Amended Motion to Dismiss on Grounds of Void Judgment Dorothy LaFortune's home was foreclosed and a Writ of Possession issued.  LaFortune contends that the foreclosure and writ were unlawful.  In Barb's opinion, the bureaucrats of the City of Biddeford goofed and LaFortune was not trespassing.  Where the foreclosure and writ were unlawful, the charge of criminal trespass must be dismissed.


 

STATE OF MAINE                                                                                     SUPERIOR COURT York, ss.                                                                             Location: Alfred Docket No. CR-03-1979  State of Maine Plaintiff v. Dorothy LaFortune Defendant  _______________________________________________  AMENDED MOTION TO DISMISS ON GROUNDS OF WHERE JUDGMENT OF CIVIL COURT WAS VOID ON JURISDICTIONAL GROUNDS,  DEFENDANT WAS OWNER OF PROPERTY AND  COULD NOT TRESPASS,  MAKING DISMISSAL MANDATORY BY OPERATION OF LAW

Now comes Defendant Dorothy LaFortune ["LaFortune"] and moves to dismiss the criminal complaint for trespass in this case.\1/  FN1  That statute reads, "A person is guilty of criminal trespass if, knowing that that person is not licensed or privileged to do so, that person . . . [r]emains in any place in defiance of a lawful order to leave that was personally communicated to that person by the owner or another authorized person." 17-A M.R.S.A. 167; 402(1)(D).  As grounds for her opposition, LaFortune states where judgment of civil court was void on jurisdictional grounds, defendant was owner of property and could not trespass, making dismissal mandatory by operation of law. ARGUMENTS 1. District Court does not have jurisdiction over the determination of title, making the order void ab initio. Certain events are undisputed. For instance, on 10 April 2002, the City of Biddeford published the pending sale on 5 June 2002 of its tax liens on LaFortune’s Graham Street property. The newspaper advertisement set forth 5 June 2002 as the date on which the sealed bids would be opened, reviewed, and awarded.  On 22 May 2002, without notice of any kind – without actual notice to LaFortune or notice by publication -- as required by 36 M.R.S.A. 943 and notwithstanding the publicly announced date for bidding, City Manager Bruce Benway ["Benway"] and Tax Collector Gayle Doyon ["Doyon"]  prematurely both conducted a sealed-bid sale of the tax liens on the subject property and opened the bids. On 4 June 2002, the Biddeford City Council voted to accept a bid from Tim Q. Ly ["Ly"] and authorized the purchase by Tim Q. Ly of the subject property. On 21 June 2002, the City of Biddeford, through Benway and Doyon, delivered a Municipal Quitclaim Deed to Ly "to release the City of Biddeford’s interest, if any, arising from matured tax liens dated . . . and recorded. . . . Meaning and intending to convey to the Grantee, the Grantor’s tax-acquired interest." The consideration given by Ly in exchange for the deed was $80,000, a sum more than $50,000 in excess of the amount of the City’s monetary interest in the liens.\2/ FN2  It has never been revealed to LaFortune where the more than $50,000-plus surplus went. The statutes are specific as to the procedure to be followed, but they were not followed. Subsequent to the City delivering of the deed to Ly, LaFortune’s only recourse was to challenge the validity of both the tax taking and the sale of the subject property, by initiating suit in York Superior Court against the City of Biddeford.\3/ This her prior counsel did on or around 24 June 2002. The rule, however, was not strictly followed by that court: she was denied a jury trial. The appeal of that case, which predated Ly’s FED action against her by about a month, is pending. Amongst the issues in her appeal is that she was not granted a full and fair hearing either before a bench or a jury in her case against the City.  FN3  LaFortune v. City of Biddeford, York Superior Court, Docket #AP-02-036 (filed 6/24/02) (Brennan, J.), aff’d __ ME ___ (SJC, [YOR-04-197] 2004). During or around the week between 30 July 2002 and 7 August 2002,\4/ Tim Q. Ly, seeking possession of the subject property, initiated his forcible entry and detainer ["FED"] action against LaFortune in York District Court,\5/ which had "exclusive original jurisdiction of all actions of forcible entry and detainer to recover the possession of real property." Bicknell Manufacturing Company v. Bennett, 417 A.2d 414, 416 (Me. 1980). FN4  There appears to be a discrepancy in the records.  