Lewis v. Hunt

United States Court of Appeals

Fifth Circuit

F I L E D

IN THE UNITED STATES COURT OF APPEALS

July 12, 2007

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

Clerk

No. 05-30928

RICHARD N. LEWIS, ETC., ET AL.,

Plaintiffs,

versus

CAROLINE LEWIS HUNT, ET AL.,

Defendants,

ELLEN HUNT FLOWERS, MARY HUNT HUDDLESTON, HOUSTON

BUNKER HUNT, ELIZABETH HUNT CURNES,

Defendants-Appellees,

versus

UNITED STATES OF AMERICA,

Defendant-Appellant.

________________________________________________

Appeal from the United States District Court for

the Western District of Louisiana

3:03-CV-2118

________________________________________________

Before KING, STEWART, and DENNIS, Circuit Judges.

1

DENNIS, Circuit Judge:

Richard N. Lewis and William J. Lewis, as trustees of

the Turner Hunt Lewis Trust, and as co-administrators of

the Succession of Turner Hunt Lewis, brought this suit in

a Louisiana state court seeking instructions as to the

validity under Louisiana law of a certain provision of

the trust instrument, or, alternatively, for a concursus

proceeding. They named the United States as a party,

asserting that its sovereign immunity had been waived by

28 U.S.C. § 2410 for this suit which involves civil

actions to quiet title to, or interpleader with respect

to, property of the trust on which the government may

have or claim a tax lien. The government removed the

case to federal district court, and that court rendered

summary judgment on the merits declaring that the trust

provision was valid under Louisiana law and that the

Government had no right or claim to any trust assets. See

In re Turner Hunt Lewis Trust, 388 F. Supp. 2d 747 (W.D.

La. 2005). The government appealed.

After hearing oral arguments, we requested additional

2

briefs from the parties on questions pertaining to

sovereign immunity and subject matter jurisdiction.

Having considered the arguments of the parties and the

record in this case, we conclude that, because the

allegations of the complaint do not establish that the

government had or claimed a lien or a mortgage on the

property of the trust when the suit was filed, the

complainants may not hale the United States into court

under 28 U.S.C. § 2410. Accordingly, we must dismiss this

appeal and remand the case to the district court with

instructions to dismiss the suit against the United

States and to remand the case to the state court for

further proceedings consistent with this opinion.

Although the parties and the district court did not raise

these jurisdictional issues, “federal trial and appellate

courts have the duty to examine the basis for their

subject matter jurisdiction, doing so on their own motion

if necessary.” Torres v. Southern Peru Copper Corp., 113

F.3d 540, 542 (5th Cir. 1997); Perez v. Region 20 Educ.

Serv. Ctr., 307 F.3d 318, 333 n.8 (5th Cir. 2002)

3

(holding that sovereign immunity issues may be raised sua

sponte as they bear on subject matter jurisdiction).

I. Background

Turner Hunt Lewis, a resident of Lincoln Parish,

Louisiana, died October 13, 2002 without issue and

without ever having been married. He left no will and,

under the Louisiana laws of intestate succession, his

only heirs were his nieces and nephews. One of his

nieces, Caroline Lewis Hunt, would have inherited one-

third of his estate as an intestate heir. Prior to his

death, however, Mr. Lewis was interdicted,1 and his

estate, which exceeded $16.5 million, was placed in the

Turner Hunt Lewis Trust. The trust instrument provided

that, upon his death without a valid will, each of his

heirs under state law, except for Caroline Lewis Hunt,

would be his successor principal beneficiaries; and that

1

Under Louisiana law, full interdiction is the complete

removal of a person's legal right to care for himself and his

affairs or property because of mental incapacity. See La. Civ.

Code Ann. art. 389 (2001)(“A court may order the full

interdiction of a natural person of the age of majority, or an

emancipated minor, who due to an infirmity, is unable

consistently to make reasoned decisions regarding the care of his

person and property, or to communicate those decisions, and whose

interests cannot be protected by less restrictive means.”).

4

any property that would have devolved to his niece and

intestate heir, Caroline Lewis Hunt, would vest in her

descendants as if she had predeceased Turner Hunt Lewis.

As the trustees’ undisputed pleadings establish, many

years before Mr. Lewis’s interdiction, Caroline Lewis

Hunt and her husband entered a Collateral Agreement with

the Internal Revenue Service to turn over any

inheritances that they received in order to discharge

their federal income tax liability. It is also conceded

that the only reason that Mr. Lewis was interdicted and

his property placed in trust was to prevent a one-third

share of Mr. Lewis’s assets from going to Caroline

through intestate succession, and subsequently to the

federal government to pay off the back taxes owed by

Caroline and her husband.

