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April 18, 1957

UNITED STATES of America, Plaintiff,
Daniel K. CLESS, Margaret J. Cless, Elwood A. Sterner, Marion L. Sterner, C. Hoerner Cassel, Defendants

The opinion of the court was delivered by: FOLLMER

In this case the plaintiff, the United States, asks for judgment under a defaulted bond and seeks foreclosure of the real estate covered by the mortgage given as collateral for the bond. The matter is presently before the Court on motion of the plaintiff for judgment on the pleadings in favor of the plaintiff for the reason that the defendants' answer fails to state a valid defense. The essential facts are not in dispute.

On July 27, 1951, C. Hoerner Cassel took a mortgage on the property of Daniel K. Cless and Margaret J. Cless, his wife in the amount of $ 3,500, said mortgage being entered of record in the Office of the Recorder of Deeds in and for York County, Pennsylvania, on July 27, 1951, in Mortgage Book 15-Z, Page 583. The bond accompanying said mortgage was in the amount of $ 7,000, and provided a Power of Attorney for the confession of judgment upon default and for the foreclosure and sale of the premises by a writ of fieri facias.

 The tract of land upon which both mortgages were taken is situated in Newberry Township, York County, Pennsylvania, and contains 24 acres 116 perches of land.

 The mortgagors defaulted in the payment of the first mortgage, and judgment was confessed against them on the accompanying bond. A writ of Fieri Facias was issued, and on October 2, 1954, the Sheriff's sale was held and C. Hoerner Cassel bid in and purchased the said property for the sum of $ 410.61, the costs of said sale. At the time of the Sheriff's sale, the balance of unpaid principal of the mortgage was $ 3,042, plus interest at the rate of 6% from January 27, 1954, in the amount of $ 129.29. The total amount due C. Hoerner Cassel at the time of foreclosure was $ 3,171.29.

 On November 13, 1954, C. Hoerner Cassel sold the premises under an agreement of sale to Elwood A. Sterner and Miriam L. Sterner, his wife, of Newberry Township, York County, Pennsylvania, for the sum of $ 4,500. Title to the said premises has not yet passed to Elwood A. Sterner and wife.

 The sole question for determination here is whether the lien of the second mortgage held by the United States was divested by the Sheriff's sale on the foreclosure of the first mortgage in the light of the provisions of 28 U.S.C. § 2410. The pertinent portion of the Act in question provides as follows:

 '(a) Under the conditions prescribed in this section and section 1444 of this title for the protection of the United States, the United States may be named a party in any civil action or suit in any district court, including the District Court for the Territory of Alaska, or in any State court having jurisdiction of the subject matter, to quiet title to or for the foreclosure of a mortgage or other lien upon real or personal property on which the United States has or claims a mortgage or other lien.' (Emphasis supplied.)

 I have searched diligently, albeit in vain, for some recorded cases dealing with the precise situation posed in this case. Neither counsel for the plaintiff nor counsel for the defendants have furnished me with any. Having in mind the extent to which the Government has gotten into the business of loaning money in the past several decades, it seems strange that apparently at this late date we are in virgin territory.

 First of all, the lien of the United States is not a tax lien. It is rather a second mortgage lien predicated on a loan of money to the mortgagors, then owners of the property, by Farmers Home Administration, an agency of the United States. At the time the agency made this loan and entered its mortgage it had notice that its mortgage was second in lien to a first mortgage held by an individual entered over a year prior thereto.

 The mortgagors defaulted on their first mortgage. The mortgagee foreclosed and bought in the property at the Sheriff's sale on his bid of the costs of the sale. *fn1" Had the second mortgagee been an individual there is no question but that the lien of the second mortgagee would have been extinguished by the foreclosure on the first mortgage. Is the situation changed because the United States happens to be the second mortgage holder?

 The Government leans heavily on 28 U.S.C. § 2410(a), above cited. This statute is not mandatory, -- it merely waives sovereign immunity in suits to foreclose mortgages or quiet titles. Haldeman v. United States, D.C.E.D.Mich., 93 F.Supp. 889. In other words, the purpose of this statute in which the United States consents to be named a party in an action which seeks an adjudication touching any mortgage or other lien of the United States is merely to waive sovereign immunity from suit in certain types of cases. Wells v. Long, 9 Cir., 162 F.2d 842.

 If the United States is entitled to a priority in this case it must be based on some statutory enactment. '* * * the federal statutes do not attempt to give priority in all cases to liens created under the paramount authority of the United States.' United States v. City of New Britain, Conn., 347 U.S. 81, 84, 74 S. Ct. 367, 370, 98 L. Ed. 520.

 United States v. Security Trust & Savings Bank, 340 U.S. 47, 71 S. Ct. 111, 113, 95 L. Ed. 53, involved an inchoate attachment lien that had not ripened into a judgment at the time the federal tax liens attached. The court noted that 'Numerous contingencies might arise that would prevent the attachment lien from ever becoming perfected by a judgment awarded and recorded', and that thus the attachment lien was merely a lis pendens notice that a right to perfect a lien exists. The court further stated, 'The effect of a lien in relation to a provision of federal law for the collection of debts owing the United States is always a federal question.' The liens asserted by the United States in that case stemmed from 53 Stat. 448, 449, 26 U.S.C. §§ 3670, 3671, 3672, now 26 U.S.C. § 6321 et seq. While the act provided that the unpaid tax in question should be a lien in favor of the United States on all property, real and personal, of the defaulting taxpayer, it specifically provided that the lien should not be valid against mortgagees, pledgees, purchasers or judgment creditors ...

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