FN5  See note 3, supra. The forcible entry and detainer statute, 14 M.R.S.A. §§6001 et seq., under which Ly sued, applies to landlords and tenants. To be applicable to the case between Ly and LaFortune, Ly had to be deemed a landlord and LaFortune, a tenant. The definitions of tenant in §6001(1) [1995, c. 372, §1 (amd)] do not include a person such as LaFortune and process may not be maintained against her; e.g., LaFortune was not a disseisor who has not acquired any claim by possession and improvement;  LaFortune was not a tenant holding under a written lease or contract or person holding under such a tenant;  LaFortune was not a tenant where the occupancy of the premises is incidental to the employment of a tenant;  LaFortune was not, at the expiration or forfeiture of the term, without notice, if commenced within 7 days from the expiration or forfeiture of the term, a tenant at will, whose tenancy has been terminated as provided in section 6002; and  LaFortune was not a mobile home owner and tenant pursuant to Title 10, chapter 951, subchapter VI.  LaFortune was not one of multiple occupants of an apartment or residence whose name appeared on a lease or rental agreement for the premises or whose tenancy Ly acknowledged by acceptance of rent or otherwise.  A defendant such as LaFortune in a FED action may find relief in Rule 76C(d) of the Maine Rules of Civil Procedure:\6/ FN6  Section 6006 of Title 36 had been repealed around 1995 or 1996. (This is the statute counsel did not realize had been repealed, and wrote about in her original opposition. Not all, but some of the provisions were available in the rules as discussed below.). And Rule 73(b), the removal statute, had been abrogated, but Rules 76C and 76D took its place functionally. "Rule 76C(d) carries forward provisions of the prior rule permitting removal by either party if title to real estate is put in issue by the pleading. An exception is made for the statutory provision concerning forcible entry and detainer discussed in connection with subdivision (a) above." RULE 76C. REMOVAL TO SUPERIOR COURT FOR JURY TRIAL, Advisory Committee’s Notes. 1991, at 281.\7/\8/\9/   FN7  Rule 76D allows removal of a FED action for appeal from District to Superior court when the defendant pleads title.  FN8  Under Rule 80D(i), removal is permitted in FED actions "only in accordance with the statutory provision for entry of the action in the Superior Court by the plaintiff when the defendant pleads title." RULE 76C. REMOVAL TO SUPERIOR COURT FOR JURY TRIAL, Advisory Committee’s Notes. 1991, at 280. FN9  Rule 80D(i) conflicts with Rule 76C(d) in that Rule 80D(i) prohibits removal of FED actions, except as provided by statute . . . and 76C(d) is a Rule, not a statute. Rule 80D(g), however, not only prohibited LaFortune from filing a counterclaim against Ly, it also prohibited her from joining Ly’s forcible entry and detainer ["FED"] action with her action against the City in Superior Court. Her existing suit against the City in Superior Court regarding title to her property should have alerted the District Court judge to put a stay on the FED action, but he did not do so. Nevertheless, where there had been–and still has been--no final resolution of LaFortune v. City of Biddeford, the issuance of the writ of possession by the district court against her was premature and unlawful: it deprived her of her constitutional rights to due process and equal protection and made meaningless her First Amendment right to petition as well her right to appeal under Rule 76C(d) or 80D. See Rule 80D, FORCIBLE ENTRY AND DETAINER, Advisory Committee’s Notes, 1990, at 338-339. The writ of possession should have been precluded. Id. at 339. Specifically, under Town of Pownal v. Anderson, infra, LaFortune was a homeowner who was deprived of rights protected by statutory and common law: A forcible entry and detainer action is "‘a summary proceeding to decide who is entitled to the immediate possession of land.’" Tozier v. Tozier, 437 A.2d 645, 647 (Me. 1981) (quoting Bicknell Mfg. Co. v. Bennett, 417 A.2d 414, 421 (Me. 1980)). In this matter, the determination of title is dispositive of the right to immediate possession. If the Town failed to perfect its title through the tax lien process, the Andersons remain entitled to immediate possession of the property. If, on the other hand, the Town properly obtained title through the lien process, the Town is entitled to immediate possession of the property. Town of Pownal v. Anderson, 1999 ME 70, ¶5, __ A.2d __ (Docket #Cum-98-644) (1999) (emphasis supplied).  