United States District Court, S.D. West Virginia, Beckley Division
MEMORANDUM OPINION AND ORDER
CBERGER UNITED STATES DISTRICT JUDGE
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.
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.
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
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
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.
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.)
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.
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 ...