Normally I write on Georgia tax sales. However, I continue to encounter questions concerning how a property sold by the federal government is redeemed. The federal scheme is somewhat different than the Georgia tax sales scheme. Assuming at the outset that a taxpayer owns a piece of real property and has significant unpaid federal taxes which have matured to a federal tax lien recorded against the property, the federal government may sell the property for the unpaid federal taxes. One seized, the land may proceeds to sale. It is unclear (and probably a matter of custom from office to office) concerning how long federal government allows a federal tax lien to molder on the property records before it proceeds to sale. However, once federal government levies it proceeds to sale according to 28 U.S.C. § 6335. [1]
Under 28 U.S.C. § 6335, Notice is required to be given to the owner in writing by actual service; or, if the owner cannot be located, by certified mail. The Notice must specify the amount of tax due, the amount of charges that are necessary to redeem the property from the potential sale and a description of the property to be sold.
With regard to Notice, the IRS must publish in the legal organ (though it has some liberality to publish in another newspaper) prior to the sale. It must post notice of the sale in the post office closest to the property to be sold and it must post in two other public places near the property (not specified).
The sale must occur not less than 10 and not more than 40 days from the date of the posting. And all sales should occur in the county where the property is located.
On the date of the sale, the IRS posts a minimum price below which the sale will not occur and provides the criteria for sale to the highest bidder above the minimum price. There are many other conditions that the Secretary may place on the sale but they go beyond the scope of this article.
REDEMPTION AFTER THE SALE.
Once the sale occurs the former owner of the property, his heirs, etc., are permitted to redeem within 180 days after the sale pursuant to 26 U.S.C. § 6337. [2] The former owner must pay the price of the sale, plus all fees levied by the Secretary and 20 percent per annum to the purchaser for redemption.
Pursuant to 26 U.S.C. § 6338, [3] a purchaser at a federal tax sale is initially only provided with a Certificate of sale. Once the 180 days have expired, the purchaser may apply for a formal deed to the real property. As with many of the problems associated with the purchase of tax sale property, the Certificate does not ripen on its own, but the purchaser must pursue the federal government to actually obtain the deed and then record that deed on the local land records.
Hugh Wood,
Atlanta, GA
[1]
TITLE 26 - INTERNAL REVENUE CODE
Subtitle F - Procedure and Administration
CHAPTER 64 - COLLECTION
Subchapter D - Seizure of Property for Collection of Taxes
PART II - LEVY
26 USC § 6335. Sale of seized property
(a) Notice of seizure
As soon as practicable after seizure of property, notice in writing shall be given by the Secretary to the owner of the property (or, in the case of personal property, the possessor thereof), or shall be left at his usual place of abode or business if he has such within the internal revenue district where the seizure is made. If the owner cannot be readily located, or has no dwelling or place of business within such district, the notice may be mailed to his last known address. Such notice shall specify the sum demanded and shall contain, in the case of personal property, an account of the property seized and, in the case of real property, a description with reasonable certainty of the property seized.
(b) Notice of sale
The Secretary shall as soon as practicable after the seizure of the property give notice to the owner, in the manner prescribed in subsection (a), and shall cause a notification to be published in some newspaper published or generally circulated within the county wherein such seizure is made, or if there be no newspaper published or generally circulated in such county, shall post such notice at the post office nearest the place where the seizure is made, and in not less than two other public places. Such notice shall specify the property to be sold, and the time, place, manner, and conditions of the sale thereof. Whenever levy is made without regard to the 10-day period provided in section 6331 (a), public notice of sale of the property seized shall not be made within such 10-day period unless section 6336 (relating to sale of perishable goods) is applicable.
(c) Sale of indivisible property
If any property liable to levy is not divisible, so as to enable the Secretary by sale of a part thereof to raise the whole amount of the tax and expenses, the whole of such property shall be sold.
(d) Time and place of sale
The time of sale shall not be less than 10 days nor more than 40 days from the time of giving public notice under subsection (b). The place of sale shall be within the county in which the property is seized, except by special order of the Secretary.
(e) Manner and conditions of sale
(1) In general
(A) Determinations relating to minimum price
Before the sale of property seized by levy, the Secretary shall determine-
(i) a minimum price below which such property shall not be sold (taking into account the expense of making the levy and conducting the sale), and
(ii) whether, on the basis of criteria prescribed by the Secretary, the purchase of such property by the United States at such minimum price would be in the best interest of the United States.
(B) Sale to highest bidder at or above minimum price
If, at the sale, one or more persons offer to purchase such property for not less than the amount of the minimum price, the property shall be declared sold to the highest bidder.
(C) Property deemed sold to United States at minimum price in certain cases
If no person offers the amount of the minimum price for such property at the sale and the Secretary has determined that the purchase of such property by the United States would be in the best interest of the United States, the property shall be declared to be sold to the United States at such minimum price.
(D) Release to owner in other cases
If, at the sale, the property is not declared sold under subparagraph (B) or (C), the property shall be released to the owner thereof and the expense of the levy and sale shall be added to the amount of tax for the collection of which the levy was made. Any property released under this subparagraph shall remain subject to any lien imposed by subchapter C.
(2) Additional rules applicable to sale
The Secretary shall by regulations prescribe the manner and other conditions of the sale of property seized by levy. If one or more alternative methods or conditions are permitted by regulations, the Secretary shall select the alternatives applicable to the sale. Such regulations shall provide:
(A) That the sale shall not be conducted in any manner other than-
(i) by public auction, or
(ii) by public sale under sealed bids.
(B) In the case of the seizure of several items of property, whether such items shall be offered separately, in groups, or in the aggregate; and whether such property shall be offered both separately (or in groups) and in the aggregate, and sold under whichever method produces the highest aggregate amount.
(C) Whether the announcement of the minimum price determined by the Secretary may be delayed until the receipt of the highest bid.
(D) Whether payment in full shall be required at the time of acceptance of a bid, or whether a part of such payment may be deferred for such period (not to exceed 1 month) as may be determined by the Secretary to be appropriate.
(E) The extent to which methods (including advertising) in addition to those prescribed in subsection (b) may be used in giving notice of the sale.
