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Mortgagee sued to overturn a tax deed sale extinguishing its two mortgage liens on the subject property on the basis that the notice sent to it was returned as undeliverable. 

undeliverable_address Florida Statutes  §197.522(1),  provide that prior to a tax deed sale the Clerk of Court  is to issue notice of the application for a tax deed to interested parties as identified in §197.502(4). “Interested parties”  include  any mortgagee of record if the address appears on the recorded mortgage. The Clerk sent notice of the Tax deed sale to the mortgagee  at the address listed on both mortgages recorded against the subject property. The notice was returned as undeliverable.  The mortgagee admitted that it had moved its primary address and did not directly notify the Tax Collector’s office of the new address. The Clerk’s office admits that after the notice was returned it took no further action to attempt to locate a new address for Beneficial.

The court noted that cases of  Jones v. Flowers, 547 U.S. 220 (2006) [19 Fla. L. Weekly Fed. S158a]; Delta Property Management v. Profile Investments, Inc., 87 So. 3d 765 (Fla. 2012) [37 Fla. L. Weekly S157a]; and Vosilla v. Rosado, 944 So. 2d 289 (Fla. 2006) [31 Fla. L. Weekly S758a] in which a tax deed sale had been overturned for failure to provide notice.  But both Delta Property and Vosilla   involved notices to the property owners  who had notified government authorities that their mailing address had changed. Through no fault on the property owner’s part, the notices were sent to addresses that no longer were valid. In concluding that the tax deed sale in Delta Property was invalid the Florida Supreme Court summarized:

Pursuant to Jones and Vosilla, the Clerk had a duty to take additional, reasonable steps to attempt to provide notice to the legal titleholder before selling the property. As identified by those decisions, those reasonable steps depend on the particular circumstances of the case and may include: checking the records of the taxing authorities for a change of address submitted by the legal titleholder; resending notice by regular mail so that no signature is required; posting notice on the property to be sold, not merely at the last known address of the titleholder; or sending a notice addressed to “occupant” by regular mail. Delta Property, 87 So. 2d at 773 (emphasis added).

These cases are distinguishable on their facts because they involve inadequate notice to titleholders to property and do not involve alleged inadequate notice to a mortgage holder.

The mortgagee herein argued that the Clerk of Court should have searched public records or the internet to find a new address for the mortgagee when the notice of tax deed sale was returned undelivered  citing Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983). The U.S. Supreme Court stated that “prior 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.’ ” Id. at 795 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)(involving notice to beneficiaries on judicial settlement of accounts by the trustee of a common trust fund)).

In both Mullane and Mennonite Board the U.S. Supreme Court stated that mere publication, without any other attempt to notify interested parties, was not sufficient to provide adequate notice. In discussing mortgage holders in Mennonite Board, the U.S. Supreme court concluded, “When the mortgagee is identified in a mortgage that is publicly recorded, constructive notice by publication must be supplemented by notice mailed to the mortgagee’s last known available address, or by personal service. But unless the mortgagee is not reasonably identifiable, constructive notice alone does not satisfy the mandate of Mullane.” 462 U.S. at 798 (emphasis added). The Supreme Court did not require the government entity to search public records or to employ other means to locate a new address for the mortgagee.

The court ruled that the Clerk of Court complied with section 197.522(1) by sending notice to the mortgagee  at the “last known available address.” This Court notes that section 197.522(1)(d) states, “The failure of anyone to receive notice as provided herein shall not affect the validity of the tax deed issued pursuant to the notice.” Therefore, failure of the notice to be received by Beneficial, as a non-titleholder, does not affect the validity of the tax deed. The record conclusively shows that Beneficial’s claim cannot be proved as a matter of law and the Clerk is entitled to summary judgment.

BENEFICIAL FLORIDA, INC., v. KEN BURKE, in his capacity as Clerk of the Court, Pinellas County, Florida; Circuit Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 12-002057CI-21. UCN 522012CA002057XXCICI. February 19, 2013. John A. Schaefer, Judge.  20 Fla. L. Weekly Supp. 499b

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