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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10418
________________________
D.C. Docket No. 5:10-cv-00602-WTH-PRL
REDUS FLORIDA COMMERCIAL, LLC,
Plaintiff - Appellant,
versus
COLLEGE STATION RETAIL CENTER, LLC,
a Florida limited liability company,
JOSEPH E. ZAGAME, SR.,
JANE C. ZAGAME,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 19, 2014)
Before TJOFLAT, WILLIAM PRYOR and MARTIN, Circuit Judges.
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TJOFLAT, Circuit Judge:
This case asks us to determine what a United States Marshal (“Marshal”)
collects when he auctions property at a public judicial sale. 28 U.S.C. § 1921(c)(1)
entitles the United States Marshals Service (“USMS”) to
a commission of 3 percent of the first $1,000 collected and 1 1/2
percent on the excess of any sum over $1,000, for seizing or levying
on property (including seizures in admiralty), disposing of such
property by sale, setoff, or otherwise, and receiving and paying over
money, except that the amount of commission shall be within the
range set by the Attorney General.
(emphasis added).1 In a case where the judgment creditor prevailed at a
foreclosure sale with an arguably “nominal” bid, the District Court determined that
“collected” refers to the lesser of the amount of the creditor’s judgment lien, or, if
established, the appraisal value of the property under foreclosure. Because the
judgment creditor failed to establish the property’s appraisal value, the District
Court calculated the USMS’s commission based only on the amount of the
judgment lien.
The judgment creditor appeals, arguing that “collected” instead refers to the
amount of his winning bid. Because we find that the plain meaning of “collected”
1
Written as an equation, 28 U.S.C. § 1921(c)(1) prescribes the following:
𝑥(0.03) , 𝑥 ≤ $1,000
𝑓(𝑥) = �
$1,000(0.03) + (𝑥 − $1,000)(0.015), 𝑥 > $1,000
with 𝑓(𝑥) being the USMS commission, and 𝑥 being the amount collected. At bottom, this case
asks us to define 𝑥.
2
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in 28 U.S.C. § 1921(c)(1) refers to the amount of the accepted winning bid, we
vacate the District Court’s judgment and remand for proceedings consistent with
this opinion.
I.
This case began when Redus Florida Commercial, LLC (“Redus”) filed a
foreclosure complaint against Joseph E. Zagame, Sr. and Jane C. Zagame in the
United States District Court for the Middle District of Florida. After over a year of
pretrial litigation, the parties entered into a settlement agreement that yielded a
joint stipulation for Entry of Final Judgment of Foreclosure. 2
The District Court granted the parties’ Motion for Entry of Final Judgment
of Foreclosure, finding that Redus held a valid and enforceable mortgage lien for
$11,832,307.14 on the Zagames’ property. The District Court then directed the
USMS 3 to sell that property “at public sale . . . to the highest bidder for cash” to
satisfy this judgment. Redus was allowed to bid on credit at the auction up to the
total amount of its judgment.
2
This settlement agreement contained a promise by Redus not to seek a deficiency
judgment.
3
The parties’ proposed Final Judgment of Foreclosure envisioned that “the Clerk of [the
District] Court” would handle the foreclosure sale. See generally Doc. 52-1. The actual Final
Judgment of Foreclosure replaced references to the clerk with references to the Marshal. See
Doc. 55.
3
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Under 28 U.S.C. § 1921(c)(1), the USMS is entitled to a commission,
calculated as a percentage of the amount “collected” at auction, for conducting
foreclosure sales on behalf of private litigants. 4 Prior to the public auction, Frank
Tallini, the Deputy U.S. Marshal tasked with handling Redus’s sale, informed
Redus that, when the judgment creditor prevails at auction with a “nominal” bid, it
is USMS policy to calculate the statutory commission based upon the lesser of the
amount of the creditor’s judgment or, if established, the appraised value of the
property. Although the USMS Policy Directive (“Directive”) did outline this
procedure, that document provided no guidance as to what constitutes a “nominal”
bid (besides that $1 might qualify). U.S. Marshals Serv., Fees, Expenses, and
Commissions D.1.d (2009), in Policy Directive 11.1, available at
http://www.usmarshals.gov/foia/directives/service_of_process.pdf. 5 Furthermore,
the USMS’s proposed procedure stood in stark contrast with recent USMS
practice. On at least fourteen occasions after Redus filed its complaint but before
4
Pursuant to his authority under § 1921(c)(1), the Attorney General has promulgated
regulations establishing the permissible dollar range for USMS commissions: “[T]he amount of
commission shall not be less than $100.00 and shall not exceed $50,000.” 28 C.F.R. § 0.114(h)
(2012). Using the equation prescribed in § 1921(c)(1), any amount “collected” greater than
$3,332,333.33 yields the maximum commission of $50,000.
