Judges: Carla J. Stovall, Attorney General of Kansas
Filed Date: 9/15/1998
Status: Precedential
Modified Date: 7/5/2016
The Honorable Richard Alldritt State Representative, 105th District 613 West 15th Harper, Kansas 67058
Dear Representative Alldritt:
You request our opinion regarding whether a bank, as mortgagee, may bid on property being sold pursuant to K.S.A.
As a preliminary matter, to clear up some of the confusion, we review the history of K.S.A.
"(a) Whenever any tract, lot or piece of real estate is offered for sale at public auction pursuant to K.S.A.
79-2804 , and amendments thereto, such tract, lot or piece of real estate shall not be sold, either directly or indirectly, to:"(1) Any person having a statutory right to redeem such real estate prior to such sale, pursuant to the provisions of K.S.A.
79-2803 , and amendments thereto;"(2) any person who held an interest in a tract as owner or holder of the record title or any mortgagee or assignee who held an interest at any time when any tax constituting part of the county's judgment became due;
"(3) any parent, grandparent, child, grandchild, spouse, sibling, trustee or trust beneficiary of any person enumerated in paragraph (2); or
"(4) with respect to a title holding corporation, any current or former stockholder, current officer or director, or any person having a relationship enumerated in paragraph (3) to such stockholder, officer or director."2
In 1995, the Legislature removed paragraph (2) from subsection (a) and added the phrase "who held an interest in a tract as owner or holder of the record title or who held an interest at any time when any tax constituting part of the county's judgment became due" to the above quoted paragraph (3) of subsection (a).3 In 1996, the Legislature again amended K.S.A.
The statute now provides in pertinent part as follows:
"(a) Whenever any tract, lot or piece of real estate is offered for sale at public auction pursuant to K.S.A.
79-2804 , and amendments thereto, such tract, lot or piece of real estate shall not be sold, either directly or indirectly, to:"(1) Any person having a statutory right to redeem such real estate prior to such sale, pursuant to the provisions of K.S.A.
79-2803 , and amendments thereto;"(2) any parent, grandparent, child, grandchild, spouse, sibling, trustee or trust beneficiary who held an interest in a tract as owner or holder of the record title or who held an interest at any time when any tax constituting part of the county's judgment became due; or
"(3) with respect to a title holding corporation, any current or former stockholder, current officer or director, or any person having a relationship enumerated in paragraph (2) to such stockholder, officer or director."
Subsection (a)(1) precludes sale of real estate up for public auction under these statutes to any person having a statutory right to redeem pursuant to K.S.A.
An argument could be made that the removal of paragraph (2) from subsection (a) in 1995 evidences a legislative intent to exclude mortgagees from the prohibition of K.S.A.
Finally, you inquire about K.S.A.
"K.S.A. 1996 Supp.
79-2812 is not limited in its application to persons having redemption rights in the property being sold. That is the function of K.S.A. 1996 Supp.79-2804 g. See also K.S.A. 1996 Supp.79-2804 j. The plain language of K.S.A. 1996 Supp.79-2812 precludes any person owning any real property on which taxes or special assessments are delinquent from purchasing any real property at a tax foreclosure sale."
Thus, if a mortgagee is a "person" who is record owner of any real estate upon which taxes or special assessments are delinquent, the mortgagee may not purchase real estate at a tax foreclosure sale.
In conclusion, a mortgagee having a statutory right to redeem real estate pursuant to K.S.A.
Very truly yours,
CARLA J. STOVALL Attorney General of Kansas
Julene L. Miller Deputy Attorney General
CJS:JLM:jm