Amicus Curiae Brief — Rivet v. Regions Bank of Louisiana

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> Supreme Court, U.S.

FILED

ss DEC 22 2000

In The |_ OFFICE OF TH CLEWK !

Supreme Court of the United States

¢

MARY ANNA RIVET, MINNA REE WINER, EDMOND

G. MIRANNE, and EDMOND G. MIRANNE, JR.,

Petitioners,

versus

REGIONS BANK, WALTER L. BROWN, JR.,

PERRY S. BROWN, and FSA, L.L.C.,

Respondents.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

o

BRIEF OF THE STATE OF LOUISIANA, AS AMICUS

CURIAE, SUPPORTING THE PETITION FOR

WRIT OF CERTIORARI

¢

RIcHARD P. IEYous

Attorney General

Counsel of Record

AnciE Rocers LAPLACE

Assistant Attorney General

LouisIANA DEPARTMENT OF JUSTICE

P.O. Box 94005

Baton Rouge, Louisiana 70804

(225) 342-1134

Attorneys for The State of Louisiana

as Amicus Curiae

225-6964

COCKLE LAW BRIEF PRINTING CO., (800

OR CALL COLLECT (402) 342-283

—-

QUESTIONS PRESENTED

(1) Must a federal bankruptcy court’s order affect-

ing property rights in Louisiana be domesticated and

enforced according to the statutes of the State of Louisi-

ana, or may those statutes be completely ignored on the

theory that the judgment is somehow “self-executing”?

(2) May a federal bankruptcy court order be so con-

strued as to necessarily result in erroneous and inaccu-

rate entries being maintained in the Louisiana public

records, thereby irreparably damaging the integrity of the

public records of the State of Louisiana?

il

LIST OF PARTIES

The State of Louisiana has no knowledge of any

parties to the proceedings in the Court whose judgment is

sought to be reviewed here other than those whose names

appear either in the caption of the case or in the section

entitled “List of Parties” in the Petition for a Writ of

Certiorari. See, Petition for Writ of Certiorart, at ii.

ili

TABLE OF CONTENTS

Page

Cpsetions Presented... ....5ccccsvcaveccscisnevesase i

oF 8. | rer rrerrrr rr errr rst er yr rc ii

:. tae Perr errr iii

cc Ue 2 errr rer iv

Opinions Below ...............eee eee e eee e eee eeee 1

Giatemnent of TarieGiction. « «6.06 osc0ecesacnavcaun cs 1

Interest of the State of Louisiana as Amicus Curiae.... 2

Constitutional and Statutory Provisions Involved...... 2

a ea Per ree er ree rer 3

I. Basis for Federal Jurisdiction in the Court of

ee Peer rrr er Terre ret eer tee re 3

Me Dee OE FOCES ... oo cic n ccc ai Tecan sccnces 3

III. Course Proceedings and Disposition Below.... 3

IV. The Opinion Below ..............-...eeeeeeees 3

Argument for Allowance of the Writ............--. 4

I. Summary Of Argument..................52+5: 4

II. The State of Louisiana cannot accept a situation

where its valid statutory enactments are simply

ignored based upon the entry of a bankruptcy

I BE ona 5 coun sdcn nb anencass es cantene sss 6

III. The State of Louisiana cannot accept a situation

where the integrity of its public records is com-

promised by the entry of a bankruptcy court

eel aa ec kG osc chead ine Wee 06.65 eawene bees 15

iv

TABLE OF AUTHORITIES

Page

Cases:

Amoskeag Bank v. Chagnon, 133 N.H. 11, 572 A.2d

SOE ere eee ere ee 16

Anthony v. Butler, 38 U.S. (13 Pet.) 423, 10 L.Ed.

od BR See err er rrr rr erm 17

Baker by Thomas v. General Motors Corp., __ U.S.

Sn Oe CORO ss rb is bas anerwaniaes 7, 8, 12

Clarke v. Willard, 294 U.S. 211, 55 S.Ct. 356, 79

iS % ¢: . Baer Seer eee 17

Davis v. Davis (In re Davis), 170 F.3d 475 (Sth Cir.) (En

banc), cert. denied, 120 S.Ct. 67 (1999)....... 7, 10, 17, 18

Dick v. Balch, 33 U.S. (8 Pet.) 30, 1 L.Ed. 856 (1834) .... 17

Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11

Se CI Gk 5 ae eta deekaehehueak een 14

Ferguson v. Porter, 359 So.2d 676 (La. App. 1st Cir.

ccc, COE Ce EE CET Se eee er oor 18

Green v. Bushkirk, 72 U.S. (5 Wall.) 307, 18 L.Ed.

eT CN 5 tay ahacnsd ced bie eEN UE tee eee eueun 17

Hampton v. McConnell, 16 U.S. (3 Wheat) 234, 4

Ss ee EEN 65 cad Ove chee dCaenhatucasatbaes 11

Hervey v. Rhode Island Locomotive Works, 93 U.S. (3

Otte) 664, 23 L.Ed. 10035 C1676) ...... 2. cs cncecenes 17

Lepard v. Lepard, 722 So.2d 367 (La. App. 2nd Cir.

a eee eee ey reer rr rr ery ee Pree ee ep ere 13

Levinz v. Will, 1 U.S. (1 Dall.) 430, 1 L.Ed. 209

PRPS yh ks beaka ka ae eee 17

TABLE OF AUTHORITIES - Continued

Page

McDuffie v. Walker, 51 So. 100 (La. 1909) ............ 16

McElmoyle ex rel. Bailey v. Cohen, 13 Pet. 312, 10

Lt, BFF COGRRP ss <0 cds hese vend eceeeeew bee cae 8

Mills v. Duryee, 11 U.S. (7 Cranch) 481 (1813)....... 11

Milwaukee County v. M. E. White Co., 296 U.S. 268,

36 S.Ct. 229, GO L.Bd. ZOD CIGGE). . «cas vanscsncsves 10

Osteoimplant Technologies v. Rathe Products, 107

Md.App. 114, 666 A.2d 1310, cert. denied, 341

Md. 648, 672 A.2d 623 (1995) ......scccssvcesveses 11

Pacific Gas & Elec. Co. v. State Energy Resources

Conservation and Dev. Comm'n, 461 U.S. 190, 103

DAS. E719, 7D 1.2 Foe CIGD cise xcs cecs duress 7

Parker v. Wood, 1 U.S. (1 Dall.) 436, 1 L.Ed. 212

to. Pr reerrre er. errr er Tyee, ir erry eee 17

Phillips v. Parker, 483 So.2d 972 (La. 1986)........... 16

Property Asset Management v. Pirogue Cove Apts.,

693 So.2d 1217 (La. App. 4th Cir. 1997)........... 18

Regions Bank of Louisiana v. Rivet, 224 F.3d 483 (5th

Bee Tere eT re er eee ree passim

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67

S.Ct. 1146, 91 L.Ed.20 1447 (1967) ......00ccccsers 17

Riley v. New York Trust Co., 315 U.S. 343, 62 S.Ct.

