12.18 2. Any Person With Publicly Recorded Interest

JurisdictionNew York

2. Any Person with Publicly Recorded Interest

The second category of those entitled to notice of a tax sale includes any person1862 “whose right, title, or interest was a matter of public record as of the date the list of delinquent taxes was filed, which right, title or interest will be affected by the termination of the redemption period.”1863 This category thus includes mortgagees, those whose names and addresses are “reasonably ascertainable” from the public record and various others identified through case law. Each is discussed below.

New York courts have followed Mennonite in similar cases involving a mortgagee in a tax foreclosure proceeding. Tref Realty Corp. v. New York1864 held that constructive notice by publication must be supplemented by notice mailed to the mortgagee’s last known address or by personal service.

Federal District Judge Telesca extended the Mennonite rule to a situation involving a mortgage lien of the United States of America. In Cooper v. Makela,1865 he held that notice by publication pursuant to RPTL §§ 1002 and 1024 was inadequate to notify the U.S. government that loans obtained from the Farmers Home Administration were about to be cut off. He said that the state has a constitutional obligation to provide mortgagees notice before divesting them of their interest.

Cooper might have been decided on other grounds, however, since at least one court has held that a federal mortgage lien is paramount to a county tax lien and therefore takes priority over a purchaser at a tax sale.1866

In Bender v. City of Rochester,1867 the Second Circuit found that Mennonite shifted the inquiry from whether, under all the circumstances, the notice was reasonably calculated to inform those with protectable interests (the Mullane standard) to a more focused examination of whether the names of such persons are reasonably ascertainable, in which event mail or equivalent notice is required.1868 In Bender, even though the name of a mortgagor was reasonably ascertainable from a routine examination of the land records, the names of his distributees were not. The distributees therefore were not afforded the Mennonite standard of notice.

Although extraordinary efforts to locate an interested party may not be required,1869 reasonably diligent efforts are needed.1870 The Third Department in Tobia v. Town of Rockland1871 added that to discover the current whereabouts of an owner, the town might have to search other town records, in addition to land records, for information more likely to aid in achieving actual notice by mailed service.1872 In Keiser v. Young,1873 however, the Third Department refused to require steps in addition to locating the address on the assessment roll to achieve notice.

In a case of one hand not knowing what the other was doing, the First Department held that the appearance by a city in the mortgagee’s foreclosure action was not sufficient notice by the city to the mortgagee when the city subsequently commenced a tax foreclosure on the same property.1874

Although Mennonite involved only a mortgagee in a tax foreclosure proceeding, the rationale of that case has been extended to many areas of the law unrelated to tax foreclosure.1875 The “reasonably ascertainable” test has burdened courts with the task of identifying parties other than mortgagees who are entitled to the kind of notice required by Mennonite. Several examples suffice to show the widespread attempts to apply that rule.

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