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Pennell v. Kelley

Superior Court of Maine, Sagadahoc

May 29, 2018

MARIAH PENNELL, Individually and on behalf of the Estate of Harold Howard Owen, Sr., Plaintiffs
v.
MARGARET L. KELLEY and INHABITANTS OF THE TOWN OF TOPSHAM, Defendants.

          MARIAH PENNELL - PLAINTIFF OBO Attorney for: MARIAH PENNELL, JENNIFER A DAVIS

          HAROLD OWEN EST OF SR - PLAINTIFF MARGARET KELLET - DEFENDANT Attorney for: MARGARET KELLEY DONALD S LAWSOK-STOPFS - RETAINED

          INHABITANTS OF THE TOWN OF TOPSHAM - DEFENDANT Attorney for; INHABITANTS OF THE TOWN OF TOPSHAM MICHAEL ECDGINS - RETAINED BERNSTEIN SHDH SAWYER S. NELSON

          ORDER AND DECISION ON DEFENDANTS' MOTION TO DISMISS

          Daniel I. Billings, Justice.

         This matter is before the Court on Defendant Margaret L. Kelley's Motion to Dismiss, joined by Defendant Town of Topsham ("the Town").

         BACKGROUND

         In 1970, Gilbert B. Stanbridge granted the property at 223 Ward Road, Topsham, Maine to "Harold Howard Owen, Jr." (Def.'s Mot. Ex. 5). This deed was recorded in the Sagadahoc County Registry of Deeds at Book 372, Page 115. (Def.'s Mot. Ex. 5).

         Harold Howard Owen, Sr., was domiciled at 223 Ward Road at the time of his death on May 7, 2009. (Def.'s Mot. Ex. 1). Plaintiff, Mariah Pennell, is Harold Howard Owen, Sr.'s daughter, sole devisee, and personal representative of his estate. (Def.'s Mot. Ex. 1 & 2). On the application for informal probate, completed by Plaintiff and signed on June 3, 2009, the probate estate is listed as containing real estate in the Town. (Def.'s Mot. Ex. 1).

         On July 20, 2009, the Town sent a Tax Collector's Notice, Lien Claim and Demand 30 Day Notice to Harold Howard Owen, Jr., the owner of record for 223 Ward Road. (Def.'s Mot. Ex. 3). On August 26, 2009, the Town sent a Tax Lien Certificate to Harold Howard Owen, Jr., the owner of record for 223 Ward Road. (Def.'s Mot. Ex. 4).

         On January 25, 2011, the Town sent a Notice of Impending Automatic Foreclosure[1] to Harold Howard Owen, Jr., which was returned as "not deliverable as addressed, unable to forward." (Pl.'s Opp. Ex. 2). The returned envelope had the message "PO Box 292, ?, leave it alone per Ruth" written on the front. (Pl.'s Opp. Ex. 2).

         The Town's "vision card," as printed on April 9, 2010, reflects Harold Howard Owen Jr., as the owner of record of 223 Ward Street. (Pl.'s Opp. Ex. 3). Someone added a note by hand to the vision card that reads: "Probate Howard SR?, c/o Mariah L. Pennell." (Pl.'s Opp. Ex. 3 (emphasis in original)). Despite this note, Plaintiff did not receive notice from the Town of the impending foreclosure. (Compl. ¶ 13). The foreclosure redemption period expired on February 26, 2011. (Def Mot. Ex. 6).

         The May 26, 2011 Town Board of Selectmen's meeting minutes reflect the following under the heading "Consideration and Any Appropriate Action on the Tax-Acquired Property Formerly Owned by Harold Owen, Jr.":

Following an explanation by the Town Manager that the Owen family has submitted a $3, 100 check to cover all back-taxes, lien charges and interest which happened because they never received the lien notice because of a Jr./Sr. mix up ... it was unanimously VOTED to authorize the Town Manager to accept the $3, 100 for back taxes and to authorize a Quit Claim Deed.

(Pl.'s Opp. Ex. 4). Plaintiff contends that the Owen family did not know of the mix up. (Pl.'s Opp. p. 3). Plaintiff claims this by asserting that Defendant Kelley is not a part of the Owen family, despite Defendant Kelley's denial and assertion that she married a biological member of the Owen family. (Compl. ...


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