Willow Creek Lumber Co. v. Porter County Plumbing & Heating, Inc.
Willow Creek Lumber Co. v. Porter County Plumbing & Heating, Inc.
Opinion of the Court
This is an appeal under 28 U.S.C. § 1292(b) by holders of mechanics’ liens on property that is also subject to the lien of a mortgage held by the United States as as-signee. The issue is whether the federal lien is entitled to priority, as the District Court held. We hold that it is and therefore affirm.
Commencing in March 1972 and continuing until February 1974, the mechanic’s lien holders supplied labor and material used in constructing a housing project in Portage, Indiana. On April 1, 1972, Gary National Bank, as trustee-owner, executed a mortgage on the property to Dovenmuehle, Inc.; and HUD insured the mortgage by entering into a HUD Regulatory Agreement, pursuant to its authority under § 236 of the National Housing Act, 12 U.S.C. § 1715Z-l(j); with the mortgagor and the mortgagee. The regulatory agreement allowed the mortgagee to assign the mortgage to HUD in the event of default. The mortgage and the regulatory agreement were recorded on April 24, 1972. In October 1974, the mortgage was assigned to HUD. The assignment was recorded January 2,
They commenced this action for that purpose in the state court, naming HUD among the defendants. HUD removed the case to the federal district court and counterclaimed to foreclose the mortgage. That court entered a partial summary judgment determining that the lien of the United States under the mortgage was entitled to priority over the mechanics’ liens.
The federal common law rule governing priority of federal liens is that “the first in time is the first in right.” See Chicago Title Ins. Co. v. Sherred Village Associates, 568 F.2d 217, 219, No. 77-1157 (1st Cir. 1978). For the nonfederal lien to have arisen “first in time,” it must have been “choate” before the federal lien arose, which means that “the identity of the lien- or, the property subject to the lien, and the amount of the lien [are] established.” Id. at 220; see also United States v. Vermont, 377 U.S. 351, 358-359, 84 S.Ct. 1267, 12 L.Ed.2d 370 (1964). The requirement that the amount of the lien must be established
All of the decisions of the Supreme Court applying the federal priority rule, with its choateness requirement, have been federal tax lien cases. See Chicago Title Ins. Co. v. Sherred Village Associates, supra, 220. That rule was applied to uphold the priority of non-tax federal liens, however, by several courts of appeals, including this one, United States v. County of Iowa, 295 F.2d 257 (7th Cir. 1961), in cases decided before the Tax Lien Act of 1966, which amends the lien provisions of the Internal Revenue Code to give an improved priority position to several categories of liens based on state law, including certain mechanic’s liens, as against federal tax liens. 26 U.S.C. § 6323(a) and (h)(2).
Counsel for the mechanic’s lien holders urge us to adopt state law “as the applicable federal law.”
Affirmed.
. The amount-established requirement was defined in In re Lehigh Valley Mills, Inc., 341 F.2d 398, 401 (3d Cir. 1965) as
only met if there is no further opportunity for judicially contesting the amount of the lien. Thus, the lienor must either have obtained judgment on the lien or it must be enforceable against the property by summary proceeding.
. The background and effect of the 1966 Act are summarized in Chicago Title Ins. Co. v. Sherred Village Associates, 568 F.2d 217, No. 77-1157 (1st Cir. 1978), 220. See generally, Plumb, Federal Liens and Priorities — Agenda for the Next Decade, 77 Yale L.J. 228 (1967).
. The Act resulted from the work of a Special Committee on Federal Liens of the American Bar Association. Although that committee considered proposing legislation that would have affected all federal liens, its recommendation was limited to federal tax liens, “leaving to another day the extension of the reforms to other areas.” Plumb, supra, note 2, at 285.
. This rationale is necessary because “federal law is determinative where the' question involved is the priority to be accorded to a lien of the federal government whatever its source.” United States v. Oswald and Hess Co., 345 F.2d 886, 887 (3d Cir. 1965).
Reference
- Full Case Name
- WILLOW CREEK LUMBER CO., INC., Plaintiff-Counterdefendant-Appellant, and T. T. & A., Inc., Plaintiff-Counterdefendant v. PORTER COUNTY PLUMBING & HEATING, INC., and AAA Electric, Inc., and United States of America, Third-Party
- Cited By
- 7 cases
- Status
- Published