CHARLESTON – A judge has granted a motion to set aside entry of default judgment in a lawsuit against PD Enterprises after a clerical error caused the court summons to be served to a defunct business.
The court summons was served on a defunct business in Chesapeake, W.Va., instead of PD Enterprises’ Charleston business, according to the July 17 order.
“Upon discovery of this oversight…PD Enterprises Inc. moved quickly to rectify the default by hiring counsel and working to notify the court and parties of the error,” the order states. “Upon conference between counsel, plaintiffs and defendant…move this court to set aside its entry of default.”
Federal Judge Joseph Goodwin wrote that the plaintiffs’ counsel made a clerical error that resulted in failure to serve the correct corporate entity, and, consequently, PD did not receive notice of the civil action and has not been subjected to the jurisdiction of the court.
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