Amicus Curiae Brief — Kari Beeman, et al., Petitioners v. Muskegon County Treasurer

No. 24-858

In the

Supreme Court of the United States

KARI BEEMAN, LINDA HUGHES, STEPHANIE

HULKABERTOIA, SHEDRICK MI, LLC, AND

JOHNNY DORE, AS PERSONAL REPRESENTATIVE

OF THE ESTATE OF JOHNNY CHAPMAN,

v.

Petitioners,

MUSKEGON COUNTY TREASURER,

Respondent.

On Petition for a Writ of Certiorari

To The Michigan Court Of A ppeals

BRIEF OF AMICI CURIAE, LEGAL SERVICES OF

THE HUDSON VALLEY, LEGAL SERVICES OF

LONG ISLAND, AND PETER M. SOARES

IN SUPPORT OF PETITIONERS

Tanya P. Dwyer

Counsel of Record

Richard Menaker

Daniel McEnroe

Legal Services of the

Hudson Valley

One Park Place, Suite 202

Peekskill, NY 10566

(914) 368-2489

tdwyer@lshv.org

Michael Wigutow

Legal Services of

Long Island

Helen Keller Way, 5th Floor

Hempstead, NY 11550

mwigutow@legalservicesli.org

Peter M. Soares

New York, NY

peter.soares@live.law.cuny.edu

Counsel for Amici Curiae

120382

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

IDENTITY AND INTEREST OF AMICI CURIAE . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

Surplus claims procedures, like those

in Michigan and New York, deny just

compensation and are causing profound

harm to unhoused homeowners . . . . . . . . . . . . . . 4

A. New York’s amended tax surplus

statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. The time limitation imposed on in rem

surplus claims is anomalous among

surplus processes in New York . . . . . . . . . . . 6

C. Examples of local surplus procedures . . . . . 9

D. New York’s surplus claims proceedings

cause grave harms when lack of due

process and self-dealing deprive

homeowners of their right to just

compensation . . . . . . . . . . . . . . . . . . . . . . . . . 10

ii

Table of Contents

Page

1.

Client Stories 1 and 2—Orange

County . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

2.

Client Story 3—Cattaraugus County . . 12

3.

Client Story 4—Sullivan County

from police station proceeding to

threats to call Sheriff . . . . . . . . . . . . . . 12

4. Client Story 5—Tax-Lien Surplus

Claims in Long Island . . . . . . . . . . . . . 13

5.

Client Stories 7 and 8—Mortgage

and Tax Lien Surplus Proceedings

in Westchester County Meet Due

Process Standards . . . . . . . . . . . . . . . . 14

II. Just compensation and due process are

indispensable elements of a compliant takings

regime under the Fifth Amendment . . . . . . . . . 16

A. Tyler . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

B. Due Process . . . . . . . . . . . . . . . . . . . . . . . . . 17

C. History and Tradition . . . . . . . . . . . . . . . . . 18

D. N Y ’s S t at ut or y P r o c e du r e for

Justly Compensating the Former

Homeowner . . . . . . . . . . . . . . . . . . . . . . . . . . 21

iii

Table of Contents

Page

III. There is a bright line for due process when

a surplus exists . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

iv

TABLE OF CITED AUTHORITIES

Page

Cases

Axon Enterprise, Inc. v. Federal Trade Commission,

598 U.S. 175 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Bragg v. Weaver,

251 U.S. 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Chicago, B. & Q.R. Co. v. City of Chicago,

166 U.S. 226 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Federal Home Loan Mtge. Corp. v. Grant,

224 A.D.2d 656 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

First English Evangelical Lutheran Church v.

Los Angeles County,

482 U.S. 304 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Franklin Square Nat. Bank v. Schiller,

202 Misc. 576 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Goldberg v. Kelly,

397 U.S. 254 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Hagar v. Reclamation Dist. No. 108,

111 U.S. 701, 4 S. Ct. 663, 28 L. Ed. 569 (1884) . . . . 20

Hawthorne v. Hawthorne,

13 N.Y.2d 82 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

v

Cited Authorities

Page

Horne v. Department of Agriculture,

576 U.S. 350 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Knick v. Township of Scott, Pennsylvania,

588 U.S. 180 (2019) . . . . . . . . . . . . . . . . . . . . . . . . 16, 20

Lucas v. S.C. Coastal Council,

505 U.S. 1003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Marchant v. Pennsylvania R. Co.,

153 U.S. 380 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Matter of Seelbach,

85 Misc. 3d 497 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Matthews v. Eldridge,

424 U.S. 319 (1976) . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Mut. Life Ins. Co. v. Bowen,

1866 WL 5443 (N.Y. Gen. Term. 1866) . . . . . . . . . . . . 8

New York State Rifle & Pistol Association, Inc.

