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02-0653 Topps v. County of Walworth (58425)

By: dmc-admin//January 20, 2003//

02-0653 Topps v. County of Walworth (58425)

By: dmc-admin//January 20, 2003//

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The county purported to foreclose on plaintiffs’ property under Wis. Stat. § 75.521, but plaintiffs allege that the county failed to publish the petition to the court, failed to mail a copy of the petition to the plaintiffs or to the mortgagee of the property, failed to include a description of the plaintiffs’ property in the list of tax liens required to be filed in the clerk’s office, and failed to timely publish the redemption notice.

The county then sold the property to a third party, who in turn sold to a fourth party. The plaintiffs’ seek a declaration that any sale was void, and return of the property. The trial court found that plaintiffs’ exclusive remedy is monetary damages against the county, and dismissed the third and fourth parties.

Because the county never validly foreclosed on the property as provided in § 75.521, the remedies of § 75.521 were not available; case law makes the remedy for the county’s failure to comply with statutory foreclosure requirements a declaration that the tax foreclosure action is void; therefore the court erred in dismissing the third and fourth parties.

“The taking of land by the government from an individual for failure to pay taxes on the land is a very drastic measure and unless the statutory procedures are strictly complied with, a court has no jurisdiction to render such a foreclosure judgment. Absent strict compliance with the statute, it would violate due process to allow such a governmental taking.”

If the allegations in the amended complaint prove to be true, that the county failed to strictly follow the mandates of § 75.521, to avoid any due process violations the only appropriate remedy is to declare the foreclosure action and judgment void. We therefore reverse the foreclosure judgment and orders of the circuit court dismissing the third and fourth parties.

Reversed and remanded.

Recommended for publication in the official reports.

Dist II, Walworth County, Race, J., Snyder, J.

Attorneys:

For Appellant: David C. Williams, Lake Geneva

For Respondent: Lisle W. Blackbourn, Elkhorn; Michael J. Frazier, Elkhorn

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