The Connecticut Mutual Life Insurance Company v. Lura Virginia Bickel Lee Carter , 446 F.2d 136 ( 1971 )

LEWIS R. MORGAN, Circuit Judge:

We originally decided this appeal on April 7, 1971, Slip Opinion No. 29,435. However, upon further consideration, we have decided to grant the government’s petition for rehearing and withdraw our initial decision. The following opinion is substituted in lieu thereof:

In this three-party contest, the mortgagor seeks to set aside the entire foreclosure sale while the United States, the second mortgagee, argues that its lien should come before the claim for attorneys’ fees provided for in the first mortgage held by Connecticut Mutual Life Insurance Company. The district court held the second mortgage lien inferior to Connecticut Mutual’s lien for attorneys’ fees and confirmed the foreclosure sale despite the mortgagor’s objections.

In January of 1962 Lura Virginia Bic-kel Lee Carter (mortgagor) mortgaged her Florida citrus farm property to Connecticut Mutual Life Insurance Company pursuant to an agreement which contained the standard provision for payment of attorneys’ fees¹ by the mortgagor in the event of default on the underlying promissory note. A hard freeze occurred during the winter of 1962 severely damaging the mortgagor’s citrus trees. Consequently, in July of 1963 the Farmers Home Administration (FHA), a branch of the federal government that extends agricultural credit when the need for such arises from a natural disaster, began lending the mortgagor sums of money secured by a second mortgage which also contained a provision for payment of attorneys’ fees, and specifically stated that the second lien was subject to the mortgage held by Connecticut Mutual.²

When the mortgagor failed to meet the payments on the first mortgage, Connecticut Mutual initiated a foreclosure suit in the Florida state court in April, 1969. The action was removed to federal district court³ where the trial judge granted foreclosure, and held that the mortgagor owed Connecticut Mutual $418,111.49 in principal and accrued interest and $11,500 as reasonable attorneys’ fees. After the ensuing sale, at which the sole bidder, Connecticut Mutual, purchased the property for the approximate amount of the total indebtedness due it, the court held that, contrary to the contentions advanced by the government, the first mortgage lien for attorneys’ fees was superior to the FHA second mortgage lien.

The court overruled without an adversary hearing the mortgagor’s objections to the fairness of the sale.

The single disputed issue between the FHA and Connecticut Mutual involves the priority of the lien for attorneys’ fees contained in the first mortgage. FHA contends its second mortgage is superior to Connecticut Mutual’s lien for attorneys’ fees because the amount of attorneys’ fees was not choate (specific and certain) when the FHA mortgage attached in July of 1963. For authority, FHA relies principally upon three Supreme Court cases — United States v. Equitable Life Assurance Society of United States, 1966, 384 U.S. 323, 86 S.Ct. 1561, 16 L.Ed.2d 593; United States v. Pioneer American Insurance Co., 1963, 374 U.S. 84, 83 S.Ct. 1651, 10 L.Ed.2d 770; United States v. New Britain, Connecticut, 1953, 347 U.S. 81, 74 S.Ct. 367, 98 L.Ed. 520 — which hold that under the well-known rule of “fifst in time, first in right” a federal tax lien is superior to all other liens not choate at the time the federal tax lien is filed.

FHA quite correctly points out that the choate lien test, although originating in the tax lien field, has been extended to give federally-held mortgages priority over certain unrecorded liens which were admittedly superior under state law. United States v. Roessling, 5 Cir., 1960, 280 F.2d 933; United States v. Oswald and Hess, 3 Cir., 1965, 345 F.2d 886; United States v. County of Iowa, 7 Cir., 1961, 295 F.2d 257. However, our research reveals no decision which would elevate a government mortgage to a position of superiority under the facts of the present case where the FHA, operating as a private lender, voluntarily took a second mortgage fully aware (see footnote 2, supra) of the then existent attorneys’ fees clause in the first mortgage. Thus, finding an absence of binding legal precedent, we proceed to a consideration of whether congressional intent commands priority of the government’s security interest in the instant set of circumstances.