v. Bruen,

597 U.S. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

NYCTL 1997-1 Tr. v. Stell,

184 A.D.3d 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency,

535 U.S. 302 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

vi

Cited Authorities

Page

Town of Castle Rock, Colorado v. Gonzalez,

545 U.S. 748 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Tyler v. Hennepin County,

598 U.S. 631 (2023) . . . . . . . . . . . . . 2, 4, 6, 9, 13, 16, 19

United States v. Jones,

109 U.S. 513 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Constitutional Provisions

U.S. Const. amend. V . . . . . . . . . . . 2, 3, 4, 9, 17, 19, 20, 21

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . 2, 17

Statutes and Rules

Chapter 39 of Magna Carta (1215) . . . . . . . . . . . . . . . . . 19

N.Y. Aband. Prop. Law §600 . . . . . . . . . . . . . . . . . . . . . . . 6

N.Y. Real Prop. Acts. Law §1361 (McKinney) . . . . . . . . 8

Newburgh City Charter, Art. VIII, §C13. Found at

https://ecode360.com/10870386#10870386 . . . . . . . . . 11

Sup. Ct. R. 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Sup. Ct. R. 37.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

vii

Cited Authorities

Page

Other Authorities

In the Matter of the Foreclosure of Tax Liens by

Proceedings in Rem pursuant to Article 11 of the

RPTL by Cattaraugus County, List of Delinquent

Taxes for 2022, 92728, Cnty Court of the State

of NY, Cnty of Cattaraugus (June 7, 2024) . . . . . . . 12

RPTL §991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

§992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

§1135 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

§1136 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

§1196 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

§1197 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

§1197(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

§1197(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

§1197(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

§1197(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

§1361 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 23

§1391 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

viii

Cited Authorities

Page

Instructions to Claim Surplus Monies Action (In Rem

Foreclosures), Sullivan County Treasurer (n.d.),

accessed Apr. 12, 2025, available at https://www.

sullivanny.gov/sites/default/files/departments/

treasurer/Claim%20Form%20Packet_3.pdf . . . . . . 13

J. Rubenfeld, Usings, 102 Yale L.J. 1077 (1993) . . . . . . 19

Blackstone, Commentaries (1771) . . . . . . . . . . . . . . . . . 19

4 W&M, c. 1, §12 (1692) . . . . . . . . . . . . . . . . . . . . . . . . . . 19

A. Amar, The Bill of Rights 80 (1998) . . . . . . . . . . . . . . 19

1

IDENTITY AND INTEREST OF AMICI CURIAE

Pursuant to Supreme Court Rule 37, Legal Services

of the Hudson Valley, Legal Services of Long Island, and

Peter Michael Soares respectfully submit this brief amici

curiae in support of Petitioners Kari Beeman, Linda

Hughes, Stephanie Hulkabertoia, Shedrick MI, LLC, and

Johnny Dore, as Personal Representative of The Estate

of Johnny Chapman.1

Legal Services of the Hudson Valley (“LSHV”) is a

non-profit law firm providing free civil legal services to

individuals in the seven counties of the Hudson Valley

in the State of New York. LSHV is the only provider

of foreclosure prevention services in six of the seven

counties in the Hudson Valley. Through its Foreclosure

Prevention Unit, LSHV protects over 618,000 New

York homeowners by litigating property rights issues,

negotiating settlements, and providing community

education and outreach. LSHV has a distinct interest in

the outcome of this case, as it will impact Hudson Valley

homeowners’ property rights.

Legal Services of Long Island (“LSLI”) is a nonprofit law office providing free counsel, advice, and legal

representation on Long Island, New York. LSLI provides

1. Pursuant to Rule 37.2, all parties listed on the docket were

given a ten-day notice that this brief would be filed on April 14,

2025. Pursuant to Rule 37.6, Amici Curiae affirm that no counsel

for any party authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to fund

the preparation or submission of this brief. No person other than

Amici Curiae made a monetary contribution to its preparation

or submission.

2

free legal services in thousands of civil cases each year

and legal support to community advocates ensuring people

with low incomes and disabilities have equal access to

the civil justice system on Long Island. LSLI was among

the first Legal Services Corporation programs in the

state and is one of the largest providers of free civil legal

assistance in New York. LSLI is highly experienced in

poverty law and, from their beginnings, have focused on

cases concerning the survival needs of people with low

incomes, involving shelter, food, healthcare, and family

issues. The LSLI Foreclosure Prevention Unit provides

representation to homeowners and thus has a distinct

interest in the outcome of this case.

Peter M. Soares is a member of the New York State

Bar and a pro bono volunteer with the Foreclosure

Prevention Unit at LSHV. He has provided free legal

services to indigent New Yorkers through his volunteer

work with Legal Services NYC, The Legal Aid Society,

and Catholic Charities Community Services.

SUMMARY OF THE ARGUMENT

The Constitution requires government to provide just

compensation and due process when it engages in the

taking of a taxpayer’s home. Under this Court’s decision

in Tyler v. Hennepin County, 598 U.S. 631 (2023), such a

taking occurs when a local government’s foreclosure of a

tax lien results in surplus funds from the subsequent sale

of the taxpayer’s home. The foreclosing taxing authority

has a duty to return that surplus to the taxpayer—failure

to do so constitutes a failure to provide just compensation

as required by the Fifth and Fourteenth Amendments.