608, 86 L.Ed. 885, rehearing denied, 315 U.S. 829,

GE SAL. FES, OS Lie. TZES (IPGE) ov cick ceciw ees 10

Security Trust Co. v. Dodd, Mead & Co., 173 US.

624, 19 S.Ct. 545, 43 L.Ed. 835 (1899) ............. 17

vi

TABLE OF AUTHORITIES —- Continued

Page

Socony Mobile Oil Co. v. Burdette, 309 So.2d 655 (La.

BOF i vcs ceases ceavesseenenddeccescrdeenessaacsacs 18

Sunderland v. United States, 266 U.S. 226, 45 S.Ct.

64, 69 L.Ed. 259 (1924) ..... 0... cee eae 17

Tennessee ex rel. Sizemore v. Surety Bank, 200 F.3d -

373 (Sth Cir. 2000). .... 0.0.0... ccc cece eee 13

Thompson v. Whitman, 85 U.S. (18 Wall) 457, 21

L.Ed. 897 (1873).............. Wakeueueescuusceteces 8

United States v. Fox, 94 U.S. (4 Otto) 315, 24 L.Ed.

Pe CRPOD sca se ans nsacocsaseccetnesavaveéddssccce 17

Matter of De La Vergne, 156 B.R. 773 (Bkrtcy.E.D.La.

CNC kd hai wy kena wala a ad baue cee eka oa ee ee eae 16

Watts v. Waddle, 6 Pet. 389, 8 L.Ed. 437 (1832)....... 12

WellTech, Inc. v. Abadie, 666 So.2d 1234 (La. App.

Sth Cir), rehearing denied, writ denied, 672 So.2d

690 (La. 1996), writ denied, 712 So.2d 864 (La.

Orr ry wen TAT bm nro ese ay Ly eee ae 13

Wisconsin v. Pelican Ins. Co. of New Orleans, 127

U.S. 265, 8 S.Ct. 1370, 32 L.Ed. 239 (1888) ......... 8

CONSTITUTIONAL PROVISIONS:

ee eS rr rr rte ery ie 8, 10

8 Be a re re re ees passim

ie en, Ree. BD, & OO CR i ihices cadiswieds dive 15

——

Vii

TABLE OF AUTHORITIES - Continued

Page

FEDERAL STATUTES:

LE UG. § ORI) obese ccvesssescenaess caeaaeeee 19

ae Wash. & TGR <s06 cose ceh ene secvekeesaeeee 1

20 UDA... © MGR sc vrei ncavide' 16sehs teen Ree passim

ye ae Br eT rey pret ks 6 2, 8, 10, 11

Be Us B es ec ieas cast cossuonesmans eae passim.

STATE STATUTES:

c. TOR SO, PRRs svc eatin ccenseen chee sewer 15

re SS | errr ere eee tr ee passim

ee 8. 6 Rie rere passim

i. Te Sek: Tee kw oe biiccics cide dduebeceeeanesees 20

La. Rev. Stat. Ann. Title 13, Part III (Table) (West

POPE eee eee reer Peery ree ee 11

La. Rev. Stat. 13:4241 to 13:4247............... 6, 11, 14

eS Br ee ee passim

Rh TOM: SORE. SIG kd dic dc tne vceuddauneverase ee passim

Le. ome Coe, Pome. Ave: ZaG) A ci csecicvncevas passim

es gk Ff Seer rrr re re ere rs: 16

Fee fe Fe RT er reer rer rcr eS 15

Se te FF Bg ere rer rr ry rere rere 16

ah, Ge ee OU: Be veo vc xkcd csc dvasb isan ksosces 20

Uniform Enforcement of Foreign Judgments Act

EE SE ccs cn peau na bueekackuan Weawus 10, 11, 14

Vili

TABLE OF AUTHORITIES - Continued

Page

Court RUuLeEs:

U.S. Sup. Ct. R. 37.4...... cece cece cere ees eereeveeee 1

, 8 be) | OPT errr ee 13

SCHOLARLY COMMENTARY:

Alejandro M. Garro, The Louisiana Public Records

Doctrine and The Civil Law Tradition (1989)......... 16

Lee Hargrave, Public Records and Property Rights,

56 La.L.Rev. 535 (1996) ........ccccsecsevevenenenss 15

William V. Redmann, The Louisiana Law of Recorda-

tion: Some Principles and Some Problems, 39

; PR ee 8 OR reer es ere 15

William L. Reynolds, The Iron Law of Full Faith and

Credit, 53 Md.L.Rev. 412 (1994) ...........000+. 13, 14

Restatement (Second) of Conflicts of Laws (1971)........ 8

J. Story, Conflicts of Laws, § 609 (7th ed. 1872)........ 8

1 Peter S. Title, Louisiana Real Estate Transactions

CRED ccc ebieunnbituked ee ede ed teaee Perey ee Webekekhs 16

1

TO THE HONORABLE CHIEF JUSTICE AND THE

ASSOCIATE JUSTICES OF THE SUPREME COURT OF

THE UNITED STATES:

MAY IT PLEASE THE COURT,

The State of Louisiana, as Amicus Curiae, through its

Attorney General, hereby supports the Petition for a Writ

of Certiorari in this matter, and respectfully prays that a

Writ of Certiorari issue to review the Opinion and Judg-

ment of the United States Court of Appeals for the Fifth

Circuit entered in this matter on August 22, 2000.