(F) Under what circumstances the Secretary may adjourn the sale from time to time (but such adjournments shall not be for a period to exceed in all 1 month).
(3) Payment of amount bid
If payment in full is required at the time of acceptance of a bid and is not then and there paid, the Secretary shall forthwith proceed to again sell the property in the manner provided in this subsection. If the conditions of the sale permit part of the payment to be deferred, and if such part is not paid within the prescribed period, suit may be instituted against the purchaser for the purchase price or such part thereof as has not been paid, together with interest at the rate of 6 percent per annum from the date of the sale; or, in the discretion of the Secretary, the sale may be declared by the Secretary to be null and void for failure to make full payment of the purchase price and the property may again be advertised and sold as provided in subsections (b) and (c) and this subsection. In the event of such readvertisement and sale any new purchaser shall receive such property or rights to property, free and clear of any claim or right of the former defaulting purchaser, of any nature whatsoever, and the amount paid upon the bid price by such defaulting purchaser shall be forfeited.
(4) Cross reference
For provision providing for civil damages for violation of paragraph (1)(A)(i), see section 7433.
(f) Right to request sale of seized property within 60 days
The owner of any property seized by levy may request that the Secretary sell such property within 60 days after such request (or within such longer period as may be specified by the owner). The Secretary shall comply with such request unless the Secretary determines (and notifies the owner within such period) that such compliance would not be in the best interests of the United States.
(g) Stay of sale of seized property pending Tax Court decision
For restrictions on sale of seized property pending Tax Court decision, see section 6863 (b)(3).
[2]
26 USC § 6337. Redemption of property
(a) Before sale
Any person whose property has been levied upon shall have the right to pay the amount due, together with the expenses of the proceeding, if any, to the Secretary at any time prior to the sale thereof, and upon such payment the Secretary shall restore such property to him, and all further proceedings in connection with the levy on such property shall cease from the time of such payment.
(b) Redemption of real estate after sale
(1) Period
The owners of any real property sold as provided in section 6335, their heirs, executors, or administrators, or any person having any interest therein, or a lien thereon, or any person in their behalf, shall be permitted to redeem the property sold, or any particular tract of such property, at any time within 180 days after the sale thereof.
(2) Price
Such property or tract of property shall be permitted to be redeemed upon payment to the purchaser, or in case he cannot be found in the county in which the property to be redeemed is situated, then to the Secretary, for the use of the purchaser, his heirs, or assigns, the amount paid by such purchaser and interest thereon at the rate of 20 percent per annum.
(c) Record
When any lands sold are redeemed as provided in this section, the Secretary shall cause entry of the fact to be made upon the record mentioned in section 6340, and such entry shall be evidence of such redemption.
[3]
26 USC § 6338. Certificate of sale; deed of real property
How Current is This?
(a) Certificate of sale
In the case of property sold as provided in section 6335, the Secretary shall give to the purchaser a certificate of sale upon payment in full of the purchase price. In the case of real property, such certificate shall set forth the real property purchased, for whose taxes the same was sold, the name of the purchaser, and the price paid therefor.
(b) Deed to real property
In the case of any real property sold as provided in section 6335 and not redeemed in the manner and within the time provided in section 6337, the Secretary shall execute (in accordance with the laws of the State in which such real property is situated pertaining to sales of real property under execution) to the purchaser of such real property at such sale, upon his surrender of the certificate of sale, a deed of the real property so purchased by him, reciting the facts set forth in the certificate.
(c) Real property purchased by United States
If real property is declared purchased by the United States at a sale pursuant to section 6335, the Secretary shall at the proper time execute a deed therefor; and without delay cause such deed to be duly recorded in the proper registry of deeds.
Title 26 of the US Code as currently published by the US Government reflects the laws passed by Congress as of Jan. 8, 2008, and it is this version that is published here.
& & &
545 U.S. 308 (2005)
125 S.Ct. 2363, 162 L.Ed.2d 257, 73 USLW 4501
Grable & Sons Metal Products, Inc.
v.
Darue Engineering & Manufacturing
No. 04-603
United States Supreme Court
June 13, 2005
Argued April 18, 2005.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Syllabus
The Internal Revenue Service seized real property owned by petitioner (hereinafter Grable) to satisfy a federal tax delinquency, and gave Grable notice by certified mail before selling the property to respondent (hereinafter Darue). Grable subsequently brought a quiet title action in state court, claiming that Darue's title was invalid because 26 U.S.C. §6335 required the IRS to give Grable notice of the sale by personal service, not certified mail. Darue removed the case to Federal District Court as presenting a federal question because the title claim depended on an interpretation of federal tax law. The District Court declined to remand the case, finding that it posed a significant federal-law question, and it granted Darue summary judgment on the merits. The Sixth Circuit affirmed, and this Court granted certiorari on the jurisdictional question.
Held:
The national interest in providing a federal forum for federal tax litigation is sufficiently substantial to support the exercise of federal-question jurisdiction over the disputed issue on removal. Pp. 312-320.
(a) Darue was entitled to remove the quiet title action if Grable could have brought it in federal court originally, as a civil action "arising under the . . . laws . . . of the United States," 28 U.S.C. §1331. Federal-question jurisdiction is usually invoked by plaintiffs pleading a cause of action created by federal law, but this Court has also long recognized that such jurisdiction will lie over some state-law claims that implicate significant federal issues, see, e.g., Smith v. Kansas City Title & Trust Co., 255 U.S. 180. Such federal jurisdiction demands not only a contested federal issue, but a substantial one. And the jurisdiction must be consistent with congressional judgment about the sound division of labor between state and federal courts governing §1331's application. These considerations have kept the Court from adopting a single test for jurisdiction over federal issues embedded in state-law claims between nondiverse parties. Instead, the question is whether the state-law claim necessarily stated a federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing a congressionally approved balance of federal and state judicial responsibilities. Pp. 312-314.