5
There was some dispute as to whether the Directive was publicly available when the
USMS first became involved in this case. Nonetheless, it is clear that the Directive existed in
some form as early as 2005. See Small Bus. Loan Source, Inc. v. F/V St. Mary II, 361 F. Supp.
2d 570, 573 (E.D. La. 2005) (quoting an identical version of the Directive). Portions of the
Directive publicly available on the USMS’s website indicate that the Directive was last updated
in January 2009, though it is not clear that the document’s individual sections all have the same
publication date.
4
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the Marshal in this case held the foreclosure sale, other Marshals had calculated the
USMS commission based upon the amount of the arguably “nominal” winning bid
at auction. Doc. 70-2.
Believing that the application of the USMS’s interpretation of “collected”
would result in a commission of $50,000—an amount $49,930 in excess of what
Redus would pay the Florida state clerk for the same service, see Fla. Stat.
§ 45.035(1), and $49,900 more than the USMS had charged in many materially
indistinguishable recent dealings, see Doc. 70-2—Redus filed an emergency
motion asking the District Court to resolve the interpretive dispute in its favor, or,
in the event that the District Court agreed with the USMS’s interpretation of
“collected,” to allow Redus to cancel the sale so that Redus could foreclose on the
property in state court. The District Court granted in part and denied in part
Redus’s motion. It declined to interpret the statute and refused to cancel the sale,
but reassured Redus that “the United States Marshal’s commission shall be
determined in accordance with 28. U.S.C. § 1921(c) and 28 C.F.R. § 0.114(h).”
Doc. 61, at 1.
At the auction, Redus was the sole bidder and prevailed with a bid of $100.
Because the USMS deemed this bid “nominal,” and because neither the USMS nor
Redus had established an appraisal value for the property, the Marshal calculated
the USMS commission based not upon the $100 bid, but on the judgment value of
5
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$11,832,307.14. This yielded a commission of $50,000. 6 Redus, however, refused
to relinquish any additional money to the USMS, presumably on the belief that
§ 1921(c)(1) only entitled the USMS to $100, and that the $100 bid fully satisfied
that amount. In response, the USMS withheld issuance of the marshal’s deed
pending Redus’s payment of the full $50,000. Redus then moved the District
Court to compel the USMS to calculate its commission based on the $100 sales
price and to issue the deed. The District Court responded by directing the USMS
to issue the deed as soon as Redus posted a surety bond for the full $50,000 in the
event that the USMS’s interpretation of § 1921(c)(1) prevailed. Redus posted the
bond, and the USMS delivered the deed.
On December 31, 2012, the District Court reached a conclusion regarding
the meaning of “collected.” Finding “the holdings in Small Business Loan Source,
Inc., and Centennial Bank to be persuasive and correct interpretations of
§ 1921(c),” the court concluded that “[e]ven when the [Directive is] afforded no
deference, the term ‘collected’ in § 1921(c)(1) must mean the lesser of the amount
6
In total, the Marshal charged $53,347.73. Doc. 62, at 2. That figure breaks down as
follows:
Service Fees: $275 ($55 per hour for five hours of work)
Mileage Reimbursement: $98.73 (193.6 miles at $0.51 per mile)
Advertising Costs: $2,954 (for advertising in the Orlando Sentinel[,] Lake County
Edition)
Document Preparation: $20
USMS Commission: $50,000 (based on judgment value of $11,832,307.14)
Total Fees/Costs/Commission: $53,347.73.
6
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of the judgment lien or the appraised value of the property (if available).” 7 Doc.
80, at 8. Using the judgment value as the reference number, the District Court
accordingly awarded the USMS a commission of $50,000 for its work. On January
24, 2013, Redus lodged this appeal. 8
II.
Section § 1921(c)(1) entitles the USMS to a percentage of the amount
“collected . . . for seizing or levying on property (including seizures in admiralty),
disposing of such property by sale, setoff, or otherwise, and receiving and paying
over money.” Redus argues that “collected” refers to the high bid the USMS
accepts at auction. The USMS agrees with this interpretation in all cases except
those where “a judgment creditor . . . submit[s] a credit bid of a nominal sum.”
U.S. Marshals Serv., Fees, Expenses, and Commissions D.1.d. (2009), in Policy
Directive 11.1, available at
http://www.usmarshals.gov/foia/directives/service_of_process.pdf. Under these
7
In Small Business Loan Source, Inc. v. F/V St. Mary II, 361 F. Supp. 2d. 570 (E.D. La.