OPINIONS BELOW

The Opinion and Judgment of the three-judge panel

of the United States Court of Appeals for the Fifth Circuit

was entered August 22, 2000, and is reported as Regions

Bank of Louisiana v. Rivet, 224 F.3d 483 (Sth Cir. 2000). The

Opinion is also reprinted in the Appendix to the Petition

for a Writ of Certiorari (hereinafter “Petition”), at pages

A-1 through A-25. The Judgment and Order and Reasons

of the United States District Court for the Eastern District

of Louisiana, entered April 14, 1999, are reprinted in the

Appendix to the Petition at pages A-25 through A-39. For

briefing purposes, the term “opinion below” will refer to

the Fifth Circuit’s opinion.

STATEMENT OF JURISDICTION

The judgment of the oral argument at the United

States Court of Appeals for the Fifth Circuit was entered

on August 22, 2000, affirming in part and reversing in

part the Order and Reasons of the United States District

Court for the Eastern District of Louisiana, dated April

13, 1999. The jurisdiction of this Court is invoked by the

Petition under 28 U.S.C. § 1254(1). This Brief is filed on

behalf of the State of Louisiana, as Amicus Curiae, by its

Attorney General, pursuant to Rule 37.4 of the Rules of

the Supreme Court of the United States.

2

INTEREST OF THE STATE OF LOUISIANA

AS AMICUS CURIAE

The State of Louisiana has a direct and specific inter-

est in the resolution of the matters raised in this case in

two respects:

(1) to ensure that the State’s valid statutory enact-

ments may not be ignored on the basis of the appellate

court’s interpretation that an order by a federal bank-

ruptcy court is “self-executing” upon entry, and therefore

that Louisiana’s statutes relating to domestication and

enforcement of such judgments may be ignored; and

(2) to ensure that the integrity of the State’s public

records is not compromised by the appellate court’s inter-

pretation of the effect of the entry of an order by a federal

bankruptcy court.

The State of Louisiana also appeared as Amicus Cur-

iae, in the United States Court of Appeals for the Fifth

Circuit, to assert these same interests.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

In addition to those Constitutional and statutory pro-

visions set forth in the Petition (Petition, at 2-4), the State

believes that this case also involves the following provi-

sion of the United States Code, which is set forth in

pertinent part:

Title 28 U.S.C. § 1738:

The Acts of the legislature of any State . . . of the

United States . . . [and] The records and judicial

proceedings of any court of any such State...

[when] authenticated [pursuant to this Act],

shall have the same full faith and credit in every

court within the United States . . . as they have

by law or usage in the courts of such State-

. . . from which they are taken.

3

STATEMENT OF THE CASE

I. Basis for Federal Jurisdiction in the Court of First

Instance

This action was originally commenced by Respon-

dents pursuant to The Anti-Injunction Act, 22 U.S.C.

§ 2283, and The All Writs Act, 22 U.S.C. § 1651.

II. Statement of the Facts

The State of Louisiana hereby adopts the Statement

of Facts contained in the Petition for a Writ of Certiorari.

See Petition, at 4-8.

III. Course of proceedings and disposition in the

Court below.

The State of Louisiana hereby adopts the statement of

these items as contained in the Petition for a Writ of

Certiorari. See Petition, at 4-8.

IV. The Opinion Below.

Similarly, the State of Louisiana concurs in Peti-

tioners’ description of the opinion below. See Petition, at

8-9. In addition, Louisiana believes that the following

aspects of the opinion below will be of particular impor-

tance when considering the Petition for a Writ of Cer-

tiorart:

1. The opinion below creates a unique species of

self-executing judgment, which finds no precedential

support in any reported opinion. Petition, at A-11 to A-15,

224 F.3d at 490-491.

2. The opinion below effectively invalidates two

Louisiana statutory enactments, La. R.S. 9:5251 and

9:5031, with no finding that they are unconstitutional, or

that they have been preempted by an Act of Congress.

Petition, at A-11 to A-15, and nn. 10 & 11; 224 F.3d at

490-491, nn. 10 & 11.

+

3. The opinion below invalidates, at least in part,

Louisiana’s statutory scheme for the domestication and

enforcement of foreign judgments - also with no finding

of unconstitutionality and no preemption analysis — by

the unwarranted expedient of assuming that all items

which might otherwise be determined by a State judge at

a domestication hearing will have been conclusively

decided by the rendering court. Petition, at A-11 to A-15,

224 F.3d at 490-491.

ARGUMENT FOR ALLOWANCE OF THE WRIT

I. Summary of Argument.

Stated succinctly, there are two basic reasons why the

State of Louisiana believes that a Writ of Certiorari

should be granted to review the opinion below, and that

the decision should be vacated: (1) Louisiana cannot

accept a situation where the order of a federal bankruptcy

court is held to authorize private parties to ignore the

State’s valid statutory enactments. (2) The State of Louisi-

ana cannot accept a situation where the issuance of a

federal bankruptcy order is interpreted so as to compro-

mise the integrity of the State’s public records.

The opinion below has the effect of invalidating a

State statutory scheme regulating both the domestication

and enforcement of foreign judgments, including federal

judgments, in Louisiana as well as the existence of liens

and mortgages on Louisiana real property interests fol-

lowing the entry of the sale order of a federal bankruptcy

court. The statutory scheme in question - consisting of

La. R.S. 9:5031 and 9:5251; La. R.S. 13:4241 and 13:4242;

and La. C.C.P. art. 2541 - is a hybrid. On the one hand

this scheme is part of the State’s system of regulating real

property interests. La. R.S. 9:5031 and 9:5251. On the

other hand it consists of the means by which the State

provides for the domestication and enforcement of

5

foreign judgments in Louisiana.! Louisiana has a vital

interest in both of these aspects of its statutory scheme

and cannot accept a situation such as the one created by

the opinion below, unless and until this validly enacted

statutory scheme is held to have been preempted by the

United States Congress. Heretofore, such preemption has

not been found, and the opinion below does not even

engage in a preemption analysis before it implicitly

sweeps aside these legislative enactments.

