On January 13, 2023, The United States Supreme Court granted certiorari to hear the arguments of HK Partner David Wilkes, as amicus, that taking and selling a home to satisfy a property tax debt to the government, and then keeping the surplus value as a windfall, violates the Fifth Amendment’s Takings Clause, and the complete forfeiture of property that is worth more than the debt is an excessive fine in violation of the Eighth Amendment of the United States Constitution.

The case, Tyler v. Hennepin County, Minnesota (S.Ct. Docket 22-166), stems from the government confiscation of 93-year-old Geraldine Tyler’s former home as payment for about $15,000 in property taxes, which the County sold for $40,000 and, consistent with state law, kept all of the proceeds including the windfall.

Many are surprised to learn that, likewise, by law, in New York, even after the taxes, penalties, and interest are fully satisfied, the government will cut off all homeowner interests in the property (unlike a lender foreclosure that returns surplus money that represents the home equity to the former owner).

HK Partner David Wilkes has argued that New York’s foreclosure statute, like that of Minnesota and some 13 other states, requires an unconstitutional taking of property rights (the equity in one’s home) without just compensation and that the surplus monies should be rightfully returned to the former owner. He contends that New York’s foreclosure law should be struck down to the extent it requires this unjust and draconian result.

Final briefs will be submitted as of March 1, and the Court is scheduled to hear oral arguments from the parties on April 26, 2023. You can also read HK partner David K. Wilkes’s brief requesting certiorari as amici (the final brief to be heard by the Court is still in the works).