Page 309
(b) This case warrants federal jurisdiction. Grable premised its superior title claim on the IRS's failure to give adequate notice, as defined by federal law. Whether Grable received notice is an essential element of its quiet title claim, and the federal statute's meaning is actually disputed. The meaning of a federal tax provision is an important federal-law issue that belongs in federal court. The Government has a strong interest in promptly collecting delinquent taxes, and the IRS's ability to satisfy its claims from delinquents' property requires clear terms of notice to assure buyers like Darue that the IRS has good title. Finally, because it will be the rare state title case that raises a federal-law issue, federal jurisdiction to resolve genuine disagreement over federal tax title provisions will portend only a microscopic effect on the federal-state division of labor. This conclusion puts the Court in venerable company, quiet title actions having been the subject of some of the earliest exercises of federal-question jurisdiction over state-law claims. E.g., Hopkins v. Walker, 244 U.S. 486, 490-491. Pp. 314-316.
(c) Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, is not to the contrary. There, in finding federal jurisdiction unavailable for a state tort claim resting in part on an allegation that the defendant drug company had violated a federal branding law, the Court noted that Congress had not provided a private federal cause of action for such violations. Merrell Dow cannot be read to make a federal cause of action a necessary condition for federal-question jurisdiction. It disclaimed the adoption of any bright-line rule and expressly approved the exercise of jurisdiction in Smith, where there was no federal cause of action. Accordingly, Merrell Dow should be read in its entirety as treating the absence of such cause as evidence relevant to, but not dispositive of, the "sensitive judgments about congressional intent," required by §1331. Id., at 810. In Merrell Dow, the principal significance of this absence was its bearing on the consequences to the federal system. If the federal labeling standard without a cause of action could get a state claim into federal court, so could any other federal standards without causes of action. And that would mean an enormous number of cases. A comparable analysis yields a different jurisdictional conclusion here, because state quiet title actions rarely involve contested federal-law issues. Pp. 316-320.
377 F.3d 592, affirmed.
SOUTER, J., delivered the opinion for a unanimous Court. THOMAS, J., filed a concurring opinion, post, p. 320.
Eric H. Zagrans argued the cause for petitioner. On the briefs was Charles E. McFarland.
Page 310
Michael C. Walton argued the cause for respondent. With him on the brief were John M. Lichtenberg, Gregory G. Timmer, and Mary L. Tabin.
Irving L. Gornstein argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Clement, Assistant Attorney General O'Connor, Deputy Solicitor General Hungar, and Gilbert S. Rothenberg[*]
OPINION
SOUTER, JUSTICE
The question is whether want of a federal cause of action to try claims of title to land obtained at a federal tax sale precludes removal to federal court of a state action with non-diverse parties raising a disputed issue of federal title law. We answer no, and hold that the national interest in providing a federal forum for federal tax litigation is sufficiently substantial to support the exercise of federal question jurisdiction over the disputed issue on removal, which would not distort any division of labor between the state and federal courts, provided or assumed by Congress.
I
In 1994, the Internal Revenue Service seized Michigan real property belonging to petitioner Grable & Sons Metal Products, Inc., to satisfy Grable's federal tax delinquency. Title 26 U.S.C. §6335 required the IRS to give notice of the seizure, and there is no dispute that Grable received actual notice by certified mail before the IRS sold the property to respondent Darue Engineering & Manufacturing. Although Grable also received notice of the sale itself, it did not exercise its statutory right to redeem the property within 180 days of the sale, §6337(b)(1), and after that period
Page 311
had passed, the Government gave Darue a quitclaim deed. §6339.
Five years later, Grable brought a quiet title action in state court, claiming that Darue's record title was invalid because the IRS had failed to notify Grable of its seizure of the property in the exact manner required by §6335(a), which provides that written notice must be "given by the Secretary to the owner of the property [or] left at his usual place of abode or business." Grable said that the statute required personal service, not service by certified mail.
Darue removed the case to Federal District Court as presenting a federal question, because the claim of title depended on the interpretation of the notice statute in the federal tax law. The District Court declined to remand the case at Grable's behest after finding that the "claim does pose a significant question of federal law," Tr. 17 (Apr. 2, 2001), and ruling that Grable's lack of a federal right of action to enforce its claim against Darue did not bar the exercise of federal jurisdiction. On the merits, the court granted summary judgment to Darue, holding that although §6335 by its terms required personal service, substantial compliance with the statute was enough. 207 F.Supp.2d 694 (WD Mich. 2002).
The Court of Appeals for the Sixth Circuit affirmed. 377 F.3d 592 (2004). On the jurisdictional question, the panel thought it sufficed that the title claim raised an issue of federal law that had to be resolved, and implicated a substantial federal interest (in construing federal tax law). The court went on to affirm the District Court's judgment on the merits. We granted certiorari on the jurisdictional question alone,[1] 543 U.S. 1042 (2005) to resolve a split within the Courts of Appeals on whether Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804 (1986), always requires
Page 312
a federal cause of action as a condition for exercising federal-question jurisdiction.[2] We now affirm.
II
Darue was entitled to remove the quiet title action if Grable could have brought it in federal district court originally, 28 U.S.C. §1441(a), as a civil action "arising under the Constitution, laws, or treaties of the United States," §1331. This provision for federal-question jurisdiction is invoked by and large by plaintiffs pleading a cause of action created by federal law (e.g., claims under 42 U.S.C. §1983). There is, however, another longstanding, if less frequently encountered, variety of federal "arising under" jurisdiction, this Court having recognized for nearly 100 years that in certain cases federal question jurisdiction will lie over state-law claims that implicate significant federal issues. E.g., Hopkins v. Walker, 244 U.S. 486, 490-491 (1917). The doctrine captures the commonsense notion that a federal court ought to be able to hear claims recognized under state law that nonetheless turn on substantial questions of federal law, and thus justify resort to the experience, solicitude, and hope of uniformity that a federal forum offers on federal issues, see ALI, Study of the Division of Jurisdiction Between State and Federal Courts 164-166 (1968).
The classic example is Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921), a suit by a shareholder claiming that the defendant corporation could not lawfully buy certain bonds of the National Government because their issuance was unconstitutional. Although Missouri law provided the cause of action, the Court recognized federal-question jurisdiction because the principal issue in the case was the federal constitutionality of the bond issue. Smith thus held, in a
Page 313
somewhat generous statement of the scope of the doctrine, that a state-law claim could give rise to federal-question jurisdiction so long as it "appears from the [complaint] that the right to relief depends upon the construction or application of [federal law]." Id., at 199.
