Opinion

Ross v. Brown Title Corporation

  • 356 F. Supp. 595
Court
District Court, E.D. Louisiana
Filed
Jun 11, 1973
Status
Published
Author
Heebe
On the bench
Ainsworth, Heebe, West
Cited by
15 cases
Authority
More cited than 8.5%

The opinion

HEEBE, District Judge

(dissenting):

Because I do not believe that the notice of seizure and sale received by the debt- or in an executory process proceeding comports with the principle expressed in Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306 , 70 S.Ct. 652 , 94 L.Ed. 865 (1949), I dissent from the opinion of the Court.

The plaintiffs in this action received from the sheriff’s office documents informing them as follows:

“Take notice, that I have seized, and in three days from the service hereof, shall proceed to advertise and sell, according to law, the following described property ... to pay and satisfy the writ of seizure and sale issued in this case ... .”

A literal reading of this clause suggests to the property owner that the sale of his home is inevitable. In this respect, the notice is not simply deficient in failing to adequately apprise the debt- or of his right to a hearing, but it is positively misleading in that it may create the impression in one who is in fact delinquent in his mortgage payments, but who may be unaware of a valid defense to the action, that the loss of his property is a fait accompli.

In view of the negligible cost, if any, of improved notice, there appears no justification for exposing these homeowners to the risk that they will be mis *606 guided, to their prejudice, by the deficient form which is currently utilized. Nor would the essentially summary nature of the vast majority of seizures be affected by conveying more information.

Clearly, Mullane, supra, does not employ a rigid calculus to evaluate notice of pending actions, but instead establishes guidelines which amount to a rule of reason. Applying this standard, I can only conclude that notice of Louisiana executory process is not designed, as it must be, to inform the debtor that objections to seizure may be interposed. Surely it makes little sense to technically guarantee the debtor his right to a day in court while partially concealing from him the existence of that right.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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