In addition, the opinion below will inevitably have

the effect - perhaps unintended, but nevertheless very

pointed - of compromising, if not destroying, the integ-

rity of the public records of Louisiana. If the integrity of

Louisiana’s public records remains thus compromised,

the very foundation of Louisiana’s entire civil-law system

of property holding will also be called into question.

Thus, not only is the integrity of Louisiana’s public

records at issue, but the opinion also infringes imper-

missibly on Louisiana’s right, secured by the Tenth

Amendment, to regulate the real property within her

borders.

Conversely, no legitimate federal interest, nor any

interest secured by the Bankruptcy Code, is served by the

opinion below. Louisiana does not question the right of a

bankruptcy court to enter an order, pursuant to the Bank-

ruptcy Code, mandating that property of a bankrupt estate

be sold free and clear of liens and encumbrances, nor does

it question the effectiveness of that order as between the

parties thereto. Rather, the Louisiana statutory scheme

merely places such orders in the same position as all other

federal judgments, as well as all sister-state judgments, by

requiring that the rights granted thereunder must be

secured through the remedy of domestication and enforce-

ment of the judgment in Louisiana.

1 In conformity with the Uniform Enforcement of Foreign

Judgments Act (revised 1964), La. R.S. 13:4241 defines the term

“foreign judgment” to include all federal judgments.

6

II. The State of Louisiana cannot accept a situation

where its valid statutory enactments are simply

ignored based upon the entry of a bankruptcy court

order.

La. R.S. 9:5031 and 9:5251 clearly mandate that no

mortgage or other form of security interest in Louisiana

real property may be “in any manner affected”, as the

result of a sale in bankruptcy, except through the domes-

tication and enforcement in Louisiana of the bankruptcy

order and judgment. La. R.S. 13:4241 and 13:4242, and La.

C.C.P. art. 2541, provide a clear and orderly procedure for

the domestication and enforcement in Louisiana of all

foreign judgments, including federal bankruptcy judg-

ments. The effect of the decision below is, by judicial fiat,

to invalidate completely La. R.S. 9:5031 and 9:5251, and to

invalidate at least partially La. R.S. 13:4241 and 13:4242,

and La. C.C.P. art. 2541.

The State of Louisiana concurs with Petitioners that

such invalidation of the valid legislative enactments of a

State may not be accomplished by the federal courts,

absent a ruling that the statutes are unconstitutional or

that they have been preempted by an Act of Congress. See

Petition, at 15-19. The State also concurs in Petitioner’s

assessment of the decision below that no such rulings

have been made. Id.? In the interest of brevity, these

* The opinion below did not engage in a preemption ,

analysis. It simply dismisses that doctrine by holding, in

essence, that Louisiana’s system of domestication and

enforcement did not need to be preempted since Respondents '

“did not need to take further steps to ‘execute’ the bankruptcy

court’s orders”. Petition, at A-14 to A-15, 224 F.3d at 491. This

ruling, however, embodies the very essence of preemption. The

Louisiana statutory scheme clearly mandates that the

bankruptcy order did have to be executed through

domestication and enforcement. This scheme is rendered

nugatory through the creation of a species of “self-executing”

judgment based upon the Bankruptcy Code. See Petition, at

7

arguments will not be repeated. The purpose of this brief

is to add Louisiana’s voice to Petitioner’s request for a

Writ of Certiorari, and to request that the decision below

be vacated. The purpose of this section is to present the |

interest of the State of Louisiana underlying its statutory

scheme for the domestication and enforcement of foreign

judgments. The State deems this discussion to be neces-

sary, because of the short shrift given this position by the

opinion below. See Petition, at A-12 to A-14, and 224 F.3d

at 491.

Louisiana agrees with Petitioners that this case

should be controlled by the analysis of Baker by Thomas v.

General Motors Corp., ___ U.S. __, 118 S.Ct. 657, 664-665,

668 (1998) (Ginsburg, J.) (Scalia, J., concurring), a case

and an issue which the opinion below declines even to

discuss, despite extensive briefing by Petitioners and the

State as Amicus. Thus, the opinion below fails to recog-

nize the most basic principle in the law of judgments: the

dichotomy between right and remedy. A judgment

declares rights, but those rights must be secured through

12-15. Thus, the Louisiana statutory scheme is invalidated bya

ruling under the Bankruptcy Code, and that, by any other name,

is preemption. Yet, the opinion below expressly disavows even

any attempt at a preemption analysis, merely stating the

obvious precept that “[P]reemption may be implied if state and

federal laws conflict. . . . ”. Petition, at A-14, n. 13, 224 F.3d at

491. This passing reference, however, falls far short of the

rigorous analysis required by this Court’s precedents in order to

decide whether or not a state statute has been preempted by an

Act of Congress. See, e.g., Davis v. Davis (In re Davis), 170 F.3d

475, 482, 483 (Sth Cir.) (en banc) (Jones, J.), cert. denied, 120 S.Ct.

67 (1999). Petition, at 15-19. Even if such an analysis were to be

undertaken, it cannot rationally be said that the Louisiana

statutory scheme in question “thwarts the ‘accomplishment and

execution’ of Congressional intent”, as expressed in the

Bankruptcy Code. See Davis v. Davis, supra, 170 F.3d at 483,

quoting, Pacific Gas & Elec. Co. v. State Energy Resources

Conservation and Dev. Comm'n, 461 U.S. 190, 204, 103 S.Ct. 1713,

1722, 75 L.Ed.2d 752 (1983).

8

the remedy of enforcement. This principle has long been

recognized by the decisions of this Court, which, in 1873,

for example, held that:

“No execution can issue upon [foreign] judg-

ments without a new suit in the tribunals of

other states. And they enjoy not the right of

priority or lien which they have in the state

where they are pronounced, but only that which

the lex fori gives to them by its own laws in

their character of foreign judgments.”

Thompson v. Whitman, 85 U.S. 457 (18 Wall), 462-463, 21

L.Ed. 897 (1873), quoting, J. Story, Conflicts of Laws, § 609

(7th ed. 1872), quoted in, Wisconsin v. Pelican Ins. Co. of

New Orleans, 127 U.S. 265, 292, 8 S.Ct. 1370, 1375, 32 L.Ed.

