12.14 A. Mennonite Rule

JurisdictionNew York

A. Mennonite Rule

In 1983 the U.S. Supreme Court held that notice by publication and posting1820 did not provide a mortgagee of real property with adequate notice of a proceeding to sell the mortgaged property for nonpayment of taxes.1821 The Indiana tax sale statute at issue in Mennonite did not require that any notice (other than publishing and posting) be given to the mortgagee. Only the owner, under the then-existing statute, was entitled to notice by certified mail to his last known address. The Court held that a mortgagee possesses a substantial property interest that is significantly affected by a tax sale. Following the analysis of Mullane v. Central Hanover Bank & Trust Co.,1822 the Court concluded that a mortgagee’s interest is a legally protected interest. As such, the mortgagee is entitled to notice reasonably calculated to apprise him of a pending tax sale.

Justice O’Connor wrote a vigorous dissent and interpreted the majority to mean that, before the state conducts any proceeding that will affect the legally protected property interests of any party, the state must provide notice to that party by means certain to ensure actual notice as long as the party’s identity and location are “reasonably ascertainable.” This she found to be a “novel and unjustified principle,”1823 particularly in view of the fact that the recorded mortgage in the case at hand had failed to include the mortgagee’s address.1824

Focusing on the “reasonableness” aspect, Justice O’Connor said that “[w]hether a particular method of notice is reasonable depends on the outcome of the balance between the ‘interest of the State’ and ‘the individual interest sought to be protected by the Fourteenth Amendment.’ ”1825 She did not believe it the Court’s responsibility to prescribe the form of service that the state should adopt.1826 She asserted that the responsibility to strike the balance is with the state and that the Court should upset the process only when the state strikes the balance in an irrational manner.1827 As the discussion below illustrates, Justice O’Connor’s views concerning the balance between the “interest of the State” and “the individual interest sought to be protected by the Fourteenth Amendment” have become increasingly important to courts that have dealt with due process questions involving adequacy of notice.

The N.Y. Court of Appeals in 1983 had an opportunity to review Mennonite shortly after it was handed down.1828 In an action to determine title to a six-acre parcel of land, claimed by the plaintiff by adverse possession and by the defendant through a tax sale, the Court upheld the tax sale. Referring to the balancing process set forth in Mullane,1829 the Court repeated the language therein that

“[a]s to parties whose identity and address is known, notice by publication may not be sufficient. Those whose names or whereabouts are unknown and cannot be learned with due diligence or those whose interests are uncertain may be notified by publication even though it is reasonably certain that such notice will prove futile.” 1830

Since the adverse possessor’s name did not appear as owner on either the real property records or the tax rolls, notice to the adverse possessor solely by publication was adequate. The assessor was found to have made diligent inquiry of all the property within the town and of the names of the owners thereof as required by statute. The assessor was not required to make extraordinary efforts to discover the identity and whereabouts of an alleged owner (the plaintiff).

In 2003, the Court of Appeals in Zaccaro v. Cahill1831 summarized the law in New York with respect to the due process requirements of notice. That case, however, dealt with whether an owner had received actual notice that his lands were within a wetland; it was not a case involving an in rem tax foreclosure. The Department of Environmental Conservation (DEC), following the applicable statute, used tax maps to identify owners of land proposed for inclusion in a protected wetland and used the tax rolls to notify them of the proposal. Because the owner’s property was misidentified on the county’s tax maps, the owner did not receive the notice, and he...

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