What is the name of your state? Louisiana
This may be better placed in a general litigation section, but since I am gonna throw in substantial background info to lead up to my query, and it's all "Real Estate Law", I opted for this section. I know that this is a lengthier post than need be, but I believe that background can help clarify a question:
A friend of mine's mother bought a piece of land at tax sale in 2001. After five + years elapsed from the sale date (and the recording of the tax deed in her name), she filed a petition to quiet title, following statute and having an "ad hoc curator" appointed to represent the absent tax debtor and accept service for him (I believe was the term that was used for counsel for the absent tax debtor). Well, the guy turns up shortly thereafter, contesting the tax sale.
Louisiana has a three year redemption period and a five year period to challenge the validity of the tax sale. The three year redemption is peremptive, the five year challenge period is prescriptive. This tax debtor argued possession as a means to interrupt the prescriptive period and challenge the tax sale, and then argued, one would at first glance think successfully, in a motion for summary judgment that the tax sale was invalid for lack of proper notice...the tax notice was returned to the sheriff's office stamped "FOE" for "Forwarding Order Expired", and as such he claimed that the sheriff should have known that the address was invalid, and that he (the sheriff) should have taken "further measures" than what are required by statute to locate the absent tax debtor and furnish him with notice of a pendant tax sale. Louisiana law has it all pretty much spelled out, with requirements including yet not limited to placing ads in the paper, sending the notice certified RRR, etc., but a Supreme Court case (Mennonite Board of Missions vs. Adams), citing due process, elevated the requirements such that when the notice of tax sale is known to have been sent to an invalid address, that meeting the statutory requirements set out by Louisiana is not enough, and that the sheriff must undertake "additional reasonable measures" to locate the absent tax debtor.
Long story short, the lawyer she hired let the tax debtor, in a motion for summary judgment, get past the prescription through a claim of possession by simply refusing to refute same, telling her that he "would take care of that at trial", and also letting them actually prevail at the hearing for summary judgment by not introducing the many "extra measures" that the sheriff's office actually DID do when the original tax sale notice was returned marked "FOE" (including searching mortgage records, etc., for other addresses, looking in phone records, etc., tec., and even asking all road deputies each year "if they knew anyone" on the absent tax debtor list, among other things. Whether that would have been enough is not known....my friend's mom was told that the hearing was a "formality" only, that she "did not even need to be there" (but she went anyway, only to find that the lawyer didn't show, sending a brand spanking new employee in his stead who actually knew nothing of the case until that morning). I hear things like that all the time, and I always know that there is more to the story than what I am hearing, but I actually know this to be the truth in this instance.
So, at this point, she had a new lesson in the law, and she now knows that coulda, shoulda, woulda doesn't mean anything, and if you don't shoot your shot when you can you may not get another shot at it.
Well, I looked at the paperwork, and I noticed that the judgment was extremely simple, declaring that the Petition to Quiet Tax Title was dismissed, with prejudice...and that was it. I looked at the prayer in their motion for summary judgment, and that was all that was prayed for. So, I did a little reading, and I told her that it did not seem kosher to me from what I read, and what Louisiana law has clearly spelled out in statute and has been well affirmed in case law, which is that the tax title need NOT be quieted for the tax sale purchaser's title to be valid. Also, per statute, and affirmed in case law, a final judgment can NOT be amended beyond the scope of changes in phraseology or to correct errors in calculation...so, I figured, what did they really win? Granted, she was unable to quiet her title, but she was still deeded owner, and the title being quieted and confirmed would only pose a problem should she ever want to sell it…and I am still not sure if the fact that the judgment was “with prejudice” would preclude her from seeking to quiet title through a monition proceeding, should she so desire. Regardless, I didn’t think they got anything with the summary judgment…and I told her as much. Well, that was pretty much affirmed when the opposing counsel tried to get her to sign the deed back over to the delinquent tax debtor for a $10 cash deed, claiming that was “what she needed to do to save herself money”.