Since Tyler was decided, states and local governments that

3

had long been seizing the foreclosure surplus as a matter of

course have issued updated procedures. Such procedures

repeatedly channeled money to the government or other

lienors rather than foreclosed homeowners, who are

entitled to it under the Fifth Amendment.

This case’s Petitioners appeal from Michigan

procedures that continually deny just compensation.

The undersigned amici from New York support that

appeal because New York has witnessed similar tactics,

yielding demonstrable harm to hundreds of foreclosed

homeowners. The points we present are (1) the Fifth

Amendment requires the exercise of due process to

assure just compensation is given, and (2) that procedures

compliant with local government’s duty of due process

already exist in other areas involving foreclosure and

surplus funds. Michigan’s current unconstitutional

approach should be rejected. This Court should set clear

due process standards allowing State legislatures and

local governments to design simple procedures making the

required disbursement of surplus funds to the foreclosed

homeowner essentially self-executing.

This brief’s authors are not-for-profit legal services

organizations representing indigent, elderly, and infirm

clients whose homes were once their only substantial

property, now lost to them for inability to pay some

of the highest real estate taxes in America. We first

discuss whether the regulatory approaches New York’s

Legislature and local governments use to resolve a tax

foreclosure surplus mirror Tyler’s direction that surplus

belongs to the foreclosed homeowner. We show current

procedures, like the one at issue in Michigan, obstruct

disbursing surplus as just compensation, and harm

4

indigent and elderly people, who are vulnerable to loss of

their homes through tax foreclosure, in deeply disturbing

ways.

Second, we show why the Fifth Amendment, as

applied to the States through the Fourteenth Amendment,

requires local governments to pay special attention to due

process in executing the mandate of Tyler. History and

tradition demonstrate due process goes hand-in-hand

with just compensation when a governmental taking

occurs, as Constitutional case law from early days of the

Republic shows. Under the requirements of due process,

we show designing a compliant procedure is simple and

consistent with existing practice in other areas where local

government handles surplus funds. With basic guidance

from this Court, States and local governments in Michigan

and New York, indeed throughout America, can achieve

the result mandated by the just compensation clause of

the Fifth Amendment.

ARGUMENT

I.

Surplus claims procedures, like those in Michigan

and New York, deny just compensation and are

causing profound harm to unhoused homeowners.

In their petition for certiorari, Petitioners show the

Michigan surplus claims procedure enacted in response

to Tyler disproportionately affects vulnerable populations,

including elderly and indigent individuals. Michigan’s

local governments consume all surplus proceeds when

indigent property owners fail to navigate the state’s

claim procedures. The same unconstitutional regime

exists in much of New York. After Tyler, the Legislature

5

amended the State’s tax foreclosure statute to provide the

foreclosed homeowner with a purported pathway to obtain

the surplus. But the process is opaque and treacherous,

allowing local governments to impose obstacles barring

most homeowners from receiving just compensation.

A.

New York’s amended tax surplus statute

New York property tax foreclosures are handled by

counties and cities, like those in Michigan. Article 11 of

the New York State Real Property Tax Law (RPTL)

provides the framework for enforcement of property tax

foreclosures in New York. While many local jurisdictions

use the RPTL provisions for enforcement of tax liens,

some counties and cities opted out of such provisions and

instead follow local laws to administer tax foreclosures.

While Article 11 offers a framework for enforcing tax

liens in RPTL jurisdictions, the mechanics of disposing

of foreclosed property have been left to the discretion of

local government.

While a public auction, similar to a mortgage

foreclosure, is most common and presumed as the default

by Article 11, local jurisdictions may instead opt to sell via

a private sale, transfer to a local land bank (N-PCL 1608),

or retain the property for its own use. In rem Jurisdictions

throughout New York utilize all four methods for disposing

of foreclosed properties and use a combination of two

or more methods depending on local ordinances and

the perceived condition of the foreclosed property. In

rem Jurisdictions throughout New York utilize all four

methods for disposing of foreclosed properties and use a

combination of two or more methods depending on local

ordinances and the perceived condition of the foreclosed

property.

6

After Tyler, New York amended the RPTL ostensibly

to align with the Court’s mandate. The RPTL added three

sections: §1135 permitting notice of claims for surplus,

§1196 to determine the amount of a surplus, and §1197 to

determine how such surplus is distributed. RPTL §1135

requires the notice of claim be filed before the report of

sale, while RPTL §1197(4) allows residential homeowners

up to three years to claim their surplus. However, if the

homeowner fails to move to claim the surplus in this

time, the surplus “shall be deemed abandoned but shall

be paid to the tax district, not to the state comptroller,

and shall be used by the tax district to reduce its tax

levy” RPTL §1197(5). This supposed “abandonment” of

the surplus, which is a construct of the law, contradicts

and circumvents existing procedures under New York

law that, like Michigan and every other state, create

unclaimed funds accounts in which the state holds money

indefinitely from multiple sources, including deposits

from court cases. N.Y. Aband. Prop. Law §600 et seq. New

York has procedures to record and hold unclaimed funds,

including those involving multiple potential claimants,

without resulting in early forfeitures. Depositing tax

foreclosure surpluses with the state comptroller imposes

no material burdens on the state. In contrast, the amended

tax foreclosure law imposes constraints on the foreclosed

homeowner’s ability to recover the surplus and repeatedly

leads to forfeitures.