2005) the District Court did defer to the Directive, finding that it was “logically coherent and
consistent with long-standing judicial precedent.” Id. at 575. Unlike the court in F/V St. Mary
II, the District Court in Centennial Bank v. Roddenberry, 892 F. Supp. 2d 1317 (N.D. Fla. 2012),
did not defer to the Directive. Id. at 1320. Rather, the Centennial Bank court held that “a proper
reading of the statute calls for the Marshal’s statutory percentage fee to be calculated based on
the lesser of the judgment amount or the property’s value.” Id.
8
In its brief, Redus effectively abandoned its argument that the District Court abused its
discretion when it refused to grant Redus’s emergency motion to cancel the foreclosure sale. See
Appellant’s Br. 13; Appellee’s Br. viii. We therefore do not consider that issue in this appeal.
7
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circumstances, the USMS interprets “collected” to refer to the lesser of the
“amount of the judgment lien or, if established, the appraised value of the property
under levy.” Id. We conclude that Redus’s interpretation is correct.
A.
We review questions of statutory interpretation de novo. United States v.
Moore, 541 F.3d 1323, 1326 (11th Cir. 2008). This undertaking begins—and
frequently ends—with the text’s plain meaning. See Conn. Nat’l Bank v.
Germain, 503 U.S. 249, 253–54, 112 S. Ct. 1146, 1149, 117 L. Ed. 2d 391 (1992)
(“[C]ourts must presume that a legislature says in a statute what it means and
means in a statute what it says. When the words of a statute are unambiguous . . .
judicial inquiry is complete.” (citations omitted) (quotation marks omitted));
Johnson v. Governor of Fla., 405 F.3d 1214, 1247 (11th Cir. 2005) (en banc) (“The
first step in statutory interpretation requires that courts apply the plain meaning of
the statutory language . . . .”). Generally, “[w]ords are interpreted with their
ordinary and plain meaning because we assume that Congress uses words in a
statute as they are commonly understood.” United States v. Veal, 153 F.3d 1233,
1246 (11th Cir. 1998), abrogated on other grounds by Fowler v. United States,
___ U.S. ___, 131 S. Ct. 2045 (2011). Finally, a “[r]eview of legislative history is
unnecessary unless a statute is inescapably ambiguous.” Veal, 153 F.3d at 1233
(quotation marks omitted).
8
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B.
We start with the text. Section 1921(c)(1) of Title 28 of the United States
Code provides, in relevant part:
The United States Marshals Service shall collect a commission of 3
percent of the first $1,000 collected and 1 1/2 percent the excess of any
sum over $1,000 for seizing or levying on property (including seizures
in admiralty), disposing of such property by sale, setoff or otherwise,
and receiving and paying over money, except that the amount of
commission shall be within the range set by the Attorney General.
To begin, we note that the statute envisions that a specific amount of money
is to be collected, and that the commission is to be based on that sum. See id.
(referring to “3 percent of the first $1,000 collected and 1 1/2 percent on the excess
of any sum over $1,000” (emphasis added)). Looking to the acts the USMS must
perform to earn this commission, we see only one that entails “collecting” money:
the “receiving and paying over [of] money.” This receipt of money can only refer
to the USMS’s receipt of the winning bid—collected when it “dispos[es] of [the]
property by sale”—and transfer of that bid to the judgment creditor in satisfaction
of his judgment. This remains true even when a judgment creditor bids on credit. 9
Accordingly, the amount “collected” under the statute is the amount the USMS
9
The USMS concedes as much, see U.S. Marshals Serv., supra, at D.1.d, for it must. If
accepting a bid made on credit and then crediting that amount against the judgment to be
satisfied did not constitute the receipt and paying over of money, the USMS would not be
entitled to any commission. See 28 U.S.C. § 1921(c)(1).
9
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accepts as the winning bid, i.e., the property’s sale price. In this case, the USMS
helpfully provided this figure: $100.
Indeed, the USMS only disagrees with this interpretation when “a judgment
creditor . . . submit[s] a credit bid in a nominal sum . . . in an attempt to avoid
payment of the USMS commission.” U.S. Marshals Serv., supra, at D.1.d. The
statute is bereft of language suggesting that the reference number for calculating
the commission changes depending upon the bid amount or bidder’s intent.
