Suit claims Londonderry sold home via tax sale without proper notice

By Cherise Madigan
©2020 Telegraph Publishing LLC

Was a Londonderry home sold without the knowledge of its owner? That’s the question posed by a lawsuit filed against the Town of Londonderry that claims that a homeowner’s constitutional rights to due process and protection from the unlawful seizure of property were violated.

Emanuel Contos of Glastonbury, Conn., owned a second home at 104 Tall Wood Circle in Londonderry since 1992. By 2018 however, Contos, now 73, owed two years of taxes on the property — $2,882,07 for 2016 and $2,828.36 for 2017. On May 11, 2018 it was sold for $8,228.85 via tax sale to Sandra Superchi of Chester.

Contos claims that, due to an improperly addressed notice of tax sale, he was never aware that the property was sold by the town. Rather, he says, he was still attempting to pay his back taxes even after the sale had occurred. Since Contos is currently in ill health, his children provided additional comments to The Telegraph through his lawyer, James Valente of Constello, Valente & Gentry, P.C.

Valente says that the family was unaware that they did not own the Londonderry home until Contos’ granddaughter came to stay at the property over Memorial Day weekend 2019, more than a year after the sale occurred, and found a “no trespassing” sign on the door with the phone number of the new owners.

The suit against the Town of Londonderry and Superchi was filed with the Windham County Superior Court on November 19, 2019. Superchi could not be reached for comment by publication time. Contos is suing for “pecuniary loss, emotional distress, and incurred costs and attorney’s fees.” Ultimately, according to Valente, Contos hopes to reclaim ownership of the property.

The root of the issue

On April 4, 2018, the Town of Londonderry sent Contos a notice of intent to proceed with tax sale, notice of tax sale and applicable warrants for taxes due in 2016 and 2017 via certified mail — standard practice ahead of a tax sale under Vermont law. According to Contos, the tax sale was scheduled to occur 37 days later, on May 11, 2018.

Since Vermont law requires towns to provide at least 20 days’ notice to out-of-state residents, the timeliness of the first mailing doesn’t seem to be in question.

Rather, it is the actions that followed that constitute Contos’ case against the town. Both parties agree that the April 4, 2018 mailing was addressed incorrectly, with the name of Contos’ street in Connecticut misspelled in two places — Neipsic Road became Niepsie Road. The town says that the package was returned to them “unclaimed,” not undelivered as Contos alleges, and that delivery attempts were made on April 6, April 21 and April 26.

Upon the return of the initial mailing, the documents were re-sent via first class mail on May 4, 2018. The town claims that mailing was not returned or deemed undeliverable by USPS, although it was again addressed incorrectly. Despite the improperly addressed notice of tax sale, Valente says that tax bills from the town were property addressed and received by Contos prior to April 2018 and that the proper address was available to the town.

Additionally, Contos alleges that the town did not give proper notice of the tax sale, though they paid for a listing in Ludlow-based Vermont Journal & The Shopper published April 11, April 18 and April 25. He claims that the publication does not qualify as a newspaper of general circulation because it is not a daily paper with staff journalists, and thus did not sufficiently fulfill the town’s requirement to comply with Vermont statutes overseeing tax sales (32 V.S.A. § 5294).

In his initial filing with the court, Contos argues that he has a constitutional right to due process and should have been provided notice — and the opportunity for a hearing — before being “deprived of his property.” Under Vermont statute, the town was obliged to send notice at his correct last known address and, because the mailing was twice sent to an incorrectly spelled street, Contos claims that Londonderry failed to fulfill that responsibility.

Further, the second notice — which was not returned to the town — was only sent within seven days of the tax sale, Contos says, and not the required 20 days.

In his initial suit, Contos asks that the court render the sale null and void while also giving him 60 days to pay the past-due property taxes. As for Superchi, the suit asks that she be ordered to deliver a quitclaim deed and property transfer tax return to him upon payment by the town.