B. The time limitation imposed on in rem surplus

claims is anomalous among surplus processes

in New York

A property owner can lose all rights to equity

redemption after an in rem tax foreclosure due to a

7

mere delay. This is contrary to the claims processes

available after a mortgage foreclosure, condemnation or

for abandoned property; these may be claimed at any time

by a known owner.

Inverse condemnation takings claims are subject

to a statute of limitations such as 3-years for New York

or 6-years for Michigan but that is intended to restrict

excessive delays in seeking relief in cases brought

by the property owner, particularly where the exact

amount of compensation may potentially be subject to

dispute. Though an in rem foreclosure is also an inverse

condemnation, the surplus funds are already available

to be claimed and there is generally no dispute over

the amount of the surplus. Thus, the local governments

need only notice and make the funds available to former

homeowners.

In rem tax foreclosure is unlike any other foreclosure

proceeding in New York. In a mortgage foreclosure,

the court appoints a referee to conduct the sale of the

property and issue a report of the sale, which identifies

any surplus. Interested parties have until confirmation of

the report of sale to submit a notice of claim. Notably, the

former property owner does not submit a notice of claim

as they are provided with notice of the report of sale and

claim hearing. Once the sale is completed, any remaining

surplus from the sale becomes the personal property of

the former owner substituting their previous interest in

the property. Hawthorne v. Hawthorne, 13 N.Y.2d 82

(favorably citing Franklin Square Nat. Bank v. Schiller,

202 Misc. 576. Further “[a] foreclosure suit cannot be said

to have terminated until the surplus moneys are disposed

of, in that suit. The court has not only the power, but it

8

is its duty, in that action, to provide for the equitable

distribution or disposition of the surplus moneys” Mut.

Life Ins. Co. v. Bowen, 1866 WL 5443 (N.Y. Gen. Term.

1866) Generally, the notice of claim requirement in a

foreclosure is unnecessary for the owner of the equity

of redemption (provided they had been a party to the

foreclosure action) as they do not need to prove their

entitlement to any surplus proceeds. NYCTL 1997-1 Tr.

v. Stell, 184 A.D.3d 9, Federal Home Loan Mtge. Corp. v.

Grant, 224 A.D.2d 656.

Article 11 proceedings do not require the tax district

to publish any report of the sale proceeds or to confirm

the sale RPTL 1197 (3). Thus, a property owner may never

know when their properties were sold or even for how

much until they make a motion to claim said surplus. By

comparison “[t]he owner of the equity of redemption, or

any party who has appeared in the action or any person

who files a notice of claim or who has a recorded lien

against the property shall be given notice by mail or in

such other manner as the court shall direct, to attend any

hearing on disposition of surplus money” N.Y. Real Prop.

Acts. Law §1361 (McKinney). The nearest equivalent to

the RPTL’s surplus provision in the RPAPL is the state’s

provision for disbursement to unknown heirs. Under

RPAPL sections 991, 992 and 1391, the court may set aside

a portion of the surplus from a foreclosure or partition sale

for any unknown heirs of a deceased record owner. The

unknown heirs will then be provided 25 years to claim

their share of the surplus in a special proceeding. If an

unknown heir fails to appear during the 25-year period,

then the remainder of the surplus is vested with all known

heirs. Unlike Article 11, this process still ensures the

remaining known heirs are fully compensated.

9

C.

Examples of local surplus procedures

Many local governments implemented statutory

amendments, creating barriers to the foreclosed

homeowner’s ability to recover surplus by retaining

local procedures. These procedures occasionally require

efforts no laymen could be expected to achieve from

indigent or distressed foreclosed homeowners. This

clearly violates the principle that there is a “self-executing

obligation to actually pay just compensation under the 5th

Amendment.” First English Evangelical, 482 U.S. 304,

315 (1987). In other instances, those procedures allow

lienholders subordinate to the taxing local government’s

lien to seize the surplus with none of the constraints

imposed on the homeowners, effectively ignoring the

primacy of the homeowner’s right to the surplus under

Tyler. The following exemplify the current takings regime

in New York’s local governments.

In Cattaragus County, the county places the burden on

former homeowners to serve notice of surplus proceedings

on all former lienholders, regardless of if the lien is valid,

prohibiting them from claiming their surplus until it is

done. In Sullivan county, former homeowners are required

to submit eight different forms to claim their surplus.

These forms are rife with legalese and contain waivers

of rights (such as a concession the auction was valid and

the amount of surplus is correct) that an unsophisticated

former homeowner is unlikely to understand. By

comparison Westchester only requires that homeowners

submit a simple proposed order and affidavit to request

their surplus. The court then makes a decision on how

much of the surplus they are entitled on notice to all

appearing parties. The former homeowner may receive

10

their check within a few days of submission if the surplus

proceedings are uncontested.

D.