The underlying issue, which is res nova under

Louisiana law, may be restated more fully as follows:

whether the curator of a fully interdicted person without

a will can, with court approval, supersede the law of

intestate succession by acting for the interdict to

5

create a trust, place the interdict’s property in the

trust, and name persons as successor beneficiaries

different from those who otherwise would have been

entitled to succeed as intestate heirs. The Louisiana

statutes do not provide a clear and unambiguous answer to

this question.2

2

Louisiana Code of Civil Procedure 4566(D) provides: “A

curator may place the property of the interdict in trust in

accordance with the provisions of Article 4269.1. The trust shall

be subject to termination at the option of the interdict upon

termination of the interdiction, or if the interdict dies during

the interdiction, at the option of his heirs or legatees.”

Louisiana Code of Civil Procedure Article 4269.1, in

pertinent part, provides: “At any time during his administration

a tutor may apply to the court for authorization to place some or

all of the minor's property in trust for administration,

management and investment in accordance with the Louisiana Trust

Code. The trust instrument shall name the minor as sole

beneficiary of the trust, shall name a trustee, shall impose

maximum spendthrift restraints, and shall be subject to

termination at the option of the beneficiary upon attaining the

age of majority or, should he fail to attain majority, at the

option of his heirs or legatees.”

The Louisiana Trust Code, Louisiana Revised Statutes §

9:1973(B), provides: “Except as to the legitime in trust, the

trust instrument may provide that the interest of either an

original or a substitute principal beneficiary who dies without

descendants during the term of the trust or at its termination

vests in some other person or persons, each of whom shall be a

substitute beneficiary.”

The government contends that these provisions require that

an interdict’s trust must designate him as the sole beneficiary

and that his property placed in trust must be distributed to the

interdict’s heirs or legatees upon his death. The plaintiff-

trustees argue that when the interdict has no direct descendants,

all of the pertinent statutes read together allow the trust to

continue beyond his death and allow the trustees to engage in

estate planning by naming other persons as beneficiaries with

court approval according to the best evidence of what the

6

On October 16, 2003, the plaintiffs, the trustees-

administrators, filed this suit in state court pursuant

to Louisiana Revised Statutes § 9:2233 and 28 U.S.C. §

2410 for trustees’ instructions or, alternatively, for

concursus proceedings, to address the question of whether

the trust instrument’s successor beneficiary provisions

were valid under Louisiana law. The trustee’s complaint

also named the United States as a party to this suit,

claiming the authority to hale it into the state court

under 28 U.S.C. § 2410 on the grounds that the United

States may have or claim a lien against the trust

property through Caroline Hunt.

Specifically, in respect to waiver of sovereign

immunity , the allegations of the complaint, in pertinent

part, state:

4.

interdict would have wanted done with his property. This is a

question of state statutory interpretation that we conclude we

lack jurisdiction to decide in the present case. Accordingly, the

issues here must be deferred for decision by the Louisiana courts

or legislature within the context of that state’s public policy

and traditions.

7

Jurisdiction over the United States of America

with respect to the Trust is conferred on this

Court by 28 U.S.C. § 2410, in that, as shown

below, the United States of America may have a

lien interest in certain of the Trust assets,

and 28 U.S.C. § 2410 provides that the United

States of America may be named a party in any

civil action in any state court having

jurisdiction of the subject matter to quiet

title to real or personal property on which the

United States of America may have a [sic] claim

a lien.

....

15.

On September 23, 1988, the New Orleans District

of the Internal Revenue Service filed in the

rcrso LnonPrs,Lusaa i Mrgg Bo 34a Pg 15aNtc o

eod f icl aih oiin, n otae ok 3 t ae 4 oie f

Federal Tax Lien Under Internal Revenue Laws (hereinafter

the Notice) regarding Caroline L. Hunt, residing at 4508

Lakeside Drive, Dallas, Texas 75205. Pursuant to its

terms, the Notice operates as a certificate of release of

the federal tax lien as of October 22, 1994. Subsequent

to the filing of the Notice but before October 22, 1994,

Caroline Lewis Hunt entered into that certain Collateral

Agreement between herself, her spouse, and the Internal

Revenue Service dated December 15, 1988 (the Collateral

Agreement), which obliges her to turn over to the

Internal Revenue Service one hundred percent (100%) of

the amount of any devise, bequest, or inheritance she

receives.