The Smith statement has been subject to some trimming to fit earlier and later cases recognizing the vitality of the basic doctrine, but shying away from the expansive view that mere need to apply federal law in a state-law claim will suffice to open the "arising under" door. As early as 1912, this Court had confined federal-question jurisdiction over state-law claims to those that "really and substantially involv[e] a dispute or controversy respecting the validity, construction or effect of [federal] law." Shulthis v. McDougal, 225 U.S. 561, 569 (1912). This limitation was the ancestor of Justice Cardozo's later explanation that a request to exercise federal-question jurisdiction over a state action calls for a "common-sense accommodation of judgment to [the] kaleidoscopic situations" that present a federal issue, in "a selective process which picks the substantial causes out of the web and lays the other ones aside." Gully v. First Nat. Bank in Meridian, 299 U.S. 109, 117-118 (1936). It has in fact become a constant refrain in such cases that federal jurisdiction demands not only a contested federal issue, but a substantial one, indicating a serious federal interest in claiming the advantages thought to be inherent in a federal forum. E.g., Chicago v. International College of Surgeons, 522 U.S. 156, 164 (1997); Merrell Dow, supra, at 814, and n. 12; Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 28 (1983).
But even when the state action discloses a contested and substantial federal question, the exercise of federal jurisdiction is subject to a possible veto. For the federal issue will ultimately qualify for a federal forum only if federal jurisdiction is consistent with congressional judgment about the sound division of labor between state and federal courts governing
Page 314
the application of §1331. Thus, Franchise Tax Bd. explained that the appropriateness of a federal forum to hear an embedded issue could be evaluated only after considering the "welter of issues regarding the interrelation of federal and state authority and the proper management of the federal judicial system." Id., at 8. Because arising-under jurisdiction to hear a state-law claim always raises the possibility of upsetting the state-federal line drawn (or at least assumed) by Congress, the presence of a disputed federal issue and the ostensible importance of a federal forum are never necessarily dispositive; there must always be an assessment of any disruptive portent in exercising federal jurisdiction. See also Merrell Dow, supra, at 810.
These considerations have kept us from stating a "single, precise, all-embracing" test for jurisdiction over federal issues embedded in state-law claims between non-diverse parties. Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 821 (1988) (STEVENS, J., concurring). We have not kept them out simply because they appeared in state raiment, as Justice Holmes would have done, see Smith, supra, at 214 (dissenting opinion), but neither have we treated "federal issue" as a password opening federal courts to any state action embracing a point of federal law. Instead, the question is, does a state-law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.
III
A
This case warrants federal jurisdiction. Grable's state complaint must specify "the facts establishing the superiority of [its] claim," Mich. Ct. Rule 3.411(B)(2)(c) (West 2005), and Grable has premised its superior title claim on a failure by the IRS to give it adequate notice, as defined by federal
Page 315
law. Whether Grable was given notice within the meaning of the federal statute is thus an essential element of its quiet title claim, and the meaning of the federal statute is actually in dispute; it appears to be the only legal or factual issue contested in the case. The meaning of the federal tax provision is an important issue of federal law that sensibly belongs in a federal court. The Government has a strong interest in the "prompt and certain collection of delinquent taxes," United States v. Rodgers, 461 U.S. 677, 709 (1983), and the ability of the IRS to satisfy its claims from the property of delinquents requires clear terms of notice to allow buyers like Darue to satisfy themselves that the Service has touched the bases necessary for good title. The Government thus has a direct interest in the availability of a federal forum to vindicate its own administrative action, and buyers (as well as tax delinquents) may find it valuable to come before judges used to federal tax matters. Finally, because it will be the rare state title case that raises a contested matter of federal law, federal jurisdiction to resolve genuine disagreement over federal tax title provisions will portend only a microscopic effect on the federal-state division of labor. See n. 3, infra.
This conclusion puts us in venerable company, quiet title actions having been the subject of some of the earliest exercises of federal-question jurisdiction over state-law claims. In Hopkins, 244 U. S., at 490-491, the question was federal jurisdiction over a quiet title action based on the plaintiffs' allegation that federal mining law gave them the superior claim. Just as in this case, "the facts showing the plaintiffs' title and the existence and invalidity of the instrument or record sought to be eliminated as a cloud upon the title are essential parts of the plaintiffs' cause of action."[3] Id., at 490.
Page 316
As in this case again, "it is plain that a controversy respecting the construction and effect of the [federal] laws is involved and is sufficiently real and substantial." Id., at 489. This Court therefore upheld federal jurisdiction in Hopkins, as well as in the similar quiet title matters of Northern Pacific R. Co. v. Soderberg, 188 U.S. 526, 528 (1903), and Wilson Cypress Co. v. Del Pozo y Marcos, 236 U.S. 635, 643-644 (1915). Consistent with those cases, the recognition of federal jurisdiction is in order here.
B
Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804 (1986), on which Grable rests its position, is not to the contrary. Merrell Dow considered a state tort claim resting in part on the allegation that the defendant drug company had violated a federal misbranding prohibition, and was thus presumptively negligent under Ohio law. Id., at 806. The Court assumed that federal law would have to be applied to resolve the claim, but after closely examining the strength of the federal interest at stake and the implications of opening the federal forum, held federal jurisdiction unavailable. Congress had not provided a private federal cause of action for violation of the federal branding requirement, and the Court found "it would . . . flout, or at least undermine, congressional intent to conclude that federal courts might nevertheless exercise federal-question jurisdiction and provide remedies for violations of that federal statute solely because the violation . . . is said to be a . . . 'proximate cause' under state law." Id., at 812.
Page 317
Because federal law provides for no quiet title action that could be brought against Darue,[4] Grable argues that there can be no federal jurisdiction here, stressing some broad language in Merrell Dow (including the passage just quoted) that on its face supports Grable's position, see Note, Mr. Smith Goes to Federal Court: Federal Question Jurisdiction over State Law Claims Post-Merrell Dow, 115 Harv. L. Rev. 2272, 2280-2282 (2002) (discussing split in Circuit Courts over private right of action requirement after Merrell Dow). But an opinion is to be read as a whole, and Merrell Dow cannot be read whole as overturning decades of precedent, as it would have done by effectively adopting the Holmes dissent in Smith, see supra, at 314, and converting a federal cause of action from a sufficient condition for federal-question jurisdiction[5] into a necessary one.
