting "the importance of the property
right that is involved in the foreclosure of a right of redemption").
4
A few cases hold to the contrary. See Tsann Kuen Enters. Co. v.
Campbell, 129 S.W.3d 822 (Ark. 2003); Smith v. Cliffs on the Bay Con-
dominium Assoc., 617 N.W.2d 536 (Mich. 2000); Dahn v. Trownsell,
576 N.W.2d 535 (S.D. 1998); Hutchinson Island Realty, Inc. v. Babcock
Ventures, Inc., 867 So. 2d 528 (Fla. Dist. Ct. App. 2004). We do not find
them persuasive. None address, or even cite, the Supreme Court’s hold-
ings in Covey and Robinson. Moreover, these contrary cases rely on a
notion, rejected by the Supreme Court, that an interested party’s failure
to protect its interests, such as by registering a corrected or new address
with the government, relieves the party charged with notice of its consti-
tutional duty to provide notice. See Mennonite, 462 U.S. at 799 ("[A]
party’s ability to take steps to safeguard its interests does not relieve the
State of its constitutional obligation.") (emphasis added).
PLEMONS v. GALE 11
Because of the importance of the property right, "due process . . .
requires at a minimum that an owner of land be actually notified by
government, if reasonably possible, before his land is forfeited by the
state." Tracy, 489 A.2d at 1339. Thus, "where the mailed notice has
not been delivered because of an inaccurate address, the authority
must make a reasonable effort to ascertain the identity and where-
abouts of the owner(s)." Id. at 1338-39. Similarly, the New York
Court of Appeals has explained that, when notice is returned as unde-
liverable, "the enforcing officer is in no different position than if an
initial examination of the [tax] roll had yielded no address. Generally,
when the notice is returned as undeliverable, the tax district should
conduct a reasonable search of the public record." Kennedy v. Mos-
safa, 789 N.E.2d 607, 611 (N.Y. 2003).
Indeed, the courts so holding are legion. See, e.g., Akey v. Clinton
County, 375 F.3d 231, 236 (2d Cir. 2004) ("In light of the notice’s
return, the County was required to use ‘reasonably diligent efforts’ to
ascertain [the] correct address."); Rosenberg v. Smidt, 727 P.2d 778,
781-83 (Alaska 1986) (requiring, in a case in which notice was
returned as unclaimed, the exercise of due diligence to determine a
correct address); Schmidt v. Langel, 874 P.2d 447, 450 (Colo. Ct.
App. 1993) ("‘Diligent inquiry’ requires that if a notice has been
returned, the county treasurer must re-examine the county records to
check the address for accuracy and look for an alternative address.");
Giacobbi v. Hall, 707 P.2d 404, 408-09 (Idaho 1985) (holding that the
return of mailed notice as undelivered imposed a duty on the county
to make reasonable inquiry to find the owner’s correct address); Bry-
ant v. T.C.B. Enters., 395 So. 2d 823, 825-26 (La. Ct. App. 1981)
(requiring, after mailed notice was returned, further effort on the part
of the tax collector to inform tax debtors of delinquent taxes); St.
George Antiochian Orthodox Christian Church, 603 A.2d at 490-91
(holding that when the initial investigation of the tax rolls provided
the incorrect address, and notice was returned as undeliverable, the
parties should have made efforts to discover the correct address); City
of Boston v. James, 530 N.E.2d 1254, 1256 (Mass. App. Ct. 1988)
(requiring further inquiries when notice was returned); Patrick v.
Rice, 814 P.2d 463, 468 (N.M. Ct. App. 1991) (holding that the return
of mailed notice did not mean that the correct address was not reason-
ably ascertainable and voiding the tax sale in which the property at
issue was sold); O’Brien v. Port Lawrence Title & Trust Co., 688
12 PLEMONS v. GALE
N.E.2d 1136, 1145 (Ohio Ct. Common Pleas 1997) (ruling that the
county’s failure to follow up once notice was returned as undeliver-
able "fell far short of the reasonable diligence required"); Wells Fargo
Credit Corp. v. Ziegler, 780 P.2d 703, 705 (Okla. 1989) (holding, in
a case in which the county treasurer mailed notice, but the proof of
receipt was never received by the treasurer, "the act of mailing with-
out proof of receipt of notice falls short of the exercise of reasonable
diligence in assuring actual notice"); Good v. Kennedy, 352 S.E.2d
708, 711 (S.C. Ct. App. 1987) (holding that, when notice was
returned undelivered, diligence required further efforts to uncover a
correct address).
