Opposition — Chazin v. Witkovich

Te

Supreme Court, U. S,

FILED |

OCT 26 1977

MICHAEL RODAK, JR., CLERK

In the Supreme Court of the

United States

OctoBer TERM, 1976

No. 76-1779

Rosert L. Cuazr,

Petitioner,

vs.

Cari Wrrxovicn, W. F. Ostranver,

Twin Pines Feperat Savines anp Loan AssociaTION,

and T. D. Service Company,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

Brief for Respondents in Opposition

J. Kenny Lewis

Rosert CHARTOFF

115 Sansome Street

San Francisco, CA 94114

Counsel for Respondents

———————

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105

INDEX

Pag

aie TTD aa entninscsvnecsinenipninicsiicespinctdesiibenlaniiiatiiaabtamaaaes i

POS aicisitssseenssicssnitsissccisicisdiiaasiaisiniaieiamsiiiandiimiiaiiael 2

erent TOI: essecsecicttcninilisissscinieiisittidensiaiiiiegmaatiaiiatiabaan 2

Constitutional Provisions and Statutes Involved .......... 2

SRI cisncisscinssctsiajesiitecapyneieinntsctinappscidbeiiiaianssinadddieaiailas 3

DI, . .ccciscsicnnissnenisicniivinisaiisiieamaetsiniisintaiapaaiuliianieiainaal 7

I. The Decision Below Is Clearly Correct .............. 8

II. There Is No Pending Question of Federal Law.. 13

Itf. There Is No Conflict of Decision .......................... 14

CRIIIGS osinsistsrisessntessnnitnlincnpaneniiimmnnttimesemiesiaiamaadl 16

TABLE OF AUTHORITIES

CasEs Pages

American Sur. Co. v. Baldwin, 287 U.S. 156 (1932) .... 8

Blankner v. City of Chicago, 504 F.2d 1037 (7th Cir.

EEE 15

Burns v. Decker, cert. denied 423 U.S. 1017 (1975),

pet. reh. denied 423 U.S. 1081 (1976) -.......----..--.-.----- 15

Calmar Steamship Corp. v. U.S., 345 U.S. 446 (1953) .. 14

Chasteen v. Trans World Airlines, Inc., 520 F.2d 714

A 15

Chazin v. Twin Pines Fed. Sav. & Loan Ass’n, No.

440595 (Alameda County Superior Ct, 1974) -........... 5

Chazin v. Twin Pines Fed. Sav. & Loan Ass’n, 1 Civ.

CS 7

Chazin v. Witkovich, No. C74-2374 (N.D. Cal. 1975) .... 6

Coogan v. Cincinnati Bar Ass’n, 431 F.2d 1209 (6th

EE 15

Davis v. Towe, 526 F.2d 588 (4th Cir. 1975) -.............. 15

Dills v. Delira Corp., 145 Cal.App.2d 124 (1956) -......... 11,12

First American Bank & Trust Co. v. Ellwein, cert.

dented, 423 U.S. 1055 (1976) ........................................ 15

Fortune v. Mulherrin, 533 F.2d 21 (1st Cir. 1976) -...... 15

Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975)... 14

Jennings v. Caddo Parish School Bd., 531 F.2d 1331

EE 15

Lombard v. Board of Education, 502 F.2d 631 (2d Cir.

I iil niadebatasisnsbisannibibiipetdanesnectennssenevenpeemennnnencerececeeseee 14, 15

Lortz v. Connell, 273 Cal.App.2d 286 (1969) —.......... 9,10, 11

Mullane v. Central Hanover Bank and Trust Co., 339

tain cericeeaisesitgrcetidanctetiomennnnees 2, 13,14

TABLE OF AUTHORITIES ili

Pages

Planned Parenthood of Missouri v. Danforth, 428 U.S.