In the first place, Merrell Dow disclaimed the adoption of any bright-line rule, as when the Court reiterated that "in exploring the outer reaches of §1331, determinations about federal jurisdiction require sensitive judgments about congressional intent, judicial power, and the federal system." 478 U. S., at 810. The opinion included a lengthy footnote explaining that questions of jurisdiction over state-law claims require "careful judgments," id., at 814, about the "nature of the federal interest at stake," id., at 814, n. 12 (emphasis deleted). And as a final indication that it did not mean to make a federal right of action mandatory, it expressly approved the exercise of jurisdiction sustained in Smith, despite the want of any federal cause of action available to Smith's shareholder plaintiff. 478 U. S., at 814, n. 12.
Page 318
Merrell Dow then, did not toss out, but specifically retained the contextual enquiry that had been Smith's hallmark for over 60 years. At the end of Merrell Dow, Justice Holmes was still dissenting.
Accordingly, Merrell Dow should be read in its entirety as treating the absence of a federal private right of action as evidence relevant to, but not dispositive of, the "sensitive judgments about congressional intent" that §1331 requires. The absence of any federal cause of action affected Merrell Dow's result two ways. The Court saw the fact as worth some consideration in the assessment of substantiality. But its primary importance emerged when the Court treated the combination of no federal cause of action and no preemption of state remedies for misbranding as an important clue to Congress's conception of the scope of jurisdiction to be exercised under §1331. The Court saw the missing cause of action not as a missing federal door key, always required, but as a missing welcome mat, required in the circumstances, when exercising federal jurisdiction over a state misbranding action would have attracted a horde of original filings and removal cases raising other state claims with embedded federal issues. For if the federal labeling standard without a federal cause of action could get a state claim into federal court, so could any other federal standard without a federal cause of action. And that would have meant a tremendous number of cases.
One only needed to consider the treatment of federal violations generally in garden variety state tort law. "The violation of federal statutes and regulations is commonly given negligence per se effect in state tort proceedings."[6]
Page 319
Restatement (Third) of Torts (proposed final draft) §14, Comment a. See also W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Torts, §36, p. 221, n. 9 (5th ed. 1984) ("[T]he breach of a federal statute may support a negligence per se claim as a matter of state law" (collecting authority)). A general rule of exercising federal jurisdiction over state claims resting on federal mislabeling and other statutory violations would thus have heralded a potentially enormous shift of traditionally state cases into federal courts. Expressing concern over the "increased volume of federal litigation," and noting the importance of adhering to "legislative intent," Merrell Dow thought it improbable that the Congress, having made no provision for a federal cause of action, would have meant to welcome any state-law tort case implicating federal law "solely because the violation of the federal statute is said to [create] a rebuttable presumption [of negligence] . . . under state law." 478 U. S., at 811-812 (internal quotation marks omitted). In this situation, no welcome mat meant keep out. Merrell Dow's analysis thus fits within the framework of examining the importance of having a federal forum for the issue, and the consistency of such a forum with Congress's intended division of labor between state and federal courts.
As already indicated, however, a comparable analysis yields a different jurisdictional conclusion in this case. Although Congress also indicated ambivalence in this case by providing no private right of action to Grable, it is the rare state quiet title action that involves contested issues of federal law, see n. 3, supra. Consequently, jurisdiction over actions like Grable's would not materially affect, or threaten to affect, the normal currents of litigation. Given the absence of threatening structural consequences and the clear interest the Government, its buyers, and its delinquents have in the availability of a federal forum, there is no good reason to
Page 320
shirk from federal jurisdiction over the dispositive and contested federal issue at the heart of the state-law title claim.[7]
IV
The judgment of the Court of Appeals, upholding federal jurisdiction over Grable's quiet title action, is affirmed.
It is so ordered.
Thomas, J., concurring
The Court faithfully applies our precedents interpreting 28 U.S.C. §1331 to authorize federal-court jurisdiction over some cases in which state law creates the cause of action but requires determination of an issue of federal law, e.g., Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921); Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804 (1986). In this case, no one has asked us to overrule those precedents and adopt the rule Justice Holmes set forth in American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257 (1916), limiting §1331 jurisdiction to cases in which federal law creates the cause of action pleaded on the face of the plaintiff's complaint. Id., at 260. In an appropriate case, and perhaps with the benefit of better evidence as to the original meaning of §1331's text, I would be willing to consider that course.[*]
Page 321
Jurisdictional rules should be clear. Whatever the virtues of the Smith standard, it is anything but clear. Ante, at 313 (the standard "calls for a 'common-sense accommodation of judgment to [the] kaleidoscopic situations' that present a federal issue, in 'a selective process which picks the substantial causes out of the web and lays the other ones aside' " (quoting Gully v. First Nat. Bank in Meridian, 299 U.S. 109, 117-118 (1936))); ante, at 314 ("[T]he question is, does a state-law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities"); ante, at 317, 318 (" '[D]eterminations about federal jurisdiction require sensitive judgments about congressional intent, judicial power, and the federal system' "; "the absence of a federal private right of action [is] evidence relevant to, but not dispositive of, the 'sensitive judgments about congressional intent' that §1331 requires" (quoting Merrell Dow, supra, at 810)).
Whatever the vices of the American Well Works rule, it is clear. Moreover, it accounts for the "'vast majority' " of cases that come within §1331 under our current case law, Merrell Dow, supra, at 808 (quoting Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 9 (1983)) - further indication that trying to sort out which cases fall within the smaller Smith category may not be worth the effort it entails. See R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal
Page 322
Courts and the Federal System 885-886 (5th ed. 2003). Accordingly, I would be willing in appropriate circumstances to reconsider our interpretation of §1331.
---------------
Notes:
[*] Mr. Zagrans filed a brief for Jerome R. Mikulski et ux. as amid curiae urging reversal.
