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O'Neal v. Wisen

United States District Court, S.D. West Virginia, Beckley Division

July 6, 2018

JEFFREY O'NEAL and SHERRIE O'NEAL, Plaintiffs,
v.
RICHARD WISEN and G. RUSSELL ROLLYSON, JR., Defendants.

          MEMORANDUM OPINION AND ORDER

          IRENE CBERGER UNITED STATES DISTRICT JUDGE

         The Court has reviewed Defendant G. Russell Rollyson, Jr.'s Rule 60(b) Motion Seeking Relief from an Order (Document 70) and supporting memorandum (Document 71), as well as Defendant G. Russell Rollyson, Jr.'s Motion to Vacate the Scheduling Order Pending Resolution of Rule 60(b) Motion and Petition for Writ of Certiorari (Document 72). For the reasons stated herein, the Court finds that the motions should be denied.

         This matter involves the sale of the Plaintiffs' property to Defendant Richard Wisen for delinquent taxes. Defendant G. Russell Rollyson, Jr. is the Deputy Commissioner of Delinquent and Nonentered Lands in West Virginia, responsible for issuing the tax deed. The facts and the parties' positions were fully explored in the Court's Memorandum Opinion and Order (Document 52) denying the Defendants' motions for summary judgment and granting the Plaintiffs' partial motion for summary judgment. In brief summary, the Plaintiffs owned a home, occupied by their adult daughter, and neglected to pay the 2012 property taxes. The property did not sell at an initial tax sale, and was certified to Mr. Rollyson's office for a second sale. Mr. Wisen purchased the property for $400 at that sale.

         West Virginia law places the duty to conduct a title search and identify the owners of record on the purchaser of the property. Mr. Rollyson's office then sends notice of the right to redeem the property to a list of addresses supplied by the purchaser. Although West Virginia law requires that notice be sent addressed to “occupant” at owner-occupied homes, Mr. Wisen did not include that in his list of addresses for notice, and Mr. Rollyson did not send such a notice. It is not clear whether such notice could have been sent to the physical address of the home, as neither the O'Neals nor their daughter had put out a mailbox. Mr. Wisen found the address for a post office box, and regular and certified letters addressed to Mr. and Ms. O'Neal were mailed to that address. The letters were returned to Mr. Rollyson's office as undeliverable and/or unclaimed. The factual record did not establish whether Mr. Rollyson informed Mr. Wisen that the letters were returned. Mr. Wisen testified that he was not informed that those notices were legally insufficient.

         Neither Mr. Wisen nor Mr. Rollyson attempted any other form of notice of the right to redeem before Mr. Rollyson issued the deed to Mr. Wisen. After obtaining the deed, Mr. Wisen had an eviction notice served to the property and posted on the door, and negotiations between Mr. Wisen and Mr. O'Neal began.

         Mr. Rollyson moved for summary judgment, arguing that West Virginia law places the duty to provide notice on the tax lien purchaser, and that he was entitled to qualified immunity. The Court found that United States Supreme Court precedent established that Constitutional due process requires additional steps, if reasonably available, when mailed notice is returned to the sender. Because Mr. Rollyson issued the tax deed despite his awareness that the notices were returned to the sender, the Court concluded that he was not entitled to qualified immunity, and a reasonable jury could find that his actions did not comply with due process. The Court further granted partial summary judgment to the Plaintiffs as to their claim that the Defendants deprived them of their property without due process.

         Mr. Rollyson filed an interlocutory appeal. On April 26, 2018, the Fourth Circuit affirmed this Court's denial of qualified immunity in an unpublished opinion. The Court found that “even assuming that the statutory scheme places the burden of ensuring constitutionally sufficient notice on the purchaser…Rollyson fails to demonstrate how his transfer of the deed to the purchaser, despite Rollyson's knowledge that the attempted notices were returned, did not violate the O'Neals' constitutional rights, clearly established in Jones v. Flowers, 547 U.S. 220 (2006), and Plemons v. Gale, 396 F.3d 569 (4th Cir. 2005). (Fourth Circuit Opinion at 4) (Document 61.)

         Also on April 26, 2018, the West Virginia Supreme Court issued a decision addressing notice requirements related to tax sales of property. Archuleta v. U.S. Liens, LLC, 813 S.E.2d 761 (W.Va. 2018). Mr. Rollyson seeks reconsideration of this Court's prior summary judgment opinion based on Archuleta. In addition, Mr. Rollyson indicates that he intends to file a petition for a writ of certiorari to the United States Supreme Court, and requests that the Court stay this matter pending resolution of such a petition.

         STANDARD OF REVIEW

         Rule 60(b) of the Federal Rules of Civil Procedure permits relief from a final judgment for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct ...

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