Petition for Writ of Certiorari — Alexi Ortiz, Petitioner v. Alfred D. Walsh, Jr.

“IN THE CIRCUIT COURT FOR PRINCE GRORGI’S COUNTY, MARYLAND

ALFRED D, WALSHIR, :

* Plaintiff

ve , : CABL7-29226 '

ALBXI ORTIZ, ET AL, :

Defendants H

ORDER

Upow consideration of Defendant's Motlon to Vacate Judgment Foreclosing Right of

Redemption and Reopen Case; and Request for Hearing, and Plaintiffs opposition thareto, it is

this 3ra day of vdessraut chat »201 } by and through the Cirouit Court for Priace

George’s County, Maryland,

ORDERED, that Defendant's Motion to Vacate Judgment Foreclosing Right of

Redemption and Reopen Case; and Request for Hating is hereby DENIED as Defendant did not

“first pay to the Collector or the certificate holder ths total sum of the taxes, interest, penalties

and expenses of the sale that are due,” pursuant to Quillens v, Moore, 399 Mad, 97, 111 (2007);

and itis further,

ORDERED, that this case remain closed,

BLY gue

a SRA arte var

E-FILED

Court of Special Appeals

Gregory Hilton

8/24/2020 1:06 PM

IN THE COURT OF SPECIAL APPEALS OF MARYLAND

Alexi Ortiz, *

Appellant * No. 3454, September Term 2018

v. * CSA-REG-3454-2018

* Circuit Court No. CAE17-29226

Alfred D, Walsh, Jr., *

Appellee *

:

ee e 8 € & H He HF & R HF

MANDATE

On the 2ist day of July, 2020, it was ordered and adjudged by the Court of

Special Appeals:

Judgment of the Circuit Court for Prince George's County affirmed. Costs to be

paid by appellant.

STATE OF MARYLAND, Sct.:

I do hereby certify that the foregoing is truly taken from the records and proceedings of the said

Court of Special Appeals. In testimony whereof, I have hereunto set my hand as Clerk and

affixed the seal of the Court of Special Appeals, this 21st day of August, 2020.

Alain, Heer

Gregory Hilton, Clerk

Court of Special Appeals

PET-02

E-FILED

Court of Special Appeals

Gregory Hilton

7/21/2020 2:39 PM

Cireuit Court for Prince George’s County

Case No. CAE 17-29226

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 3454

September Term, 2018

ALEXI ORTIZ

v.

ALFRED D. WALSH, JR.

Graeff,

Beachley,

Salmon, James P.

(Senior Judge, Specially Assigned),

JJ.

Opinion by Graeff, J.

Filed: July 21, 2020

*This is an unreported opinion, and it may not be cited in any paper, brief, motion,

or other document filed in this Court or any other Maryland Court as either precedent

within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

PET-03

-Unreported Opinion—-

On June 26, 2018, the Circuit Court for Prince George’s County issued a Judgment

Foreclosing Right of Redemption on a piece of property located at 1702 Hannon Street,

Hyattsville, Maryland (“the Property”). The court awarded Fee Simple title to Alfred

Walsh, appellee. On September 14, 2018, Alexi Ortiz, appellant, filed a Motion to Vacate

Judgment Foreclosing Right of Redemption and Reopen Case, asserting that he was the

owner of the Property and Mr. Walsh had failed to properly notify him of the action. The

court denied Mr. Ortiz’s motion and ordered that the case remain closed.

On appeal, appellant presents two issues for this Court’s review, which essentially

raise the following question:

Did the circuit court err in denying appellant’s motion to vacate?

For the reasons set forth below, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

On May 9, 2016, Mr. Walsh purchased a tax sale certificate for the Property at a

public tax sale for $824.04. The Property was described as “2004 Eai-x Trs 1,871.0000

Sq.Ft. & Imps. Riggs Hill Condo Assmt $41,000 Lib 35950 F1 001 Unit 1 Bldg M and

assessed to Ortiz Alexi E.” The Certificate of Tax Sale noted that the Property was subject

to redemption, but after November 6, 2016, “a proceeding can be brought to foreclose all

rights of redemption in the [P]roperty.” Jt further provided that the certificate would be

yoid unless such a proceeding was brought within two years of May 9, 2016.