As of publication time, town employees declined to comment further.

Londonderry files motion to dismiss

On Jan. 10, 2020, Londonderry submitted a formal response to the suit admitting that the mailing was improperly addressed but denying most allegations of wrongdoing. In it, the town claims multiple defenses, including:

• an expired statute of limitations,
• an unreasonable delay on Contos’ part in making a legal claim,
• failure to mitigate damages and
• prior knowledge/partial payment.

The response was followed up with a motion to dismiss, filed by town attorney Robert Fisher on Feb. 18, 2020, which asks the court to dismiss the suit “with prejudice as there is a one year statute of limitations to … void a tax sale.” Londonderry also asked that the court award the town attorney’s fees.

While the suit was filed about 18 months after the sale of the property, five months after the statute of limitations expired, Contos claims this is because he lacked knowledge of the sale altogether.

Contos reiterates that the burden to prove the legitimacy of the tax sale is on the town in a response filed March 3, 2020, and that there were four “discrete” violations of state law:

• defective certified notice,
• defective first class notice,
• late notice and
• defective public notice.

While the town filed an additional letter of support for their motion to dismiss on March 12, Superior Court Judge Michael R. Kainen denied the motion on July 25. He concludes that the notice sent by the town via certified mail on April 4 was defective, and “not addressed in a manner reasonably calculated to reach the recipient.”

“Re-sending the notice by first class mail to the same incorrect address, less than 20 days before the tax sale, did not cure that defect,” he wrote.

Judge Michael R. Kainen denied the motion to dismiss on July 25, concluding that the notice of tax sent by the town via certified mail on April 4 was defective, and ‘not addressed in a manner reasonably calculated to reach the recipient.’ He also wrote that ‘Re-sending the notice by first class mail to the same incorrect address, less than 20 days before the tax sale, did not cure that defect.’

Kainen also writes that, once the first notice was returned, the Town of Londonderry was required to take additional steps to provide notice.

“Confirming that the first notice was correctly addressed would seem an elementary step in that process,” he wrote. “Londonderry cannot capitalize on its error.” He adds that, if the Vermont Journal and Shopper is not an “actual newspaper” as defined by the related statute, then this action further “compounded the town’s failure to comply.”

In a supplement to his order filed one day later, Judge Kainen cites the 14th Amendment to the U.S. Constitution, which considers due process satisfied “when notice reasonably calculated, under all the circumstances, to apprise interested parties of the action and afford them an opportunity to present their objections” is provided. Because the town re-sent the second letter with the same incorrect address, outside of the time frame required by Vermont statute, Kainen says that the town did not seem to provide Contos reasonable notice of the impending sale.

“The town misaddressed the certified mail, containing the notice of tax sale. The letter came back,” he wrote. “The state cannot deprive a person of property without due process of law.”

If Contos “can prove his facts,” Kainen concluded, “the sale was null and void and there was no statute (of limitations) which started to run.”

What’s next?

Looking ahead, Valente says that the case will likely be resolved in one of two ways: with a jury trial or in summary judgment. Due to delays related to the Covid-19 pandemic, a jury trial cannot be held until at least January 2021.

When there is disagreement over the facts of a case, Valente explains, a hearing with a jury is necessary to determine who is telling the truth (unless the parties waive their right to a jury, which is uncommon). When the disagreement stems from the meaning of the law, however, a judge can instead provide summary judgment based on the pertinent facts.

“The real thing that we’re seeking, more so than damages, is for the court to issue what’s called a declaratory judgment… saying that they declare that this sale was void,” he explained. “That’s one of the things you can request that’s not money and that’s really the heart of the case.”

Town Attorney Fisher says that Londonderry is hiring a second attorney from the Vermont League of Cities and Towns following a motion approved by the Londonderry Select Board on Aug. 31 . While he declined to comment further due to the pending appointment of additional representation, he said that more defenses will be filed by the town in coming months.