When she asked if there was anything she could do I told her to simply ignore the requests, and she did. So, the guy files a motion to compel…to attempt to compel her to sign that deed back over to them in consideration for ten bucks. Per her request (and with her knowing that I know nothing about the law other than what I am able to read after a question is posed to me), I drafted her an opposition to the motion to compel, and I also, and this was a stretch, filed a new petition to annul the judgment on grounds that the judgment was defective, and as such was an ill process. Shotgun approach, hoping something would hit. Well, the opposition worked, and the motion to compel is a goner, which would leave the ball in their court, and they would need to sue to get the tax title annulled (as they should have asked for originally). Now, here’s what I am getting to (and yes, I told you it was gonna be a long post just to get to this one little point):
On the Petition to Annul, I see no need to pursue same now. Let THEM sue her, discovery will re-open, and she will get a whole new shot at it. But, they reconvened, trying to get the judge to agree that “ ‘the intent’ of the judgment was really to void the tax sale, annul the tax deed, and restore the ownership to the tax debtor”. This is a new judge, because the annulment had to be pursued through an ordinary process, not just a motion on the “old case”. Well, I (correctly, I say) simply asked for an annulment, which would clearly put this at appoint that the only way anything else would change would be through a whole new trial. I could not, and of course DID NOT, ask that the judgment be annulled and then replaced with a new judgment in our favor. Even if the litigation would have supported it, it’s not a doable thing. And, that is what they are trying to do: they are reconvening and asking summarily that the judge (this new judge) simply look at the record, and issue a new judgment. They specifically added into their reconvening prayer, and to the judgment they supplied along with it, hoping to have the judge endorse, that “ample discovery and hearings have been had”, and they are asking that the judge to give them relief they are supposedly due (res judicata), by summarily replacing the old, “defective” judgment with a whole new one that now DOES ask for the tax sale to be voided, the tax deed to be annulled, etc. I don’t see that as doable at all without a new trial. And, instead of having to argue that all over again, because I see it as essentially the same situation as their motion to compel, I was thinking that we could simply drop the Petition to Annul, IF it would simply “get rid of” their reconventional demand. Somehow, that seems to easy to me…that we would not be that lucky…and that we will probably need to file an exception for no right/cause of action, or whatever the hell it’s called.
Any info on this would be greatly appreciated. The moral of this story is an old one…and that is to let lawyers do the lawyering! I am 100% in support of that, but in this case, this is her only shot, as she simply can’t afford another lawyer. She’s just a really nice older lady who worked all of her life for minimum wage selling corn chips and cokes through the local Stops-N-Robs, saving her money, and trying to invest a few bucks in tax sales over the past 20 or so years. So, I see this as a situation like one in which I stop to aid a motorist that just dead-centered a 20” oak and slashed her femoral artery with a shard of metal poking outta the lower dash…this motorist NEEDS a doctor or a paramedic, or at least an EMT, and fast, but there’s not one available, period…so, it ain’t much, but at least I am there. Then, it’s pretty obvious as to whether or not I should try to poke something in that gash…hell, who knows? I carry Quik Clot in the truck, and I may get lucky! I do realize that this is not that simple, and that I could wind up having costs levied against her that she doesn’t have now, but she is adamant that she wants me to try to help her, and she fully knows the potential danger.
Anyway, that’s my question: If we simply “drop” the issue of the Petition to Annul, what does that do, if anything, to the reconventional demand?
I just realized something – this long post is much more due to me trying to predict the chastising comments that I know will probably be issued in response to this post. It’s not that they “hurt my feelings”, but moreso that I would really love to get an answer to this, and not simply get chewed out for being an overly presumptuous redneck moron ill equipped to undertake anything like this. So, by all means, I am open to any and all criticism, and in fact I welcome that which is in any way at all constructive, but of you do ream me out, it would really be nice if you’d throw that answer in here, too! Thanks!
