Pub. 10 2019 Issue 2

Summer 2019 25 West Virginia Banker There is no redemption period after issuance of the tax deed. However, there are certain grounds on which a tax deed may be set aside. These are specified in three statutory provisions: W.Va. Code §§ 11A-4-2, 11A-4-3, and 11A-4-5. All are subject to a three-year statute of limitations, although when the limitations period begins to run varies. Debra Lee Allen is the co-chair of Spilman's Consumer Finance Practice Group. Her primary areas of practice are commercial finance litigation, general business litigation, bankruptcy, and loan workouts and com- mercial foreclosures. She can be reached at 304.291.7951 or dallen@spilmanlaw.com. Supreme Court reversed and in so doing, made a distinction between a void tax deed and a voidable tax deed. In this instance, there were mistakenly two assessments on the same land -- one was paid, the other was not. The Supreme Court held that tax sale deeds resulting from an er- roneous or duplicative assessment are void ab initio. As such, they cannot pass title to the real property. The Court held there is no statute of limitations for setting aside a void deed, and consequently, the three-year statute of limitations did not apply. Id. at 882 (citations omitted). In contrast, the circumstances set out in Code §§ 11A-4-2, 11A-4-3, and 11A-4-4 create voidable tax sale deeds, which are protected by a three-year statute of limitations for setting aside such deeds. Id. at 881-2. Non-Compliance with Statutory Requirements W.Va. Code § 11A-4-3 A tax deed improperly obtained because the purchaser did not timely comply with the requirements for identifying all persons entitled to receive a Notice to Redeem may be set aside under this section. The claimant must institute a civil action before expiration of three years following delivery of the tax deed. Persons entitled to receive a Notice to Redeem were not served notice and did not have actual notice W.Va. Code § 11A-4-4 If a person(s) entitled to receive a Notice to Redeem was not served the notice and did not have actual notice that such Notice was given to others, a civil action may be initiated to set aside the tax deed. The civil action must be filed no later than three years following delivery of the deed. Further, the tax deed will not be set aside without a showing "by clear and convincing evidence" that the tax purchaser failed to "exercise reasonably diligent efforts" to provide notice. A number of opinions interpret §§ 11A-4-3 and 11A-4-4. For example, the tax purchaser must identify parties that are of record within the time period set by § 11A-3-19(a) (currently August 31 to October 31 in the year following the sale year) and not prior. Wells Fargo Bank, N.A. v. UP Ventures II, LLC, 675 S.E.2d 883 (2009). What constitutes "reasonably diligent efforts" for identifying parties of record is a recurring issue. For example, the tax purchaser must search the public records. Reynolds v. Hoke, 702 S.E.2d 629 (2010). And, when notice is returned "undeliver- able," the tax purchaser must use reasonable efforts to learn the correct address. Kelber, LLC v. WVT, LLC, 213 F.Supp.3d 789 (2016). It is imperative that the tax purchaser follow the mandatory requirements for issuance of a tax deed. Failure to comply is a jurisdictional defect that is not subject to curative measures, and will render the tax deed void. Archuleta v. US Liens, LLC, 813 S.E.2d 761 (2018). In this three-article series, we have covered many different topics under the umbrella of the sale of tax liens. For additional detail and other statutory requirements, refer to the specific Code section(s) referenced. As always, feel free to contact the author directly at 304.216.5835 or at dallen@spilmanlaw.com.  1 In addition, W.Va. Code § 11A-4-6 provides that any infant or mentally incapacitated person whose real estate is conveyed by tax deed during the time of such person’s disability may redeem such real estate within one (1) year after the disability is removed, but in no event, not more than 20 years after the deed was issued.