Contingent plans for low bids and references to either “[t]he amount of the
judgment lien” or “the appraised value of the property under levy,” see id., simply
do not appear in § 1921(c)(1). “Collected” refers to the actual amount the USMS
receives at auction: the winning bid. That many Marshals calculated the USMS
commission based upon that understanding of “collected” before, during, and after
the disputed sale to Redus should dispel any lingering doubts on the matter.10 See
10
This alone might have been dispositive were we construing ambiguous contractual
terms rather than statutory language. By way of analogy, we view § 1921(c)(1) as providing the
terms to an offer made by the USMS to a prospective mortgagee, such that the mortgagee’s
decision to proceed with the foreclosure in federal court—rather than another forum—amounts
to a tacit acceptance of the offer. If we were to accept that “collected” is an ambiguous term in
this agreement, it would then be proper to look to extrinsic evidence to determine the parties’
subjective understanding of the contract. Feaz v. Wells Fargo Bank, N.A., 745 F.3d 1098, 1104
(11th Cir. 2014).
One source of extrinsic evidence is usage. See Arriaga v. Fla. Pac. Farms, L.L.C., 305
F.3d 1228, 1247 (11th Cir. 2002). That the USMS historically interpreted the amount
“collected” to be the amount of the winning bid—and that Redus had no notice of the USMS’s
intent to calculate its commission based upon the Directive’s instructions—provides powerful
parol evidence suggesting that Redus’s interpretation is correct. See also Harris Corp. v.
10
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Doc. 70-2 (demonstrating that on fourteen separate occasions between when Redus
filed its complaint and when the judicial sale occurred, other individual Marshals
calculated the USMS commission based upon the sales price despite the fact that
the judgment creditor prevailed via an arguably nominal credit bid). Although the
Government suggested at oral argument that these Marshals simply erred by not
following the Directive, we give the individual Marshals more credit. They
understood that the USMS commission is statutorily tied to the amount
“collected,” and sensibly realized that the only thing they collected was the
winning bid.
Because the USMS collected $100 here, it is entitled to a commission of
$100.11
C.
That the statute entitles the USMS to a commission further bolsters this
conclusion. In addition to providing a commission for facilitating public auctions,
28 U.S.C. § 1921(c)(1), Congress allows the USMS to collect “fees” for various
Giesting & Assocs., 297 F.3d 1270, 1273 (11th Cir. 2002) (“A party who willingly and without
protest enters into a contract with knowledge of the other party’s interpretation is bound by such
interpretation and cannot later claim that it thought something else was meant.” (quotation marks
omitted)). Because we are not interpreting a contract here, prior USMS calculations are relevant
only to the extent that they reveal a common-sense meaning for “collected.”
11
Using the statutory formula yields a commission of $3. However, the Attorney
General has set the floor for USMS commissions earned under § 1921(c)(1) at $100. 28 C.F.R.
0.114(h). Accordingly, the USMS is entitled to $100.
11
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other tasks they perform for private litigants, see 28 U.S.C. § 1921(a)(1) (allowing
the USMS to “routinely collect . . . fees” for tasks such as keeping attached
property, preparing notices of sale, and serving writs of execution). Because we
must presume that Congress says what it means and means what it says, CBS Inc.
v. Prime Time 24 Joint Venture, 245 F.3d 1217, 1221 (11th Cir. 2001), we take
note when it uses a different term—“commission”—in one subsection but not
another, see generally 28 U.S.C. § 1921.12
A “commission” is “a percentage of the money received in a sale or other
transaction paid to the agent responsible for the business.” Webster’s Third New
International Dictionary 457 (1993). If one reads “collected” to be the money the
USMS receives when functioning as auctioneer, § 1921(c)(1) dovetails perfectly
with this definition. In this context, Marshals are agents of the court, United States
v. Peters, 777 F.2d 1294, 1297 (7th Cir. 1985), who receive as their commission a
percentage of the money they collect at auction.
Equally important, however, is why Congress or anyone else would allow its
agents a commission. Generally, employers institute commissions to incentivize
hard work. The theory goes that by giving employees a percentage of the sales
12
Congress first allowed the USMS a “commission” on sales outside of admiralty in
1962. See H.R. Rep. No. 87-1724, at 5 (1962). Prior to this, the USMS received “the same fees
and poundage as are or shall be allowed for similar services to the sheriffs of the States,
respectively, in which the service is rendered,” for non-admiralty sales. Id. Congress did not
elaborate on its usage of “commission” in the accompanying legislative reports. See id.
12
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they make, an employer can align his employee’s interests with his own.
Accordingly, we assume that Congress established a commission system to align
the USMS’s interests with some of its own: protecting debtors and ensuring the
judicial system’s integrity.