[1] Accordingly, we have no occasion to pass upon the proper interpretation of the federal tax provision at issue here.
[2] Compare Seinfeld v. Austen, 39 F.3d 761, 764 (CA7 1994) (finding that federal-question jurisdiction over a state-law claim requires a parallel federal private right of action), with Ormet Corp. v. Ohio Power Co., 98 F.3d 799, 806 (CA4 1996) (finding that a federal private action is not required).
[3] The quiet title cases also show the limiting effect of the requirement that the federal issue in a state-law claim must actually be in dispute to justify federal-question jurisdiction. In Shulthis v. McDougal, 225 U.S. 561 (1912), this Court found that there was no federal question jurisdiction to hear a plaintiff's quiet title claim in part because the federal statutes on which title depended were not subject to "any controversy respecting their validity, construction, or effect." Id., at 570. As the Court put it, the requirement of an actual dispute about federal law was "especially" important in "suit[s] involving rights to land acquired under a law of the United States," because otherwise "every suit to establish title to land in the central and western states would so arise [under federal law], as all titles in those States are traceable back to those laws." Id., at 569-570.
[4] Federal law does provide a quiet title cause of action against the Federal Government. 28 U.S.C. §2410. That right of action is not relevant here, however, because the federal government no longer has any interest in the property, having transferred its interest to Darue through the quitclaim deed.
[5] For an extremely rare exception to the sufficiency of a federal right of action, see Shoshone Mining Co. v. Rutter, 177 U.S. 505, 507 (1900).
[6] Other jurisdictions treat a violation of a federal statute as evidence of negligence or, like Ohio itself in Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804 (1986), as creating a rebuttable presumption of negligence. Restatement (Third) of Torts (proposed final draft) §14, Reporters' Note, Comment c, at 196. Either approach could still implicate issues of federal law.
[7] At oral argument Grable's counsel espoused the position that after Merrell Dow, federal-question jurisdiction over state-law claims absent a federal right of action, could be recognized only where a constitutional issue was at stake. There is, however, no reason in text or otherwise to draw such a rough line. As Merrell Dow itself suggested, constitutional questions may be the more likely ones to reach the level of substantiality that can justify federal jurisdiction. 478 U. S., at 814, n. 12. But a flat ban on statutory questions would mechanically exclude significant questions of federal law like the one this case presents.
[*] This Court has long construed the scope of the statutory grant of federal-question jurisdiction more narrowly than the scope of the constitutional grant of such jurisdiction. See Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 807-808 (1986). I assume for present purposes that this distinction is proper - that is, that the language of 28 U.S.C. §1331, "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States" (emphasis added), is narrower than the language of Art. III, §2, cl. 1, of the Constitution, "[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . " (emphases added).
& & &
462 F.3d 1228 (10th Cir. 2006)
WESTLAND HOLDINGS, INC., a Wyoming corporation, Plaintiff-Appellee,
v.
Ross LAY, Defendant-Appellant,
and
Wyoming Department of Employment; Georg Jensen, Defendants.
No. 05-8083.
United States Court of Appeals, Tenth Circuit.
Aug. 15, 2006
Submitted on the briefs: [*] Mitchell E. Osborn, Cheyenne, WY, for Appellant.
John C. Patton, Wendy Curtis Palen, Cheyenne, WY, for Appellee.
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
TYMKOVICH, Circuit Judge.
In this dispute involving the redemption of real property after a tax sale, defendant-appellant Ross Lay appeals from the district court's grant of summary judgment
Page 1229
to plaintiff Westland Holdings, Inc. (Westland). "We review the grant of summary judgment de novo and affirm only if the record, considered in the light most favorable to the plaintiff, establishes no genuine issue of material fact," Bastible v. Weyerhaeuser Co., 437 F.3d 999, 1004 (10th Cir.2006) (quotation omitted), and the defendant is entitled to a judgment as a matter of law, Fed.R.Civ.P. 56(c). Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.
Redemption of real property after a tax sale is governed by 26 U.S.C. § 6337(b)(1), which provides:
The owners of any real property sold as provided in section 6335, their heirs, executors, or administrators, or any person having any interest therein, or a lien thereon, or any person in their behalf, shall be permitted to redeem the property sold, or any particular tract of such property, at any time within 180 days after the sale thereof.
(emphasis added).
Mr. Lay purchased defendant Georg Jensen's real property at a tax sale held by the Internal Revenue Service on November 14, 2003. On May 12, 2004, Mr. Jensen executed a mortgage in favor of Westland for the express purpose of providing Westland with a redeemable interest in the property. That same day, Westland tendered the sufficient redemption amount to the IRS. The IRS, however, rejected the tender because it maintained that the redemption attempt was not within the statutory time period and was thus untimely. The IRS came to this conclusion by including the date of the sale as the first day of the redemption period.
The parties stipulated that Westland was a person with an interest in the property pursuant to this statute and was thus eligible to redeem. [1] See Aplt.App. at 68. Thus, the purely legal issue before the district court was whether the day of the sale should be counted when calculating the redemption period. If it should be counted, Westland's attempted redemption came one day late.
After a thorough review of the applicable law, the district court concluded that the day of sale should not be included in the redemption-period calculation. Westland Holdings, Inc. v. Lay, 392 F.Supp.2d 1283, 1287 (D.Wyo.2005). The court therefore granted Westland's motion for summary judgment, holding that Westland "tendered the redemption amount within the 180-day statutory redemption period, which ended on May 12, 2004." Id.
As part of its analysis, the district court considered Guthrie v. Curnutt, 417 F.2d 764 (10th Cir.1969), where this court found that the then one-year redemption deadline for property sold on August 22, 1966, expired on August 22, 1967, and that a cash tender on that date was timely. Id. at 765-66. The district court found Guthrie unclear as to whether this court counted the day of the sale as the first day of the redemption period. Westland, 392 F.Supp.2d at 1285. In order to dispel any confusion, we now clarify that we did not count the day of sale as the first day of the one-year redemption period in Guthrie. Had this court included August 22, 1966, as the first day of the then 365-day redemption period, the period would have expired at the end of the day on August 21, 1967, not on August 22. Thus, this court started the redemption clock in
Page 1230
Guthrie on August 23, 1966, the day after the sale.
