Redus Fla. Commercial, LLC v. Coll. Station Retail Ctr., LLC

• Decision Date: 19 December 2014
• Docket Number: No. 13–10418.,13–10418.
• Citation: 777 F.3d 1187
• Parties: REDUS FLORIDA COMMERCIAL, LLC, Plaintiff–Appellant, v. COLLEGE STATION RETAIL CENTER, LLC, a Florida limited liability company, Joseph E. Zagame, Sr., Jane C. Zagame, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

777 F.3d 1187

REDUS FLORIDA COMMERCIAL, LLC, Plaintiff–Appellant,

v.COLLEGE STATION RETAIL CENTER, LLC, a Florida limited liability company, Joseph E. Zagame, Sr., Jane C. Zagame, Defendants–Appellees.

No. 13–10418.

United States Court of Appeals,Eleventh Circuit.

Dec. 19, 2014.

John D. Goldsmith, Nathan Carney, Amy Lea Drushal, Trenam Kemker, Tampa, FL, for Plaintiff–Appellant.

Todd B. Grandy, Lacy R. Harwell, Jr., Robert E. O'Neill, U.S. Attorney's Office, Jourdan R. Haynes, Donald R. Kirk, Buchanan Ingersoll & Rooney PC, Tampa, FL, Peggy Morris Ronca, U.S. Attorney's Office, Jason H. Klein, Robert Scott Shuker, Latham Shuker Eden & Beaudine, LLP, Michael A. Tessitore, The Tessitore Law Firm, PA, Roberta Josephina Bodnar, U.S. Attorney's Office, Orlando, FL, for Defendants–Appellees.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 5:10–cv–00602–WTH–PRL.

Before TJOFLAT, WILLIAM PRYOR and MARTIN, Circuit Judges.

TJOFLAT, Circuit Judge:

This case asks us to determine what a United States Marshal (“Marshal”) collects when he auctions property at a public judicial sale. 28 U.S.C. § 1921(c)(1) entitles the United States Marshals Service (“USMS”) to

a commission of 3 percent of the first $1,000 collected and 1 1/2 percent on the excess of any sum over $1,000, for seizing or levying on property (including seizures in admiralty), disposing of such property by sale, setoff, or otherwise, and receiving and paying over money, except that the amount of commission shall be within the range set by the Attorney General.

(emphasis added).¹ In a case where the judgment creditor prevailed at a foreclosure sale with an arguably “nominal” bid, the District Court determined that “collected” refers to the lesser of the amount of the creditor's judgment lien, or, if established, the appraisal value of the property under foreclosure. Because the judgment creditor failed to establish the property's appraisal value, the District Court calculated the USMS's commission based only on the amount of the judgment lien.

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with f(x) being the USMS commission, and x being the amount collected. At bottom, this case asks us to define x.

The judgment creditor appeals, arguing that “collected” instead refers to the amount of his winning bid. Because we find that the plain meaning of “collected” in 28 U.S.C. § 1921(c)(1) refers to the amount of the accepted winning bid, we vacate the District Court's judgment and remand for proceedings consistent with this opinion.

I.

This case began when Redus Florida Commercial, LLC (“Redus”) filed a foreclosure complaint against Joseph E. Zagame, Sr. and Jane C. Zagame in the United States District Court for the Middle District of Florida. After over a year of pretrial litigation, the parties entered into a settlement agreement that yielded a joint stipulation for Entry of Final Judgment of Foreclosure.²

The District Court granted the parties' Motion for Entry of Final Judgment of Foreclosure, finding that Redus held a valid and enforceable mortgage lien for $11,832,307.14 on the Zagames' property. The District Court then directed the USMS ³ to sell that property “at public sale ... to the highest bidder for cash” to satisfy this judgment. Redus was allowed to bid on credit at the auction up to the total amount of its judgment.

Under 28 U.S.C. § 1921(c)(1), the USMS is entitled to a commission, calculated as a percentage of the amount “collected” at auction, for conducting foreclosure sales on behalf of private litigants.⁴ Prior to the public auction, Frank Tallini, the Deputy U.S. Marshal tasked with handling Redus's sale, informed Redus that, when the judgment creditor prevails at auction with a “nominal” bid, it is USMS policy to calculate the statutory commission based upon the lesser of the amount of the creditor's judgment or, if established, the appraised value of the property. Although the USMS Policy Directive (“Directive”) did outline this procedure, that document provided no guidance as to what constitutes a “nominal” bid (besides that $1 might qualify). U.S. Marshals Serv., Fees, Expenses, and Commissions D.1.d (2009), in Policy Directive 11.1, available at http:// www. usmarshals. gov/ foia/ directives/ service_ of_ process. pdf. ⁵ Furthermore, the USMS's proposed procedure stood in stark contrast with recent USMS practice. On at least fourteen occasions after Redus filed its complaint but before the Marshal in this case held the foreclosure sale, other Marshals had calculated the USMS commission based upon the amount of the arguably “nominal” winning bid at auction. Doc. 70–2.