The need to protect debtors at foreclosure sales is real. If the sales price at a
judicial sale does not fully satisfy a judgment creditor’s judgment—as is certainly
the case when a nominal bid prevails—the creditor can generally seek a deficiency
judgment to recover the balance of the debt. 5 Herbert Thorndike Tiffany, The
Law of Real Property § 1529 (3d ed.); see, e.g., Fla Stat. § 702.06 (2014) (“In all
suits for the foreclosure of mortgages heretofore or hereafter executed the entry of
a deficiency decree for any portion of a deficiency, should one exist, shall be
within the sound discretion of the court . . . .”). Although courts today generally
calculate deficiency judgments as the difference between the total debt and the
property’s fair market value, they also generally presume that the foreclosure sales
price equals the property’s fair market value. See, e.g., Vantium Capital, Inc. v.
Hobson, 137 So. 3d 497, 499 (Fla. 4th Dist. Ct. App. 2014).
It is therefore up to the debtor—the financially distressed party whose
default on his obligations precipitated the foreclosure in the first place—to muster
the necessary counsel and appraisers to rebut that presumption, lest he be saddled
with a crushing deficiency judgment. One might have previously assumed that
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creditors would not seek deficiency judgments against such a debtor; if the debtor
is so destitute that he cannot even mount a defense, why spend resources trying to
get blood from a stone? See Steven Wechsler, Through the Looking Glass:
Foreclosure by Sale as De Facto Strict Foreclosure—An Empirical Study of
Mortgage Foreclosure and Subsequent Resale, 70 Cornell L. Rev. 850, 871 (1985)
(noting that “mortgagees made virtually no attempt to obtain deficiency
judgments” despite the fact that eighty percent of the foreclosure sales included in
a random sample of mortgage foreclosures left deficiencies). However, this
practice may be changing as banks assign deficiency judgments to debt collectors.
Jessica Silver-Greenberg, House Is Gone but Debt Lives On, Wall St. J., Oct. 1,
2011, at A1. Accordingly, successful nominal bids may very well doubly injure
debtors in ways unseen since the Great Depression. See Wechsler, supra, at 861
(noting that, during the Great Depression, “[mortgagees] were again making
foreclosure purchases at low prices and were then frequently using those low
prices as the basis to vigorously pursue deficiency judgments against mortgagors”).
Why does nominal bidding occur? The only reason a nominal bid prevails is
because no one else shows up to bid. 13 This lack of attendance could have various
13
Two district courts have asserted that nominal bids may prevail because third parties
must submit, at a minimum, bids that satisfy the entire lien. F/V St. Mary II, 361 F. Supp. 2d at
572; Caterpillar Fin. Servs. Corp v. Mr. C II, No. Civ.A.03-228, 2003 WL 22038378, at *3 (E.D.
La. Aug. 19, 2003). We are mystified as to why this would be the case. F/V St. Mary II cites
14
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causes. It could be that the notice was legally insufficient. Perhaps the creditor
fraudulently prevented third parties from bidding. It could also be—as we suspect
is the case here—that third parties were aware of the sale and could have bid, but
declined to do so because risks and uncertainties surrounding the property were too
great. See Ronald Goldstein, Reforming the Residential Mortgage Foreclosure, 21
Real Est. L.J. 286, 289–90 (1993) (noting that third parties face such great
informational asymmetries compared to mortgagees that they may rationally find
bidding unattractive). Finally, it might be that the property is worthless. Whatever
the reason, in cases where there is a nominal bid, debtors risk a double loss, facing
both the loss of the foreclosed property (and whatever equity they may have had in
it) and a sizeable deficiency judgment.
Caterpillar Financial Services Corp. for support, 361 F. Supp. 2d at 572, and Caterpillar
Financial Services Corp. cites nothing, 2003 WL 22038378, at *3. The district courts apparently
did not order such restrictions on bid amounts. If the USMS was the source of this restriction,
they may have exceeded their discretionary authority. Furthermore, we note this restriction
would chill third-party bidding, and thereby allow the judgment creditor to prevail via a nominal
bid. This effectively allows the USMS to receive inflated commissions. See infra note 15.
It would also be incorrect to assume that third parties do not show up because of the
judgment creditor’s ability to bid up to his judgment amount without having to actually tender
money. Even if a third party placed the same or less value on the property as the judgment
creditor, it could nonetheless be economically sound to let the third party prevail. This is so for
two reasons: First, a post-auction sale by a judgment creditor would entail additional transaction
costs. See Ortiz v. Fibreboard Corp., 527 U.S. 815, 860–61, 119 S. Ct. 2295, 2321–22, 144 L.
Ed. 2d 715 (1999) (noting that any additional efforts to recover on claims entails transaction
costs that necessarily reduce total recovery). Second, given the time-value of money, the
purchase price is worth more to a judgment creditor today than it is at some future time. See
Gates v. Collier, 616 F.2d 1268, 1276 (5th Cir. 1980) (“[A] dollar today is worth more than a
dollar in the future.”).