As previously noted, the choate lien test, contended for by the government, emanated from three Supreme Court eases, supra, all of which were decided before the passage of the Federal Tax Lien Act of 1966 (P.L. 89-719, 80 Stat. 1125), amending 26 U.S.C. § 6323. The amendment substantially altered the priorities of federal tax liens so that a lien for attorneys’ fees if valid under local law is no longer subordinate to a subsequently-filed federal tax lien.⁴ Although the 1966 amendment does not of itself affect the priority of the claims here involved,⁵ the statute diminishes the validity of the choate lien test in the important field of taxation where the doctrine originated. It would indeed be anomalous and contrary to our view of congressional intent to allow the FHA operating as a money-lending agency to prevail in a situation where the government as holder of a tax lien would have an inferior security interest. Ault v. Harris, D. Alaska, 1968, 317 F.Supp. 373, (aff’d. and opinion adopted) Ault v. United States, 9 Cir., 1970, 432 F.2d 441; Standard Savings and Loan Association v. Evans (S. Carolina Spr. Ct., 1970), 178 S.E.2d 145. The collection of taxes is certainly more vital to the government’s existence than the making of farm loans and if Congress determines (as it has) that a federal tax lien, involuntarily imposed upon the government, is not unduly threatened by an inchoate lien for attorneys’ fees, then we see no reason to exempt a federal mortgage lien, which the government sought to obtain, from the operation of a provision for attorneys’ fees in a first mortgage. By making farm loans, FHA became subject to the same requirements of local law which govern the validity of security interests in respect to all other lenders. The district court’s order granting priority to Connecticut Mutual’s lien for attorneys’ fees over FHA’s second mortgage is therefore affirmed.

The next issue we must deal with is mortgagor Carter’s contention that the district court erred by failing to grant a hearing on her objections that the sale was unfair. Under Florida Statutes, § 702.02(5), F.S.A., the value of property sold at a foreclosure sale is conclusively presumed to be the amount bid at the sale unless objections are filed within ten days in which case “such objections shall be considered by the court”. (Emphasis supplied). After Mrs. Carter filed objections within the 10-day period, the district court stated that it had “considered the motion and memorandum thereto. * * *” and then entered an order confirming the sale. Mrs. Carter now asserts that under § 702.02(5), supra, the court should have gone further and conducted a hearing to determine the validity of the objections. We cannot agree.

In the first instance, Mrs. Carter at no time requested the district court to hold a hearing. Secondly, the statute requires only that the court “consider” the objections and we find an absence of any indication from the Florida courts that the term “consider” must be defined to require the convening of a hearing. Finally, an examination of the specific objections raised by the mortgagor reveals that they were not of such a nature as would necessitate the taking of additional testimony or the hearing of evidence.

The mortgagor first alleged in her objections that the land should have been sold in parcels rather than en masse. Although this was perhaps the strongest of the objections, a review of the record discloses the mortgagor received a full-blown hearing on the parcel-en masse issue prior to the sale.

The mortgagor’s second objection was that Connecticut Mutual promised to seek a 90-day postponement of the sale if the mortgagor would pay $25,000 before the sale, and that when the mortgagor offered the $25,000, Connecticut Mutual declined to accept payment. The offer by Connecticut Mutual was obviously unsupported by consideration, and the question of promissory estoppel did not arise since the mortgagor did not allege that she relied upon the promise to her detriment. Proving the factual validity of the mortgagor’s allegations at an evidentiary hearing would have been pointless since the objection, even if true, would not have been a ground for setting aside the sale.

Thirdly, the mortgagor objected that the sale price was inadequate. Under Florida law, mere inadequacy of purchase price, without more being alleged, is not a ground for setting aside a foreclosure sale, Maule Industries Inc. v. Seminole Rock and Sand Company, 1957, Fla., 91 So.2d 307; Desser and Garfield, Inc. v. Teachers Insurance and Annuity Association of America, 1967, Fla.App., 201 So.2d 497, and this rule seems particularly applicable in the case at hand where the sum offered by any prospective bidder would inevitably be affected and reduced by the government’s right to redeem the property within one year of the sale under 28 U.S.C. 2410(c).⁶ The court was aware of the price bid at the sale, $434,000; of the maximum value alleged by the mortgagor, $1,000,000; and of the government’s statutory right of redemption. Having these facts before it, the court was well equipped to “consider” the objection of inadequate purchase price without holding a hearing. The mortgagor simply failed to majke allegations which, taken to be true, would justify voiding the sale under Florida law.