239 (1888), and in Baker by Thomas, supra, 118 S.Ct. at 668

(Scalia, J., concurring).

Perhaps even more pointedly, as Justice Scalia put it:

It has long been recognized that “the judgment

of a state Court cannot be enforced out of the

state by an execution issued within it.”

Id., quoting, McElmoyle ex rel. Bailey v. Cohen, 13 Pet. 312,

325, 10 L.Ed. 177 (1839). See also Restatement (Second) of

Conflicts of Laws § 99 (1971) (“The local law of the forum

determines the methods by which a judgment of another

state is enforced”).3

Petitioners have convincingly demonstrated that the

opinion below reaches its result through the expedient of

3 Strictly, Baker by Thomas applies only to the situation

where the judgment of one state is to be enforced in another

state, and indeed this is the extent of the Constitution’s Full

Faith and Credit Clause. U.S. Const., art. IV, § 1. It is respectfully

submitted, however, that this analysis must also embrace the

situation at bar, where the judgment of a federal court is to be

enforced in a state. The first Congress essentially brought the

federal courts within the ambit of full faith and credit with the

passage of the Full Faith and Credit Act, 28 U.S.C. § 1738.

aeniileermneneemincininitetat

" 9

creating a “self-executing” judgment, which finds no sup-

port in the decisions of this Court. See Petition, at 12-15.4

To this, the State would add that such a species of judg-

ment violates further the decisions of this Court, as dis-

cussed above, by its very nature, in failing to recognize

the right/remedy dichotomy. A “self-executing” judg-

ment presents no different a situation than that so force-

fully disavowed by Justices Ginsburg and Scalia. Such a

judgment is in reality no more than an execution, albeit, a

“self-execution”, issued by one sovereign (the United

States) which that sovereign decrees must be enforced

within the jurisdiction of another sovereign (Louisiana).

Based upon this Court’s precedents, such a decree cannot

be allowed to stand.

We may state in plain terms why Louisiana’s interest

is concurrent with that of Petitioners: Petitioners seek a

recovery precisely because the procedures mandated by

Louisiana statutes for the cancellation of mortgages were

not followed by parties who had obtained the right to

have their mortgage cancelled. Thus, according to Louisi-

ana law, Petitioners’ mortgage was not cancelled or “in

any manner affected”. La. R.S. 9:5251. The federal courts

have declared that the statutes embodying these pro-

cedures are meaningless and may be ignored by the par-

ties who had obtained the right to have Petitioners’

mortgage cancelled. This is unacceptable to Louisiana,

and indeed should be unacceptable to any other state.

Under the Court of Appeals’ logic, the “self-executing”

| rationale need not be limited to bankruptcy courts. Vir-

tually any federal judgment declaring the respective

rights of private parties could next be deemed “self-

* Indeed, this is plain from the language of the opinion

itself: “At the heart of [Petitioners’] argument is the assumption

that the bankruptcy court’s orders were not self-executing.

... [T]he Bank did not need to take further steps to ‘execute’ the

bankruptcy court’s orders.” Petition, at A-12, A-15, 224 F.3d at

490-491.

10

executing”, thus relieving litigants of following Louisi-

ana’s statutes on anything from automobile title transfer

to corporate formalities.5 This departure from the funda-

mental basis of federalism is as far-reaching as it is

unwise.

Indeed, the en banc Fifth Circuit itself, a mere seven-

teen months prior to the decision below, enunciated the

principle that a self-executing judgment would violate

the right-remedy dichotomy, specifically in the context of

the Bankruptcy Code, in holding that the Code did not

authorize the “self-execution” of a bankruptcy order in

violation of the laws of the State where enforcement is

sought. In Davis v. Davis, supra, the Fifth Circuit dis-

missed out of hand the argument that judgments pur-

suant to the Bankruptcy Code were “literally self-

executing [because in so arguing] [appellant] has con-

fused her right with her remedy”. 170 F.3d at 481. See also

Riley v. New York Trust Co., 315 U.S. 343, 62 S.Ct. 608, 86

L.Ed. 885, rehearing denied, 315 U.S. 829, 62 S.Ct. 903, 86

L.Ed. 1223 (1942); Milwaukee County v. M. E. White Co., 296

U.S. 268, 56 S.Ct. 229, 80 L.Ed. 220 (1935) (holding that, at

common law, a judgment of a sister state could not be

enforced without the commencement of an action based

thereon).

The confluence of the right/remedy dichotomy and

our system of dual sovereignty is expressed in the Full

Faith and Credit Clause, U.S. Const., art. IV, § 1, and the_

Full Faith and Credit Act, 28 U.S.C. § 1738, which essen-

tially brings the United States and the federal court sys-

tem within the ambit of Full Faith and Credit. The

inherent conflicts therein have been resolved by the wide-

spread adoption of the Uniform Enforcement of Foreign

5 For example, this office opined in 1993 that a foreign

paternity judgment must be made executory in Louisiana before

it may be used to alter State administrative records and vital

statistics. Op.Atty.Gen., No. 93-554, August 13, 1993.

11

Judgments Act (revised 1964) (“Uniform Act”). A com-

prehensive discussion of the Uniform Act is beyond the

scope of this brief, but the State feels it necessary to make

the following points:

Two of the three Louisiana enforcement statutes at

issue, La. R.S. 13:4241 and 13:4242, have been passed by

the legislature in conformity with, and adoption of the

Uniform Act, and the third, La. C.C.P. art. 2541, actually

provides an even more streamlined method of enforcing a

foreign judgment. The more recent, and more well-rea-

soned, state cases have held that the Uniform Act applies

to federal judgments as well as to those of sister states.

See, e.g., Osteoimplant Technologies v. Rathe Products, 107

Md.App. 114, 666 A.2d 1310, cert. denied, 341 Md. 648, 672

A.2d 623 (1995) (holding that a default money judgment

awarded in federal court could not be vacated, altered or

amended in state court, under full faith and credit princi-

ples). Louisiana has no judicial authority to the contrary.

