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Deichmann v. Moeller

Court of Appeals of Louisiana, Fourth Circuit

December 28, 2018

GREG A. DEICHMANN, SR.
v.
MARK A. MOELLER

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-10075, DIVISION "I-14" Honorable Piper D. Griffin, Judge

          LOBRANO, J., CONCURS IN THE RESULT. Jonah A. Freedman JONAH FREEDMAN LAW, LLC COUNSEL FOR PLAINTIFF/APPELLEE

          Mark A. Moeller THE LAW OFFICE OF MARK MOELLER DEFENDANT/APPELLANT/IN PROPER PERSON

          Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Dale N. Atkins

          DALE N.ATKINS JUDGE

         This case arises from a judgment declaring a December 2009 tax sale a nullity and ordering the appellant, Mr. Mark Moeller, the original owner of the property, to reimburse the appellee, Mr. Greg Deichmann, within one year for taxes and other monies Mr. Deichmann paid upon acquiring the property at the tax sale. For the reasons discussed below, we reverse the district court's judgment finding the tax sale a "nullity" to hold that the tax sale was an absolute nullity, reduce the interest rate imposed upon the repayment amounts from 12% to 10%, and vacating the 5% penalty and the one-year repayment period.

         BACKGROUND

         Mr. Mark Moeller and his family have lived on the property at issue since 2003. Hurricane Katrina destroyed their home, and from 2006 to 2008, the Moeller family lived in a mobile home on the property while their permanent home was being rebuilt. They moved into the permanent home in 2008. The appellee, Mr. Greg Deichmann, purchased the Moeller property at a tax sale in December 2009 after Moeller failed to pay property taxes in 2007 and 2008.

         According to Moeller, the Assessor for the City of New Orleans applied a homestead exemption on the subject property in Moeller's favor before Katrina but did not recognize the homestead exemption after Katrina. Tax bills that failed to reflect the exemption were mailed to Moeller for 2007, 2008, and 2009, but no taxes were paid. On October 8, 2009, Moeller sent a letter to both the Bureau of the Treasury for the City of New Orleans and the Assessor indicating that the tax bills for 2007, 2008, and 2009 were incorrect because they did not incorporate Moeller's homestead exemption. Moeller's letter asked that the homestead exemption be reapplied.

         On December 1, 2009, Moeller spoke to the Assessor and obtained the appropriate homestead exemptions for 2007, 2008, 2009, and 2010. He also spoke to the staff in the City's Treasury Department to let them know that he was entitled to a homestead exemption for those years. He was notified on December 1 that a tax sale had been scheduled to take place, but he was assured that the sale would not go forward. The record contains Homestead Exemption Receipts for 2007, 2008, 2009, and 2010 issued by the Assessor on December 1, 2009.

         Despite Moeller's meeting with the Assessor and with the Treasury Department a day or two before the scheduled tax sale, [1] the City of New Orleans sold the property to Mr. Deichmann. The City issued a Tax Sale Deed to Deichmann on January 28, 2010, and the deed was recorded in the Notarial Archives on February 2, 2010.

         Deichmann paid the delinquent taxes from 2007 and 2008 at the tax sale, and he continued paying the property taxes as they came due.[2] Deichmann's Affidavit of Proof of Costs, submitted pursuant to La. R.S. 47:2291 (B)(3), establishes that he paid $2, 649.27 at the tax sale on December 3, 2009, plus $6, 327.11 on January 17, 2011; $3, 329.41 on January 30, 2012; $4, 410.85 on November 8, 2013; $3, 705.72 on July 19, 2014; $3, 536.65 on June 28, 2015; and $3, 217.00 on May 31, 2016, for a total of $27, 176.01.

         On October 25, 2013, Deichmann filed a Petition to Quiet Tax Title but did not serve Moeller with this Petition. Deichmann filed an Amended Petition on September 9, 2015, and Moeller was served with both the Petition and the Amended Petition at that time.

         Moeller responded to Deichmann's Amended Petition by filing an Answer, Affirmative Defenses, and Reconventional Demand naming Deichmann and the City of New Orleans as defendants in reconvention. Moeller alleged that the tax sale and tax deed were absolutely null and had no legal effect because the tax sale was not properly published and/or advertised under La. R.S. 47:2153 (B), La. Const. art. VII, § 25, and the Constitution of the United States. Moeller also argued in the alternative that the obligation for taxes due was extinguished by operation of law when ...


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