This area of law requires careful attention to statutory requirements by both the Town and the taxpayer. Just as the taxpayer may lose her property if she fails to be vigilant in complying with the requirements, see  Fitzgerald v. City of Bangor, 1999 ME 50, ¶ 17, __ A.2d __, so must the Town strictly adhere to its requirements. See Dubois v. City of Saco, 645 A.2d 1125, 1127 (Me. 1994); Blaney v. Inhabitants of Shapleigh, 455 A.2d 1381, 1387 (Me. 1983); Arsenault v. Inhabitants of Roxbury, 275 A.2d 598, 599-600 (Me. 1971). Only if departure from the statutory requirements is explicitly allowed by statute will such departure be tolerated. See Avco Delta Fin. Corp. v. Town of Whitefield, 295 A.2d 921, 924 (Me. 1972).  Town of Pownal v. Anderson, 1999 ME 70, ¶14 (emphasis supplied).  Missing from the chronology were events that had to occur but seem not to have occurred: Notice to LaFortune between 30 and 45 days prior to the scheduled sale date. 36 M.R.S.A. §943. This is to give notice of the approach of the end of the redemption period; and The recording of a Notice of Impending Automatic Foreclosure of the last few recorded municipal liens. Without Notice of Impending Automatic Foreclosure in place in the Registry, the City was unable to lawfully foreclose on LaFortune’s property. In the civil cases, LaFortune argued that one significant event occurred which should not have occurred, and that was the delivery of the deed to Tim Q Ly before her redemption period under 36 M.R.S.A. §1076 had expired.\10/ In Ly v. LaFortune, 2003 Maine 119, the SJC wrote that because the City had chosen to foreclose under 36 M.R.S.A. §943, the alternative process in §1076 was inapplicable. The SJC, however, had no citation for that proposition (because it is an issue of first impression) and the wording in neither statute supports that proposition. LaFortune contends that in §943, the redemption period to which the statute refers is the 18-month redemption period prior to the "Impending Automatic Foreclosure" and that in §1076, the redemption period to which the statute refers is the 2-year redemption period that after the sale to a purchaser of the property sold by the City.\11/ They are not alternatives. The SJC erred.\12/ The provisions in §§943 and 1076 refer explicitly to two totally different periods. Indeed, it is reasonable to conclude from the explicit language of those sections that the Maine legislature was giving a homeowner an opportunity both (1) to challenge the City-imposed real-estate tax and to defend the nonpayment thereof on grounds of disability or poverty (which was denied LaFortune)\13/ and (2) to challenge the sale of the property to a third party by the City.  FN10  Section 1076 is entitled "Purchaser to notify mortgagee of sale; right of redemption."  FN11  LaFortune was without counsel for that appeal. The decision by the SJC on that point, she contends, was unconstitutional on the well-settled grounds that every word in a statute must be given plain meaning . . . and they were not. FN12  LaFortune contends that the Maine SJC committed reversible error and deprived her of her constitutional property rights. Indeed, had LaFortune had the assistance of effective counsel in the Ly v. LaFortune case, she might have sought certification for the issue raised by the Maine SJC to the United States Supreme Court. After all, fundamental property rights were being attacked and she was being deprived of them. FN13  LaFortune has a letter [Figure 3 in Exhibit B, infra at 15] from the City telling her that abatement was not available to her, despite the language in §§943 and 943-A. If you cannot pay the property taxes you owe please contact me to discuss this notice.  Municipal Treasurer. [1985, c. 364, §1 (new).] 36 M.R.S.A. §943   Beginning with taxes that are assessed after April 1, 1985, each notice under section 942 and 1281 which is sent by a municipality or the State Tax Assessor to a person against whom taxes have been assessed, shall contain a statement that that person may apply for an abatement of taxes if the person cannot pay the taxes that have been assessed because of poverty or infirmity. [1985, c. 364, § 2 (new).] 