JULIAN S. ARCHULETA, Defendant Below, Petitioner
US LIENS, LLC, Plaintiff Below, Respondent
Submitted: April 10, 2018
from the Circuit Court of Berkeley County Honorable
Christopher C. Wilkes, Judge Civil Action No. 15-C-407
M. McWilliams, Trump & Trump, Martinsburg, West Virginia,
Attorney for Petitioner.
Christopher P. Stroech, Arnold & Bailey, Charles Town,
West Virginia, Attorney for Respondent.
Noncompliance with the mandatory requirements of W.Va. Code
§ 11A-3-19 (2010) (Repl. Vol. 2017) is a jurisdictional
defect not subject to curative measures.
Virginia Code § 11A-3-19 (2010) (Repl. Vol. 2017)
provides that a property owner must be served notice of the
right to redeem property as outlined under W.Va. Code §
11A-3-22 (2013) (Repl. Vol. 2017), and that failure to
provide notice in the manner required will result in the tax
purchaser of the property losing all benefits of the
Virginia Code § 11A-3-22(d) (2013) (Repl. Vol. 2017)
provides that, in order to comply with the redemption notice
requirements for Class II property, in addition to other
notice requirements set forth in W.Va. Code § 11A-3-22,
notice must also be addressed to "Occupant" and
mailed to the property.
an appeal by Petitioner, Julian S. Archuleta (defendant
below), from a summary judgment order of the Circuit Court of
Berkeley County. The circuit court's order vested title
to Petitioner's home to the Respondent, U.S. Liens, LLC
(plaintiff below). In this appeal, the Petitioner contends
that she was entitled to summary judgment because there was
no material issue of fact in dispute regarding the
Respondent's failure to comply with all of the
requirements for providing her notice of the right to redeem
her home. After a careful review of the briefs, the appendix
record, and listening to the oral arguments of the parties,
AND PROCEDURAL HISTORY
record indicates that the Petitioner, who is in her
seventies, and her father purchased a home in Martinsburg,
West Virginia, in 1994. The home was subject to a mortgage.
It appears that the lender required the Petitioner and her
father to make monthly payments for property taxes into an
escrow account for the life of the loan. The lender was
ultimately responsible for paying property taxes from the
escrow account. The Petitioner's father died in 2003,
after which title to the property vested in Petitioner by
right of survivorship. The mortgage was satisfied in 2012.
Once the loan was satisfied the lender was no longer
responsible for paying property taxes.
the termination of the tax escrow account, the Petitioner
failed to pay her property taxes for the year 2012. As a
result of the 2012 taxes not having been paid, the Sheriff of
Berkeley County held an auction on November 19, 2013, to sell
the tax lien on the Petitioner's home. The Respondent
purchased the tax lien on the property at the auction. It
appears that during the first few months of 2015, the
Respondent, through the West Virginia State Auditor,
unsuccessfully attempted to have the Petitioner notified,
mail  and newspaper publications,  of her right to
redeem the property. On April 1, 2015, a deed to the property
was conveyed to the Respondent by a State Auditor appointee.
Thereafter, on July 23, 2015, the Respondent filed the
instant proceeding in circuit court to quiet title to the
Petitioner filed an answer and counterclaim to the petition
to quiet title.In her response, the Petitioner asserted
that in January 2015 she was hospitalized in Arlington,
Virginia.  The hospital eventually released her to a
nursing facility in Arlington. The Petitioner was not able to
return to her home in Martinsburg until April 2015. The
Petitioner further alleged that the Respondent failed to
comply with all of the statutory requirements for providing
her with notice of the right to redeem her home.
Specifically, the Petitioner alleged that the Respondent
failed to comply with W.Va. Code § 11A-3-22(d) (2013)
(Repl. Vol. 2017), by addressing a notice to redeem to
"Occupant" and sending it by first class mail to
parties eventually moved for summary judgment. By order
entered May 9, 2017, the circuit court granted summary
judgment in favor of the Respondent. The circuit court's
order acknowledged that the Petitioner was recovering from
health problems in Virginia during the period of time the
Respondent attempted to provide her with notice to redeem the
property. However, the order held that the Petitioner's
incapacitation "does not toll the redemption
deadline." The order also concluded that, although the
notice to "Occupant" mailing was not complied with,
the Petitioner "would not have received any additional
notice had a . . . first class letter been delivered to her
under a pseudonym." The circuit court ultimately
concluded that the Respondent substantially complied with the
redemption notice requirements. This appeal followed.
proceeding was brought from a summary judgment order of the
circuit court. We have held that "[a] circuit
court's entry of summary judgment is reviewed de
novo." Syl. pt. 1, Painter v. Peavy,
192 W.Va. 189, 451 S.E.2d 755 (1994). We have also held that
[s]ummaryjudgment is appropriate if, from the totality of the
evidence presented, the record could not lead a rational
trier of fact to find for the nonmoving party, such as where
the nonmoving party has failed to make a sufficient showing
on an essential element of the case that it has the burden to
Syl. pt. 2, Williams v. Precision Coil, Inc., 194
W.Va. 52, 459 S.E.2d 329 (1995). We will apply these
standards to our analysis of this appeal.
Petitioner contends that the circuit court's
summaryjudgment order should be reversed, because the
evidence clearly showed that the Respondent failed to have a
notice addressed to "Occupant, " and mailed to her
home as required by W.Va. Code § 11A-3-22(d). The
Respondent concedes that it failed to comply with the
"Occupant" notice requirement. However, the
Respondent argues that it provided the West Virginia State
Auditor with the address of the property, and that it was the
duty of the State Auditor to send out a notice of redemption
addressed to the "Occupant" of the address given.
The Respondent further argues that it should not be held
responsible for the State Auditor's failure to comply
with W.Va. Code § 11A-3-22(d).
start, we note that the Legislature has carved out detailed
statutes that regulate every aspect of the sale of real
property for delinquent taxes and the redemption of such
property. See W.Va. Code § 11A-3-1 et
seq. We have previously observed that "this area of
the law has undergone significant change in the last several
years, with each change increasing the protections afforded
the delinquent land owner." Mingo Cty. Redev. Auth.
v. Green, 207 W.Va. 486, 491, 534 S.E.2d 40, 45 (2000).
Many of the changes in this area of the law took place after
a decision by the United States Supreme Court recognized
certain constitutional due process notice requirements for
owners of real property subject to delinquent tax sales.
See Mennonite Bd. of Missions v. Adams, 462 U.S.
791, 800, 103 S.Ct. 2706, 2712, 77 L.Ed.2d 180 (1983)
("Notice by mail or other means as certain to ensure
actual notice is a minimum constitutional precondition to a
proceeding which will adversely affect the . . . property
interests of ...