County District Court No. 15CV30438 Honorable Jill S.
Akerman LLP, Michael J. McKleroy, Jr., Ashley E. Calhoun,
Justin D. Balser, Dallas, Texas, for Plaintiff-Appellant
BuxmanKwitek, P.C., Linda McMillan, Pueblo, Colorado, for
1 Plaintiff, Wells Fargo Financial Colorado, Inc., appeals
the district court's summary judgment in favor of
defendants regarding a tax deed issued by defendant Pueblo
County Treasurer Del Olivas (the Treasurer) to defendant Bob
Housman. Defendant John Moran currently holds the deed to the
property. We reverse the summary judgment and remand to the
district court to conduct further proceedings in accordance
with this opinion.
2 When property taxes are unpaid, the county in which the
property is located may sell a tax lien by public auction to
recover the taxes owed on the property. §§
39-11-101 to -110, C.R.S. 2017. Upon the sale of a tax lien,
the county treasurer must prepare a tax lien certificate of
purchase to record the sale and any subsequent taxes paid.
§ 39-11-117, C.R.S. 2017. Three years after the tax lien
is purchased, a lawful holder of the certificate may present
it to the treasurer, who, after providing notice to the owner
of the property, any occupant, and any interested parties of
record, shall issue a tax deed on the property to the
certificate holder if the tax lien remains unredeemed.
§§ 39-11-120, 39-11-128, C.R.S. 2017.
3 The following facts regarding this case are undisputed.
Buyers purchased a house in Pueblo in 2004. On June 24 of
that year, buyers signed (1) a deed of trust in favor of
"Wells Fargo Financial Colorado, Inc." (WFFC), a
Colorado company with an address of 1721 South Pueblo Blvd.,
Pueblo, Colorado, to secure a mortgage loan in the amount of
$267, 000.52; and (2) an open-end deed of trust to
"Wells Fargo Financial Bank" (WFFB), with an
address of P.O. Box 5943, Sioux Falls, South Dakota, to
secure a line of credit with a maximum amount of $20, 000.
The open-end deed of trust referenced the WFFC deed of trust
as a prior encumbrance on the property. Both deeds of trust
were recorded in the Pueblo County Clerk and Recorder's
Office on June 30, 2004, and assigned sequential document
4 Beginning in 2008, buyers failed to pay both the monthly
mortgage installments to WFFC and the property taxes on the
house. WFFC apparently did not maintain an escrow
account on the mortgage loan, but it paid the 2008 taxes in
September 2009. WFFC did not pay the taxes thereafter.
Housman paid the 2009 taxes on October 20, 2010, when the
Treasurer sold a tax lien on the house by public auction.
5 Housman also paid taxes on the property for tax years 2010,
2011, and 2012. In 2013, Housman applied for a tax deed. In
early January 2014, the Treasurer took steps to notify all
parties with an interest in the property, as required by
section 39-11-128, of an impending issuance of a tax deed and
a right to redeem by May 28, 2014.
6 The Treasurer acquired a title report and, on January 2 and
3, 2014, sent notices by certified mail to the buyers, the
public trustee of Pueblo County, and to WFFB and WFFC at the
addresses on the two deeds of trust referenced above. The
Treasurer also had a notice physically posted on the property
and advertised for three consecutive weeks in a local
newspaper, the Pueblo Chieftain. The notice sent to plaintiff
WFFC at 1721 South Pueblo Blvd., Pueblo, CO 81005 was
returned to the Treasurer on January 13, 2014, marked
"undeliverable as addressed . . . unable to
forward." During discovery, WFFC reported that it had
ceased to occupy that address "on or about October 31,
2010." The notice sent to WFFB was not returned to the
7 Although the notice to WFFC was returned, the Treasurer
believed that he had provided the notice required by law
because one Wells Fargo entity had received the notice. He
testified that he believed that WFFB and WFFC were "the
same entity" because they operated under the "same
trade name, " and he assumed that WFFB, which received a
notice, would notify the proper office if necessary. The
Treasurer himself did not inquire further as to the correct
address for WFFC and took no steps to issue a further notice
to WFFC. He could not say whether any staff in his office had
rechecked the records for an alternative address.
8 The Treasurer issued Housman a tax deed on the house on May
28, 2014. Housman sold the property to Moran a few weeks
later, and Housman continued to hold a deed of trust on the
property. On December 30, 2014, WFFC requested related
records from the Treasurer. And on May 20, 2015, WFFC filed a
complaint seeking to void the tax deed to Housman, the
special warranty deed from Housman to Moran, and the deed of
trust held by Housman.
9 WFFC claimed that (1) upon return of the original notice as
undeliverable, the Treasurer failed to perform his statutory
duty of diligent inquiry to find an alternative address and
notify it of an impending tax sale; and (2) it was deprived
of its constitutional due process right to notice. WFFC
requested declaratory relief and moved for summary judgment
on those grounds, arguing that the Treasurer's duty
requires him to search county records of other properties to
find a correct address. Housman and Moran responded and
cross-moved for summary judgment, disputing that the
Treasurer was required to search the county records of other
properties and asserting that the WFFC's complaint should
be barred by the doctrine of laches.
10 The district court denied both motions, finding that
. "a search of any county records
associated with the property at issue in this case would not
have yielded an alternative address for [WFFC]";
. "a search of all properties in the
county to determine if [WFFC] held an interest in other
unrelated properties for an alternative address is not