36 M.R.S.A. §943-A. Application for abatement In Ly v. LaFortune, LaFortune also argued that there were many deficiencies in the tax-lien process, and Biddeford District Court Justice Douglas so found:  Although both parties submitted copies of various official records relating to the city’s efforts to foreclose on the instant property, and the city manager was called to testify on the subject, the city itself was not a party to this action. The court, therefore, may not have had the benefit of fully developed record with regard to all actions taken by the city in connection with the foreclosure process in issue. Based solely on the record presented, it appears there may have been irregularitiesin the statutory foreclosure process for some of the years in question. However, as is discussed above, the city correctly followed the process with respect to the taxes committed on the property in August 1998. The city’s compliance with statutory foreclosure requirements in connection with the August 1998 tax commitment, coupled with Defendant’s awareness of, and responsibility for, her unpaid taxes, is sufficient to satisfy any due process safeguards, notwithstanding the fact that there may have been technical deficiencies in the foreclosure processes in other years. Ly v. LaFortune, Biddeford District Court Docket #SA-02-311, slip op. at 2-3 n. 1 (Douglas, J.) [emphasis supplied].\14/\15/ FN14  There were technical deficiencies not in the years prior to and after 1998 through 2003, but also in 1998. Assuming arguendo that Justice Douglas was correct, doing it correctly only one year out of a decade does not, however, constitute a preponderance of the evidence in the City’s or Ly’s favor in the civil cases. It certainly does create reasonable doubt in this criminal case as to whether the Ly order that the State wants to have admitted without challenge is a lawful order. It certainly does create reasonable doubt in this criminal case as to whether LaFortune was trespassing on the Graham Street property on the day a SWAT team was sent in to forcibly remove her from her home.  FN15  According to the Registry, nothing happened regarding the property in August 1998. In fact the deficiencies and/or irregularities were continuous for years. See Exhibit A, attached hereto this opposition to the Motion in Limine. In Exhibit A, LaFortune has summarized the deficiencies and/or irregularities found after a title search was performed for purposes of this opposition. In addition to the bold-faced comments, another of Justice Douglas’s comments stands out: "[T]he city correctly followed the process with respect to the taxes committed on the property in August 1998." In the Title Search which LaFortune caused to be conducted, there were two documents recorded by the City: Notice of Impending Automatic Foreclosure (§943) undated notary signature but recorded on 02/02/98 (referring to #22 above) in Book 8622, Page 006, setting a foreclosure date of 12/29/97. Notice of Impending Automatic Foreclosure in name of John G. DellaJacova dated 04/09/98 (referring to #23 above) in Book 8732, Page 069, setting a foreclosure date of 03/27/98. The first had an undated notary signature, which has been forgiven in one case, but both Notices of Impending Automatic Foreclosure were filed AFTER the scheduled foreclosure dates. Under Town of Pownal, supra, that extreme noncompliance would result in the title being left in LaFortune’s name, supra. Judge Douglas also did not take into consideration the provisions of Maine District Court Civil Rule 76C(d) or 80D, by which LaFortune was entitled to have her claim that she had title to the subject property fully litigated in Superior Court. Where LaFortune made title the only issue to be decided, the FED case came "within the cognizance of the Superior Court. Bicknell, 417 A.2d at 416. Clearly, given the noncompliance by Ly and the District Court with the relevant statutes, given the multiple acknowledgements by the District Court judge in footnote 1 of his memorandum and order that there were deficiencies and iregularities in the process followed by the City, and  given the explicit pronouncement by the Court in Town of Pownal v. Anderson, supra,that if the Town failed to perfect its title through the tax lien process, the defendants remained entitled to immediate possession of the property and that any departure – without explicit statutory permission -- from the statutory requirements will not be tolerated, the District Court did not have jurisdiction over the determination of title, making the court order void ab initio and unavailable for use under the doctrine of collateral estoppel, or issue preclusion. Thus Biddeford District Court did not have the authority to determine which of the parties had superior title [Bicknell, at 415-416]. "Forcible entry and detainer is not a plenary action to quiet title to land but is, rather, a summary proceeding to decide who is entitled to the immediate possession of land." Bicknell, at 421, citing Throumoulos v. Bernier, 143 Me. 286, 61 A.2d 681 (1948).  