FTC v. National Business Consultants ( 2012 )

Case: 12-30026 Document: 00511935224 Page: 1 Date Filed: 07/26/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 26, 2012
No. 12-30026 Lyle W. Cayce
Summary Calendar Clerk
FEDERAL TRADE COMMISSION
Plaintiff-Appellee
v.
ROBERT NAMER
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
CV No. 89-1740
Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
Robert Namer appeals the judgment of the district court approving the
renewal of the United State’s judgment liens created in this matter under the
provisions of the Federal Debt Collection Procedures Act, 28 U.S.C. §
3201(c)(2)(B). Namer argues that the money judgment dated November 8, 1991
became invalid and unenforceable ten years later on November 8, 2001, as it was
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 12-30026 Document: 00511935224 Page: 2 Date Filed: 07/26/2012
No. 12-30026
never revived within ten years after it was rendered as required by Louisiana
Civil Code Article 3501. This argument is without merit.
Although Federal Rule of Civil Procedure 69(a)(1) provides that the federal
government's enforcement by writ of execution "must accord with the procedures
of the state where the court is located," that Rule goes on to provide that
notwithstanding this directive, "a federal statute governs to the extent it
applies." Fed R. Civ. P. 69(a)(1). The Federal Debt Collection Procedures Act of
1990 ("FDCPA") is such a statute. The FDCPA provides that, with the
exception of conflicting federal law, it "provides the exclusive civil procedures for
the United States to . . . recover a judgment on a debt." 28 U.S.C. § 3001. The
judgment liens at issue in this case are “debts” within the meaning of the
FDCPA. Federal Trade Commission v. National Business Consultants, Inc., 376
F.3d 317 (5th Cir. 2004) (an earlier proceeding in this case). The FDCPA further
Provides that it "shall preempt State law to the extent such law is inconsistent."
28 U.S.C. § 3003(d).
The Louisiana state law Namer relies on, Louisiana Civil Code Article
3501, clearly conflicts with the provisions of the FDCPA. It provides that a
money judgment “is prescribed by the lapse of ten years from its signing”
although any party having an interest in the judgment may have it revived
before it prescribes, as provided in Article 2031 of the Code of Civil Procedure.
Id. In contrast, the FDCPA provides for the duration of liens as follows:
(c) Duration of lien; renewal.
(1) Except as provided in paragraph (2), a lien created under
subsection (a) is effective, unless satisfied, for a period of 20 years.
2
Case: 12-30026 Document: 00511935224 Page: 3 Date Filed: 07/26/2012
No. 12-30026
(2) Such lien may be renewed for one additional period of 20 years
upon filing a notice of renewal in the same manner as the judgment
is filed and shall relate back to the date the judgment is filed if–
(A) the notice of renewal is filed before the expiration of the
20-year period to prevent the expiration of the lien; and
(B) the court approves the renewal of such lien under this
paragraph.
28 U.S.C. § 3201 (emphasis added). Louisiana Civil Code Article 3501, which
would preclude enforcement of the judgment after ten years from the entry of
that judgment unless timely revived, is such an inconsistent state law and is,
therefore, preempted. The FDCPA allows twenty years for renewal of
judgments. See 28 U.S.C. § 3201.
Further, because the purpose of the FDCPA "is to create a
comprehensive statutory framework for the collection of debts owed
to the United States government [and to] improve the efficiency and
speed in collecting those debts," H.R. Rep. No. 101-736, at 32 (1990),
a state law limiting such collection is inconsistent with the purpose
of the act and is, therefore, preempted.
United States v. Gianelli, 543 F.3d 1178, 1183 (9th Cir. 2008) (dealing with
California law precluding enforcement of a judgment when 10 years has passed
since the judgment was entered). We agree with Gianelli on the following point
as well.
Although not binding upon us, the reasoning of United States v.
Pierce, 231 B.R. 890, 893 (E.D.N.C. 1998) supports our conclusion.
In Pierce, the district court rejected the argument that where the
government proceeded to enforce a judgment under the FDCPA,
Federal Rule of Civil Procedure 69(a)(1) incorporated a state law
limitation prohibiting enforcement after ten years. Id. That court
reasoned that, in light of the legislative history underlying the
3
Case: 12-30026 Document: 00511935224 Page: 4 Date Filed: 07/26/2012
No. 12-30026
FDCPA and the language of the statute itself, binding the federal
government to state law limitations on enforcement "would
completely thwart the FDCPA's stated purpose of the creation of
uniform federal procedures for the collection of debts to the federal
government." Id.Accordingly, the judgment of the district court is AFFIRMED.
4