15
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Enter the USMS and its commission. Under our interpretation of
“collected”—that it refers to the high bid the USMS collects at auction—the
USMS has an incentive to suspect and perhaps challenge a nominal bid. 14 It may
be that the bid is untainted and that no one will ever outbid the judgment creditor.
That is fine; the fact is that the USMS has everything to gain by questioning the
bid’s legitimacy given that a higher bid will result in a higher commission. In this
scenario, the USMS protects both the debtor and the court’s integrity by ensuring
sound sales. This commission aligns the USMS’s financial interests with its
employer’s aims: justice and fair play.
Under the USMS’s interpretation of “collected”—that it refers not to the
high bid the USMS collects, but instead refers to the lesser of the judgment or, if
established, the property’s appraisal value if a judgment creditor prevails via a
nominal bid—the USMS possesses no incentive to verify sales. Rather, it
14
Sales of land at public auction are contracts, Blossom v. R.R. Co., 70 U.S. 196, 205
(1865), to which the high bidder and the court are parties, id at 207. At a judicial sale, the court
is the vendor, while the Marshal serves as its agent. See id. The call for bidding at the public
auction is not the relevant offer; rather, the bids themselves are offers to the court. First Nat’l
Bank of Jefferson Parish v. M/V Lightning Power, 776 F.2d 1258, 1261 (5th Cir. 1985).
Accordingly, there is no sale prior to judicial confirmation. Id.
This power to accept or reject bids allows courts or their agents to set aside inequitable
sales. See Blossom, 70 U.S. at 209 (holding that a sheriff, acting as an agent of the court, may
decline to conclude an auction “if he sees that [the sale] will be likely to produce great sacrifice
of the property”). Although “equity will not set aside a sale for mere inadequacy of price, it will
do so if the inadequacy is so great as to shock the conscience or if there are additional
circumstances against its fairness, such as chilled bidding.” Gelfert v. Nat’l City Bank of N.Y.,
313 U.S. 221, 232, 61 S. Ct. 898, 902, 85 L. Ed. 1299 (1941).
16
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possesses an incentive to turn a blind eye. Individual Marshals must grapple with
the temptation to look the other way given that a nominal bid will almost certainly
result in a commission greater than they would have received had there been
competitive bidding. 15 That is, under the USMS’s interpretation, we must accept
15
The USMS appears to use the creditor’s judgment amount and the property’s appraisal
value as proxies for what the property would have sold for had there been competitive bidding at
the auction. However, it is nearly certain that both represent values far greater than the
property’s hypothetical sales price at a forced auction. First, we note that almost by definition,
there will not be foreclosure sales of property whose appraisal value eclipses its judgment value.
Were this the case, the debtor could sell the property, repay his debt, and keep the excess for
himself (or turn it over to subordinate lienholders).
Accordingly, if either the creditor or the USMS establishes the appraisal value, that value
will—under the USMS’s proposed interpretation—almost always set the amount “collected.”
One definition of “appraised value” is the value an item sells for at a properly noticed auction
that is free from fraudulent machinations. Given that neither the USMS nor the court raised any
problems with this sale, as evidenced by the court’s confirmation, this definition describes
precisely what happened here: the sale for $100. Such a conclusion would be consistent with the
widely applicable and long-held presumption that a property’s sales price at a valid judicial sale
is conclusive as to the property’s value. See, e.g., Etter v. State Bank of Fla., 79 So. 724, 726
(Fla. 1918).
Obviously, however, the parties would not have litigated this case were that what the
USMS meant by “appraised value of the property under levy.” Instead, the USMS likely means
the property’s “fair market value”; after all, this is generally what appraisers determine. See e.g.,
United States v. 480.00 Acres of Land, 557 F.3d 1297, 1304 (11th Cir. 2009) (noting that “[a]
certified appraiser testified as to the fair market value of the seven parcels”); Anselmo v.
Comm’r, 757 F.2d 1208, 1210 (11th Cir. 1985) (“Each of these appraisers followed the same
path of reasoning to arrive at the fair market value . . . .”).
The problem is that “fair market value” has nothing whatsoever to do with the value
received at public auctions. “Fair market value” is “[t]he price that a seller is willing to accept
and a buyer is willing to pay on the open market and in an arm’s-length transaction.” Black’s
Law Dictionary 1691 (9th ed. 2009). Foreclosure sales are, by definition, forced sales and obtain
prices far below fair market value. BFP v. Resolution Trust Corp., 511 U.S. 531, 537–538, 114
S. Ct. 1757, 1761, 128 L. Ed. 2d 556 (1994) (noting that fair market value is “not the price which
might be obtained on a sale at public auction for a sale forced by the necessities of the owner”
(quoting Black’s Law Dictionary 971 (6th ed. 1990))). “Market value, as it is commonly
17
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the untenable proposition that Congress meant to incentivize the USMS to rubber
stamp potentially tainted sales. This cannot possibly be correct. Congress entitled
the USMS to a commission for the same reason as every other employer: to give its
agents a stake in a job well done. Our plain-meaning interpretation of “collected”
does just that.