With this clarification, we agree with the well-reasoned opinion of the district court and, as we have on other appropriate occasions, we formally adopt the decision, attached as an appendix hereto, as our own. See, e.g., Hollytex Carpet Mills, Inc. v. Okla. Employment Sec. Comm'n (In re Hollytex Carpet Mills, Inc.), 73 F.3d 1516, 1518 (10th Cir.1996).
The judgment of the district court is AFFIRMED.
Appendix
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING
WESTLAND HOLDINGS, INC., a Wyoming corporation, Plaintiff(s),
vs.
ROSS LAY, INTERNAL REVENUE SERVICE, DEPARTMENT OF EMPLOYMENT, and GEORG JENSEN, Defendant(s).
Case No. 04-CV-265-D
ORDER GRANTING SUMMARY JUDGMENT TO PLAINTIFF WESTLAND HOLDINGS, INC.
This matter comes before the Court on the Motion for Summary Judgment filed by Plaintiff Westland Holdings, Inc. on January 7, 2005. Though this motion was initially denied because the facts of the case were unclear absent further discovery, the parties have since resolved all disputed issues of fact and the matter is now appropriately before the Court on the Motion for Summary Judgment. The Court, having reviewed the materials submitted in support and opposition, and being otherwise fully advised in the premises, FINDS and ORDERS as follows:
BACKGROUND
The facts remaining in this action, as stipulated by the parties Westland Holdings, Inc. and Ross Lay, are as follows:
1. Defendant Georg Jensen was the record owner of certain real property located at 1613 Evans Avenue, Cheyenne, Laramie County, Wyoming, at the time of a sale held by the Internal Revenue Service on November 14, 2003.
2. Said property was subject to several liens of record against Georg Jensen in the Laramie County, Wyoming real estate records, including several state tax liens and two federal tax liens.
3. The Internal Revenue Service ("IRS"), an agency of the United States of America, levied upon the property and caused notice of the sale of the property to be given pursuant to Section 6331 of the Internal Revenue Code.
4. The sale was held November 14, 2003. No objection to notice or the procedural aspects of the sale itself have been entered by any party.
5. Defendant Ross Lay was the successful bidder at the public auction sale and was issued a Certificate of Sale of Seized property from the IRS.
6. On May 12, 2004, Georg Jensen executed a mortgage in favor of Plaintiff Westland Holdings, Inc. The Parties agree the mortgage was given specifically for the purpose of providing Westland Holdings, Inc. with an interest in the property sufficient to redeem the property pursuant to the federal law.
7. The Plaintiff is a person with an interest in the property pursuant to 26 U.S.C. § 6337(b)(1) and therefore entitled to redeem the property "within 180 days of the sale."
Page 1231
8. Plaintiff tendered to the IRS $60,500 on May 12, 2004. The parties agree that this amount was sufficient to redeem the property, if the redemption is determined to be timely.
9. No other party with an interest in the property attempted to redeem the property.
10. The IRS rejected the redemption of the Plaintiff, stating that the redemption was not within the 180-day time period required by statute and that the date of the sale is included in calculating the 180-day period. The parties stipulate that the timeliness of the redemption is the only remaining issue before the Court.
11. A Quitclaim Deed was executed by the IRS transferring the property to Defendant Lay on May 21, 2004 and recorded with the Laramie County Clerk on June 18, 2004 as reception number 390434, book 1820, page 357.
12. The parties stipulate that the only issue remaining is an issue of law: Whether the redemption by Plaintiff on May 12 was within the 180-day period, as argued by the Plaintiff, or whether the redemption was one day late because the IRS counts the day of the sale when calculating the redemption period, as argued by the Defendant.
STANDARD OF REVIEW
Summary Judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. PRO. 56(c). In considering a party's motion for summary judgment, the court must examine all evidence in the light most favorable to the non-moving party. Barber v. General Elec. Co., 648 F.2d 1272, 1276 n. 1 (10th Cir.1981). As the parties have stipulated to all material issues of fact and the only issue remaining is one of law, the Court may appropriately decide this matter on summary judgment.
DISCUSSION
The only issue remaining in this case is whether the Plaintiff Westland Holdings, Inc. redeemed the subject property within the 180-day statutory redemption period. United States statute provides,
Redemption of real estate after sale.--
Period.--The owners of any real property sold as provided in section 6335, their heirs, executors, or administrators, or any person having any interest therein, or a lien thereon, or any person in their behalf, shall be permitted to redeem the property sold, or any particular tract of such property, at any time within 180 days after the sale thereof.
26 U.S.C. § 6337(b)(1)(2004)(emphasis added). Whether the Plaintiff in this case redeemed the property within the statutory period is dependent upon whether the day of the sale is counted as part of the 180 days, or whether the clock starts running the day after the sale. Defendant argues that the day of the sale is included in the count, and therefore, the Plaintiff's tender was 181 days after the sale. Plaintiff contends the day of sale is not included and the tender was within 180 days after the sale.
To resolve this issue the Court must first look to the statutory language. "The first step is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. The inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent." Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (citations and quotations omitted). The language in question here is the phrase "at any time within 180 days after the sale." Plaintiff argues that
Page 1232
the plain meaning of the phrase is unambiguous. The word "after" clearly indicates that the first day counted in the 180 days is the day "after" the sale. The Court agrees that the language of the statute is a strong indication that the day of the sale should not be included when counting the 180-day redemption period. Nevertheless, as the statute does not explicitly state as much, the Court believes it is prudent to look beyond the statutory language to other authority that might resolve the issue.
Several cases have applied the statutory redemption period found in 26 U.S.C. § 6337(b). Plaintiff cites those cases which it claims counted the statutory period in § 6337(b) starting the day after the sale. Defendant, on the other hand, points to cases he claims counted the day of sale. The only case this Court discovered that squarely addresses the issue is Howard v. Adle, 538 F.Supp. 504 (E.D.Mich.1982). The United States District Court for the Eastern District of Michigan in Howard stated, basing its opinion on two cases that purportedly led the court to conclude as it did, "The expiration date of the redemption period is calculated by including the date of sale." Id. at 509. The two cases relied upon by the court were Ballard v. United States, 20 A.F.T.R.2d 5476 (D.Colo.1967) and Guthrie v. Curnutt, 417 F.2d 764 (10th Cir.1969).