ee 14

Preiser v. Rodriguez, 411 U.S. 475 (1973) -.................. 15

Ragan v. Merchants Transfer and Warehouse Co., 337

| ______EEIETe eeaT On EE 12

Roy v. Jones, 484 F.2d 96 (3d Cir. 1973) 02... 15

Scoggin v. Schrunk, 522 F.2d 436 (9th Cir. 1975) ........ 15

Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667

NT eee en 12

Southern Counties Gas Co. v. Ventura Pipeline Con-

struction Co., 19 Cal.App.3d 372 (1971) ~....22......... 10

Spence v. Latting, 512 F.2d 93 (10th Cir. 1975) 00000... 15

Spiegel’s Estate v. Commissioner, 335 U.S. 701 (1949) 12

Sutphin v. Speik, 15 Cal.2d 195 (1940) 000 9

STATUTES

California Code of Civil Procedure § 1060 _................. 2, 10

California Code of Civil Procedure § 1062 .......... 2, 10, 11, 12

California Code of Civil Procedure § 2924 .. 2

California Code of Civil Procedure § 2924b _........... 4

California Code of Civil Procedure § 2924e .................. 4

28 U.S.C. § 1738 (1970) 22.2......-cecececeesecececececcecereceececececeees 8

42 U.S.C. § 1983 (1970) oe. _ 14, 15

MISCELLANEOUS

McCormack, Federalism and Section 1983: Limitation

on Judicial Enforcement of Constitution Claims,

Part 11, 60 VA. L. REV. 250 (1974) oo. ete 15

Note, 88 HARV. L. REV. 453 (1974) oe 15

In the Supreme Court of the

United States

Ocroser TeRM, 1976

No. 76-1779

Rosert L. Cuaziy,

Petitioner,

vs.

Caru Wirkovica, W. F. OstRANDER,

Twin Prves Feperau Savines anp Loan AssociaTIon,

and T. D. Service Company,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

Brief for Respondents in Opposition

OPINIONS BELOW

The opinions of b«*h the District Court (App. “B” of

Petition) and the Cou. of Appeals (App. “A” of Petition)

are unreported.

2

JURISDICTION

The jurisdictional requisites are adequately set forth in

the Petition.

QUESTION PRESENTED

Whether the District Court and the Court of Appeals

properly interpreted California’s rules of res judicata in

holding that petitioner’s federal action (the case at bar)

was precluded by the judgment in his prior state court pro-

ceeding involving the same matter.’

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

No constitutional provisions are involved in connection

with the one question properly raised by the Petition.

Of the several statutory provisions cited by petitioner,

the only pertinent one is California’s Declaratory Judgment

Act, California Code of Civil Procedure §§ 1060, 1062. The

provisions of this statute are set forth in Appendix “D” of

the Petition, at 27-28. California’s Mortgage Foreclosure

Law, Civil Code $§ 2924, 2924b, is relevant only to an under-

standing of the underlying factual context of this litigation,

and has no substantive bearing herein. Its provisions are

also set forth in Appendix “D” of the Petition, at 24-27.

1. The Petition also purports to raise the question of whether

petitioner was provided with notice of respondents’ intention to

foreclose upon real property in accordance with the due process

requirements set forth by this Court in Mullane v. Central Han-

over Bank and Trust Co., 339 U.S. 306 (1950). See Petition, Ques-

tions Presented, Nos. 3 and 4, at 2. Inclusion of this issue as a

question presented, however, seriously misrepresents the true na-

ture of the Petition, for there are no circumstances under which

this question would come before this Court pursuant to this Peti-

tion given the present posture of the litigation. See infra at 13-14

for a full discussion of this point.

3

STATEMENT

This litigation concerns the res judicata effect to be

accorded a California state court judgment in a subsequent

federal court proceeding involving the same matter. The

transaction which underlies both the state and federal pro-

ceedings is a foreclosure on real property by respondent

Twin Pines Federal Savings and Loan Association (“Twin

Pines”)? following repeated, undisputed failures by peti-

tioner to fulfill his monthly payment obligations.

In 1970 petitioner purchased certain real property pur-

suant to a loan provided by Twin Pines. From almost the

inception of this loan petitioner was repeatedly in default

on his monthly payment obligations. Finally, in June 1973,

after months of continually having to track down petition-

er’s whereabouts in order to make requests—which went

unheeded—for monies long overdue, Twin Pines could no

longer avoid formally declaring petitioner’s loan to be in

default. This action was taken on June 12, 1973, and con-

stituted the second time in less than a year that Twin Pines

was foreed to take such measures in connection with

petitioner’s loan.® ~<

2. Twin Pines is related to the Consumers Cooperative of Berke-

ley, Ine., and is a federally-chartered mutual savings and loan

association. Twin Pines is organized and operated according to

cooperative principles, and follows a more consumer-oriented ap-

proach in its lending transactions than most other lenders.