New York’s surplus claims proceedings cause

grave harms when lack of due process and selfdealing deprive homeowners of their right to

just compensation

Homeownership, a core component of the American

dream, confers economic benefits on homeowners, allowing

them to accumulate wealth by accessing credit, building

equity and reducing housing costs. New York’s fast-paced

in-rem foreclosure scheme deprives homeowners of these

benefits without due process.

In rem foreclosures push elderly and disabled

homeowners into extreme poverty, requiring reliance on

government benefits despite the wealth accumulated in

their homes. The illusion of due process in New York’s

surplus proceedings often causes grave, irreparable

harms.

Our state requires municipalities to commence

judicial foreclosures for unpaid fees. However, New York

has 1300 counties, cities and villages that have their own

tax enforcement procedures. That’s 1300 foreclosure

methods, 1300 record keepers, 1300 valuation methods,

and 1300 actors continually depriving homeowners of their

constitutional rights to due process, equal protection.

Most tax districts north of New York City have complex

claims procedures hindering the just compensation former

owners are due.

11

1.

Client Stories 1 and 2—Orange County

Ne w bu r gh , i n O r a ng e C ou nt y, e v ic t e d ou r

septuagenarian client after taking her deed. Like the

Michigan high court, the Sothern District of New York

determined that Newburgh’s policy to evict a homeowner

without compensation was not a taking because Newburgh

had not yet benefited from the taking. Newburgh’s tax

collection procedures require former homeowners to be

evicted, have the home boarded up and winterized, then

assess all carrying costs to the delinquent tax account.

Newburgh City Charter, Art. VIII, §C13. Found at https://

ecode360.com/10870386#10870386. Our client had all her

faculties last fall and is now in hospice after becoming

homeless. The hospice facility conducted a title search

for Medicaid benefits and determined that she still owned

the home, and all the equity in it. because Newburgh

has not recorded its deed. Our client’s family offered to

make Newburgh whole for the delinquent taxes, fines and

fees but the City Counsel repeatedly refused to accept

payment in full. The City of Newburgh has not sold her

house as of April 2025. Her compensation will be delayed

until Newburgh sells the home. Our client was entitled

to compensation or injunctive relief at the time the deed

was transferred to Newburgh. But the state and federal

courts determined that she could have neither immediate

compensation, nor a stay of eviction. She is in hospice.

Delayed compensation has caused immediate, predictable

and irreparable here.

In contrast, the neighboring city of Middletown does

a non-judicial foreclosure wherein they sell tax liens for

$10. Those tax liens are converted into deeds by operation

of law. If the City fails to notify a homeowner about the

12

non-judicial tax foreclosure, then the homeowner has an

additional year to redeem the property. Each tax district

has its own labyrinth of hurdles to deprive homeowners of

due process and just compensation, allowing said districts

to reclaim the proceeds after the claims period ends.

2.

Client Story 3—Cattaraugus County

Homeowners in Cattaraugus County, New York must

meet confusing requirements to claim their funds. One

former homeowner held fee simple interest in his property.

He filed a claim for ~$12,000 after his home was sold

at public auction pursuant to an in rem tax foreclosure

judgment, which extinguished all property liens. The

municipality required the prior owner serve all former

interested parties with a notice of claim. The court insisted

the surplus be set aside for a judgement creditor failed

to appear in court and defaulted on the foreclosure and

the notice of claim. The extinguished lien’s validity was

not examined. He was instructed to find his creditors and

make them take the equity in his home, In the Matter

of the Foreclosure of Tax Liens by Proceedings in Rem

pursuant to Article 11 of the RPTL by Cattaraugus

County, List of Delinquent Taxes for 2022, 92728, Cnty

Court of the State of NY, Cnty of Cattaraugus (June 7,

2024).

3.

Client Story 4—Sullivan County from

police station proceeding to threats to call

Sheriff.

Livingston Manor in Sullivan County does public

auctions to the highest bidder. Before Tyler they had an

incentive to find the highest bidder because they retained

13

the surplus. Immediately after the Tyler decision, the

Sullivan tax assessor insisted our client wait a year and

a half to request a surplus so Sullivan County could use

the surplus proceeds in the next budget cycle. Sullivan

County presently allows homeowners to request Surplus

funds through court forms that implicitly waive the right

to challenge the validity of the auction, the auction amount

or invalid liens. Instructions to Claim Surplus Monies

Action (In Rem Foreclosures), Sullivan County Treasurer

(n.d.), accessed Apr. 12, 2025, available at https://www.

sullivanny.gov/sites/default/files/departments/treasurer/

Claim%20Form%20Packet_ 3.pdf. If Sullivan acts

affirmatively to give former homeowners actual notice

then they might be able to claim the funds within three

years. However, our clients wish to challenge the validity

of the auction and the assumed market value. This may

take longer than three years so there is a risk that the

surplus proceeds will be returned to the Sullivan County

fisk before the dispute is resolved.

4.

Client Story 5—Tax-Lien Surplus Claims

in Long Island

O u r c l ient s who fa c e t a x for e c lo su r e s a r e

overwhelmingly seniors. Many of these clients are thrust

into housing instability, even homelessness.