PET-04

—Unreported Opinion—

On October 16, 2017, Mr. Walsh filed a Complaint to Foreclose the Equity of

Redemption for Non-Payment of Taxes.' He alleged that counsel for Mr. Walsh filed an

affidavit stating that he mailed notice of the sale to Mr, Ortiz on July 12, 2017, and then

again on August 22, 2017. He mailed the notice to 1700 Hannon Street, Unit 1, Hyattsville,

Maryland, the address provided to the Maryland State Department of Assessment and

Taxation (“SDAT”) as his mailing address,

On October 23, 2017, the court issued an Order of Publication “to secure the

foreclosure of all rights of redemption from the tax sale” on the Property, ordering that

notice be given by the insertion of a copy of this Order in some newspaper

having a general circulation in Prince George’s County once a week for three

consecutive weeks, warning all persons interested in the [P]roperty to appear

in this [c]ourt by the 26 day of December, 2017, and redeem the [P{roperty

and answer the Complaint or thereafter a final judgement will be entered

foreclosing all rights of redemption in the [P]roperty and vesting in [Mr.

Walsh] a title to said property in Fee Simple[.]

The Prince George’s Post published the Order of Publication on November 2, 9, and 16,

2017.

Mr. Walsh also attempted to serve notice on Mr. Ortiz. The notice advised that, to

redeem the Property or file an answer to the Complaint, it needed to be done by the latest

of “(a) The expiration date of the period described in the summons, or (b) The date

' Mr. Walsh noted that he filed his complaint six months from the date of sale, but

within the two years required by the Certificate of Tax Sale. He alleged that no party had

attempted to redeem the Property in the six-month period.

2

PET-05

—Unreported Opinion—

specified in the Order of Publication, or (c) 33 days after the mailing out of said Order of

Publication.”

The affidavit of service stated that, on December 19, 2017, “[s]ervice was accepted

at 1700 Hannon Street, Unit 1 Hyattsville MD 20783 by Jessie Guerrero a co-occupant.”

Mt, Walsh also attempted service on Mr. Ortiz via first class mail at the 1700 Hannon

Street, Unit 1 address. The letter was returned to sender.

Mr. Walsh asked the Sheriff to post a copy of the notice on the Property “known as

1702 Hannon St., Unit 1.” On November 1, 2017, a Sergeant filed a return, which stated:

“NON-EST 11-01-17/ncomplete Address.” On March 7, 2018, Mr. Walsh also sent notice

by mail addressed to “Alexi E. Ortiz or Occupant” at 1702 Hannon Street, Unit 1. The

envelope containing the notice was matked “Notice of Action to Foreclose.”

Mr, Walsh subsequently filed an Affidavit of Compliance, detailing the actions he

had taken to serve Mr. Ortiz in compliance with Md. Rule 2-121(c). In that affidavit, Mr.

Walsh stated that the Sherriff had posted notice in a conspicuous place on the Property on

December 1, 2017.

On June 26, 2018, the court issued a Judgment Foreclosing Right of Redemption.

it found that afl known defendants were given notice in accordance with Md. Code (2016)

§ 14-839 of the Tax Property Article (“TP”), and no redemption had been made.

Accordingly, the court entered judgment in favor of Mr. Walsh, foreclosing the right of

redemption in the Property, ordering that Mr. Walsh be vested with an absolute and

PET-06

—Unreported Opinion~

indefeasible Fee Simple title to the Property and the Director of Finance execute a Deed to

him.

On September 14, 2018, Mr. Ortiz filed a Motion to Vacate Judgment Foreclosing

Right of Redemption and Reopen Case; and Request for Hearing. In his motion and

attached affidavit, Mr. Ortiz alleged that the Property address was 1702 Hannon Street, T-

2, not 1702 Hannon Street, Unit 1. He asserted that the address listed on the State of

Maryland Land Instrument Intake Sheet recorded with the Deed was 1702 Hannon Strecl,

T-2, he had never owned 1700 Hannon Street, Unit 1, and he had never asked to be served

there? Despite these documents, Mr, Walsh attempted service at the wrong address. Mr,

Ortiz alleged that Jessie Guerrero was a person with no relation to him. Finally, he asserted

that the service attempts failed to give him actual notice, and he asked that the court vacate

the Judgment Foreclosing Rights of Redemption and reopen the case to be decided on the

merits,

Mtr. Ottiz’s tenant, Esvin O, Benavente Perez, also signed an affidavit. Mr. Perez

attested that he had lived at 1702 Hannon Street, T-2, since May 1, 2016, he personally

knew his landlord, Mr. Ortiz, he was never served with legal papers, there was no posting

on the Property relating to this case, and he did not personally know “Jessie Guerto.”