....

17.

In the event the Trust instrument does not

comply with Louisiana Code of Civil Procedure

Articles 4566(D) and 4269.1, regarding the

placing of the property of an interdict into

8

trust, defendant, Caroline Lewis Hunt, as Mr.

Lewis’ heir, is entitled to an undivided one-

third (1/3) interest in the assets standing in

the Trust, and, defendant, the United States of

America, may, as a result of the Collateral

Agreement, have or claim a lien on a portion of

the assets standing in the Trust.

(emphasis added).

II. Waiver of Sovereign Immunity Under 28 U.S.C. § 2410

In order to hale the federal government into a court

proceeding, a plaintiff must show that there has been a

valid waiver of sovereign immunity. “A waiver of the

Federal Government's sovereign immunity must be

unequivocally expressed in statutory text... and will not

be implied.” Lane v. Pena, 518 U.S. 187, 192

(1996)(citing United States v. Nordic Village, Inc., 503

U.S. 30, 33-34 (1992)). The mere agreement in court

between parties and their counsel is not sufficient to

constitute a waiver of sovereign immunity. Shaw, 309 U.S.

at 501 ("No officer by his action can confer

jurisdiction."). “Moreover, a waiver of the Government's

sovereign immunity will be strictly construed, in terms

9

of its scope, in favor of the sovereign.” Lane, 518 U.S.

at 192. We may not enlarge the waiver beyond the purview

of the statutory language. United States v. Williams, 514

U.S. 527, 531 (5th Cir. 1995). Absent a waiver of

sovereign immunity, the federal government is immune from

suit. Loeffler v. Frank, 486 U.S. 549, 554 (1988). The

absence of such a waiver is a jurisdictional defect.

Kulawy v. U.S., 917 F.2d 729, 733 (2d Cir. 1990); Bodin

v. Vagshenian, 462 F.3d 481, 484 (5th Cir. 2006)(holding

that a lack of a waiver of sovereign immunity “deprives

federal courts of subject matter jurisdiction”).

Under 28 U.S.C. § 2410, Congress has waived the

government’s sovereign immunity to a limited class of

civil actions, solely with respect to property on which

the United States has or claims a mortgage or other lien.

In pertinent part, Section 2410 provides: “[T]he United

States may be named a party in any civil action or suit

in any district court, or in any State court having

jurisdiction of the subject matter...to quiet title

to...[or] of interpleader or in the nature of

10

interpleader with respect to... property on which the

United States has or claims a mortgage or other lien.” 28

U.S.C. § 2410(a).

In addition to requiring that the United States must

have or claim a lien or mortgage on the subject property,

Section 2410 places other conditions on the government’s

consent to be sued - notably a requirement that the

pleadings be sufficiently specific as to give notice to

the Government of the nature of the lien or mortgage. For

example, “[t]he complaint or pleading shall set forth

with particularity the nature of the interest or lien of

the United States...” and, if the case involves a federal

tax lien, the complaint “shall include the name and

address of the taxpayer whose liability created the lien

and, if a notice of the tax lien was filed, the identity

of the internal revenue office which filed the notice,

and the date and place such notice was filed.” 28 U.S.C.

§ 2410(b).

In keeping with the Supreme Court’s decisions

regarding the construction of statutory waivers, a

11

noncomplying complaint under 28 U.S.C. § 2410 does not

invoke the statutory waiver of sovereign immunity

granting consent to suit, and, consequently, cannot state

a claim upon which relief could be granted. See Macklin

v. United States, 300 F.3d 814, 821 n. 7 (7th Cir. 2002);

Dahn v. United States, 127 F.3d 1249, 1251 (10th Cir.

1997); see also Hussain v. Boston Old Colony Ins. Co.,

311 F.3d 623, 629 (5th Cir. 2002)(holding that the § 2410

waiver “must be narrowly construed to comport precisely

with congressional intent”) (citing Estate of Johnson,

836 F.2d 940, 943 (5th Cir. 1988). “Thus, ‘no suit may be

maintained against the United States unless the suit is

brought in exact compliance with the terms of a statute

under which the sovereign has consented to be sued.’”

Hussein, 311 F.3d at 629 (quoting Koehler v. United

States, 153 F.3d 263, 265-66 (5th Cir. 1998)).