Believing that the application of the USMS's interpretation of “collected” would result in a commission of $50,000—an amount $49,930 in excess of what Redus would pay the Florida state clerk for the same service, seeFla. Stat. § 45.035(1), and $49,900 more than the USMS had charged in many materially indistinguishable recent dealings, see Doc. 70–2—Redus filed an emergency motion asking the District Court to resolve the interpretive dispute in its favor, or, in the event that the District Court agreed with the USMS's interpretation of “collected,” to allow Redusto cancel the sale so that Redus could foreclose on the property in state court. The District Court granted in part and denied in part Redus's motion. It declined to interpret the statute and refused to cancel the sale, but reassured Redus that “the United States Marshal's commission shall be determined in accordance with 28 U.S.C. § 1921(c) and 28 C.F.R. § 0.114(h).” Doc. 61, at 1.

At the auction, Redus was the sole bidder and prevailed with a bid of $100. Because the USMS deemed this bid “nominal,” and because neither the USMS nor Redus had established an appraisal value for the property, the Marshal calculated the USMS commission based not upon the $100 bid, but on the judgment value of $11,832,307.14. This yielded a commission of $50,000.⁶ Redus, however, refused to relinquish any additional money to the USMS, presumably on the belief that § 1921(c)(1) only entitled the USMS to $100, and that the $100 bid fully satisfied that amount. In response, the USMS withheld issuance of the marshal's deed pending Redus's payment of the full $50,000. Redus then moved the District Court to compel the USMS to calculate its commission based on the $100 sales price and to issue the deed. The District Court responded by directing the USMS to issue the deed as soon as Redus posted a surety bond for the full $50,000 in the event that the USMS's interpretation of § 1921(c)(1) prevailed. Redus posted the bond, and the USMS delivered the deed.

On December 31, 2012, the District Court reached a conclusion regarding the meaning of “collected.” Finding “the holdings in Small Business Loan Source, Inc., and Centennial Bank to be persuasive and correct interpretations of § 1921(c),” the court concluded that “[e]ven when the [Directive is] afforded no deference, the term ‘collected’ in § 1921(c)(1) must mean the lesser of the amount of the judgment lien or the appraised value of the property (if available).” ⁷ Doc. 80, at 8. Using the judgment value as the reference number, the District Court accordingly awarded the USMS a commission of $50,000 for its work. On January 24, 2013, Redus lodged this appeal.⁸

II.

Section § 1921(c)(1) entitles the USMS to a percentage of the amount “collected ... for seizing or levying on property (including seizures in admiralty), disposing of such property by sale, setoff, or otherwise, and receiving and paying over money.” Redus argues that “collected” refers to the high bid the USMS accepts at auction. The USMS agrees with this interpretation in all cases except those where “a judgment creditor ... submit [s] a credit bid of a nominal sum.” U.S. Marshals Serv., Fees, Expenses, and Commissions D.1.d. (2009), in Policy Directive 11.1, available at http:// www. usmarshals. gov/ foia/ directives/ service_ of_ process. pdf. Under these circumstances, the USMS interprets “collected” to refer to the lesser of the “amount of the judgment lien or, if established, the appraised value of the property under levy.” Id. We conclude that Redus's interpretation is correct.

A.

We review questions of statutory interpretation de novo. United States v. Moore, 541 F.3d 1323, 1326 (11th Cir.2008). This undertaking begins—and frequently ends—with the text's plain meaning. See Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253–54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) (“[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says. When the words of a statute are unambiguous ... judicial inquiry is complete.” (citations omitted) (quotation marks omitted)); Johnson v. Governor of Fla., 405 F.3d 1214, 1247 (11th Cir.2005) (en banc) (“The first step in statutory interpretation requires that courts apply the plain meaning of the statutory language....”). Generally, “[w]ords are interpreted with their ordinary and plain meaning because we assume that Congress uses words in a statute as they are commonly understood.” United States v. Veal, 153 F.3d 1233, 1246 (11th Cir.1998), abrogated on other grounds by Fowler v. United States, ––– U.S. ––––, 131 S.Ct. 2045, 179 L.Ed.2d 1099 (2011). Finally, a “[r]eview of legislative history is unnecessary unless a statute is inescapably ambiguous.” Veal, 153 F.3d at 1233 (quotation marks omitted).

B.

We start with the text. Section 1921(c)(1) of Title 28 of the United States Code provides, in relevant part:

The United States Marshals Service shall collect a commission of 3 percent of the first $1,000 collected and 1 1/2 percent the excess of any sum over $1,000 for seizing or levying on property (including seizures in admiralty), disposing of such property by sale, setoff or otherwise, and receiving and paying over money, except that the amount of commission shall be within the range set by the Attorney General.

To begin, we note that...