But if [a court] act without authority, its judgments and orders are nullities; they are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal, in opposition to them; they constitute no justification, and all persons concerned in executing such judgments, or sentences, are considered in law as trespassers.' Williamson v. Berry, 49 U.S. (8 How.) 495, 541 (1850). When the court lacks jurisdiction, "the court has no authority to reach merits" and should then dismiss the action. Melo v. U.S., 505 F.2d 1026, 1030 (8th Cir. 1974). "Where there is no jurisdiction over the subject matter, there is, as well, no discretion to ignore that lack of jurisdiction. See F.R.Civ.P. 12(h)(3)."\16/Joyce v. U.S., 474 F.2d 215, 219 (3rd Cir. 1973).  FN16  F.R.Civ.P. 12(h)(3): "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."  . . . whenever the right to property is claimed to have been changed under a judgment or decree by a court, and it is set up as a defence in another court, the jurisdiction of the former may be inquired into. The rule is, that where a limited tribunal takes upon itself to exercise a jurisdiction which does not belong to it, its decision amounts to nothing, and does not create a necessity for an appeal. Attorney-General v. Lord Hotham, Turn. & Russ., 219. Williamson v. Berry, 49 U.S. (8 How.) 495, 543 (1850) [emphasis supplied].  After the District Court issued its void judgment and/or unlawful order, LaFortune appealed the ruling in Ly v. LaFortune to the Superior Court. That court used M.R.Civ.P. 80D(f)(5) as grounds to dismiss the appeal, despite Justice Douglas’s acknowledgement of the City’s noncompliance with the statutes, i.e., of the existing "deficiencies" and "irregularities" in the process.  LaFortune had been denied a full and fair adjudication to which she was entitled. Restatement (Second) of Judgments, §§27-29 and the First Circuit’s Levasseur, 699 F. Supp. at 981. On 15 May 2003, Ly sought a Writ of Possession, and on 3 June 2003, over LaFortune’s opposition, the court issued the first Writ of Possession to Ly. Thereafter, diverse pleadings, including Motions to Stay, were filed in diverse courts.  During June 2003, LaFortune appealed the ruling of the York Superior Court in Ly v. LaFortune to the Maine Supreme Judicial Court. Superior Court had also denied Lafortune's motion for a stay and issued a Writ of Possession, but her request for a stay of the Writ of Possession was  granted by a single justice of the SJC.Ly v. LaFortune, 2003 Me. 119, ¶3. SJC Justice Levy then affirmed the lower-court decisions on 14 October 2003. 2003 Me. 119.  On 4 November 2003, a second Writ of Possession issued from Biddeford District Court giving the sheriffs the authority to remove LaFortune from her Graham Street property.  On 12 November 2003, Ly’s Writ of Possession was again served on LaFortune. On 14 November 2003, Ly sought the assistance of the Biddeford police to enforce the writ and on 19 November 2003, a SWAT time forcibly removed LaFortune from her home on Graham Street. On or around 20 July 2004, LaFortune appealed the ruling of the York Superior Court in LaFortune v. City of Biddeford to the Maine Supreme Judicial Court, which has not yet disposed of the case. At no time since 24 June 2002 has LaFortune been given an opportunity to present evidence of her claims and defenses in her action against the Biddeford. At no time since 24 June 2002, when she filed LaFortune v. City of Biddeford, has LaFortune been given the opportunity in York Superior Court to have a "a trial bearing on the aspects of the merits of the action," that is, to determine whether she had superior title to the real property on Graham Street. LaFortune was similarly precluded in Ly v. LaFortune from defending her title during the trial in Biddeford District Court. In sum, it is both undisputed that LaFortune has been at all times denied a full and fair trial on her claim of title, and indisputable that the judgment in Ly v. LaFortune issued before her claim of title was fully litigated, thereby voiding the judgment, if not making it unlawful.  Where two of the several basic requisites for the invocation of the doctrine of collateral estoppel – no full and fair trial and the lack of a valid judgment -- are absent, the doctrine of collateral estoppel is inapplicable. Conclusion WHEREFORE, LaFortune prays this motion be ALLOWED.