In this light, then, we may posit that Louisiana, by virtue

of her own laws, as well as 28 U.S.C. § 1738, would have

been required to give full faith and credit to the bank-

ruptcy order (or at least the eventual judgment of the

district court), had that judgment been presented to a

Louisiana court for enforcement. Indeed, this principle is

of ancient provenance. See, e.g., Mills v. Duryee, 11 U.S. (7

Cranch) 481, 484 (1813) (Storey, J.); Hampton v. McConnell,

16 U.S. (3 Wheat) 234, 236-237, 4 L.Ed. 378 (1818) (Mar-

shall, C.J.). The sole point at issue here, however, is

whether or not that judgment had to be so presented to a

Louisiana court for domestication and enforcement.” The

State respectfully submits that it did.

6 At all times pertinent to this matter, Louisiana had

adopted the Uniform Act. See La. R.S. Ann. Title 13, Part Ill

(Table) (West Supp. 2000) (including laws enacted through the

1999 Regular Session of the Louisiana legislature), La. R.S.

13:4241 to 13:4247, as added by Acts 1985, No. 464, § 1.

7 Petitioners maintain that the bankruptcy court order may

not now be enforced because the right to seek enforcement has

en ae ae

12

The opinion below essentially brushes aside the

State’s interest by stating, without evidence or analysis,

that domestication and enforcement are unnecessary, and

mere surplusage, since the items which may be raised as

valid defenses at a domestication hearing, at least in this

instance, were “determined by the bankruptcy court and

by the district court”. Petition, at A-13 to A-14, 224 F.3d at

490-491 (footnote omitted). In so doing, the opinion

below misapprehends the very purpose of such a hearing

in our system of multiple sovereignties, by ignoring the

valid interest of the State in ensuring that potential

defenses, as well as other issues incident to domestica-

tion, be determined by a Judge and not through the

expedient - implicit in the opinion below - of casting a

Parish Recorder of Mortgages in a quasi-judicial role by

merely presenting her with a bankruptcy court order and

a request to cancel the subject lien or encumbrance.®

It is well-settled that full faith and credit is not abso-

lute, and that there may be valid defenses to the domes-

tication and enforcement of a foreign judgment. For a

expired under Louisiana law. Petition, at 19, n. 11. The State

takes no position with respect to the merits of this contention.

The State does concur, however, that this contention is one that

must be decided pursuant to Louisiana law.

8 While it is true that most of the precedents in this area,

have, per force, dealt with the enforcement of money judgments,

Baker by Thomas, supra, makes it clear that this principle also

applies as well to the enforcement of other kinds of judgments.

See 118 S.Ct. at 664-665 (Ginsburg, J.) (“The Court has never

placed equity decrees outside the full faith and credit domain”).

Justice Scalia, concurring, also makes this clear in stating that

“neither the Full Faith and Credit Clause nor its implementing

statute requires [the forum state] to execute the [sister-state]

injunction” (118 S.Ct. at 668-669), and by relying, inter alia, upon

Watts v. Waddle, 6 Pet. 389, 392, 8 L.Ed. 437 (1832) (a case

involving a suit to obtain an equity decree ordering the

conveyance of land, duplicating such a decree already issued in

another state).

13

discussion of the various reasons why a foreign judg-

ment, though entitled to full faith and credit, may validly

be denied enforcement in the forum state, see William L.

Reynolds, The Iron Law of Full Faith and Credit, 53

Md.L.Rev. 412 (1994). See also Tennessee ex rel. Sizemore v.

Surety Bank, 200 F.3d 373 (5th Cir. 2000) (holding that,

under the Uniform Act, a Texas bank was entitled to

challenge the jurisdiction of a Tennessee court to order

liquidation of an insurance company, even after Texas

had issued a domestication order); Fed.R.Civ.P. 60(b)(3),

which permits verdicts to be set aside if they were pro-

cured by “fraud (whether heretofore denominated intrin-

sic or extrinsic), misrepresentation or other mis-

representation of an adverse party”.

Similarly, Louisiana courts have denied enforcement

to foreign judgments for lack of personal or subject mat-

ter jurisdiction in the rendering court, extrinsic fraud in

the procurement of the judgment, satisfaction, or lack of

due process in the rendering court. See WellTech, Inc. v.

Abadie, 666 So.2d 1234 (La. App. 5th Cir.), rehearing denied,

writ denied, 672 So.2d 690 (La. 1996), writ denied, 712 So.2d

864 (La. 1998). See also Lepard v. Lepard, 722 So.2d 367 (La.

App. 2nd Cir. 1998) (holding that full faith and credit may

be denied for lack of jurisdiction in the rendering court or

where collateral attack would have been permitted in the

jurisdiction that rendered the judgment). Louisiana’s

point here is that these defenses, if available and properly

raised, must be heard and determined by a Louisiana

court when enforcement is sought in Louisiana. One

would expect this to be a routine matter in the vast

majority of cases, but it is an important step which may

not and must not be ignored. These issues may not be

conclusively presumed to have been determined by the

rendering court, as the opinion below posits is the case

14

for bankruptcy court orders. Petition, at A-13 to A-14, and

n. 12; 224 F.3d at 4990-491.9

Finally, the foregoing, though an accurate synopsis,

has perhaps been unduly emphasized here, given the

context of the facts of this matter. The basic purpose of

Louisiana’s appearance as amicus curiae is to protest vig-

orously against the appellate court’s creation of a self-

executing judgment. Nevertheless, while Louisiana

insists on her right not to enforce foreign judgments until

they have been properly domesticated, she does not sug-

gest that bankruptcy court orders such as the one in

question would not be enforced in Louisiana. There is

nothing in La. R.S. 9:5031 or 9:5251 which contemplates

that such orders would not ultimately be enforced.

Indeed, those statutes expressly refer the reader to the

statutory provisions which constitute Louisiana’s adop-

tion of the Uniform Act. La. R.S. 13:4241 through 13:4247.

