GREG A. DEICHMANN, SR.
MARK A. MOELLER
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
A. Moeller THE LAW OFFICE OF MARK MOELLER
DEFENDANT/APPELLANT/IN PROPER PERSON
composed of Judge Daniel L. Dysart, Judge Joy Cossich
Lobrano, Judge Dale N. Atkins
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.
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.
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.
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.
Moeller's meeting with the Assessor and with the Treasury
Department a day or two before the scheduled tax sale,
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.
paid the delinquent taxes from 2007 and 2008 at the tax sale,
and he continued paying the property taxes as they came
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.
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
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 ...