3. Petitioner’s loan was first declared in default by Twin Pines

nine months previous to the default which is the basis for the pres-

ent litigation. This prior default, however, which involved tax and

principal arrearages extending over a five-month period, was va-

cated by Twin Pines as a matter of grace following petitioner’s

tender, on February 1, 1973, of a portion of the monies due. Peti-

tioner, however, subsequently failed to make further payments

toward the remaining arrearages, which involved over $2,000 in

delinquent taxes, as had been agreed when the default was vacated.

Nor did petitioner make any payments toward interest and princi-

pal after March 1973.

4

The declaration of default was accomplished in accord-

ance with the provisions of Sections 2924 and 2924b of the

California Civil Code. Thus, on June 12, 1973, Twin Pines

filed a notice of default and intention to foreclose with the

county recorder of the county in which the property was

located, and within the required ten days thereafter, on

June 18, 1973,‘ advised petitioner of this filing by regis-

tered mail at the address previously specified by petitioner

and filed with the county recorder. This was not the address

of the property subject to foreclosure, but the address speci-

fied by petitioner as the one at which he wished to receive

notice of any default.®

Under Section 2924¢ of the California Civil Code, peti-

tioner had three months from the date when the notice of

default was recorded in which to reinstate the loan by mak-

ing an appropriate tender of all sums due. Although peti-

tioner had at least 69 days’ actual notice of the recording of

the default, no such tender of all sums due was made before

or at any time after the expiration of this three-month

period.®

4. The Petition erroneously states that this novice was mailed

on July 18, 1973. See Petition at 3. Petitioner’s statement of the

facts is riddled with other errors of this type, but this is the only

one noted by Twin Pines which seriously distorts the facts.

5. Had petitioner wished to alter the address which he specified

for the receipt of notice of default, he could readily have done so

pursuant to a simple procedure provided for under California law.

Petitioner was well aware of this procedure, and even filed a request

for notice of default pursuant thereto. This request was separate

and independent from the request contained in the deed of trust

inyolved herein. Both of these requests required that notice be sent

to the same address, which, accordingly, was the address relied

upon by Twin Pines herein.

6. The suggestion in the Petition that a “full tender” was made

by petitioner after the expiration of the three-month period, and

that this tender was refused by Twin Pines (see Petition at 4), is

a gross and unconscionable distortion of the record. Until the prop-

——

5

On September 12, 1973, at the expiration of the statutory

redemption period, petitioner filed suit in the California

state courts.’ Petitioner’s suit sought to enjoin sale of the

property pending judicial consideration of his request for

a declaratory judgment as to whether Twin Pines had pro-

vided him with appropriate notice of the pending fore-

closure. Petitioner maintained that the notice of intended

foreclosure was improper because it should have been

mailed to him at the address of the property subject to the

foreclosure, and not to the address he had filed with the

county recorder.

The preliminary injunction requested by petitioner was

granted, and a year later, following a trial on the merits,

the Superior Court for Alameda County held against peti-

tioner. After reviewing Twin Pines’ several unsuccessful

visits to the property in search of petitioner, as well as the

return of mail addressed thereto, the state trial judge

specifically held that “no [respondent] believed or reason-

ably should have believed at the time of the mailing of the

Notice of Default that [petitioner] resided at or received

mail at” the property subject to the foreclosure.

In addition, the state trial court also held that Twin

Pines had provided petitioner with notice of the pending

foreclosure in full compliance with the provisions of Cali-

fornia law, which it was implicitly held established no pre-

cise notice period, but merely required that a party in de-

fault be given notice sufficient to provide a reasonable op-

erty was finally sold, which because of a preliminary injunction

obtained by petitioner, was not until November 8, 1974, Twin Pines

at all times stood ready to reinstate petitioner’s loan upon payment

of all sums legally due. Petitioner failed—and indeed refused—to

make such a tender.

7. Chazin v. Twin Pines Fed. Sav. & Loan Ass’n, No. 440595

(Alameda County Superior Ct.).