Respectfully submitted, Dorothy LaFortune,  By her attorneys, _____________________________________ Barbara C. Johnson, Esq., Mass. B.B.O.  6 Appletree Lane Andover, MA 01810-4102  978-474-0833   Local Counsel,  _________________________________________ Thomas A. Grossman, Esq., Maine B.B.O.  Grossman & Grossman, PC 40 Babcock Street P.O. Box 2011 Brookline, MA 02446 617-975-0005  16 September 2004 CERTIFICATE OF SERVICE I, Barbara C. Johnson, hereby certify that I caused to be emailed on 16 September 2004 and served by first-class mail on 16 September 2004 a true and accurate copy of this document on District Attorney Mark W. Lawrence, York County Courthouse, P.O. Box 399, 45 Kennebunk Road, Alfred, Maine 04002-0399. __________________________________ Barbara C. Johnson 16 September 2004


 

EXHIBIT A SUMMARY OF TITLE SEARCH (A RUNDOWN) The Judgment of Foreclosure and Sale, BID-94-CV-323, Saco and Biddeford Savings Bank v. Dorothy Ruel, dated 2/13/95 and recorded at Book 7390, page 271, on 4/21/95, but it appears not to have shown up at Registry. Two Notices of Impending Automatic §943 Foreclosures [Book 8622, Page 006, setting a foreclosure date of 12/29/97; and Book 9240, Page 327, setting a foreclosure date a year later, of 12/30/98] had undated notary signatures.\17/    FN17  Since 2000, a jurat of a notary must be dated; otherwise the jurat is defective. 32 M.R.S.A. §352(2), as amended [2001, c. 275, Pt. B, §1 (amd).]:   A record of a deed or other instrument, . . . made prior to January 1, 2000 for the conveyance of real property, or of any interest in the property, and recorded in the registry of deeds of the county in which the real property is located is valid and enforceable even if: (2) [t]he records in relating to the title to real property fail to disclose the date when received for record or the records have not been signed by the register of deeds or other duly authorized recording officer for the county. In other jurisdictions, too, the date is required in the jurat of notary public. Com. v. Reynolds, 36 Mass.App.Ct. 963, 635 N.E.2d 254, 255 (1994) ("As to the jurat of a notary public . . . within Massachusetts, . . . the act of affixing one's signature and writing in the date on which one's commission expires is formality adequate to the occasion").   Five Notices of Impending Automatic §943 Foreclosures were filed AFTER the scheduled foreclosure date: e.g., notices filed in Book 8622, Page 006; Book 9240, Page 327; Book 8732, Page 069; Book 9825, Page 163; and Book 9825, Page 237.\18/ Where Notice of Impending Automatic Foreclosure is filed AFTER the scheduled date for sale, the Notice is not notice.   FN18  The Notices included claims by the City that demands for payment were made of LaFortune, but none of the Notices included the dates of demands. Given the lack of safeguards of a homeowner’s fundamental right to own real property, the statute is likely unconstitutional. One Municipal Lien Certificate, recorded in Book 7096, Page 004, was discharged in Book 11771, at both Page 292 and Page 293. Two Municipal Lien Certificates to which two Notices of Foreclosure (those at Book 9825, Page 163, and Book 9825, Page 2370) referred were not recorded.  The Notice of Impending Automatic Foreclosure (a) recorded in Book 9825, Page 163, (b) pursuant to 14 M.R.S.A. §943, and (c) of a non-existent or, at the very least, un-recorded Municipal Lien Certificate for Sewer arrearages has no effect, given that it is not a notice pursuant to the applicable statute, namely, 38 M.R.S.A. 1208. The Municipal Lien Certificate recorded in Book 9515, Page 141, pursuant to 14 M.R.S.A. §§942, 943 for Sewer arrearages has no effect, given that it is not the lien that is required under 38 M.R.S.A. 1208, which sets forth explicitly the lien to be used for sewer arrearages. The Municipal Lien Certificate recorded in Book 10060, Page 125, pursuant to 14 M.R.S.A. §§942, 943 for Sewer