One LSLI client’s home was sold pursuant to a

tax foreclosure judgment in Nassau County. The sale

produced a $370,381.19 surplus, deposited with the

County Treasurer. The client, struggling emotionally, selfevicted soon thereafter, and wound up in an emergency

housing placement through the local Department of Social

Services. While at this emergency housing, a private

14

attorney convinced our client to have him make a motion to

request the surplus funds be released to him. The attorney

had the senior sign a retainer agreement giving him onethird of the surplus funds, approximately $125,000. The

motion was granted within one week, directing the County

Treasurer to release the funds to the attorney, whose

office is in Westchester County, a significant distance from

client’s former home and her emergency housing. This

senior was referred to us by a non-profit that provides

case management services for vulnerable seniors after the

above transpired. Elder abuse is not uncommon, especially

where the senior’s property has a substantial value. There

should have been no reason for this senior to ask the court

to direct the County Treasurer to release funds already

established to belong to our client.

It is important that the state legislature set standards

making it easy for former homeowners to claim their

proceeds. Unlike in rem tax jurisdictions, these tax lien

jurisdictions do not give themselves an opportunity to

take back the surplus. If the client had failed to claim the

surplus, then the county treasurer would have held the

surplus for three years before sending to the New York

Comptroller to hold until she claimed it. The Long Island

courts would not have given surplus proceeds to former

lien holders without validating their claims, nor to the tax

district for its coffers.

5.

Client Stories 7 and 8—Mortgage and Tax

Lien Surplus Proceedings in Westchester

County Meet Due Process Standards

Westchester County uses its Home Rule authority

to make mortgage surplus claims proceedings fast and

15

simple. LSHV recently assisted two homeowners with

such claims. Both were fast and simple compared to the

in rem tax surplus procedures that take place in the same

court.

The first homeowner claimed she did not receive notice

of the tax lien foreclosure proceedings in Westchester

Supreme Court. She received statutory notice of

her surplus funds before she could be evicted by the

purchaser. She challenged personal jurisdiction instead

of immediately claiming the funds, but was evicted before

her personal jurisdiction defense could be heard on

appeal. She became homeless and LSHV assisted her with

relocation fees, but she needed the $70,000 surplus funds

to secure housing. The purchaser filed an illicit action for

$70,000 in holdover costs after evicting her. The purchaser

attempted to claim the surplus as a judgment creditor,

but was ultimately unsuccessful. The client received a

certification of surplus amounts deposited with the court

and obtained the surplus within a week of filing an order to

show cause. After mortgage foreclosure, the claim process

was fast and easy for the former property owner—the

owner of the equity redemption—while the creditor with

the frivolous claims had many hoops to jump through to

prove its claim to the surplus. Tax surplus proceedings

should do the same.

The second client did not expect the mortgage

foreclosure auction of her home to result in surplus

proceeds. She received statutory notice of the surplus

before an eviction proceeding was possible, and collected

the funds immediately by filing a simple order to show

cause in the foreclosure proceeding. Her order to show

cause was accompanied by two forms of identification

16

proving she was the owner of equity redemption, and a

certificate of funds held by the court. She received her

funds the following day and relocated before she was

evicted.

New York’s in rem foreclosure surplus claims

proceedings require simple due process for just

compensation and must protect prior homeowners from

grave and irreparable harm under the equal protection

clause.

II. Just compensation and due process are indispensable

elements of a compliant takings regime under the

Fifth Amendment.

A.

Tyler

Two years ago, this Court, in Tyler v. Hennepin

County, Minnesota, et al., held that a municipality cannot

retain surplus funds from a tax foreclosure commenced

to satisfy unpaid property taxes. To do so would effect

a “‘classic taking in which the government directly

appropriates private property for its own use.’ TahoeSierra Preservation Council, Inc. v. Tahoe Regional

Planning Agency, 535 U.S. 302,304 . . . ” Tyler, 598 U.S.

631 (III, A). “[A] taxpayer is entitled to the surplus in

excess of the debt owed.” Id. (III.C). “A taxpayer who loses

her $40,000 house to the State to fulfill a $15,000 tax debt

has made a far greater contribution to the public fisc than

she owed.” Id. (IV, end of decision). “[A] property owner

has a claim for a violation of the Takings Clause as soon

as a government takes his property for public use without

paying for it.” Knick v. Township of Scott, Pennsylvania,

588 U.S. 180, 189 (2019). The government may not “avoid

17

the categorical duty to pay just compensation for a

physical taking of property by reserving to the property

owner a contingent interest in a portion of the value of the

property, set at the government’s discretion.” Horne v.

Department of Agriculture, 576 U.S. 350, 362-63 (2015).

A takings violates the Fifth Amendment where there is

no just compensation. Id. at 367.

