892 F. Supp. 2d 1317
N.D. Fla.2012Background
- Plaintiff foreclosed two mortgages; dispute arises over Marshal’s fee for one sale.
- Judgment on that note: $123,964.17; sale required 10% at bid and balance within 24 hours, but plaintiff could bid up to the judgment amount and receive credit for it.
- Marshal conducted sale; plaintiff was the only bidder and bid $100; report showed fee of $1,874.46 (based on judgment amount).
- Plaintiff moved to modify the marshal’s report, arguing fee should be 3% of $100 (the nominal bid) with a $100 minimum.
- USMS policy directs fees on nominal bids to be based on the lesser of the judgment amount or property value, when a nominal bid is used to avoid fees.
- Court denies modification; adopts interpretation that fee should be based on the lesser of the judgment amount and property value, in this case the judgment amount, yielding $1,874.46.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper basis for Marshal’s fee when creditor bids nominally | Fee should be 3% of $100 (nominal bid) with $100 minimum. | Fee should be based on the lesser of the judgment amount or property value per policy. | Fee based on the lesser of judgment amount or value; in this case, judgment amount. |
| Effect of nominal bid on statutory fee calculation | Nominal bid should not control; apply to bid amount. | Nominal bid is controlled by policy to reduce fee when bid is $1 or nominal. | Nominal bid does not control; statutory fee applies to the lesser of judgment or value. |
Key Cases Cited
- Gelfert v. National City Bank of New York, 313 U.S. 221 (1941) (deficiency judgments and value concepts guiding net outcomes)
- Skidmore v. Swift, 323 U.S. 134 (1944) (weight of policy and related considerations in statutory interpretation)
- Norwest Bank Owatonna, N.A. v. Millard, 522 So.2d 546 (Fla. 4th DCA 1988) (deficiency judgments and valuation guidance in foreclosure)
- Small Business Loan Source, Inc. v. F/V St. Mary II, 361 F. Supp. 2d 570 (E.D. La. 2005) (authority supporting basis for fee calculation in credit bid cases)
- The Cesare Augusto, 39 F. Supp. 751 (N.D. Cal. 1941) (historical context on mortgage foreclosures and valuation)