91-year old on fixed income loses his house because he can't read

Matter of City of Rochester (Duvall), 2012 NY Slip Op 01315 [4th Dept 2012]

When 91-year old Michael Duvall failed to pay his city taxes, the City of Rochester decided to foreclose on the house Mr. Duvall had lived in since 1964 and sell the house at auction. The amount of taxes owed was a "very small percentage" of the market value of the house.

The City was required to give notice to Mr. Duvall of its intent to take his home. The City sent the required notice by regular mail to Mr. Duvall's address.

One problem: Mr. Duvall is illiterate. One other problem: the City knew that Mr. Duvall was illiterate, and therefore would not be able to read the notices that the City sent.*

Mr. Duvall did not respond to the notice of foreclosure, and the house was sold. To the City.

Unaware that his house had been sold out from under him, Mr. Duvall continued to live at the residence until a process server showed up at his door with a notice to quit.** Mr. Duvall had the process server read the notice to him, and for the first time learned that his house had been sold based on unpaid taxes. Mr. Duvall had his attorney contact the City and offer to pay the back taxes to stay in the home, but was told it was too late to undo the foreclosure.

Mr. Duvall appealed to the Fourth Department, arguing that because the City knew Mr. Duvall was illiterate, simply sending a notice to his home by regular mail was not reasonably likely to give him notice of the impending loss of his house, and therefore violated his due process rights. The Fourth Department upheld the foreclosure, finding that it "was reasonable for [the City] to believe that petitioner had someone read his mail to him" and that requiring a municipality to "provide notice other than by ordinary mail to persons it knows to be illiterate, or who it knows cannot read English, would place an unreasonable burden on the municipality."

Justices Fahey and Sconiers dissented, noting that the City could not have possibly believed that a simple letter would be enough to inform the "elderly, illiterate petitioner that his house was in foreclosure," and that the lower court should have exercised its wide discretion and allowed Mr. Duvall to stay in his house. The dissenters concluded, "it is not our responsibility to prescribe the form of notice to be provided to petitioner, [but] we are confident that there were reasonable steps respondent could have taken to inform petitioner of his tax delinquency."***



* This whole situation could have been avoided if the City of Rochester would just use Howlers for all official notices.
**A notice to get out, basically.
***I think we all know what "reasonable steps" the Justices would recommend. See asterick 1, supra.