The Louisiana legislature’s notice requirements meet due process standards.

by Chris on March 29, 2012

In Louisiana a tax sale has the legal presumption of validity. This is expressed in our state’s constitution that “a tax deed by a tax collector shall be prima facie evidence that a valid sale was made. ” Our jurisprudence has held that after presentation of a tax deed, the burden then shifts to the other party to establish that the tax sale is in fact invalid. SeeMeares, v. Pioneer Production, 382 So.2d 1009, (La. App. 3rd Cir 1980). In practice, this means that a tax buyer should be able to rely merely on the tax deed itself to be victorious is a tax sale confirmation suit. Although there is no further duty to prove that the sale is “good” often times courts will require a plaintiff to provide more evidence of a valid sale. Attorneys for tax debtors and mortgage companies have been successful in heightening the plaintiff’s burden.

One piece of evidence that is specifically important to the courts is the signed certified mail receipt. Sometimes referred to as the “green card,” the courts have the notion that this is the holy grail of a good or bad tax sale. To be specific this is the certified mail receipt that accompanies the sheriff’s notice prior to the tax sale. It is my opinion that judges feel safer with this piece of mail because it tends to show that there was “prior notice” of the sale. This idea of “prior notice” feeds on their conception of due process which requires 1) notice and 2) an opportunity to be heard.

However, under contemporary legal standards prior notice is not required for due process. There is a large body of federal cases that have analyzed the issue of “good notice.” A common phrase the courts have used is “flexible due process” which essentially means reasonable notice is good notice.

Our legislature has recognized the flexible nature of due process as evidenced by its 2009 enactment. No longer is a piece of signed mail the determining factor of a good sale. The legislature has shifted the burden to private individuals to send out notices to parties adversely affected by tax sales. Most importantly, this notice can be sent after the sale. As long as it informs the recipient of the tax sale, and that their rights will be terminated in three years. This notice regime gives an adversely affected party three years to go and redeem the property. Further, after the redemption period has ended the law provides a six month period for a party to challenge a tax sale by filing a lawsuit.

The legislature’s notice requirements are common sense. Prior notice is not required if no deprivation of property will occur for over three years. Within those three years, a notice after the tax sale is constitutionally sufficient since there is ample time to go and redeem the property. After the three years a party has six months from the date of notice to attack the sale. Compare this to the typical 15 day requirement to answer a lawsuit and this notice looks more than generous.

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