Because we find that “collected” unambiguously refers to the winning bid
the USMS receives at auction, it is unnecessary to look to the Directive for
understood, has no applicability in the forced-sale context, indeed, it is the very antithesis of
forced-sale value.” Id. at 537, 114 S. Ct. at 1761.
As in this case, a foreclosure sale must occur within a certain time frame. This restriction
puts potential third-party bidders at an “informational disadvantage relative to the [mortgagee],”
who will know “the condition of the property, its value, the neighborhood in which it is located,
its problems, and all of the other considerations which go into the calculation of an informed
bid.” Goldstein, supra, at 289. “An appraiser’s reconstruction of ‘fair market value’ could show
what similar property would be worth if it did not have to be sold within the time and manner
strictures of state-prescribed foreclosure.” BFP, 511 U.S. at 539, 114 S. Ct. at 172. However,
“property that must be sold within those strictures is simply worth less.” Id., 114 S. Ct. at 172.
All of this contributes to the “general recognition in the common law that foreclosure purchases
are rarely comparable to the fair market value of the property.” Rosen v. Hunter, 224 So. 2d
371, 375 (Fla. 1969).
Accordingly, calculating the commission based upon the property’s appraised value will
almost certainly yield a greater commission than would have been available had there been
competitive bidding. There is another wrinkle. Under the USMS interpretation, it is only
necessary to use the appraised value if either side establishes that value. In many cases, the
creditor may not establish that value. For whatever reason, Redus did not do so. In the USMS’s
view, it is now free to calculate its commission as if the property sold for its full judgment
amount. We doubt that it is possible for anyone who has lived through the recent subprime
mortgage crisis to credibly claim it reasonable to presume a mortgagor’s indebtedness is equal in
value to the property he holds. Though the amount of a nominal bid may be at sea, the amount
of a creditor’s judgment can hardly claim sounder moorings.
The end result is that in nearly every case, resort to the Directive would result in greater
commissions than the USMS would have received had there been competitive bidding.
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guidance. Sierra Club. v. U.S. Army Corps. of Eng’rs, 508 F.3d 1332, 1334 n.1
(11th Cir. 2007) (per curiam).
III.
We reach this conclusion fully aware that “the amount of a nominal bid is a
meaningless number, divorced from anything of substance.” Centennial Bank v.
Roddenberry, 892 F. Supp. 2d 1317, 1320 (N.D. Fla. 2012). We are nonetheless
constrained by the statute’s plain meaning: the only thing that the USMS collects is
the winning bid at auction. It may be that some alternative calculation should be
instituted for cases such as this, but such a procedure simply cannot be found in the
text of the statute before us. “[A]n agency may not rewrite clear statutory terms to
suit its own sense of how [a] statute should operate.” Util. Air Regulatory Grp. v.
EPA, ___ U.S. ___, 134 S. Ct. 2427, 2446, 189 L. Ed. 2d 372 (2014).
Furthermore, “[w]e are not at liberty to rewrite the statute to reflect a meaning we
deem more desirable.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 228, 128 S.
Ct. 831, 841, 169 L. Ed. 2d 680 (2008). We therefore leave the task of legislating
to Congress. 16
16
We can also say with certainty that appraisals in the judicial sale context are not a
foreign concept to the legislative branch. In private judicial sales, the court must “appoint three
disinterested persons to appraise” the property to be sold. 28 U.S.C. § 2001(b). Courts have no
power to confirm a private sale at a price “less than two-thirds of the appraised value.” Id. By
contrast, public sales possess no statutory price protections beyond a district court’s formidable
power to dictate the sale’s terms and conditions, id. § 2001(a), and to confirm (or reject) sales,
Citibank, N.A. v. Data Lease Fin. Corp., 645 F.2d 333, 339 (5th Cir. Unit B 1981).
