Travelers Insurance v. Lawrence

SNEED, Circuit Judge,

(dissenting):

I respectfully dissent. While my brothers and I agree that the fee sought to be recovered by the appellee United States Marshal is not commensurate with the usual market value of undertakings requiring similar effort and skill, it is my opinion that this disparity and its adverse consequences to the mortgagor’s equity of redemption should not be eliminated by the interpretation of 28 U.S.C. § 1921 adopted by the majority.

It is undisputed that our task is to interpret properly 28 U.S.C. § 1921. My brothers do this by asserting that if the applicable state law does not characterize what the Marshal did in this case as a “seizure” or “levy”, there can be no “seizing or levying on property” within *91the meaning of 28 U.S.C. § 1921. There being no compliance with the terms of § 1921, no commission computed as therein directed has been earned. Local law characterization is required, assert my brothers, because Rule 69(a) of the Federal Rules of Civil Procedure directs that procedure on execution, proceeding supplementary to and in aid of judgment, and proceedings on and in aid of execution (one of which, assert my brothers, is the foreclosure proceedings here involved) “shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent that it is applicable.” Rule 69(a) must be given this effect, the majority asserts, because it and 28 U.S.C. § 1921 are “interrelated.” Since Oregon law, the state in which the district court is held, does not characterize a mortgage foreclosure sale as a “seizure” or “levy”, the fee asserted by the Marshal has not been earned. Hence, the district court’s contrary holding must be reversed. What commission, if any, the Marshal is entitled to is unanswered.

The interpretation of federal statutes under a federal system in which there is no all comprehensive federal common law is always difficult because very frequently the jural relations of the parties are rooted in state law. To this law one must look to determine, for example, whether A owes B and the consequences that flow therefrom. Having ascertained these relations the interpreter of the federal statute must then determine whether these relations are those to which the statute, in whole or in part, refers. This is a determination that is exclusively federal. The state law nomenclature is not controlling — at best it is only suggestive, although frequently strongly so. Thus, if under state law A owes B, state law’s mere designation of this relationship as a trust without more does not require that a federal court treat the relationship as a trust for the purposes of applying a federal statute using the term “trust.” Whether the relationship is a “trust” for the purposes of the federal statute is a federal question exclusively.

For reasons that will be set forth below, it is by no means clear that the procedures available to the Marshal consisted exclusively of those provided by “the state in which the district court is held.” Other possibly applicable federal statutes, particularly 28 U.S.C. § 2201, must be considered before Rule 69(a) is permitted to govern solely. Moreover, even if Rule 69(a) were the exclusive sovereign, it is clear that whether the procedure so available to, and employed by, the Marshal amounted to a “seizure” or “levy” for the purpose of 28 U.S.C. § 1921 is a matter of federal law not controlled by the characterization of these procedures by local law. Thus, the initial issue before us is whether the acts taken by the Marshal amount to a “seizure” or “levy.” If so, the question remains whether this characterization is overcome by Rule 69(a). In my judgment the acts of the Marshal in connection with the foreclosure sale do amount to a “seizure” or “levy” and this characterization is not overcome by Rule 69(a).

. As was pointed out in Hill v. Whitlock Oil Services, Inc., 450 F.2d 170 (10th Cir., 1971), the pertinent language now appearing in 28 U.S.C. § 1921 originated in the Act of February 26, 1853, 10 Stat. 161, described in its preamble to be “An Act to Regulate the Fees and Costs to be allowed Clerks, Marshals, and Attorneys of the Circuit and District Courts of the United States, and for other Purposes.” This language, including that pertaining to the sales of vessels in admiralty, was as follows:

For sales of vessels or other property, under process in admiralty, or under the order of a court of admiralty, and for receiving and paying the money, for any sum under five hundred dollars, two and one half per centum; for any larger sum, one and one quarter per centum, upon the excess.
* * *•}: * H-* *
*92For serving a writ of possession, partition, execution, or any final process, the same mileage as is herein allowed for the service of any other writ; and for making the service, seizing or levying on property, advertising and disposing of the same by sale, set-off, or otherwise, according to law, receiving and paying over the money, the same fees and poundage as are or shall be allowed for similar services to the sheriffs of the several States, respectively, in which the service may be rendered.

This language remained substantially unchanged until 1962.1 Congress in 1962 consolidated these two provisions, together with another which made its appearance in 1935,2 relating to deducting fees paid to auctioneers from those payable to marshals, to achieve the present wording of the pertinent portion of 28 U.S.C. § 1921 which is as follows:

For serving a writ of possession, partition, execution, attachment in rem, or libel in admiralty, warrant, attachment, summons, capias, or any other writ, order, or process in any case or proceeding, except as otherwise provided, $3;
******
For seizing or levying on property (including seizures in admiralty), disposing of the same by sale, setoff, or otherwise and receiving and paying over money, commissions of 3 per centum on the first $1,000 of the amounts collected and IV2 per centum on the excess of any sum over $1,000. If not disposed of by marshal’s sale, the commission shall be in such amount as may be allowed by the court. In all cases in which the vessel or other property is sold by a public auctioneer, or by some party other than the marshal or his deputy, the commission herein authorized to be paid to the marshal shall be reduced by the amount paid to said auctioneer or other party.