The application of § 6337(b) in Ballard and Guthrie does not support the holding in Howard. A careful examination of Ballard demonstrates that the United States District Court for the District of Colorado did not count the day of the sale in calculating the redemption period, which was 120 days at the time the case was decided. In Ballard, the day of the sale was November 4, 1966 and the court held that March 6 and March 21, 1967 were 122 and 137 days after the sale, respectively, falling outside the 120 day redemption period in § 6337(b). Ballard, 20 A.F.T.R.2d at *2-3. In Guthrie, a case on which Defendant relies, it is not clear that the Tenth Circuit Court of Appeals counted the day of the sale. At that time, the redemption statute required that redemption be "within 1 year after the sale." The sale occurred on August 22, 1966. Guthrie, 417 F.2d at 765. The Tenth Circuit held that the deadline expired on August 22, 1967. Id. Defendant claims that Guthrie demonstrates that the date of the sale is included in the calculation. Guthrie, however, could just as easily be interpreted as not having included the day of the sale in counting the redemption period and it unclear whether the Tenth Circuit even considered whether to count the day of the sale when it decided Guthrie.
In a more recent unpublished Tenth Circuit case, Silver Bell Industries v. United States, the Tenth Circuit, again applying § 6337(b), did not count the date of sale in calculating the length of the redemption period. 38 A.F.T.R.2d 5171, 1976 WL 3799 (10th Cir.1976)(unpublished). The date of sale was January 12, 1972. Id. at *4. The Tenth Circuit noted that the day of tender, May 12, 1972, was 121 days after the day of the sale. Id. at *5. In order to come to this conclusion the court did not include the day of the sale in calculating the redemption period.
In addition to the case law, the Plaintiff suggests that the Court apply Federal Rule of Civil Procedure 6(a), which states, "In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included." FED. R. CIV. PRO. 6(a) (emphasis added).
Page 1233
Some courts have held that when a statute does not expressly dictate whether the day of the event should be included in the time limitation, Federal Rule of Civil Procedure 6(a) should control. Flanagan v. Johnson, 154 F.3d 196, 201-202 (5th Cir.1998) ("Given the lack of any express direction in the statute itself, we are compelled to adhere to our Circuit's well established rule that Rule 6(a) governs the computation of federal statutory time periods of limitation.... By extension, when computing the one year time period applicable to petitions raising claims that would otherwise be time-barred as of the April 24, 1996, that date must be excluded from the computation and petitions filed on or before April 24, 1997 are timely."); Krajci v. Provident Consumer Discount Co., 525 F.Supp. 145, 150 (E.D.Penn.1981) ("Where no contrary policy is expressed in a statute, considerations of liberality and leniency militate on favor of Rule 6(a)'s application.") See also Union Nat. Bank of Wichita, Kan. v. Lamb, 337 U.S. 38, 40-41, 69 S.Ct. 911, 93 L.Ed. 1190 (1949). Section 6337(b) does not explicitly set forth whether the day of the sale should be included. As such, the Court finds it prudent to follow the generally accepted rule for counting time in Federal Rule of Civil Procedure 6(a).
Finally, if the Court is not convinced by the plain language, case law, or general rule in favor of applying Federal Rule of Civil Procedure 6(a), Plaintiff argues that the statute should be liberally construed in favor of the redeeming party. Plaintiff points out that "[c]ourts have traditionally looked with favor upon redemption and have given liberal construction to redemption statutes." Seay v. U.S., 1998 WL 718187, *4 (W.D.Tex.1998) (citations and quotations omitted). As the court observed in Babb v. Frank, 947 F.Supp. 405 (W.D.Wisc.1996), a case cited favorably by the Tenth Circuit in Gaechter Outdoor Advertising, 221 F.3d 1353, ---- (10th Cir.2000) (unpublished),
An owner's right to redeem property seized by the United Stated for failure to pay taxes was well-established long before the passage of 26 U.S.C. § 6337. See Corbett v. Nutt, 77 U.S. (10 Wall.) 464, 19 L.Ed. 976 (1870); Bennett v. Hunter, 76 U.S. (9 Wall.) 326, 19 L.Ed. 672 (1869). Leniency to the owner in the exercise of this right has always been the rule of thumb. See Corbett, 77 U.S. at 474-75 ("It is the general rule of courts to give to statutes authorizing redemption from tax sales a construction favorable to owners....").
Babb, 947 F.Supp. at 406. If leniency is applied in favor of the owner in the instant cause, the date of the sale should not be included in calculating the redemption period. The fact that it is the owner's mortgagee that is attempting to obtain the more lenient deadline is of no consequence. One rule cannot be established for the benefit of the owner and another for other parties with the right to redeem, as the result would be unworkable.
CONCLUSION
The Court finds that the language of § 6337(b) and the case law interpreting the statute indicate that the date of the sale should not be counted in determining the statutory redemption period. This decision also comports with the general rule expressed in Federal Rule of Civil Procedure 6(a) and the policy of leniency to the owner in the exercise of the right of redemption. Finding that the day of the sale should not be counted in the redemption period, the Court concludes that the Plaintiff Westland Holdings, Inc. tendered the redemption amount within the 180-day statutory redemption period, which ended on May 12, 2004. Plaintiff is entitled to
Page 1234
judgment as a matter of law. THEREFORE, it is hereby
ORDERED that Plaintiff's Motion for Summary Judgment is GRANTED and that the Plaintiff shall be permitted to redeem the property.
DATED this 2nd day of August, 2005.
William F. Downes, United States District Judge
---------
Notes:
[*] After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
[1] This stipulation forecloses Mr. Lay's argument on appeal that Westland did not possess redemption rights.
Hugh Wood, Esq.
Wood & Meredith, LLP
3756 LaVista Road
Suite 250
Atlanta (Tucker), GA 30084
www.woodandmeredith.com
hwood@woodandmeredith.com
www.hughwood.blogspot.com
Phone: 404-633-4100
Fax: 404-633-0068
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