CHARLESTON – Paige-Hunter Properties has filed two motions in a lawsuit alleging it and others deprived an elderly couple of their property.
PHP filed a motion to set aside default judgment and a belated motion to extend time to answer on July 9 in the U.S. District Court for the Southern District of West Virginia.
PHP asked to extend time to answer until the following day. It claims it was served on June 19 and that it must answer within 21 days of being served—which would be July 10.
In its motion to set aside judgment, PHP asked the court to set aside the entry of default by the clerk of the court on July 7.
“Fairness and due process require the default judgment be set aside,” the motion states.
In its memorandum, PHP wrote that while the other defendants were served on June 14, it was not served until June 19.
“This is the first time the owner, a non-lawyer, has been served through the Secretary of State,” the memorandum states. “Arguably, a situation could occur where the corporation did not receive actual notice until after the twenty-one days had expired. In essence, Paige-Hunter did not have an effective time period to obtain legal counsel and respond to the suit.”
The extra five days means the difference between a non-attorney, one-man corporation receiving a lawsuit, reading and understanding it and obtaining legal services and being held in default, especially where the lawsuit includes constitutional requirements.
“Simply put, Paige-Hunter did not have enough time to effectively and timely respond to this lawsuit,” the memorandum states.
PHP alleges the factors set forth in its memorandum as to actual notice should lead to a very different result at trial than the default judgment.
“In this case, the default judgment will cause the plaintiffs to be unjustly enriched and will work an injustice to one who simply purchased an assignment of a tax lien after the notice period had concluded and otherwise followed the statutory procedure for the collection of delinquent taxes,” the memorandum states.
The lawsuit was filed against Kanawha County Clerk Vera McCormick, Paige-Hunter Properties, Hobert Eugene Aliff Jr. and PD Enterprises Inc. on June 7 in the U.S. District Court for the Southern District of West Virginia by Jerry F. Martin and Elizabeth J. Martin, an elderly couple who lives in Charleston.
In 1968, the Martins purchased their property and, in 1973, their home was built on the property. In 2011, their address was changed by 911/emergency services and, after that switch, they stopped receiving their statements for real estate taxes.
Having received no notice of the taxes due, the 2011 and 2012 real estate taxes were delinquent in the total sum of $561.53. McCormick signed a declaration that the plaintiffs’ property was sold for delinquent taxes on Nov. 15, 2012, and the certificate of sale prepared by the sheriff/treasurer indicates that PDE purchased the tax lien for $1,800.
The Martins claim they were never given notice that their property taxes were delinquent.
The defendants’ sent notices to the Martins’ old address and the notices were marked “return to sender unclaimed unable to forward,” according to the complaint. By Feb. 3, 2014, the defendants knew or should have known that neither of the plaintiffs had received notice of its application for a tax deed to their home or of their redemption rights.
“Plaintiffs were unaware of any of these events,” the complaint states. “They had no notice and no knowledge of defendants’ application, or of any need to redeem the home. Had they received notice of the application and their redemption rights, plaintiffs had the financial ability to pay the lawful redemption amount and would have done so immediately.”
In August, the plaintiffs first obtained notice that their home had been sold for taxes when the sheriff of Kanawha County refused to accept their payment for real estate taxes. In May, Aliff came to their home and informed them that PHP had purchased the property.
Aliff and PHP intentionally waited for three years to pass before informing the plaintiffs that their home had been sold, despite knowing they were living on the property and had not received notice of their right to redeem or the sale.
Aliff represented that they property had appraised for $71,000 and indicated that the plaintiffs would have to pay a substantial percentage of the appraised value to purchase the property.
The plaintiffs claim the defendants had a history of purchasing delinquent properties and attempted to re-sell them for more money in Kanawha County on at least 26 occasions.
The Martins are seeking compensatory and punitive damages. They are being represented by Bren J. Pomponio of Mountain State Justice.
McCormick is represented by Timothy L. Mayo, Kurt E. Entsminger and Raymond L. Harrell Jr. of Flaherty Sensabaugh Bonasso.
PHP is represented by Richard J. Lindroth.
U.S. District Court for the Southern District of West Virginia case number: 2:17-cv-03207