B. Due Process

“Procedural due process imposes constraints on

governmental decisions which deprive individuals of

‘liberty’ or ‘property’ interests within the meaning

of the Due Process Clause of the Fifth or Fourteenth

Amendment.” Matthews v. Eldridge, 424 U.S. 319, 332

(1976). “The fundamental requirement of due process is

the opportunity to be heard ‘at a meaningful time and in

a meaningful manner.’ [citations omitted].” Id at 333. It is

not enough that the government establishes a process; that

process must be adequate to ensure that the individual’s

property interests are protected. See Goldberg v. Kelly,

397 U.S. 254, 261 (1970). “The extent to which procedural

due process must be afforded the recipient is influenced

by the extent to which he may be ‘condemned to suffer

grievous loss.’ [citation omitted]. Id., 397 U.S. at 26263. (In Goldberg, the court ruled that public assistance

beneficiaries are entitled to a pre-termination hearing).

The property rights at issue in Goldberg were public

assistance benefits necessary to meet the basic needs

including food, housing, health and transportation, for

low-income individuals and families. Our clients are lowincome and moderate-income individuals, many seniors,

with incomes well below the area median income, often

near the federal poverty level. These former homeowners,

18

who have had their homes taken from them and who have

often been thrust into an unstable housing situation,

including homelessness, “‘have a legitimate claim of

entitlement to [the surplus].’ [citation omitted].” Town

of Castle Rock, Colorado v. Gonzalez, 545 U.S. 748, 756

(2005). This right to the surplus is not subject to the

discretion of government officials. See, id. The surplus is

a core private right. See Axon Enterprise, Inc. v. Federal

Trade Commission, 598 U.S. 175, 217, fn. 3 (concurring

opinion from Justice Thomas).

Due process is flexible, adapted to the demands of the

particular situation. See Matthews v. Eldridge, supra,

424 U.S. at 334. Due process requires consideration of

three factors: “First, the private interest that will be

affected by the official action; second, the risk of erroneous

deprivation of such interest through the procedures

used, and the probable value, if any, of additional or

substitute procedural safeguards; and finally, the

Government’s interest, including the function and the

fiscal and administrative burdens that the additional or

substitute procedural requirement would entail. [citation

omitted].” Id at 335. If the municipalities’ procedure for

justly compensating the homeowner whose property was

seized in a tax foreclosure, makes it less than likely the

homeowner will be justly compensated, she is deprived of

due process to her property.

C.

History and Tradition

The history and tradition of the Takings Clause

reinforce the link between the constitutional requirement

of just compensation for governmental seizure of private

property and the right to due process in administration

of such compensation. This Court has stressed the

19

significance of “a long unbroken line” of historical

precedent in illuminating the Founders’ intent. New

York State Rifle & Pistol Association, Inc. v. Bruen,

597 U.S. 1. Here, that line extends unbroken from

medieval English legislation to the adoption of the Fifth

Amendment. Regarding compensation, the Tyler decision

notes the continuity from Chapter 39 of Magna Carta

(1215)2 through the “Overplus” provision of 4 W&M, c. 1,

§12 (1692) and Blackstone’s observation on common law

precedent in his Commentaries (1771), all supporting the

point that the surplus from sale of a debtor’s property

to satisfy a debt to the government must be returned to

the debtor. 3 Regarding due process, the path is similarly

continuous and direct, and starts with the same provision

of Magna Carta, Chapter 39, that prohibits an unlawful

taking—“no free man shall be seized or imprisoned, or

stripped of his rights or possessions . . . except by the

lawful judgment of his equals or by the law of the land”

(emphasis added). Statutory reiterations in parliamentary

legislation introduced the expression “due process of

law’ as the shorthand for the original formulation, e.g.,

28 Edw.3, c. 3, (1354) (entitled “Liberty of the Subject”),

and it continued unbroken as a fundamental principle until

codified in the Fifth Amendment along with the Takings

Clause.

2. The organization of the statute into numbered chapters, a

modern editorial addition, did not appear in the version of 1215.

3. 598 U.S. at 639. Moreover, the English Bill of Rights (1689),

1 W&M, sess. 2, c. 2, the model for our American Bill of Rights,

complains of government impressment of private property for

the quartering of soldiers and, as a separate but analytically

related matter, prohibits “excessive fines,” provisions that

modern commentators point to as additional precedent for the

Takings Clause. See, e.g., A. Amar, The Bill of Rights 80 (1998);

J. Rubenfeld, Usings, 102 Yale L.J. 1077, 1122-23 (1993).

20

The Fifth Amendment’s Due Process and Takings

clauses have closely intertwined since the ratification of the

Bill of Rights. After ratification of the 14th Amendment,

this court had consistently found that in determining

compensation for a taking, the government must provide

the injured property owner with sufficient due process.

In incorporating the takings clause against the states the

court in Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S.

226 held that “the legislature may prescribe a form of

procedure to be observed in the taking of private property

for public use, but it is not due process of law if provision

be not made for compensation,” and that “the mere form

of the proceeding instituted against the owner, even if

he be admitted to defend, cannot convert the process

used into due process of law, if the necessary result be

to deprive him of his property without compensation.”

As the court held in United States v. Jones, 109 U.S. 513,

519 “the proceeding for the ascertainment of the value of

the property and consequent compensation to be made,

is merely an inquisition to establish a particular fact as

a preliminary to the actual taking . . . ” see also Backus

v. Fort Street Union Depot Co., supra, 18 Sup. Ct. 445.