6

portunity in which to cure the default. Noting Twin Pines’

concerted efforts over a three-month period to locate peti-

tioner, as well as petitioner’s “cavalier indifference” to

keeping Twin Pines apprised of his whereabouts, the state

trial judge readily concluded that under the circumstances,

the statutory notice, along with the 60 days’ actual notice

provided to petitioner, was sufficient and timely notifica-

tion of the foreclosure proceeding. Consequently, on Sep-

tember 25, 1974, the state trial court vacated its preliminary

injunction, and permitted Twin Pines to proceed with the

sale of the property.

Petitioner then sought to enjoin the sale by a series of

petitions addressed to the California Court of Appeals, the

California Supreme Court, and even Mr. Justice Douglas

of this Court. Following the denial of each of these peti-

tions, petitioner, on November 7, 1974, instituted a new in-

junctive proceeding in the United States District Court for

the Northern District of California.* This is the proceed-

ing which is now before this Court for review.

In this federal proceeding petitioner sought to relitigate

the factual findings of the state trial court. Petitioner again

claimed that the notice provided to him by Twin Pines

was improper because it had not been mailed to the prop-

erty subject to the foreclosure. This was the only issue

raised by petitioner, and was identical to the one presented

and decided in the previous Superior Court proceeding.

This time, however, petitioner vigorously maintained that

the failure to send notice to the property subject to the fore-

closure constituted a violation of certain due process rights.

The District Court promptly denied the requested injune-

tive relief, and soon thereafter, on January 27, 1975,

granted Twin Pines’ motion for summary judgment on the

ground that the federal proceeding was.precluded by the

8. Chazin v. Witkovich, No, (74-2374 (N.D. Cal).

7

prior state court judgment under the rules of res judicata.

On December 2, 1976, this determination was unanimously

upheld by the Ninth Cireuit Court of Appeals. Although it

principally relied upon application of the state rules of res

judicata, the Court of Appeals also noted an alternative

and independent ground for its decision. Specifically, the

Court of Appeals held that even if petitioner’s constitu-

tional claim were for some reason found to be litigable, it

would nonetheless be defeated on the merits because of the

collateral estoppel effect of the state trial court’s finding

that petitioner had actual, timely notice of the default.

Following the dismissal of petitioner’s federal action by

the District Court, petitioner then proceeded to appeal the

Superior Court ruling through the California state court

system. The notice issue, including the constitutional due

process argument, was presented to the California Court

of Appeals, and was rejected on November 17, 1975.° This

constitutional issue was thereafter presented to the Cali-

fornia Supreme Court, which deemed it an insufficient basis

for granting a hearing on January 14, 1976.° Suprisingly,

given petitioner’s obvious penchant for the full use of every

legal process available to him, certiorari was not sought

from this Court with respect to this final state court dis-

position of his purported constitutional claim.

ARGUMENT

When stripped of its inaccuracies and irrelevancies, this

Petition is readily exposed as heing a legally misguided

attempt by a disgruntled litigant to have this Court review

factual and legal conclusions rendered by a state trial court

in a separate but related prior proceeding in which cer-

9. Chazin v. Twin Pines Fed. Sav. & Loan Ass’n, 1 Civ. 36434

(Ct. App.), Appellant’s Opening Brief at 20.

10. Chazin v. Twin Pines Fed. Sav. & Loan Ass’n, supra, Peti-

tion for Hearing [in the Supreme Court of California] at 9.

8

tiorari was not sought. A petition of this kind is certainly

not one warranting acceptance by this Court.

This Petition emanates from a determination by the

Court of Appeals that petitioner’s federal action (the case

at bar) was precluded by the judgment in his prior state

court proceeding involving the same matter. Under the com-

mand of the statutory full faith and credit clause," as well

as prior decisions of this Court, and at the urging of both

petitioner and respondents herein,” the Court of Appeals

relied upon California’s state law of res judicata in order

to determine the preclusive effect of the prior state court

judgment. The only issue presented by the Petition, there-

fore, is whether the Court of Appeals properly interpreted

California’s state law of res judicata as barring petitioner’s

attempt at relitigating the merits of his claims.

Certiorari is obviously inappropriate in this case. The

Court of Appeals decision is supported by the statutory

and case law of the State of California, and is clearly cor-

rect. Moreover, the decision below, being no more than a

determination of state law, necessarily raises no conflict

of decision within the federal judicial system, or any pend-

ing question of federal law requiring review by this Court.