Mr. Walsh filed an opposition to Mr. Ortiz’s motion to vacate. He asserted that the

motion to vacate the judgment foreclosing rights of redemption should be denied for two

reasons. First, he argued that Mr. Ortiz had failed to “satisfy the condition precedent of

2 He also stated that his mailing address was in Rockville.

4

PET-07

-Unreported Opinion—

paying the outstanding taxes and expenses” on the Property. He argued that, pursuant to

Quillens v. Moore, 399 Md. 97, 125 (2007), to seek to vacate a judgment foreclosing rights

of redemption, the taxpayer must first pay to the collector or the certificate holder the total

sum of taxes and other monies due. Second, he argued that notice sent to Unit 1 was the

“correct address,” asserting that this was the address that Mr. Ortiz gave to the SDAT as

his mailing address.

On January 3, 2019, the circuit court denied Mr. Ortiz’s Motion to Vacate Judgment

Foreclosing Right of Redemption and Reopen Case; and Request for a Hearing. It stated

that Mr. Ortiz did not “first pay to the Collector or the certificate holder the total sum of

the taxes, interest, penalties and expenses of the sale that are due” pursuant to Quillens. It

ordered that the case remain closed.

This appeal followed.

STANDARD OF REVIEW

In Canaj, Ine, v. Baker and Division Phase II, LLC, 391 Md, 374, 400-01 (2006),

the Court of Appeals explained the proper standard of review:

Under the trial court’s general review power as provided by Rule 2-535 and

C.J, § 6-408, when a party files a motion to set aside a judgment more than

thirty days after the judgment is entered, the grounds for setting aside the

judgment are generally limited to instances of fraud, mistake or irregularity,

In reviewing the decision below, “the only issue before the appellate court is

whether the trial court erred as a matter of law or abused its discretion in

denying the motion.” In re Adoption/Guardianship No. 93321055/CAD, 344

Md, 458, 475, 687 A.2d 681, 689, cert. denied sub nom, Clemy P. v.

Montgomery County Dep't of Soc. Servs., 520 U.S. 1267, 117 S.Ct. 2439,

138 L.Ed.2d 199 (1997).

PET-08

—Unreported Opinion—

DISCUSSION

Denial of Motion to Vacate

Mt. Ortiz, contends that the circuit court committed legal error when it denied his

because his rights had been foreclosed.

motion to vacate. He argues that the court’s reliance on Quilfens is “misplaced,” asserting

that the holding in Quillens was “narrower and more distinguishable.” Mr. Ortiz asserts

that Canaj’s holding that payment of taxes owed is a condition precedent is “not absolute,”

and his case is different because he attempted to pay the taxes, but he could not pay them

Mr. Walsh contends that the circuit court correctly relied on Quillens. He asserts

Mr. Ortiz has not paid any funds,

that the circuit court did not abuse its discretion in denying the motion to vacate because

In PNC Bank, Nat'l Ass’n v. Braddock Props., 215 Md. App. 315, 322-23 (2013),

this Court provided an overview of the procedures to be followed in a tax sale:

In Maryland, when an owner fails to pay ad valorem taxes levied upon

real property, the taxing authority for the political subdivision within which

the property is located must sell the property at auction, See TP § 14-808;

St. George Antiochian Orthodox Church v. Aggarwal, 326 Md. 90, 91, 603

A.2d 484 (1992), After the sale, the owner of the property, and any other

person having an equitable interest in the property, has the right to “redeem”

title to the property by reimbursing the successful bidder (the “tax sale

purchaser”) for the taxes and other expenses paid, TP § 14-827; see

Aggarwal, 326 Md, at 91, 603 A.2d 484; Voltolina, 198 Md. App. at 598-99,

18 A.3d 944.

After a period of six months, the tax sale purchaser has the right to

acquire fee simple title by filing a complaint in the circuit court to “foreclose

all rights of redemption of the property...” TP § 14-833. This action not

only gives the record owner and any other interest holders in the property an

opportunity to raise procedural or other challenges to the taxes and the tax

6

PET-09

-Unreported Opinion—

sale, see TP § 14-842, but also serves as a means to give those persons one

last opportunity to redeem the property. See Stewart v. Wheatley, 182 Md.

455, 457, 35 A.2d 104 (1943) (interpreting predecessor statute). The right to

redeem is effective until the circuit court enters final judgment. TP § 14-827

and 833(b).