Lastly, the mortgagor challenged the advertising of the property as inadequate. A hearing was not necessary here because the district court could easily determine that the advertising complied with the statutory requirements. See Florida Statutes, § 702.02 (2), F.S.A.

Subsequent to oral argument, we were informed by counsel for the government that the United States, as junior lienor, exercised its statutory right of redemption under 28 U.S.C. § 2410 (c) by paying Connecticut Mutual $475,-452.66, the full amount of the first mortgage together with attorneys’ fees, court costs, and accrued interest. Having done so, the government presently has title to the realty, Quinn Plumbing Co. v. New Miami Shores Corporation, 1930, 100 Fla. 413, 129 So. 690, but, as conceded in the government’s brief, Mrs. Carter’s account must be credited with a sum • equal to that which would have been credited her if the United States had bid at the foreclosure sale the amount that the Farmers Home Administration’s regulations [7 C.F.R. 1872.17(b) (3) (vi) ] required it to bid. We therefore remand the case to the district court with directions that the United States credit Mrs. Carter’s account with an amount consistent with whatever sum the court determines the government would have bid at the foreclosure sale.⁷ In this manner, the parties will be restored to the position they would have occupied had the government initially purchased the property from the foreclosure sale.

Affirmed in part and remanded with directions.

1 . The mortgage stated the following in regard to attorney’s fees:

“To pay to (Connecticut Mutual) promptly upon demand all costs, expenses and attorney’s fees, including the cost of any title examination, supplemental abstract of title or title insurance, that may be incurred by (Connecticut Mutual) in any proceedings, legal or otherwise, affecting the mortgaged property, or any part thereof, or the title thereto, or the validity or priority of this mortgage or that may be incurred by (Connecticut Mutual) by reason of the failure of the Mortgagor to keep and perform any of the covenants or agreements contained here or in said promissory note. All such costs, expenses and attorneys’ fees paid by (Connecticut Mutual) shall bear interest from the date of payment at the rate of 8% per annum until repaid by Mortgagor and shall with such interest, be a part of the debt secured by this mortgage.

“This mortgage is intended by the parties to secure, and does and shall secure the payment, fully and completely, or any and all sums of money herein described. * * * ”

2 . FHA’s mortgage expressly stated on its face that the second lien was “Subject to (sic) mortgage held by the Connecticut Mutual Life Insurance Company *

3 . The case was removed to federal court because the United States was joined as a defendant by virtue of its status as second mortgagee. See 28 U.S.C. §§ 1444 and 2410.

4 . In pertinent part, 26 U.S.C. § 6323 provides as follows:

“(b) Even though notice of a lien imposed by section 6323- (federal tax lien) has been filed, such lien shall not be valid—

“(8) Attorneys’ liens. — With respect to judgment. * * * as against an attorney who, under local law, holds a lien * * *.”

5 . See, for example, H. B. Agsten & Sons, Inc. v. Huntington Trust and Savings Bank, 4 Cir., 1967, 388 F.2d 156, cert. den. 390 U.S. 1025, 88 S.Ct. 1413, 20 L.Ed.2d 282, where the court held that the Federal Tax Lien Act of 1966 did not by implication overrule the Federal Insolvency Statute, 31 U.S.C. § 191.

6 . “ * * * Where a sale of real estate is made to satisfy a lien prior to that of the United States, the United States shall have one year from the date of sale within which to redeem. * * * ” 28 U.S.C. § 2410(c).

7 . Although the government stated in its brief that it would have bid $900,000 at the foreclosure sale, it also stated that the maximum bid under the regulations, 7 C.F.R. 1872. 17(b) (3) (vi), is the lesser of gross investment or estimated resale value. Assuming, as the government contends, that the amount bid would have been estimated resale value, such a determination may require the hearing of evidence by the district court.