The Petition should therefore unquestionably be denied.

1. The Decision Below Is Clearly Correct.

The correctness of the decision below turns on the proper

res judicata effect to be accorded a California state court

11. 28 U.S.C. § 1738 (1970), which provides in pertinent part:

[J] udicial proceedings . . . shall have the same full faith and

credit in every court within the United States and its Terri-

tories and Possessions as they have by law or usage in the

courts of such State, Territory or Possession from which they

are taken.

12. See, e.g., American Sur. Co. v. Baldwin, 287 U.S. 156, 165-67

(1932).

13. See Petition at 8; Appellee’s Opening Brief at 6-8.

memes

9

judgment rendered in an action for declaratory relief. Con-

trary to the assertions of petitioner, there is no lack of

California authority on this issue, Nor is there any doubt

that the Court of Appeals correctly applied this authority

to bar petitioner’s federal action.

The only distinction between the state and federal actions

involved herein is that, in the federal action, petitioner has

attempted to pursue a different legal theory than that pre-

sented to the state trial court. Petitioner’s newly-urged

theory is that the notice provided by Twin Pines was in vio-

lation of his right to due process. It is undisputed between

the parties that ordinarily such a theory would be barred

by application of the rules of res judicata. Under California

law a party must assert all legal theories in one action, and

is not permitted, under application of the rules of res judi-

cata, to attempt to relitigate the same issues in different

actions on different legal theories. The statement of Cali-

fornia law is set forth in Lortz v. Connell, 273 Cal.App.2d

286, 297 (1969) :

As noted in Sutphin v. Speik, supra [15 Cal.2d 195,

201-2], “. . . the rule goes further. If the matter was

within the scope of the action, related to the subject-

matter and relevant to the issues, so that it could have

been raised, that judgment is conclusive on it despite

the fact that it was not in fact expressly pleaded or

otherwise urged. The reason for this is manifest. A

party cannot by negligence or design withhold issues

and litigate them in consecutive actions. Hence the rule

is that the prior judgment is res judicata on matters

14. See Petition at 10.

15. Petitioner inexplicably contends that the Court of Appeals

failed to apply California state law in order to determine the res

judicata effect of the prior state court judgment. See Petition at 9.

The Court of Appeals decision, however, clearly rests upon and

specifically refers to the two California state cases to be discussed

herein. See Petition, Appendix “A,” at 20.

ee ee Ce

10

which were raised or could have been raised, on mat-

ters litigated or litigable.” [emphasis in original]

Petitioner, however, maintains that the usual rules of

res judicata do not apply to his peculiar case because the

state court action was brought under California Code of

Civil Procedure Section 1060, e¢ sey. (and, in particular,

Section 1062). Specifically, petitioner claims that California

Code of Civil Procedure Section 1062 abolishes application

of the rules of res judicata to actions brought in the Cali-

fornia state courts for declaratory relief. In support of his

argument, petitioner cites the case of Lortz v. Connell,

supra.

Contrary to petitioner’s reading, Lortz does not stand for

the proposition that res judicata has no application to

actions tried in declaratory relief. Instead, Lortz merely

eonstrues Section 1062 to permit a limited exception to res

judicata. Lortz held that under Section 1062, a party may

seek remedies in addition to declaratory relief subsequent

to the action for declaratory relief where that party is

entitled to additional relief based upon the same facts.

Specifically, the Court said:

Consequential or incidental relief may be obtained in

an action in which a declaratory judgment is sought,

but the failure to seek such relief in such action or suit

does not constitute a bar to other proceedings to enforce

the rights determined by the judgment, whether such

other proceeding is by petition filed in the declaratory

action or in a separate and independent suit or action

subsequently filed, but predicated, however, upon the

declaration of rights contained in the declaratory judg-

ment, [emphasis supplied]

273 Cal.App.2d at 300. Quoted with approval in Southern

Counties Gas Co. v. Ventura Pipeline Construction Co.,

19 Cal.App.3d 372, 382 (1971).

11

The Court continues to state:

The salutary purpose of the declaratory relief provi-

sions is to permit a prompt adjudication of the respec-

tive rights and obligations of the parties in order to

relieve them from uncertainty and insecurity with re-

spect to rights, status, and other legal relations [cita-

tion]. The general rule referred to above, which does

not bar the right to subsequent coercive action, pro-

motes this purpose. It enables a party to get a prompt

adjudication without a dispute over the damages suf-

fered. In many cases further proceedings will be un-

necessary because the right of the party who might

claim damages is not established, or because if his

right is established no damages ensue, or, if ensuing,

damages may be established without further litigation.