Likewise, many of our sister circuits, in a different but analogous
context, have required that the party charged with notice follow up
once it is clear that initial mailings have failed to provide notice. See
United States v. Ritchie, 342 F.3d 903, 911 (9th Cir. 2003) ("We now
join [the Second, Third, Fifth, Seventh, Tenth, and D.C.] [C]ircuits in
holding that, when initial personal notice letters are returned unde-
livered, the government must make reasonable additional efforts to
provide personal notice.").
As all of these cases recognize, initial reasonable efforts to mail
notice to one threatened with loss of property will normally satisfy the
requirements of due process. However, when prompt return of an ini-
tial mailing makes clear that the original effort at notice has failed, the
party charged with notice must make reasonable efforts to learn the
correct address before constructive notice will be deemed sufficient.
"A reasonable person presented with a letter that has been returned to
sender will ordinarily attempt to resend it if it is practicable to do so."
Small v. United States, 136 F.3d 1334, 1337 (D.C. Cir. 1998). Thus,
the district court properly held that the reasonable diligence standard
mandated by Mullane and its progeny required some follow-up effort
here.5
5
We do not hold, nor does Plemons argue, that the West Virginia statu-
tory scheme violates the Constitution. Rather, we hold that the statutory
scheme, as interpreted by the district court, see supra note 2, is constitu-
tional. However, because it is unclear whether the reasonable diligence
required by any constitutional scheme was exercised in the case at hand,
we must remand for further proceedings.
PLEMONS v. GALE 13
C.
However, a tax sale need not be set aside in every case in which
initial attempts at mailed notice have failed and no further mailed
notice is sent. Mullane instructs that "all the circumstances" of a case,
including its "practicalities and peculiarities," must be considered in
determining the constitutional sufficiency of notice. 339 U.S. at 314.
There may be instances when reasonable follow-up efforts would
yield no different address; and the Constitution only requires reason-
able efforts, given all of the circumstances of a particular case, not
receipt of actual notice.
In this case, the district court considered several possible follow-up
efforts. Although it initially noted that checking the public records
would be reasonable, the court does not seem to have determined if
that was done here. Instead, the court pointed to three other methods
it believed Advantage reasonably could have, but did not, pursue to
obtain Plemons’ address after receiving the returned mailings: con-
sulting the telephone directory, asking the tenants at the Echo Road
property, or making inquiries of the mortgagee bank. We do not agree
that reasonable follow-up compelled such efforts in this case.
Although checking the local telephone directory may be reasonable
in a given situation, see Small, 136 F.3d at 1338 n.3, here it would
have been an exercise in futility. The record shows that, both at the
time the notices were sent out, as well as when they were returned,
Plemons was not reachable at the number or address listed in the cur-
rent directory, and calls to that number were no longer being for-
warded to her mobile phone. Moreover, contacting the Echo Road
tenants seems an unreasonable burden here. Because it is undisputed
that the notice sent to Occupant at the property’s mailing address was
returned as undeliverable, it was a reasonable assumption that further
investigation at that address would be unsuccessful. Nor do reason-
able efforts require contacting the mortgagee bank, at least in this
case. As the Supreme Court noted in Mennonite, a property owner
and mortgagee are not in privity, and, under normal circumstances,
one cannot be expected to communicate notice of an impending tax
sale to the other. 462 U.S. at 799. There is no evidence that Plemons
enjoyed a special relationship with the bank such that attempting to
enlist its help would have led to the discovery of her correct location.
14 PLEMONS v. GALE
But, as the district court initially remarked, and as most cases
addressing this situation recognize, it is, at the very least, reasonable
to require examination (or re-examination) of all available public
records when initial mailings have been promptly returned as undeliv-
erable. See Akey, 375 F.3d at 237 ("‘[E]xtraordinary efforts’ typically
describe searches beyond the public record, not searches of the public
record."); see also Rosenberg, 727 P.2d at 780; Sinclair & Valentine
Co. v. County of Los Angeles, 247 Cal. Rptr. 568, 570 (Cal. Ct. App.
1988); Schmidt, 874 P.2d at 451; Giacobbi, 707 P.2d at 409; St.
George Antiochian Orthodox Christian Church, 603 A.2d at 490;
Fulton v. Cornelius, 758 P.2d 312, 316 (N.M. Ct. App. 1988); Ken-
nedy, 789 N.E.2d at 612; O’Brien, 688 N.E.2d at 1144; Tracy, 489
A.2d at 1339. Requiring perusal of publicly available information
does not subject the tax lien purchaser to the "impracticable and
extended searches [that] are not required in the name of due process."
Mullane, 339 U.S. at 317-18.
Accordingly, reasonable diligence required Advantage to search all
publicly available county records once the prompt return of the mail-
ings made clear that its initial examination of the title to the Echo
Road property had not netted Plemons’ correct address. Unfortu-
nately, the record in this case does not disclose what efforts, if any,
Advantage made to search public documents, or whether Plemons’
proper address would have been ascertainable from such a search.