arrearages has no effect, given that it is not the lien that is required under 38 M.R.S.A. 1208, which sets forth explicitly the lien to be used for sewer arrearages. There was no recording of Notice of Impending Automatic Foreclosure on the Municipal Lien Certificate recorded on 6/10/92 in Book 11695, Page 199. It was this foreclosure which culminated in the alleged sale of LaFortune’s Graham Street property to Tim Q. Ly. Under 36 M.R.S.A. §943, the City was not to issue a Quitclaim Deed until after the period of redemption, but held onto it only a 2½ weeks after the purported acceptance on 4 June 2002 of Tim Q. Ly’s allegedly sealed bid, made on 22 May 2002. Note: On 4/10/02, the City published that the foreclosure sale pursuant to 36 M.R.S.A. §§841, 942, and 943 would take place on 22 May 2002 and that the bids would be opened, reviewed, and awarded on 5 June 2002. They were opened on 22 May 2002 and approved on 4 June 2002. The Bottom Line: Between 1991 and 1994, there were recorded municipal liens primarily for sewer arrearages and one for taxes. All of them appear to have been discharged by actual payment. During April 1995, the Saco & Biddeford Savings Institution was granted a judgment of foreclosure and sale of the property located at 22 Graham Street in Biddeford, but that institution never did foreclose. According to Attorney Roger Elliott, a mistake had occurred in the processing of the foreclosure and caused a fatal noncompliance with the applicable statute. After 1995, there was either waiver of the right to sell or noncompliance by the City. If and when the Notices of Impending Automatic Foreclosure were in compliance with 36 M.R.S.A. §943, the city took ownership of the Graham Street property by operation of law when the liens were automatically foreclosed upon expiration of the period for redemption.  The following are examples of the conduct of the City of Biddeford after it filed its Notices of Impending Automatic Foreclosure pursuant to 36 M.R.S.A. §943: failed to record discharges of those tax liens until 6/24/02, after it had sold the property to Tim Q. Ly, as also required under 36 M.R.S.A. §943, repeatedly failed to conduct a sale on any of the dates set out explicitly in the Notices,  repeatedly waived its ownership of the property when it sent Dorothy LaFortune (a/k/a Dorothy Ruel) tax bills for each of the ensuing years, and repeatedly caused a growing cloud on the title, inhibiting the sale of the property. By the above conduct in (a) through (d), the City repeatedly waived its rights to ownership.  And in addition to the above conduct, the City sent LaFortune ["Dorothy Ruel"] a tax bill in 2003, which she paid and received a receipt. SeeFigures 1and 2, infra at 13. With that bill, the City was continuing to consider LaFortune the owner of the Graham Street property. When the foreclosure sale was advertised on 4/10/02, the following – according to the Registry records – were true:  there were three municipal instruments that had been recorded but not either discharged or waived or reincarnated either by statute or by judicial process; they were:


 

Figure 1. Tax bill for period from July 1, 2002 through June 30, 2003 after the alleged purchase by Tim Q. Ly of the property

Figure 2. Receipt for Tax Payment Installment

Municipal Lien Certificate – Sewer Charges -- dated 06/06/01 in the amount of $564.13 plus interest of $53.60 and $34.74 in costs, and recorded in 6/7/01 in Book 10698, Page 200.  Municipal Lien Certificate dated 06/06/01 in the amount of $1630.53 plus interest of $70.60 and $34.74 in costs and recorded on 6/07/01 in Book 10699, Page 214.  Municipal Lien Certificate dated 06/10/01 in the amount of $1523.78 plus interest of $72.97 and $34.94 in costs, and recorded on 6/10/02 in Book 11695, Page 199.  When the sale occurred on 22 May 2002, the period of redemption on none of them had expired.  