One of the purposes of this consolidation appears to have been to establish -a schedule of uniform fees not dependent upon those applicable to the sheriffs of the state.3

There is nothing in the judicial treatment of the 1853 — 1962 versions of what is now 28 U.S.C. § 1921 or the legislative history of that statute to suggest that the language “seizing or levying on property, advertising and disposing of the same by sale, setoff, or otherwise according to law and receiving and paying over the money” did not embrace foreclosures by judicial sale. In fact, so far as I have been able to discover, no case interpeting the 1853-1962 versions and raising the issue whether foreclosures by judicial sale is included in the above language exists. Undoubtedly, this is partially because the marshals were paid the same as the local sheriffs and, since no more was allowed by the statute, there was no reason for the marshals or the United States to litigate. On the other hand, had either the mortgagor or mortgagee insisted that no fees *93were payable because the above language did not embrace foreclosures by judicial sales, it is illogical to assume that the marshals or the United States would not have litigated the matter or in an appropriate manner requested from Congress an amendment to clarify the matter. Neither appears to have happened during the entire 109 years. It is highly probable, however, that during much of this period special masters often were appointed to conduct foreclosure sales. The precise extent of this practice is not revealed by the available authorities; but it must be acknowledged that its existence reduced the necessity to confront the issue with which we are here concerned.4

Also persuasive of the interpretation I urge is the fact that neither the House nor Senate Report accompanying the enactment of 28 U.S.C. § 1921 suggest that any question concerning the inclusion of foreclosures by judicial sale within the 1853-1962 versions existed. Not a word concerning the matter appears in these Reports. One can not believe that such an issue would have been passed in silence had Congress believed that it existed. It is even more certain that had it existed it would have been brought to the attention of Congress by the Department of Justice prior to the enactment of 28 U.S.C. § 1921 in 1962. Nonexistence is also suggested by the combining in 28 U.S.C. § 1921, of “seizures in admiralty” and the “seizing or levying on property.”

The view that mortgage foreclosures on land by judicial sales were included within the above language of the 1853-1962 versions and within the same language of 28 U.S.C. § 1921 is strengthened when the history of the law of mortgage foreclosures of the states is considered. The most cursory examination reveals that at all times significant differences existed in the law of the states in this area. Many of these differences had, or have, their roots in such matters as the extent to which equity jurisdiction had developed in the state at the time the foreclosure rules were established, whether the state is a title or lien state, the extent to which strict foreclosure or some variation thereof was and remains permissible, and the relative strength from time to time within each state of the debtor and creditor influences.5 The diversity which existed in 1853, as well as thereafter, strongly suggests that Congress would employ general language in attempting to describe the services associated with foreclosures for which the marshals were entitled to fees. Great specificity would have required language which described the foreclosure procedure of each of the states in 1853 which, in turn, would have required frequent amendments as procedures were altered and additional states joined the Union. While it can be argued that Congress could have chosen better general language to describe mortgage foreclosures than that which commences with “seizing or levying on property”, it remains true that this language is general in scope and, in my view, has proved elastic enough to embrace mortgage foreclosures under the procedures of each of the states for more than a century.

This conclusion is made more firm when it is realized that in 1853 in a number of eastern states there existed foreclosure procedures which consisted of placing the mortgagee in possession through legal process not involving a sale while at the same time there was developing in most, if not all, states the foreclosure by sale in an equitable court action.6 At the same time, Pennsylvania *94permitted foreclosure by a legal process under a statutory writ of scire facias sur mortgage which operated in a manner similar to that open to an ordinary execution creditor.7 Surely Congress in 1853 did not employ language that embraced only Pennsylvania foreclosures or, at most, only those employing legal, but not equitable, processes. The language adopted in my opinion was intended to embrace all foreclosures conducted by marshals qua marshals without regard to whether a legal process resembling levy and execution was employed.

This conclusion in my view is not altered by Rule 69(a). Indeed, it is by no means clear that Rule 69(a) applies to mortgage foreclosures accomplished through judicial sales. Its origin suggests that it was intended to follow in substance 28 U.S.C. § 727 (1940), which dealt with remedies by execution or otherwise available to a “party recovering a judgment in any common-law cause in any district court”, and 28 U.S.C. § 729 (1940), which made available in proceedings to vindicate civil rights “the common law, as modified and changed by the Constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held” when the federal law was not “adapted to the object” of such proceedings and where federal law failed “to furnish suitable remedies.”8 Moreover, Rule 69(a), as already mentioned, must be read in conjunction with 28 U.S.C. § 2001 which under the teaching of Yazoo & M. V. R. Co. v. Clarksdale, 257 U.S. 10, 19, 42 S.Ct. 27, 29, 66 L.Ed. 104 (1921) is applicable “to judicial sales made under order or decree of the court and requiring confirmation by the court for their validity, and . . . does not extend to sales under common-law executions which issue by mere praecipe of the judgment creditor on the judgment without order of the court, and in which the levy and sale of the marshal are ministerial, do not need confirmation to give them effect, and only come under judicial supervision on complaint of either party.” Rule 69(a) unquestionably is applicable to the latter type of sale, Weir v. United States, 339 F.2d 82, 85 (8th Cir., 1965), while 28 U.S.C. § 2001 has been held applicable to mortgage foreclosures. Feldman Inv. Co. v. Connecticut General Life Ins. Co., 78 F.2d 838, 841 (10th Cir., 1935).

