In “Snail Mail v. Internet”, Snail Mail Prevails; at Least Where Due Process is Concerned.

In a world of Smartphones, E-readers, and the WorldWideWeb, reading the morning newspaper, curling up beside the fire with a good book and writing personal letters may soon be a thing of the past. However, those (like this author) who still prefer “real” to “virtual” reality can celebrate a victory for the old fashioned. Virtual website information will not do when due process is concerned, according to the Ohio Supreme Court in: PHH Mtg. Corp. v. Prater, Slip Opinion No. 2012-Ohio-3931.

In Prater, the Claremont County, Ohio Sheriff’s Office discontinued their practice of sending Sheriff Sale notices to lawyers by snail mail in an effort to control costs. Instead, they offered a website address whereby lawyers could seek information on line. It turns out that the lender in the case, “PHH Mortgage Corporation”, missed the foreclosure sale of the property it had a mortgage on (it was planning on bidding to take back the property) and the property was sold at Sheriff’s Sale to one of the Defendants, Scott Wolf.

The plaintiff-lender argued that the property was taken without due process because it did not receive a notice by mail of the sale. The lender further argued that its case was comparable to one that the Ohio Supreme Court already ruled on, namely Cent. Trust Co., N.A. v. Jensen, 67 Ohio St.3rd 140,141, 616 N.E.2d 873 (1993). The court in Jensen held that notice by publication (in a newspaper, for example) to a person with a property interest in a proceeding is insufficient notice when that person’s address is not known or easily ascertainable. On these facts, the party to a foreclosure action would be entitled to actual notice by mail.

The defendant argued that the website method of notice employed by the Sheriff’s Office was different than notice by a newspaper or publication. Mr. Wolf contended that unlike the traditional newspaper publication, the bank did receive a notice letter which directed the lender where to obtain all necessary Sheriff Sale information.

The Court in Prater disagreed with the defendant (and the trial court and appellate court that held for the defendant). The Court in Prater reasoned that there is an important due process issue here. The court stated that “requiring parties to first read a notice that directs them to a website to then search for information that could just as easily have been a part of the original notice poses an additional, unnecessary burden on the party, particularly for parties that do not have readily available high-speed Internet access or the skills to navigate websites.” The court then offered statistics that disclosed 40% of rural homes and 30% of urban homes do not connect to the Internet. The court acknowledged that while the Prater case involved a bank attorney, it had to consider precedent, and the effect of such notice to all parties, whether sophisticated or not.

So fellow paper lovers, hold on to your parchment and rejoice in this victory of “real vs virtual reality”. I plan to celebrate by sending my tech savvy, Generation X son a copy of the Prater decision as proof of our constitutional need for parchment, at least when certain inalienable rights are concerned. As succinctly stated by the Court in Prater, “notice that misses 30% to 40% of its intended audience does not constitute the notice our constitution demands when property is in jeopardy”.

It is important to note, however, that the Ohio Supreme Court did not hold that snail mail is the only form of notice that would satisfy due process. Rather, a foreclosure sale notice requiring a party to look at a website to find notice of the sale on similar facts as the Prater case would be insufficient. A foreclosure sale notice, according to the Court in Prater, must, at a bare minimum be as likely to provide actual notice as snail mail does.

Translation: Time (and future cases) will tell if notices affecting other constitutional rights will be able to keep the U.S. Postal Service in business, and paper lovers, happy.

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