Due process satisfied in property foreclosure

What does "due process" mean? Questions like that are being asked this week as law schools begin yet another semester. The point is that a very brief reference to due process of law in the Fourteenth Amendment can give rise to volumes of case law, as due process very often is in the eye of the beholder. The Second Circuit further defines due process in holding what prior notice is required when the County wants to foreclose on a home.

The case is Miner v. Clinton County, decided on September 5. The County wanted to proceed with foreclosure against a homeowner who allegedly did pay property taxes. There is no dispute that the home is a property interest which requires some due process before the government can take it away. The question is what pre-deprivation notice is required before the County can seize the property?

The Second Circuit holds that the homeowner does not have a right to actual notice of foreclosure. Instead, "they are entitled to notice that is reasonably calculated under the circumstances to reach the intended recipients, alert them to a pending foreclosure, and advise them of an opportunity to be heard." In this case, the notice of foreclosure was sent to the plaintiff's house in Staten Island (the foreclosure property is in Clinton County, upstate New York), and someone signed for the letter, though the signature was illegible. The County Clerk's office assumed that the plaintiff received notice, but when the taxes were not paid, the County foreclosed on the property.

The County acted reasonably, the Court of Appeals held. Prior letters sent to the Staten Island address were never returned, and the Clerk's office relied on the Post Office's representation that the foreclosure letter was actually delivered.

The law in this area is always a little fuzzy. Citing Supreme Court case law, the Court of Appeals states that "In the context of real estate foreclosures, due process does not require actual notice. Rather, the government must provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."

But the plaintiff's lawyer was resourceful, finding a case from 1956 that gives the plaintiff some wiggle room. The Second Circuit is not buying it: "Although some courts have held the absence of a signature on a delivery receipt may defeat a presumption of delivery, see, e.g., Moore v. Dunham, 240 F.2d 198, 199 (10th Cir. 1956) (holding that, under Oklahoma law, an unsigned return receipt was insufficient to establish valid service), we can find no support for the proposition that the signature must be identifiable."