Thus, we must remand the case to the district court for resolution of
these questions.
IV.
The district court’s order granting summary judgment to Plemons
is vacated and remanded for further proceedings consistent with this
opinion.
VACATED AND REMANDED
NIEMEYER, Circuit Judge, dissenting:
The issue in this case, stated slightly differently than the majority
opinion frames it, is whether § 11A-3-22 of the West Virginia Code
PLEMONS v. GALE 15
provides constitutionally deficient notice to a landowner of her right
to redeem property that is subject to a sale for the failure to pay taxes.
The issue is not, as the majority would have it, whether the purchaser
of the tax lien engaged in reasonable efforts to notify the landowner.
The standard for disposing of the issue before us is established in
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)
and Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983).
Mullane requires that a statute provide notice "reasonably calculated"
to apprise the landowner of the pending sale, 339 U.S. at 314; see also
Dusenbery v. United States, 534 U.S. 161, 168-71 (2002), and Men-
nonite held that reasonable notice is provided by mailing, see 462
U.S. at 798.
In connection with the collection of real property taxes, the rele-
vant West Virginia statute provides for the sale of tax liens on real
property under a process that is similar to that adopted in most states,
declaring it the State’s policy to provide "regular tax income for the
state, county and municipal governments" and to recognize that "de-
linquent land not only constitutes a public liability, but also represents
a failure on the part of delinquent private owners to bear a fair share
of the cost of government." W. Va. Code § 11A-3-1. One purpose
given for the statute is "[t]o provide for the speedy and expeditious
enforcement of the tax claims of the state and its subdivisions" and
for "the transfer of delinquent and nonentered lands to those more
responsible to, or better able to bear, the duties of citizenship than
were the former owners." Id.
Under the scheme established by the statute, when the owner of
real property becomes delinquent in the payment of taxes, the sheriff
publishes a notice of a tax lien against the property and a proposed
sale. In the notice, the sheriff provides the name of the person charged
with the payment of taxes, a description of the property, and the
amount of taxes owed. Notice of the lien and proposed sale is given
by publication and by certified mail, sent to the last known address
of the landowner, as well as to each person holding a lien on the prop-
erty. Id. § 11A-3-2. Following the sheriff’s sale, the sheriff prepares
a list of the tax liens sold, which he then publishes and files with the
clerk. Id. § 11A-3-9.
To secure a deed to the property, the purchaser of a tax lien must
not only continue to pay the taxes, but he must also provide the clerk
16 PLEMONS v. GALE
of the court with the names and addresses of persons who have the
right to redeem the property so that the clerk can send those persons
notice of the redemption right before conveying the property to the
purchaser. Id. § 11A-3-19. The statute requires that the clerk serve
that notice "in the manner provided for serving process commencing
a civil action or by certified mail, return receipt requested." Id. § 11A-
3-22. "If the address of any person entitled to notice, whether a resi-
dent or nonresident of [the] state, is unknown to the purchaser and
cannot be discovered by due diligence on the part of the purchaser,
the notice shall be served by publication . . . ." Id.
In this case, there is no evidence that the sheriff did not comply
with the statute by sending the notice of sale, and there is no evidence
that the purchaser of the tax lien on Plemons’ property did not comply
with the statute, providing the clerk with the name of Plemons and
several addresses where notice to her of her redemption rights was to
be sent. In particular, the purchaser gave the clerk three addresses for
Plemons: 913 Echo Road (the address of the property as contained in
the recorded deed); 917 Echo Road (the mailing address of the prop-
erty and the address given for Plemons in the telephone book); and
928 Garden Street (the address of another property owned by Ple-
mons). The purchaser also directed that the clerk send notices to "Oc-
cupant" at the two Echo Road addresses. Moreover, the record
contains no evidence of any other publicly available address for Ple-
mons.
Whether Plemons actually received notice under this scheme for
providing notice of the sale and a second notice of redemption rights
is not relevant to the question of whether the sheriff and the purchaser
followed the statutory scheme and whether that scheme satisfied the
Constitution in providing a method reasonably calculated to give Ple-
mons notice. See Dusenbery, 534 U.S. at 170. Moreover, the fact that
mail sent by the clerk to Plemons was returned undeliverable (because
Plemons had moved) was not relevant. The risk of any lack of notice
fell on Plemons if the method provided by statute was reasonably cal-
culated to give her notice.
The West Virginia statute falls well within the requirements of both
Mullane and Mennonite, which provide that mailing is a method rea-
sonably calculated to give notice. The statute provided for mailing
PLEMONS v. GALE 17
notice to Plemons once before the time of sale and again before the
expiration of the time for redemption. Because the method for giving
notice to Plemons was not constitutionally deficient, I would reverse
the judgment of the district court.