19
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Regardless of whether it is true that “judgment creditors typically bid the
amount of the debt owed,” Appellee’s Br. 8, nominal bids are old news. See
Robert M. Washburn, The Judicial and Legislative Response to Price Inadequacy
in Mortgage Foreclosure Sales, 53 S. Cal. L. Rev. 843, 843 (1980) (“During the
Depression of the 1930’s, properties regularly sold for nominal amounts at
foreclosure sales . . . .”). Congress has had ample time to alter the statute to
account for this problem, but it has not done so. As written, nothing in
§ 1921(c)(1)’s language compels judgment creditors (or anyone else) to bid in a
certain amount lest they face drastically increased commission charges. Like any
bidder, judgment creditors need not inflate their bids (above what is necessary to
prevail) to ensure that the USMS does not receive a hefty commission.
Even if the USMS’s interpretation were to carry the day, we suspect it would
be a pyrrhic victory. In a foreclosure in a Florida state court, the clerk of court
Congress also enacted a provision somewhat similar to the USMS’s proposed
interpretation when it enacted the first version of § 1921 in 1853:
In case the debt or claim shall be settled by the parties, without a sale of the
property, the marshal shall be entitled to a commission of one per cent. on the first
five hundred dollars of the claim or decree, and one half of one per cent. on the
excess over five hundred dollars : Provided, That in case the value of the property
shall be less than the claim, then, and in such case, such commission shall be
allowed only on the appraised value thereof.
Act of Feb. 26, 1853, ch. 80, 10 Stat. 161, 164. Both of these points reinforce the notion that the
USMS’s “interpretation” is legislative in nature. Unfortunately, the USMS is not free to legislate
by scrawling an interpretation in the Directive.
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charges $70 to facilitate a judicial sale. Fla. Stat. § 45.035 (2014). In a federal
diversity action, the USMS seeks to potentially charge over $50,000 for the same
service. 17 It is difficult to imagine that a federal court’s diversity jurisdiction is
worth $49,930 in judicial foreclosure cases where there is no competitive bidding.
The USMS’s interpretation cannot possibly effectuate Congress’s explicit intent
“to avoid raising the cost of litigation in the Federal courts to a prohibitive level”
when passing the current version of 28 U.S.C. § 1921(c)(1). 18 H.R. Rep. No. 87–
1724, at 2 (1962). The USMS’s interpretation transforms diversity jurisdiction in
commercial foreclosure cases into a trap for the unwary.
Nonetheless, we doubt this trap would remain hidden for long. To claim
legal malpractice under Florida law, a client must prove: (1) the attorney’s
employment; (2) the attorney’s neglect of a reasonable duty; and (3) the attorney’s
negligence resulted in and was the proximate cause of loss to the client. Larson &
Larson, P.A. v. TSE Indus., Inc., 22 So. 3d 36, 40 (Fla. 2009). We cannot imagine
a clearer case for malpractice than that of the attorney who uses federal court—and
accordingly, the USMS—to facilitate a foreclosure sale for property worth any
17
The USMS collects fees related to the sale in addition to its commission. For example,
the USMS collected $3,347.73 in fees from Redus entirely separate from the disputed
commission. Redus does not challenge the validity of these fees.
18
In the same report, the Committee on the Judiciary also noted that the bill “would not
unduly burden private litigants” because it provided only for a “moderate[] increase” in the costs
charged to private litigants. H.R. Rep. No. 87–1724, at 2 (1962). A potential increase of
$49,930 is anything but moderate.
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significant amount, thereby needlessly wasting up to $49,930. In this scenario, the
hapless attorney will ultimately bear the cost of the USMS’s interpretation. We
suspect he will learn to employ state court rather quickly, leaving the USMS with
nothing.
We also note that that this decision does not somehow abolish the USMS’s
commission. In the event that there is competitive bidding, the USMS will receive
a commission just as it would in the past. It is only when the nominal bid
prevails—when no interested buyers appear at auction to drive up the price,
leaving only the judgment creditor to protect his judgment—that the USMS will
receive a reduced commission.19 If there are no procedural problems, and the truth
is simply that no third party thinks it worthwhile to speculate on the property, we
cannot imagine Congress intended to award the USMS an unpredictable windfall
for a procedure that is a “sale” in name only. 20 “Collected” refers only to the
amount the USMS accepts as the winning bid at a public judicial sale.
Accordingly, we VACATE the District Court’s computation of the USMS’s
commission and REMAND the case for further proceedings.
19
Or an unchanged commission if we look to recent USMS practice. See Doc. 70-2.
20
The nominal bid does not relate at all to the price of the property. The $100 Redus
tendered was likely intended as a payment to the USMS for its services in transferring the
property to Redus. Thus, the transaction was likely not a “sale” in the traditional sense. If there
were no sale, forget the $100; then the USMS would not be entitled to any commission. See
§ 1921(c)(1) (requiring the USMS to dispose of the property by “sale, setoff, or otherwise.”).
22
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SO ORDERED.
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