Mares v. United States

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-20697
Summary Calendar
RUBEN I. MARES,
Plaintiff-Appellee,
versus
THE UNITED STATES OF AMERICA;
MATTHEW D. WIGGINS,
Defendants,
MATTHEW D. WIGGINS,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District Texas
(H-96-CV-4007)
January 16, 1998
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
This case involves a simple dispute over a piece of property.
In 1985, Joseph Doug Cherry obtained title to a tract of land in
Seabrook, Texas. The deed was recorded in the Harris County Real
Property Records Department under the name “J. Doug Cherry.” In
1995, James Lee obtained a judgment against Mr. Cherry in state
*
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this opinion should not be published and is not precedent except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.
court and recorded an abstract of the judgment in the Harris County
Real Property Records Department under the name “Doug Cherry.” On
March 13, 1996, Ruben Mares purchased the Seabrook property at an
auction conducted by the Internal Revenue Service. The notice of
sale mentioned no outstanding encumbrances. On September 5, 1996,
James Lee attempted to redeem the property by tendering the
redemption price to the I.R.S., pursuant to 26 U.S.C. § 6337(b)(1).
James Lee eventually granted his interest in the property to
Matthew Wiggins.
Mares brought suit against Wiggins and the United States,
seeking a declaratory judgment stating that Wiggins was not
entitled to redeem the property. The district court granted
summary judgment to Mares, concluding that Lee’s recordation of an
interest against “Doug Cherry” was insufficient to create a lien on
real property owned by a “J. Doug Cherry.” Wiggins appealed, but
the United States did not.
We agree with the district court. Substantial compliance is
required with the statutory requirements for the creation of a
judgment lien. See Reynolds v. Kessler, 669 S.W.2d 801, 804-05
(Tex. App.--El Paso 1984, no writ). One of those requirements is
that an abstract of judgment must show the names of the plaintiff
and defendant. See Tex. Prop. Code Ann. § 52.003. The purpose
behind this requirement is to permit a diligent searcher to locate
liens against a particular piece of property. Mares offered in
support of his summary judgment an uncontradicted affidavit from an
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official at the Real Property Records Department of Harris Country
who stated that a computer search using Cherry’s given first name
or initial (“J” or “Joseph”) would not have revealed the existence
of a lien against a “Doug Cherry.” A diligent searcher would be
expected to use the first and last name of the person for whom he
was searching, not just the last name. Wiggins can point to no
Texas cases that have found valid liens where the first name of a
party was misstated. Accordingly, Lee’s recordation was inadequate
and no valid judgment lien was created. As such, Wiggins had no
statutory right to redeem the property. Moreover, we find that
Mares did not effect an election of remedies by initially
depositing the redemption check, as he quickly thereafter offered
to place in the funds in a separate account.
AFFIRMED.
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