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Procedure when probate judge issues tax sale redemption certificate although investor has not been paid

Posted by 15789465 on

Note: I just discovered that the following little section had accidentally been omitted from the 2015 edition of my book, Alabama Tax Sale Investing.  I've corrected the mistake, and am sharing the information with everybody, because it is extremely important. In September of 2014, the Alabama Court of Civil Appeals decided the tax sale case of Wall to Wall Properties v. Cadence Bank. The probate judge issued a redemption certificate to foreclosing lender Cadence Bank, even though the investor had not been paid for preservation improvements and insurance premiums. The investor--"Wall"-- found out, and filed a motion with the probate court asking it to rescind the redemption certificate. The probate judge refused. Next, Wall filed a mandamus petition with the circuit court. A mandamus petitions asks that higher court order a lower court do something it is legally supposed to do. For technical reasons not really relevant at this point, it is different from an appeal. Wall wanted the probate judge to at least listen to its arguments about why the redemption certificate should be withdrawn, and arguments why the redeeming bank owed the investor additional money. The circuit court said it could not order the probate judge to do this, because the circuit court did not have the power. Wall was thrown out of court. It appealed. The Court of Civil Appeals said the circuit court DOES have the power to order the probate judge to withdraw the redemption certificate and listen to the parties’ arguments. It also said that, under Ala. Code §6-6-640, mandamus petitions filed in the circuit court must be done “without unreasonable delay.” That is the only rule. There is NOT a 42-day deadline, such as in similar situations. Bottom line: If a probate judge issues a redemption certificate before you've been paid for your preservation improvements and insurance, file a petition in the probate court where the property is located. Ask the probate judge to “quash” the redemption certificate and set an evidentiary hearing to determine additional sums due to the investor. If the probate judge refuses, file a mandamus petition in the circuit court for that same county, as soon as possible but at least “without unreasonable delay” – whatever THAT means. My advice—you are probably completely safe if you do it within 30 days of the probate judge’s denial of your petition. Most likely, you are safe if you do it within 42 days. Longer than that, and the circuit court might decide to have a hearing to see if your delay was unreasonable, and throw you out of court on that basis alone.

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2 comments

  • Denise do you know of any companies that train realtor for probate sales? I have alot of material on investors training with probate but none for brokers/agents.

    LLove on
  • in cadence the appeals court ruled that the reasonable assumption of 42 days to file the petition for mandamus is not valid for redemption cases. in wall v wells fargo (madison county 47cv12-585) another circuit court judge granted a motion to dismiss based on rosen-rager, but before the cadence opinion was released, where the petition wasn’t filed for 11 months. In that case the certificate of redemption had been issued to Ocwen without any reference to Wells. Wall has filed an arcp 59 motion and requested a hearing to introduce the cadence opinion

    howie on

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