The ability of a purchaser to foreclose the right of redemption balances the interest

between “(1) the due process and redemption rights of persons that own or have an interest

in property sold at a tax sale; and (2) the public policy of providing marketable title to

property that is sold at a tax sale through the foreclosure of the right of redemption.” Kone

Properties, LLC v. W.D.B. Corp., Ine., 224 Md. App. 517, 529 (2015) (quoting Scheve v.

Shudder, Inc.,328 Md. 363, 370—71 (1992)). For the circuit court to enter a final judgment

pursuant to TP § 14-844, the following must occur:

(1) the certificate holder must file a complaint, conforming with § 14-835(a)

within two years following the sale; (2) the certificate holder must attach the

certificate of sale pursuant to § 14-835(b); (3) the certificate holder must

attach an affidavit of title search (§ 14-838); and (4) the court must issue

process and public notice under §§ 14-839 and 14-840, setting out the time

after which the right of redemption will be foreclosed.

Id. at $30.

After the circuit court enters final judgment, a party generally has 30 days to ask the

coutt to exercise revisory power over the judgment. Md. Rule 2-535(a). Accord Md, Code

(2013), § 6-408 of the Courts and Judicial Proceedings Article (“CJP”). A court may, on

motion of any party filed at any time, exercise revisory power in cases of “fraud, mistake

of irregularity.” Md. Rule 2-535(b). Accord CIP § 6-408.

In Quillens, 399 Md. at 102, Quillens challenged the circuit court’s foreclosure on

his tight of redemption to several properties. The Court of Appeals, relying on Canaj, held

7

PET-010

—Unreported Opinion-

that “a property owner must tender all of the deficient real property taxes before he can

challenge the validity of a tax sale.” Id, at 125. Because Quillens failed to tender all of the

taxes, he could not challenge the foreclosure. Jd,

The Court of Appeals explained its reasoning as follows: “If a delinquent taxpayer

can find a way to overturn a tax sale without paying the delinquent taxes, the delinquent

taxpayer will never redeem. It is for this reason that the general rule is that in order to

challenge a tax sale, the payment of taxes in arrears is a condition precedent.” Canaj, 391

Md. 385.6, The Court stated:

By attacking the sale procedure in a post-judgment motion to vacate, instead

of paying the taxes and charges which it would have been required to do in

order to redeem prior to judgment, the taxpayer appears to be seeking to have

the title of the property revert back to the delinquent taxpayer without having

to ever redeem by paying the overdue and due taxes.

Id, at 387,

Here, Mr. Walsh filed his complaint with the certificate of sale and the affidavit of

title search, all within the necessary time limits, and the court issued process and public

notice, Although Mr. Ortiz contends that he never received notice, counsel for Mr. Ortiz

acknowledged at oral argument that Mr. Walsh complied with the statute.

Because Mr. Ortiz did not answer by December 26, 2017, as required by the order,

the court foreclosed his right of redemption on June 26, 2018. Mr. Ortiz did not file his

motion to vacate until September 14, 2018, well beyond 30 days after the court’s judgment

as required by Md, Rule 2-535.

PET-011

-Unreported Opinion~

When Mr, Ortiz filed his motion to vacate, he stated that he was ready to pay the

back taxes, but he never paid them. Under Quillens and Canaj, paying the taxes is a

condition precedent to overturning a tax sale. Quillens, 399 Mad. at 124-25; Canaj, 391

Md. at 396. Because Mr. Ortiz did not satisfy this condition precedent, the circuit court

properly denied the motion to vacate the judgment foreclosing rights of redemption.

JUDGMENT OF THE CIRCUIT COURT

FOR PRINCE GEORGE'S COUNTY

AFFIRMED. COSTS TO BE PAID BY

APPELLANT.

PET-012

E-FILED

Court of Appeals

Suzanne C, Johnson,

Clerk of Court

10/23/2020 12:03 PM

ALEXI ORTIZ x IN THE

* COURT OF APPEALS

* OF MARYLAND

* Petition Docket No. 234

v. September Term, 2020

(No, 3454, Sept. Term, 2018

* Court of Special Appeals)

* (No. CAE17-29226, Circuit Court

ALFRED D. WALSH, JR. for Prince George’s County)

ORDER

Upon consideration of the petition for a writ of certiorari to the Court of

Special Appeals filed in the above-captioned case, it is this 23 day of October, 2020

ORDERED, by the Court of Appeals of Maryland, that the petition be, and it

is hereby, DENIED as there has been no showing that review by certiorari is desirable and

in the public interest.

/s/ Mary Ellen Barbera

Chief Judge

PET-013