It is nonetheless true that in mortgage foreclosures in federal courts state laws neither inconsistent with, nor operating to frustrate, federal policies may be operative. United States v. Montgomery, 268 F.Supp. 787 (D.C.Kan., 1967). It is doubtful, however, that this use of local law is dependent upon the authority of Rule 69(a). It is more likely that it springs from the ever present necessity in a federal system of accommodating the legitimate interests of both the state and federal governments.

However, even if it should so rest upon Rule 69(a), the Notes of the Advisory Committee indicate that a predecessor to 28 U.S.C. § 1921, viz. 28 U.S.C. § 574, was intended to remain applicable notwithstanding the promulgation of Rule 69.9 It follows that the issue in this case, as already indicated, is simply whether the actions of the Marshal amounted to a “seizure” or “levy” within the meaning of 28 U.S.C. § 1921. The Notes of the Advisory Committee give no indication that 28 U.S.C. § 1921 was to be “interrelated” with Rule 69(a) in the manner accomplished by the majority-

Thus, I believe there was in this case a “seizure” or “levy” within the meaning of 28 U.S.C. § 1921. Also I submit that all other requirements of that statute *95were met10 and that the Marshal on behalf of the United States is entitled to the fee he claims under the circumstances of this case. A court in which the foreclosure proceedings occur which is troubled by the excessive amount that the statutory formula yields can refuse to tax costs, but the trial judge in this case was correct when he concluded that should any fee be allowed to the Marshal it must be that which is provided by 28 U.S.C. § 1921. The remedy for this situation, if such be needed, must be developed by Congress.11 Our intervention in the manner adopted by the majority can only create confusion regarding the scope of 28 U.S.C. § 1921 and prevent the achievement of uniformity of fees, a principal purpose of the 1962 amendments.

. The pertinent portions of 28 U.S.C. § 1921 immediately prior to the 1962 revision of this section read as follows:

For serving a writ of possession, partition, execution, or any final process, the same mileage as is allowed for the service of any other writ, and for making the service, seizing or levying on property, advertising and disposing of the same by sale, set-off, or otherwise according to law and receiving and paying over the money 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;
In ail cases in which the vessel or other property is sold by a public auctioneer or by some party other than the marshal or his deputy, the fee herein authorized to be paid to the marshal shall be reduced by the amount paid to said auctioneer or other party;
For sale of vessels or other property, under process in admiralty, or under the order of a court of admiralty, and for receiving and paying over the money, 2V2 per centum on any sum under $500, and IV4 per centum on the excess of any sum over $500.

. 49 Stat. 513 (Part 1).

. H.Rep. No. 1724, 87th Cong., 2d Sess., 5 (1962).

. For an example of foreclosure by a special master, see Deck v. Whitman, 96 F. 873 (Cir.Ct. E.D.Tenn., 1899). Foreclosure sales were conducted by marshals. See Nalle v. Young, 160 U.S. 624, 16 S.Ct. 420, 40 L.Ed. 560 (1896); Blossom v. Milwaukee & C. R. Co., 3 Wall. (70 U.S.) 196, 18 L.Ed. 43 (1866); Black v. Black, 77 F. 785 (Cir.Ct. E.D.Pa., 1896); § 803 Simkin’s Federal Practice (3d ed. 1938).

. For a careful analysis of these roots and the law of foreclosure, see Osborne, Mortgages (2d ed. 1970), 647-743.

. Osborne, supra at 656- 7, 661-3.

. Osborne, supra at 658.

. Moore’s Federal Practice, § 69.01 [2] (1973). 28 U.S.C. § 729 (1940) now appears in 42 U.S.C. § 1988. 28 U.S.C. § 727 (1940) has been repealed because it is now covered by Rule 69(a).

. See Fed.Rules of Civ.Proc., 28 U.S.C.A. Rule 69.

. Appellants contend that, because they bid in their mortgage at the sale, the Marshal did not “receive and pay over money” as required by 28 U.S.C. § 1921. This argument places form over substance. The practice of bidding in mortgages was developed for the convenience of litigants to prevent the circuity which would result if a mortgagee, purchasing at the sale, were required to pay money in which would be returned to him forthwith. The Marshal did all that was required of him hfre and did in effect receive and pay over money. See The Cesare Augusto, 39 F.Supp. 751 (N.D.Cal., 1941).

. The power to appoint a special master to conduct the foreclosure sale presumably still exists. Rule 53(a) F.R.Civ.Proc.