See also La. C.C.P. art. 2541. Louisiana does insist, how-

ever, that proper supervision of her civil-law system of

property holding, embodied in part by the public records

doctrine, requires that the cancellation of mortgages, and

the erasure of inscriptions from the public records, pur-

suant to a non-Louisiana judgment, be placed in the

hands of a Judge, and not those of a Parish Recorder of

Mortgages. The appellate court’s creation of a self-execut-

ing judgment actually coniemplates that a bankruptcy

court may invalidate a Louisiana real property right,

9 Nothing in this discussion is intended to suggest that a

party against whom domestication of a judgment is sought

would not be precluded from re-asserting any of these issues

that were actually determined by the rendering court. See Durfee

v. Duke, 375 U.S. 106, 116, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963)

(noting that when the “jurisdictional issues [have] been fully

and fairly litigated by the parties and finally

determined . . . further litigation [is] precluded”). See also

William L. Reynolds, The Iron Law of Full Faith and Credit, 54

Md.L.Rev. 412, 427-433 (1994).

15

which is recorded in the public records, and that Louisi-

ana not even need be informed. Put simply, that is unaccept-

able.1°

III. The State of Louisiana cannot accept a situation

where the integrity of its public records is compro-

mised by the entry of a bankruptcy court order.

It is simply unacceptable for a federal court to ignore,

indeed to authorize non-compliance with, valid State stat-

utory enactments unless and until those statutes have

either been held to be unconstitutional or to have been

preempted by the Congress. For the opinion below to do

so, under the specific facts and circumstances at bar, is

particularly egregious. This is so because the most poten-

tially far-reaching effect of the opinion below is to com-

promise, if not destroy, the integrity of Louisiana’s public

records.

The Louisiana Constitution, Civil Code, and Revised

Statutes, in effect, work together to create the “public

records doctrine” by declaring that a variety of security

and ownership interests in immovable property are inef-

fective against third persons in the absence of recorda-

tion, in the appropriate public records, of the documents

creating or asserting those interests. See William V. Red-

mann, Fhe Louisiana Law of Recordation: Some Principles and

Some Problems, 39 Tul.L.Rev. 491 (1965); La. Const. art. 19,

§ 19 (1974); La. Civil Code art. 2266; La. R.S. 9:2721.

Among the objectives of this doctrine directly pertinent

here is to establish a positive force to recorded instru-

ments, so as to allow non-parties to rely on the recorded

10 Moreover, it is undisputed that the mortgage in question

was never actually cancelled under State law, its inscription

never erased from the public records, and that it remains

recorded there to this day. Petition, at 14, n. 7. This fact brings

squarely into focus Louisiana’s vital interest in the integrity of

her public records. This aspect of the decision below will be

discussed in the next and concluding section.

16

document and to be protected in acquiring rights based on

those documents. See Lee Hargrave, Public Records and

Property Rights, 56 La.L.Rev. 535, 537 (1996).

In Louisiana, as long as a mortgage has been validly

recorded and not erased, that mortgage is conclusively

presumed to exist in the eyes of the State. See Phillips v.

Parker, 483 So.2d 972, 975 (La. 1986). The basic notion is

that in creating real rights that bind property in the hands

of subsequent owners, fairness requires that one give the

subsequent owners an opportunity to learn from an

authoritative source that the property is so bound. See

Alejandro M. Garro, The Louisiana Public Records Doctrine

and The Civil Law Tradition, 97-98 (1989)."}

It is indisputable that the “public records doctrine” is

absolutely basic to the Louisiana civil-law system of prop-

erty holding. See McDuffie v. Walker, 51 So. 100 (La. 1909)

(establishing the principle that Louisiana is a “record

notice” jurisdiction). It follows, therefore, a priori, that the

State of Louisiana has a vital public interest in the integrity

of the public records in order to ensure, as nearly as

possible, that Louisiana citizens, and indeed all persons

dealing in property in Louisiana, be able to rely on the

accuracy of those records. See, e.g., Matter of De La Vergne,

156 B.R. 773, 776 (Bkrtcy.E.D.La. 1993) (holding that all

persons are conclusively presumed to have notice of the

existence of all mortgages recorded on the mortgage rolls);

Amoskeag Bank v. Chagnon, 133 N.H. 11, 572 A.2d 1153

(1990) (discussing the necessity to maintain the integrity of

11 Ownership of an immovable is the basic “real right”, and

any agreement transferring ownership of immovables is subject

to the recordation rule in Louisiana. La. Civil Code, art. 517.

Similarly, the right of mortgage, such as the mortgage rights

underlying the instant controversy, is also a real right which the

Civil Code requires to be recorded in the registry for recording

mortgages. La. Civil Code, art. 3271. See also 1 Peter S. Title,

Louisiana Real Estate Transactions, § 8.13, at 181 (1991).

17

the public records). Moreover, the administration of the

public records, through legislation such as the statutes

involved herein, is among the ways in which Louisiana

regulates the real property interests within her borders,

and the right to so legislate is reserved to the State by the

Tenth Amendment. Sunderland v. United States, 266 U.S.

226, 227, 45 S.Ct. 64, 69 L.Ed. 259 (1924) (“[t]he Tenth

Amendment gives to the State the exclusive right to legis-

late concerning the lands within her borders . . . ”); United

States v. Fox, 94 U.S. 315, 320 (1876). See also Clarke v.

Willard, 294 U.S. 211, 55 S.Ct. 356, 79 L.Ed. 865 (1935);

Security Trust Co. v. Dodd, Mead & Co., 173 U.S. 624, 19 S.Ct.

545, 43 L.Ed. 835 (1899); Hervey v. Rhode Island Locomotive

Works, 93 U.S. (3 Otto) 664, 23 L.Ed. 1003 (1876); Green v.

Bushkirk, 72 U.S. (5 Wall.) 307, 18 L.Ed. 599 (1866) (estab-

lishing the proposition that every state has the jurisdiction

to determine for itself the nature and extent of property

within its territorial limits which will be considered liable

to seizure and sale under the process of its courts).

In this light, even if the panel below had engaged in a

preemption analysis with respect to La. R.S. 9:5031 and

9:5251, both this Court and the Fifth Circuit, en banc, have

made it clear that, in any such analysis, Courts must apply:

. .. @ presumption that areas of law traditionally

reserved to the states, like police powers or prop-

erty law, are not to be disturbed absent the “clear and

manifest purpose of Congress”.

Davis v. Davis, supra, 170 F.3d at 482, quoting, Rice v. Santa

Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91

L.Ed.2d 1447 (1947) (emphasis added).