Further, in interpreting and applying Section 2410 we

must be mindful of its purpose and history as a lien

removal statute. Before the enactment of its predecessor,

as the Supreme Court observed in U.S. v. Brosnan, 363

12

U.S. 237, 242-243 (1960):

[I]t was already then well established that the

United States was an indispensable party to any

suit affecting property in which it had an

interest, and that such a suit was therefore a

suit against the United States which could not

be maintained without its consent. Furthermore,

the laws of many States themselves required all

persons claiming an interest in property to be

joined as parties to any suit to foreclose a

lien or quiet title to the property. Thus there

was no way in which a party who held a lien on

property senior to that of the United States

could get a judicial decree extinguishing the

Government's interest.

To remedy this situation, Congress in 1924

passed the predecessor of 26 U.S.C. s 7424, 26

U.S.C.A. s 7424, which gives the holder of a

prior-filed lien the right to enforce it by

civil action against the United States, subject

to the exhaustion of certain administrative

remedies. . . .

In 1931, Congress, for similar reasons,

passed the predecessor of 28 U.S.C. s 2410, 28

U.S.C.A. s 2410, [which] gives a private lienor

the right to name the United States a party in

any action or suit to foreclose a mortgage or

lien or to quiet title to property on which the

United States claims any kind of mortgage or

lien, whether or not a tax lien.

(footnotes omitted).

Thus, the statutes’ “only apparent purpose is to lift the

bar of sovereign immunity which had theretofore been

considered to work a particular injustice on private

13

lienors[,]” Brosnan, 363 U.S. at 246, and not to allow

any party against whom the government might have any kind

of claim to hale the United States into court.

Accordingly, this court and others have consistently

held that Section 2410's waiver of sovereign immunity is

inapplicable if the government did not have or claim a

lien or mortgage on the property that is the subject of

the suit at the time the suit was filed. Section 2410

applies “only if at the time [plaintiff] files suit the

government had a mortgage or other lien on the property

that is the basis of the taxpayer’s quiet title action.”

Koehler v. United States, 153 F.3d 263, 267 (5th Cir.

1998).3 For example, “[t]here is no waiver (1) when a

taxpayer seeks to challenge the validity of any

underlying tax assessment [citing Montgomery v. United

States, 933 F.2d 348, 349 (5th Cir. 1991)], (2) when the

3

Koehler cited with approval a number of cases from other

circuits with similar holdings. See Hughes v. United States, 953

F.2d 531, 538 (9th Cir. 1992); Dahn v. United States, 127 F.3d

1249, 1251-52 n.1 (10th Cir. 1997); Murray v. United States, 520

F. Supp. 1207, 1210 (D.N.D. 1981), aff'd on other grounds, 686

F.2d 1320 (8th Cir. 1982); MacElvain v. United States, 867 F.

Supp. 996, 1002-03 (M.D. Ala. 1994); Brewer v. United States, 764

F. Supp. 309, 314 (S.D.N.Y. 1991); Kulawy v. United States, 917

F.2d 729, 733-34 (2d Cir. 1990).

14

government is claiming a title interest in property

rather than a lien interest, [citing Cummings v. United

States, 648 F.2d 289, 292 (5th Cir. 1981)] or (3) when

the government no longer has a mortgage or a lien upon

the property in dispute when the suit was filed. [citing

Koehler, 153 F.3d at 266-67].” Hussain, 311 F.3d at 629-

630.

Furthermore, if the complaint or pleading does not

set forth with particularity the nature of the

government's interest showing that it has or claims to

have a lien or mortgage against the property that is the

subject of the suit, the complaint fails to satisfy the

conditions necessary to waive the sovereign immunity of

the United States and invoke federal jurisdiction. 28

U.S.C. § 2410(b) (“The complaint or pleading shall set

forth with particularity the nature of the interest or

lien of the United States.”); see also Dahn v. United

States, 127 F.3d 1249, 1251 (10th Cir. 1997) (holding

that a complaint that fails to meet the pleading

requirements “does not invoke the statutory waiver of

15

sovereign immunity"); Macklin v. United States, 300 F.3d

814, 821 n.7 (7th Cir. 2002) (noting that consent to suit

by the United States is conditioned on proper pleading

under section 2410).

III. Adequacy of the Complaint

Keeping these principles underlying sovereign

immunity and Section 2410 in mind, we review the adequacy

of the pleadings in the trustee’s complaint. The

complaint here fails to assert, or to allege facts from

which it may be inferred, that the government had or

claimed a lien or mortgage on Caroline Lewis Hunt’s

property when the suit was filed on October 16, 2003.4 Of

those with potential claims to the estate, only Caroline

was alleged to have owed any tax deficiency at that time.