Bragg v. Weaver, 251 U.S. 57; Hagar v. Reclamation Dist.

No. 108, 111 U.S. 701. Marchant v. Pennsylvania R. Co.,

153 U.S. 380. While early Supreme Court cases were

differential towards the state regarding the actual due

process required for just compensation, a consistent theme

showed the state must afford the disposed property owner

the opportunity to request compensation and be heard

on the amount owed. More modern cases such as Lucas

v. S.C. Coastal Council, 505 U.S. 1003 and Knick v. Twp.

of Scott, Pennsylvania, 588 U.S. 180 have consistently

noted the close relationship between due process and

takings and found the state cannot place barriers to just

21

compensation. This court has held that there is a “selfexecuting obligation to actually pay just compensation

under the 5th Amendment.” First English Evangelical,

482 U.S. 304, 315.

D.

N Y ’s S t at ut o r y P r o c e du r e fo r Ju s t ly

Compensating the Former Homeowner

New York’s RPTL §§1136, 1196, and 1197 make no

provision for how former homeowners receive notice of

their right to compensation. While the RPTL provides

homeowners be given notice of the actual foreclosure

proceeding (via mail and publication), this only notices

the loss of title to the property (effective at time of default

judgment). Afterwards, the former homeowner is not given

notice of either the sale of the property or the surplus. At

least one New York court (Matter of Seelbach, 85 Misc. 3d

497) held that former property owners are not entitled to

any notice beyond that of the original notice of foreclosure.

Instead, the court asserts mere notice of pendency of

the action suffices for the entirety of the tax foreclosure

proceeding, including sale and surplus proceedings. Tax

foreclosure properties may be disposed of in multiple

ways, none of which are likely to provide the homeowner

with sufficient information to request their surplus. At

best a former homeowner may learn their property has

been transferred to a third party, and a surplus may

theoretically be available, when the new owner begins

to evict them. Worse, a homeowner who wishes to claim

a surplus must notice all interested parties, meaning

the homeowner, who may acting pro se and be elderly

or severely disabled, has a greater obligation to inform

interested parties of a surplus than the local government.

22

III. There is a bright line for due process when a surplus

exists.

New York ’s A ba ndoned P roper t y Law s a nd

Westchester’s mortgage surplus procedures have a bright

line for due process when funds are available for a known

owner. This is not true in the tax surplus context, and

it deprives former homeowners of the ability to get just

compensation and relocate before they are evicted.

Just compensation would become a reality after an

in rem tax foreclosure if a similar brightline existed in

the RPTL. Due process here would ideally follow three

steps. First, a final judgment granting a tax foreclosure

directs the conveyance of the deed from the homeowner to

the local government to satisfy the tax lien. This transfer

extinguishes ownership of the real estate and all liens

on the property. See RPTL §§1136, 1197(10). Second, the

surplus funds are directed to be deposited with the County

Treasurer, for the sole benefit of the former homeowner.

Third, the government has an affirmative duty to pay the

former homeowner just compensation before eviction, i.e.,

the surplus. See Horne v. Department of Agriculture,

supra, at 362-63. Due process requires the municipality

to simply and directly notify the former homeowner it is

holding funds for her, to collect as just compensation.

The former owner experienced the taking and is

entitled to due process for the right of equity redemption

and the right to just compensation. Thus, the former

homeowner should not have to file a motion in any court for

the payment of these funds. In New York State, there are

straight-forward, user-friendly procedures for individuals

23

to claim their property. See Abandoned Property Law;

see also RPAPL §1361. A few local municipalities, such

as Westchester County, have also established easier

procedures to ensure former homeowners are given their

surplus proceeds.

The New York Comptroller makes the abandoned

property claims process simple. In 2024, 85% of claims

for previously unclaimed and abandoned property were

paid through an online process; $1.5 million was paid to

claimants each business day.4 Tax districts could employ

similar procedures since they know before commencing

the tax foreclosure whose property is being seized to

satisfy the tax lien, and who is entitled to the surplus post

foreclosure judgment, as just compensation. New York

must establish a tax surplus procedure that (1) is not time

bound, (2) ensures just compensation can immediately

be claimed by the former homeowner, and (3) is actually

available before an eviction can be commenced against her.

4. https://www.osc.ny.gov/files/unclaimed-funds/resources/

pdf/annual-report-sfy-2023-24.pdf.

24

CONCLUSION

This Court should grant the Beeman petition for

certiorari so that former homeowners in New York and

Michigan may claim their just compensation after the

taking of their homes.

Respectfully submitted,

Tanya P. Dwyer

Counsel of Record

Richard Menaker

Daniel McEnroe

Legal Services of the

Hudson Valley

One Park Place, Suite 202

Peekskill, NY 10566

(914) 368-2489

tdwyer@lshv.org

Michael Wigutow

Legal Services of

Long Island

Helen Keller Way, 5th Floor

Hempstead, NY 11550

mwigutow@legalservicesli.org

Peter M. Soares

New York, NY

peter.soares@live.law.cuny.edu

Counsel for Amici Curiae

April 2025