UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-2174
BAYVIEW LOAN SERVICING, LLC, A Delaware Corporation,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge.
(8:07-cv-00708-RWT)
Submitted: July 14, 2008 Decided: August 5, 2008
Before WILKINSON and TRAXLER, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David H. Cox, Clifton M. Mount, JACKSON & CAMPBELL, P.C.,
Washington, D.C., for Appellant. Rod Rosenstein, United States
Attorney, Richard Kay, Assistant United States Attorney, Baltimore,
Maryland; Stefan D. Cassella, Special Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This appeal rises out of the criminal forfeiture of a
parcel of real property, and the district court’s dismissal of
Appellant Bayview Loan Servicing, LLC’s, (“Bayview”) complaint for
a declaratory judgment regarding its alleged interest as a third
party creditor in the property that was filed as a separate action,
outside of the ancillary proceeding in the criminal case. Bayview
claims that the ancillary proceeding under 21 U.S.C. § 853(n)
(2000) commenced by the United States was not the exclusive means
for Bayview to assert its interests. Bayview further claims that
the United States’ notice to potential interested parties was
statutorily defective and did not meet the requirements of due
process. We affirm the district court’s order.
We review de novo a district court’s order granting
summary judgment. Dawkins v. Witt, 318 F.3d 606, 610 (4th Cir.
2003). Summary judgment is appropriate when no genuine issue of
material fact exists and the moving party is entitled to judgment
as a matter of law. See Fed. R. Civ. P. 56(c); Dawkins, 318 F.3d
at 610. Summary judgment will be granted unless a reasonable jury
could return a verdict for the nonmoving party on the evidence
presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986).
In United States v. McHan, 345 F.3d 262, 268 (4th Cir.
2003), this court stated that § 853(n) provides a process to
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protect a third party’s interest in forfeited property. If the
third party establishes, in the ancillary proceeding, that he has
an interest in the forfeited property, and that interest satisfies
the criteria set forth in the statute, the court must modify the
order of forfeiture to include the third party’s interest. 21
U.S.C. § 853(n)(6); McHan, 345 F.3d at 268; see also De Almeida v.
United States, 459 F.3d 377, 381 (2d Cir. 2006) (the ancillary
proceeding serves to ensure that property belonging to third
parties who have been excluded from the criminal proceeding is not
inadvertently forfeited); United States v. Gilbert, 244 F.3d 888,
909 (11th Cir. 2001) (the ancillary proceeding creates an orderly
procedure whereby third parties who claim their property interests
have been forfeited in a criminal case can “challenge the validity
of the forfeiture order and establish their legitimate ownership
interests”).
Furthermore, the ancillary proceeding under § 853(n) is
the exclusive remedy for third parties. The statute prohibits any
person claiming an interest in the property from commencing an
action at law or in equity against the Government concerning the
person’s interest in the property. 21 U.S.C. § 853(k). “The
petition authorized by § 853(n) is the exclusive avenue through
which a third party may protect his interest in property that has
been subject to a forfeiture order.” McHan, 345 F.3d at 269; see
also United States v. Phillips, 185 F.3d 183, 188 (4th Cir. 1999)
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(Ҥ 853(n) provides the exclusive means by which third parties can
establish an interest in forfeited property”); United States v.
Reckmeyer, 836 F.2d 200, 203 (4th Cir. 1987) (same).
A third party is permitted to assert state law as a basis
for determining their interest in the property. See United
States v. Kennedy, 201 F.3d 1324, 1334 (11th Cir. 2000) (state
property law defines the interests of third parties); United
States v. Lester, 85 F.3d 1409, 1412 (9th Cir. 1996) (when a claim
is filed in the ancillary proceeding, court looks to state law to
see what interest the claimant has in the property and looks to the
federal statute to see if that interest is subject to forfeiture).
Thus, Bayview’s exclusive remedy was to file a petition
in the ancillary proceeding during which it could have asserted
Maryland property law in support of its claim that it had an
interest in the property.
We find the Government satisfied the statutory
requirements for providing notice. See 21 U.S.C. § 853(n)(1). We
further find Bayview was afforded due process. The Government
provided notice reasonably certain to inform the person affected.
Dusenberry v. United States, 534 U.S. 161, 170 (2002). Even after
the Government learned the first loan was satisfied, it was not
under an obligation to find out if there was a subsequent loan and
a new lien holder. See Jones v. Flowers, 547 U.S. 220, 236 (2006)
(an “open ended search for a new address — especially when the
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State obligates the taxpayer to keep his address updated with the
tax collector . . . imposes burdens on the State significantly
greater than the several relatively easy options.”).
We affirm the district court’s order. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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