United States v. Thompson

• Decision Date: 26 February 1971
• Docket Number: No. 20395.,20395.
• Citation: 438 F.2d 254
• Parties: UNITED STATES of America, Appellee, v. Vance M. THOMPSON, Elizabeth T. Russell, H. Ripley Thompson, John G. Thompson, Ruth T. Trammel, Vance M. Thompson, Jr., and William H. Thompson, a Partnership, d/b/a The Summit House Apartments, and Robert C. Jordan, as Trustee, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

438 F.2d 254 (1971)

UNITED STATES of America, Appellee, v. Vance M. THOMPSON, Elizabeth T. Russell, H. Ripley Thompson, John G. Thompson, Ruth T. Trammel, Vance M. Thompson, Jr., and William H. Thompson, a Partnership, d/b/a The Summit House Apartments, and Robert C. Jordan, as Trustee, Appellants.

No. 20395.

United States Court of Appeals, Eighth Circuit.

February 26, 1971.

Moses, McClellan, Arnold, Owen & McDermott, Wayne W. Owen, Little Rock, Ark., on brief for appellants.

W. H. Dillahunty, U. S. Atty., and Walter G. Riddick, Asst. U. S. Atty., Little Rock, Ark., on brief for appellee.

Before GIBSON and BRIGHT, Circuit Judges, and McMANUS, District Judge.

GIBSON, Circuit Judge.

Appellants, who were defendants in the original foreclosure proceedings, appeal from a denial of their motion in the District Court to set aside a foreclosure decree and order of confirmation. The facts of the controversy are not in dispute.

Appellants in this case owned an apartment house in Little Rock, Arkansas, which was insured to the extent of 100 per cent by the Federal Housing Administration. Appellants were not personally liable on the mortgage. Upon appellants' default in payments on the mortgage, which was owned by the John Hancock Mutual Life Insurance Company, the Government honored its insurance obligation, and then brought suit in April 1966 to foreclose the mortgage. On August 24, 1967, the District Court filed a memorandum opinion directing foreclosure and ordering an appropriate decree to be entered. United States v. Thompson, 272 F.Supp. 774 (E.D.Ark. 1967). Counsel for the Government prepared a decree and submitted it to appellants, whose counsel, who was the same in that proceeding as this one, approved it as to form. The decree was filed October 23, 1967. The terms of the decree provided that the sale should be for cash.

The Government (Secretary of Housing and Urban Development) was the only bidder at the sale and purchased the property for $2,600,000. (The amount due on the mortgage was something in excess of $3,400,000.) On February 27, 1968, the District Court entered its confirmation of sale. On February 27, 1969, the Eighth Circuit affirmed the trial court's decision. Thompson v. United States, 408 F.2d 1075 (8th Cir. 1969).

On March 5, 1970, the appellants filed the motion to vacate the confirmation and set aside the sale on the ground that the sale was in violation of an Arkansas statute, Ark.Stat.Ann. § 51-1109, which required that any judicial sale be upon a credit of not less than three, nor more than six months, and not for cash. It was also alleged that the Government was negotiating a private sale, not yet complete, of the property for $3,500,000, and that a new foreclosure sale would bring a greatly increased price. The trial court denied the motion and refused to pass on the merits of the contentions, holding that appellants' participation in the 1967 proceeding estopped them from now attacking the foreclosure decree and sale.

The Government contends that, although it was not so designated below, this proceeding must be denominated as a motion for relief from a final judgment or order under Rule 60(b), Fed.R. Civ.P. That rule provides six reasons for granting the relief requested. Reasons (1), (2), and (3) require the motion to be made within one year, which was not done here. Reason (5), satisfaction of the judgment, is not applicable here. Therefore, appellants must be relying on either reason (4), "the judgment is void," or reason (6), "any other reason justifying relief." In either case, the motion must be made within a "reasonable time" after the entry of the order.

The Government argues that this motion was not made within a reasonable time. Appellants fully participated in the foreclosure proceedings, had notice of, and approved the final order of sale. An appeal was taken from this order, which was affirmed. Appellants did not object to the cash sale at that time, although they were fully informed of it. Appellants' attorney was the same at that time as this and should have raised the question then. Obviously, rights of the sale purchaser, the Government, could be seriously prejudiced by appellants' delay in raising this question.

We think the District Court properly held that the grounds of the motion could not be asserted at this time. The most that can be said for appellants' position is that they failed to bring the Arkansas statute to the District Court's attention at the time the decree was entered. "It is generally held that neither ignorance nor carelessness on the part of an attorney will provide grounds for 60(b) relief." Hoffman v. Celebrezze, 405 F.2d 833, 835 (8th Cir. 1969).

Furthermore, the same result would be reached on the merits. If it is contended that the judgment is void under Arkansas law for failure to follow the statutory requirement (a question which is by no means clear), and that a void judgment may be set aside under 60(b) (4) without regard to a time limit, see 7 Moore's Federal Practice, ¶60.25 4, the answer is that Arkansas law does not govern this suit. Unfortunately, appellants do not deal with this issue, but rely solely on their contention that the sale is void under Arkansas law. The only federal case relied on by appellants is O'Connor v. Townsend, 87 F.2d 882 (8th Cir. 1937). However, this case was a diversity case and hence is not in point on this issue. We believe it is clear that the Government is correct in its contention that federal law controls in this case and that under the applicable principles the Arkansas statute should not be applied.

The rule governing this case is that while state law will be followed to determine what security interests the Government obtains in its financial transactions in nationwide programs, federal law will be applied to determine what remedies are available to the Government to enforce its security interest....