This may be better placed in a general litigation section, but since I am gonna throw in substantial background info to lead up to my query, and it's all "Real Estate Law", I opted for this section. I know that this is a lengthier post than need be, but I believe that background can help clarify a question:
A friend of mine's mother bought a piece of land at tax sale in 2001. After five + years elapsed from the sale date (and the recording of the tax deed in her name), she filed a petition to quiet title, following statute and having an "ad hoc curator" appointed to represent the absent tax debtor and accept service for him (I believe was the term that was used for counsel for the absent tax debtor). Well, the guy turns up shortly thereafter, contesting the tax sale.
Louisiana has a three year redemption period and a five year period to challenge the validity of the tax sale. The three year redemption is peremptive, the five year challenge period is prescriptive. This tax debtor argued possession as a means to interrupt the prescriptive period and challenge the tax sale, and then argued, one would at first glance think successfully, in a motion for summary judgment that the tax sale was invalid for lack of proper notice...the tax notice was returned to the sheriff's office stamped "FOE" for "Forwarding Order Expired", and as such he claimed that the sheriff should have known that the address was invalid, and that he (the sheriff) should have taken "further measures" than what are required by statute to locate the absent tax debtor and furnish him with notice of a pendant tax sale. Louisiana law has it all pretty much spelled out, with requirements including yet not limited to placing ads in the paper, sending the notice certified RRR, etc., but a Supreme Court case (Mennonite Board of Missions vs. Adams), citing due process, elevated the requirements such that when the notice of tax sale is known to have been sent to an invalid address, that meeting the statutory requirements set out by Louisiana is not enough, and that the sheriff must undertake "additional reasonable measures" to locate the absent tax debtor.
Long story short, the lawyer she hired let the tax debtor, in a motion for summary judgment, get past the prescription through a claim of possession by simply refusing to refute same, telling her that he "would take care of that at trial", and also letting them actually prevail at the hearing for summary judgment by not introducing the many "extra measures" that the sheriff's office actually DID do when the original tax sale notice was returned marked "FOE" (including searching mortgage records, etc., for other addresses, looking in phone records, etc., tec., and even asking all road deputies each year "if they knew anyone" on the absent tax debtor list, among other things. Whether that would have been enough is not known....my friend's mom was told that the hearing was a "formality" only, that she "did not even need to be there" (but she went anyway, only to find that the lawyer didn't show, sending a brand spanking new employee in his stead who actually knew nothing of the case until that morning). I hear things like that all the time, and I always know that there is more to the story than what I am hearing, but I actually know this to be the truth in this instance.
So, at this point, she had a new lesson in the law, and she now knows that coulda, shoulda, woulda doesn't mean anything, and if you don't shoot your shot when you can you may not get another shot at it.
Well, I looked at the paperwork, and I noticed that the judgment was extremely simple, declaring that the Petition to Quiet Tax Title was dismissed, with prejudice...and that was it. I looked at the prayer in their motion for summary judgment, and that was all that was prayed for. So, I did a little reading, and I told her that it did not seem kosher to me from what I read, and what Louisiana law has clearly spelled out in statute and has been well affirmed in case law, which is that the tax title need NOT be quieted for the tax sale purchaser's title to be valid. Also, per statute, and affirmed in case law, a final judgment can NOT be amended beyond the scope of changes in phraseology or to correct errors in calculation...so, I figured, what did they really win? Granted, she was unable to quiet her title, but she was still deeded owner, and the title being quieted and confirmed would only pose a problem should she ever want to sell it…and I am still not sure if the fact that the judgment was “with prejudice” would preclude her from seeking to quiet title through a monition proceeding, should she so desire. Regardless, I didn’t think they got anything with the summary judgment…and I told her as much. Well, that was pretty much affirmed when the opposing counsel tried to get her to sign the deed back over to the delinquent tax debtor for a $10 cash deed, claiming that was “what she needed to do to save herself money”.