273 Cal. App.2d at 301.

It is apparent from the language of the Court in Lortz

that Section 1062 allows a party to avoid the bar of res

judicata in the event that he obtains a declaration in favor

of his rights and wishes to pursue further remedies based

upon such declaration. On the other hand, Section 1062

has never been applied to permit parties to litigate issues

under a request for declaratory relief, obtain a declaration

to the effect that they have no rights, and then relitigate

the same issue based on a different legal theory. To the

contrary, the specific statement of California law for such

a set of facts is in Dills v. Delira Corp., 145 Cal.App.2d 124,

130-31 (1956), where the Court states:

It is true that Code of Civil Procedure, Section 1062,

provides that “no judgment under this chapter shall

preclude any party from obtaining additional relief

based upon the same facts.” However, that language

provides merely that when one obtains a declaration,

he has not thereby forfeited his right to obtain coercive

relief. It certainly was not intended to allow a litigant

12

who is determined not to have any rights to relitigate

his claim in quest of different relief.

The statement in Dills is precisely the factual situation

presented by the Petition herein. Petitioner litigated his

claim in state court, maintaining he had been given improper

notice by Twin Pines. Such issue was determined adversely

to petitioner, and such determination was upheld on appeal

through the Court of Appeals and the Supreme Court of

the state. Seeking a redetermination of this very issue,

petitioner now appears in federal court seeking declaratory

relief and damages claiming the same defect of notice. Cali-

fornia Code of Civil Procedure Section 1062 does not change

the overwhelming body of law that denies the opportunity

to relitigate the same claim in a different forum.

The foregoing statement of the California rules of res

judicata, as applied to a declaratory judgment, was pre-

sented to the Court of Appeals and specifically adopted in

its decision. See Petition, Appendix “A,” at 20. Adoption

of this statement of California law was the considered judg-

ment of three judges who are constantly required to pass

upon California law questions, one of whom has long been

a resident and lawyer of California. It was also the judg-

ment of the District Court. This is c’early the kind of

determination of local law that is ordinarily accepted by

this Court, and ought not to be disturbed. See Skelly Oil

Co. v. Phillips Petroleum Co., 339 U.S. 667, 674 (1950);

Ragan v. Merchants Transfer € Warehouse Co., 337 US.

530, 534 (1949).%°

16. See also Spiegel’s Estate vy Commissioner, 335 U.S. 701

(1949), where it was held that even where reasonable arguments

could be made on both sides of a question of state law (which of

course is not the case here), this Court will follow its general policy

and leave undisturbed the Court of Appeals holding on a question

of state law.

13

Il. There Is No Pending Question of Federal Law.

The principal question of federal law which the Petition

purports to raise is whether petitioner was provided with

notice of Twin Pines’ intention to foreclose upon real prop-

erty in accordance with the due process requirements set

forth by this Court in Miulane v. Central Hanover Bank

and Trust Co., 339 U.S. 306 (1950). See Petition, Questions

Presented, Nos. 3 and 4, at 2. As has been noted previously,

however, assertion of this question at this time seriously

misrepresents the true nature of the Petition, for there are

no circumstances under which this question would come

before this Court pursuant to this Petition given the pres-

ent posture of the litigation.

The case at bar comes to this Court on the procedural

question of whether the Ninth Cireuit Court of Appeals

properly interpreted California’s rules of res judicata.