4

Also made parties were Caroline Lewis Hunt, the other

intestate heirs in their capacity as successor beneficiaries of

the trust, and the children of Caroline Lewis Hunt, as her

descendants and successor beneficiaries. The government,

Caroline, and her children answered, each admitting most of the

facts alleged by the trustees in their complaint, and each

praying that the court determine and order the appropriate

distribution of the trust assets in question. Because of the

absence of waiver of sovereign immunity, and the government’s

consequent immunity from this suit, it is unnecessary and

inappropriate for us to reach or discuss the district court’s

summary judgment decision on the merits.

16

Therefore, unless the government had or claimed a lien on

her property when suit was filed, and a share of the

trust assets became hers upon Mr. Lewis’ death because

the trust provision diverting it to her descendants was

invalid, there is no way the government could have had a

lien on the trust assets when the suit was filed as

required by Koehler. In Section 15 of the complaint, the

trustees alleged that the government had a tax lien on

Caroline’s property that was due to self-release or

expire on October 22, 1994, but the complaint failed to

allege that the lien did not self-release or expire on

that date or that the government re-filed or renewed the

tax lien before its expiration.

Section 15 does go on to allege that prior to that

date, Caroline entered into the “Collateral Agreement”

between herself, her spouse, and the Internal Revenue

Service dated December 15, 1988, which obliges her to

turn over to the Internal Revenue Service any devise,

bequest, or inheritance she receives. However, we have

reviewed the Collateral Agreement, which is in the record

17

as an exhibit, and find that it contains nothing which

purports to continue, renew or create a tax lien. The

Collateral Agreement is simply a contract by which

Caroline agreed to turn over future inheritances, and it

did not grant the government any lien or security

interest in her property.5 The complaint does not contain

any allegation that controverts or obviates the only

reasonable and logical inferences that can be drawn from

the pleadings, viz., that the government tax lien

particularly described in the complaint was the only lien

the government ever had against Caroline’s property,

that pursuant to its terms as described in the complaint

it self-released or expired on October 22, 1994, and that

the government therefore did not have or claim a lien on

Caroline’s property when the present suit was filed on

October 16, 2003.

Because of the complaint’s evident insufficiency, we

5

The Collateral Agreement stipulates that “the federal tax

lien” shall attach to all after-acquired property of Caroline

Hunt. (emphasis added). However, it does not purport to extend

that lien beyond its October 22, 1994 self-release date or to

create and impose any additional lien.

18

asked for and received supplemental briefs from the

parties on questions pertaining to sovereign immunity and

subject matter jurisdiction.6 The trust beneficiaries

filed a supplemental brief that does not attempt to

convince us that the complaint expressly and definitely

establishes that the government had or claimed a lien on

Caroline’s property at the time the suit was filed.

Instead, they set forth several imaginative arguments

that an additional lien was created other than the

federal tax lien which apparently self-released. They

argue for the first time in this case that, under one of

the Bankruptcy Code’s definitions of a lien and also

under the laws of Louisiana and Texas, the Collateral

Agreement itself granted the United States a lien on any

6

The Government, in supplemental briefing requested by this

court, informs us that its investigation reveals that the lien

had in fact “self-released” under this provision by the time this

suit was filed and that no lien was thus in existence. We decline

to consider the results of this investigation, which were not

requested by the court and are in any event outside the record

and unsupported by any evidence other than the Government’s

assertions. In re GHR Energy Corp., 791 F.2d 1200, 1201-02 (5th

Cir. 1986). This dispute does underscore the defect in the

pleadings, however: the pleadings alleged that the lien was

scheduled to “self-release” in 1994 without making any

allegations as to whether it had, in fact, been released.

19

inherited property Caroline might receive in order to

secure her performance under the Collateral Agreement.

The government has not argued, in its letter briefing or

at any other time, that the Collateral Agreement could,

on its own, constitute a lien.