When the sale occurred on 22 May 2002, the City had not made a statutorily proper demand on LaFortune for payment of any of the three liens.  When the sale occurred on 22 May 2002, the City had not recorded a Notice of Impending Automatic Foreclosure for any one of them.  In sum, the City had not complied with §§942 and 943, thereby causing the bidding and subsequent sale of the Graham Street property to be unlawful, as well as causing the order allowing the Writ of Possession to be an unlawful order.  Moore v. Dick, 187 Mass. 207, 211-212, 72 N.E. 967 (1905), where the court, in setting aside a foreclosure sale on account of defective notice, stated: "It is familiar law that one who sells under a power (of sale) must follow strictly its terms. If he fails to do so there is no valid execution of the power and the sale is wholly void ... (citations omitted). The manner in which the notice of the proposed sale shall be given is one of the important terms of the power and a strict compliance with it is essential to the valid exercise of the power." McGreevey v. Charlestown Five Cents Sav. Bank, 294 Mass. 480, 483-484, 2 N.E.2d 543 (1936). Tamburello v. Monahan, 321 Mass. 445, 447, 73 N.E.2d 734 (1947).  Bottomly v. Kabachnick, 434 N.E.2d 667, 670, 13 Mass.App.Ct. 480, (1982). [¶18] The automatic foreclosure of a tax lien under section 943, upon the failure to redeem, divests an owner of her equity of redemption. See City of Auburn v. Mandarelli, 320 A.2d 22, 30 (Me. 1974). We have stated that:   after the filing of the tax lien certificate and notice properly given thereon and the passage of eighteen months' time, during which the taxes remain unpaid, complete record title to the property is placed in the municipality. The former owner's right of redemption and in fact his title are extinguished. Morissette v. Connors, 350 A.2d 332, 333 (Me. 1976).{13}\19/ In addition, "[u]nder Maine law, a mortgage on real property is a conditional conveyance with legal title vested in the mortgagee." Duprey v. Eagle Lake Water and Sewer Dist., 615 A.2d 600, 602 (Me. 1992). "The mortgagor retains only the right to possess the premises and the equity right of redemption." Id. (citing Martel v. Bearce, 311 A.2d 540, 543 (Me. 1973)). Because tax lien foreclosures vest full and unencumbered title in the municipality upon the failure to redeem, pursuant to section 943, the mortgagees' interests appear to be divested as well.{14}  Ocwen Federal Bank, FSB v. Anne Gile et al., 2001 ME 120, ¶18 (2001) (Yor-00-625). Unfortunately, the Court in Ocwen wrote: " This opinion does not address the issue of post-deadline waiver of an automatic foreclosure deadline" [id., at n. 8]. Neither does it address the issue with which LaFortune is concerned here.  FN19  {13} . See also Magno v. Town of Freeport, 486 A.2d 137 (Me. 1985) (stating "in the absence of contrary provisions by statute or constitution, a municipality's title to property acquired under the tax-lien-mortgage- foreclosure statute . . . is absolute" and the municipality has "no duty to reconvey the property to the former taxpayer-owner on any theory of equity and good conscience" if payment is then tendered).  Ocwen, 2001 ME at ¶18 n. 13. The issue here appears to be one of first impression: Whether a city waives its absolute ownership when it sends a tax bill to the mortgagor – i.e., the owner of the property prior to the foreclosure -- on a date after the foreclosure but before a sale of the property to a third-party. LaFortune contends that Biddeford waived its absolute ownership each and every time it failed to sell the property and continued to send her tax bills. And further, when the City failed to follow the foreclosure procedures of §§ 942 and 943, it did not re-acquire ownership of her Graham Street property.


 

EXHIBIT B FEBRUARY 2000 LETTER FROM CITY MANAGER  MISLEADING LAFORTUNE REGARDING ABATEMENT Figure 3. Boldface emphasis added to sentence regarding abatements.