12 Indeed, this very principle, while particularly pertinent

in the modern day to state law, may in fact be gleaned from the

early jurisprudence of this Court. See, e.g., Anthony v. Butler, 38

U.S. (13 Pet.) 423, 10 L.Ed. 229 (1939); Dick v. Balch, 33 U.S. (8

Pet.) 30, 1 L.Ed. 856 (1834); Levinz v. Will, 1 U.S. (1 Dall.) 430, 1

L.Ed. 209 (1789); Parker v. Wood, 1 U.S. (1 Dall.) 436, 1 L.Ed. 212

(1789).

18

This presumption militates against any finding that

La. R.S. 9:5031 and 9:5251 have been impliedly preempted

by Congress by enacting the Bankruptcy Code. Moreover,

it would seem clear that the Bankruptcy Code does not

expressly preempt state laws regulating real property

interests. See Davis v. Davis, supra, 170 F.3d at 483.

Here, we emphasize once again that La. R.S. 9:5031

and 5251 clearly mandate that no mortgage or other form

of security interest in Louisiana real property may be “in

any manner affected” as the result of a sale in bankruptcy,

except through the domestication and enforcement in Lou-

isiana of the bankruptcy order and judgment.!° Partic-

ularly in light of the constitutional principles, and the

fundamental importance of the public records doctrine,

the appellate court should not have simply ignored the

effect its ruling would have on the integrity of that doc-

trine. Indeed, the public records doctrine is not even

addressed by the opinion below, despite extensive briefing

by the parties and the State as Amicus Curiae. Yet, there can

be no dispute that the effect of this ruling, in addition to

judicially invalidating valid legislative enactments that

have not been found to be unconstitutional or preempted

by Congress, will be to destroy the integrity of Louisiana's

public records.

Indeed, there can be little doubt that the opinion

below, if allowed to stand, will have the deleterious effect

we have outlined. The mortgage remains on the public

records after fourteen years, and the opinion below has in

effect authorized the owners of the mortgaged property to

13 Louisiana law also provides that a mortgage shall not be

erased as the result of the discharge in bankruptcy of the

mortgagor. See Socony Mobile Oil Co. v. Burdette, 309 So.2d 655,

656-657 (La. 1975); Ferguson v. Porter, 359 So.2d 676 (La. App. 1st

Cir. 1978). See also Property Asset Management v. Pirogue Cove

Apts., 693 So.2d 1217 (La. App. 4th Cir. 1997) (holding that a

mortgage, as an accessory obligation, is enforceable, whether or

not the mortgagor is personally responsible for the obligation

the mortgage secures).

in So rl ta te

19

treat it as if the mortgage did not exist. Petitioners main-

tain that the order of the bankruptcy court cannot now be

enforced, so as to have the mortgage cancelled and its

inscription removed from the public records. See Petition,

at 19, n. 11. If Petitioners are correct, and if the opinion

below is allowed to stand, then, at least in this instance,

the public records of Louisiana will be demonstrably inac-

curate.14 It does not take a great leap of imagination to

posit that there may be many and numerous other

instances where the public records will also be rendered

incorrect as the result of similar bankruptcy court orders.!>

We must therefore conclude yet again that the actual and

potential harm done to vital interests of the State of Louisi-

ana is not offset by any reciprocal federal interest in letting

stand the opinion below. The State statutes involved

attempt in no way to negate ultimately the order of the

bankruptcy court. Indeed, La. R.S. 9:5031 and 9:5251 pro-

vide by express language that the cancellation of mort-

gages, and the removal of their inscription from the public

records, as ordered by a bankruptcy court, may be fully

accomplished through the simple expedient of domestica-

tion and enforcement of the bankruptcy order.!© This puts

14 The State of Louisiana concurs in Petitioners’ exposition

of the various ill effects that this state of affairs will have on

Louisiana’s public records. See Petition, at 21-23. In the interest

of brevity, this discussion will not be repeated here.

15 Similarly, as discussed in the preceding section, one

might imagine, and one must ponder, what other legislative

enactments of the State of Louisiana may be effectively

invalidated by the fiat of a bankruptcy court, or any other

federal court, if the power implicit in the opinion below is

allowed to stand unchecked.

16 In the normal and anticipated circumstance, when a sale

of property is ordered free and clear of liens and encumbrances,

pursuant to 11 U.S.C. § 363(f)(3), the proceeds of the sale will be

sufficient to satisfy all such liens and encumbrances. The lien or

encumbrance then is not merely extinguished but transferred to

the proceeds of the sale, and ultimately satisfied. In this

20

the holder of a bankruptcy judgment in no different a

position than the holder of any other federal judgment,

while at the same time allowing the Louisiana courts to

monitor the integrity of the public records. If one were to

weigh the interests advanced by Congress in the Bank-

ruptcy Code against those of the State of Louisiana in the

integrity of her public records, the scales would seem to

tip decisively in Louisiana’s favor.

CONCLUSION

For the reasons set forth herein, the Petition should be

granted, and a Writ of Certiorari should issue to review

the opinion and judgment of the United States Court of

Appeals for the Fifth Circuit. Further, the decision below

should be vacated, and the Louisiana statutory scheme in

question should be upheld.

Respectfully submitted,

RicHArD P. IEYous

Attorney General

Counsel of Record

AnciE Rocers LAPLACE

Assistant Attorney General

LouIsiANA DEPARTMENT OF JUSTICE

P.O. Box 94005

Baton Rouge, Louisiana 70804

(225) 342-1134

Attorneys for The State of Louisiana

as Amicus Curiae

situation the purchaser of the property may, if necessary, simply

convoke a summary mandamus proceeding to procure the order

of a State court that the mortgage be cancelled and that the

Recorder of Mortgages erase the inscription thereof, based upon

satisfaction. La. Civil Code art. 3337. Moreover, under La. RS.

9:5385, the holder of a Mortgage note who fails to surrender the

note when it is satisfied is liable for damages resulting from

such failure. As far as the State is aware, however, during the

seven-year course of this litigation, Respondents have advanced

no claim that the subject mortgage was in fact satisfied in the

bankruptcy proceeding.

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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