The beneficiaries’ argument is without merit. First,

the complaint did not allege with particularity as

required by Section 2410(b) that the Collateral Agreement

created a lien for the government on Caroline’s property

in existence at the time of the filing of this suit; the

complaint does not quote any specific language or

provision of the Collateral Agreement by which the

government was granted a lien on Caroline’s property. The

complaint merely alleges, using contingent language, that

if the trust provision in question is invalid the

government “may, as a result of the Collateral Agreement,

have or claim a lien on a portion of the assets in the

Trust.” In other words, the complaint says nothing more

than that if the government had a lien on Caroline’s

property when suit was filed it would affect the assets

20

of the trust, if she owns an interest in them. The

beneficiaries’ argument, nevertheless, asks us to read

into the pleadings an allegation of the existence of an

additional lien that was not specifically expressed or

referred to in the complaint. But because the complaint

did not comply with the strict pleading requirements

necessary to establish a waiver of sovereign immunity,

the beneficiaries cannot now rely on the vague and

indefinite allegations of the complaint as alleging the

existence of an additional lien independently created by

the Collateral Agreement in order to invoke the waiver of

sovereign immunity under Section 2410(a).

Second, even if the beneficiaries could belatedly

make the new argument that the Collateral Agreement

independently created an additional lien by operation of

law on Caroline’s property satisfying the Section 2410

requirements for a waiver of sovereign immunity, the

legal authorities upon which they rely are inapposite.

The beneficiaries argue that because the Collateral

Agreement was entered into in settlement of the IRS’s

21

claims against Caroline in her bankruptcy proceeding in

Bankruptcy Court, and a particular section of the

Bankruptcy Code defines a lien as a “charge against or

interest in property to secure payment of a debt or

performance of an obligation,” 11 U.S.C. § 101(37), the

Collateral Agreement necessarily granted the United

States a lien against her property to secure its

performance. Their argument suffers from both a false

premise and a non sequitur. The complaint plainly did

not allege with any degree of particularity or

definiteness that the Collateral Agreement granted a lien

or security interest of any kind to secure Caroline’s

performance under the agreement. Further, it does not

necessarily follow that the Collateral Agreement created

or granted the government any kind of a lien defined by

the Bankruptcy Code simply because the parties were

involved in a bankruptcy case when it was entered into.

The beneficiaries have cited no judicial authority for

this broad encompassing proposition.

The beneficiaries beg the question again by assuming

22

that a lien existed without providing any factual basis

in support therefor while contending that such liens are

cognizable and enforceable in Texas, citing Satsky v.

U.S., 993 F.Supp. 1027, 1029 (S.D. Tex. 1998) and

Louisiana, citing Frey v. Elmwood Development Company,

592 So.2d 493 (La. App. 5th Cir. 1991). The arguments and

the cases are inapposite. In Satsky, the court held that

a lien filed by a hospital against a patient’s cause of

action under a Texas statute was unenforceable because

the hospital had been paid in full for the services it

provided to Satsky, and there was consequently no debt to

secure by the existence of the lien. The beneficiaries

argue that under Texas law, the Collateral Agreement was

an “equitable lien,” a concept that has no application

here. "It is essential to the existence of an equitable

lien arising from express contract that the agreement

deal with specific property which must be so described

that it can be identified and there must be an intention

to create the lien which is clearly apparent from the

language of the instrument itself together with the

23

attendant circumstances." Bradley v. Straus-Frank Co.,

414 S.W.2d 504, 508 (Tex. Civ. App. 1967). The Collateral

Agreement did not mention, describe, or identify the

Turner Hunt Lewis Trust.

Frey is distinguishable from the present case because

the settlement agreement in that case, unlike the one

here, expressly provided that the collateral securing the

creditor’s claim consisted of the building and all rents;

that the creditor was entitled to seize all collateral,

i.e., the building and rents, via the previously filed

petition for executory process and the seizure effected

thereunder in the event of a default by the debtor. In

both Satsky and Frey, the lien alleged to exist was set

forth in clear, explicit language, unlike the Collateral

Agreement in the present case in which there is no

provision which purports to grant a lien and which the

beneficiaries did not allege or expressly argue had been

alleged to create a lien until this case reached this

court on appeal. Moreover, the United States has never

claimed that the Collateral Agreement created or

24

constituted a lien, and did not do so in its briefing to

this court.

IV. Conclusion

For these reasons, we conclude that because the

complaint in this case did not allege with particularity

facts establishing that when the suit was filed that the

government had or claimed a lien or mortgage on property

that is the subject of the suit that the waiver of

sovereign immunity of the United States under 28 U.S.C.

§ 2410 is inapplicable to this case. Accordingly, the

judgment of the district court is VACATED and the case is

REMANDED to it with instructions to dismiss the suit

against the United States for lack of a waiver of

sovereign immunity and to remand the case to the state

court for further proceedings consistent with this

opinion.

25