Even were this Court to review, and subsequently over-

turn, this determination of state law, which is most un-

likely, the due process question under Mullane would still

not be reached. Determination of this question requires

two detailed factual inquiries: First, whether the state is

sufficiently involved ix the foreclosure proceeding to require

the application of the due process clause, and if so, whether

the notice provided was, under the particular circumstances

of this case, reasonably calculated to apprise petitioner of

the pendency of the foreclosure proceeding. In light of

the summary dispositions below, however, the record is

devoid of the facts necessary to determine these questions,

especially given the unique factual context of petitioner’s

ease. Thus this Court would be unable to decide these

questions pursuant to the Petition filed herein, and would

have no recourse other than to remand this case to the

lower courts for appropriate findings of fact and resultant

14

conclusions of law. See Planned Parenthood of Missouri

v. Danforth, 428 U.S. 52, 63, n.2 (1976); Goldfarb v. Vir-

ginia State Bar, 421 U.S. 773 (1975); Calmar Steamship

Corp. v. U.S., 345 U.S. 445 (1953).

The Petition also contains several misleading sugges-

tions that other federal constitutional questions are in-

volved besides the due process claim under Mullane. None

of these so-calive? dne process and equal protection claims

was ever rai* . eluow, and their assertion constitutes a

vivid example Jf petitioner’s strained attempts to make

his case appear to be something more than an attempt to

relitigate issues previously decided in the state courts.

Moreover, for the same reasons set forth above in connec-

tion with the alleged claim under Mudlane, these purported

claims are premature. That they are frivolous, not to

mention abstract and hypothetical, goes without saving

given the factual context of petitioner’s case. They certainly

provide no basis for granting certiorari.

lll. There ls No Conflict of Decision.

In another apparent effort to make this Petition appear

to have some merit, petitioner literally tosses out the sug-

gestion that the res judicata effect of a prior state court

judgment in a subsequent action under 42 U.S.C. § 1983

is the subject of conflicting decisions of the Courts of

Appeals. See Petition at 8.

At the risk of giving this off-hand remark more attention

than it is due, respondents wish merely to point out that

petitioner has throughout this litigation consistently sought

to have state rules of res judicata applied in determining

the res judicata effect of the prior state court judgment.

At no time has petitioner heretofore suggested, as he

apparently does by citing Lombard v. Board of Education

15

502 F.2d 631 (2d Cir. 1974), that Section 1983 actions over-

ride the command of statutory full faith and credit.

Obviously, this argument is belatedly raised now merely to

confuse and complicate this matter, and make it appear to

be that which it is not.

Moreover, this argument is without merit. Lombard is

an aberrational decision which stands alone among the

circuits.’? It has either been criticized as wrongly decided"

or has been rationalized by severely limiting it to its parti-

cular facts,"® which are not duplicated herein. Though

apparently sometimes relied upon as a basis for seeking

certiorari, such petitions have routinely been denied by this

Court.” In essence, therefore, Lombard has been sufficiently

discredited or limited so as not to give rise to any conflict

of importance, and constitutes no valid basis for seeking

certiorari.

4

oOo,

17. See Fortune v. Mulherrin, 533 F.2d 21 (1st Cir. 1976):

Roy vy. Jones, 484 F.2d 96 (3d Cir. 1973); Davis v. Towe, 526

F.2d 588 (4th Cir. 1975); Jennings v. Caddo Parish School Bd.,

531 F.2d 1331 (5th Cir. 1976); Coogan v. Cincinnati Bar Ass’n,

431 F.2d 1209 (6th Cir. 1970); Blankner v. City of Chieago, 504

F.2d 1037 (7th Cir. 1974); Chasteen v. Trans World Airlines, Ine.,

520 F.2d 714 (8th Cir. 1975); Seoggin v. Schrunk, 522 F.2d 436

(9th Cir. 1975); Spenee v. Latting, 512 F.2d 93 (10th Cir. 1975).

Cf. Preiser v. Rodriguez, 411 U.S. 475, 497 (1973).

18. Note, 88 HARV. L. REV. 453 (1974).

19. MeCormack, Federalism and Section 1983: Limitations on

Judicial Enforcement of Constitutional Claims, Part I], 60 VA.L.

REV. 250, 276-277 (1974).

20. See Burns v. Decker, cert. denied, 423 U.S. 1017 (1975).

pet. reh. denied, 423 U.S. 1081 (1976); First American Bank &

Trust Co. v. Ellwein, cert. denied, 423 U.S. 1055 (1976).

16

CONCLUSION

For the foregoing reasons it is respectfully submitted

that this petition for a writ of certiorari should be denied.

Respectfully submitted

J. Kenny Lewis

Rosert CHARTOFF

Counsel for Respondents