When she asked if there was anything she could do I told her to simply ignore the requests, and she did. So, the guy files a motion to compel…to attempt to compel her to sign that deed back over to them in consideration for ten bucks. Per her request (and with her knowing that I know nothing about the law other than what I am able to read after a question is posed to me), I drafted her an opposition to the motion to compel, and I also, and this was a stretch, filed a new petition to annul the judgment on grounds that the judgment was defective, and as such was an ill process. Shotgun approach, hoping something would hit. Well, the opposition worked, and the motion to compel is a goner, which would leave the ball in their court, and they would need to sue to get the tax title annulled (as they should have asked for originally). Now, here’s what I am getting to (and yes, I told you it was gonna be a long post just to get to this one little point):
On the Petition to Annul, I see no need to pursue same now. Let THEM sue her, discovery will re-open, and she will get a whole new shot at it. But, they reconvened, trying to get the judge to agree that “ ‘the intent’ of the judgment was really to void the tax sale, annul the tax deed, and restore the ownership to the tax debtor”. This is a new judge, because the annulment had to be pursued through an ordinary process, not just a motion on the “old case”. Well, I (correctly, I say) simply asked for an annulment, which would clearly put this at appoint that the only way anything else would change would be through a whole new trial. I could not, and of course DID NOT, ask that the judgment be annulled and then replaced with a new judgment in our favor. Even if the litigation would have supported it, it’s not a doable thing. And, that is what they are trying to do: they are reconvening and asking summarily that the judge (this new judge) simply look at the record, and issue a new judgment. They specifically added into their reconvening prayer, and to the judgment they supplied along with it, hoping to have the judge endorse, that “ample discovery and hearings have been had”, and they are asking that the judge to give them relief they are supposedly due (res judicata), by summarily replacing the old, “defective” judgment with a whole new one that now DOES ask for the tax sale to be voided, the tax deed to be annulled, etc. I don’t see that as doable at all without a new trial. And, instead of having to argue that all over again, because I see it as essentially the same situation as their motion to compel, I was thinking that we could simply drop the Petition to Annul, IF it would simply “get rid of” their reconventional demand. Somehow, that seems to easy to me…that we would not be that lucky…and that we will probably need to file an exception for no right/cause of action, or whatever the hell it’s called.
Any info on this would be greatly appreciated. The moral of this story is an old one…and that is to let lawyers do the lawyering! I am 100% in support of that, but in this case, this is her only shot, as she simply can’t afford another lawyer. She’s just a really nice older lady who worked all of her life for minimum wage selling corn chips and cokes through the local Stops-N-Robs, saving her money, and trying to invest a few bucks in tax sales over the past 20 or so years. So, I see this as a situation like one in which I stop to aid a motorist that just dead-centered a 20” oak and slashed her femoral artery with a shard of metal poking outta the lower dash…this motorist NEEDS a doctor or a paramedic, or at least an EMT, and fast, but there’s not one available, period…so, it ain’t much, but at least I am there. Then, it’s pretty obvious as to whether or not I should try to poke something in that gash…hell, who knows? I carry Quik Clot in the truck, and I may get lucky! I do realize that this is not that simple, and that I could wind up having costs levied against her that she doesn’t have now, but she is adamant that she wants me to try to help her, and she fully knows the potential danger.
Anyway, that’s my question: If we simply “drop” the issue of the Petition to Annul, what does that do, if anything, to the reconventional demand?
I just realized something – this long post is much more due to me trying to predict the chastising comments that I know will probably be issued in response to this post. It’s not that they “hurt my feelings”, but moreso that I would really love to get an answer to this, and not simply get chewed out for being an overly presumptuous redneck moron ill equipped to undertake anything like this. So, by all means, I am open to any and all criticism, and in fact I welcome that which is in any way at all constructive, but of you do ream me out, it would really be nice if you’d throw that answer in here, too! Thanks!