*1
853
C. Waiver of
ture of
Exemptions:
the law in
regarding
Louisiana
validity of a total waiver would enable a
6, which
Paragraph
appears on the
bring
deficiency judgment
creditor “to
note,
back of
promissory
provides
as
action seeking
very
reach
follows: “Buyer declares that
the property
Stewart,
itemized above.”
698 F.2d at
is owned in
exemptions
excess of all
grant
1295. We also
concern over
voiced
“an
ed
law.
exemptions permitted
All
to be
unscrupulous
using
waived are
creditor
this
hereby
by Buyer
language
waived
and
Buyer assigns
rights
against
poorly
all
thereunder
a club
Sell
informed debtor.”
Regulation
er.”
requires
Z
the credi
seizure of the and other property homestead
constituted a interest security that had to Regulation disclosed under Z. See Elzea
v. Georgia, National Bank of 570 F.2d (5th
1250 Cir.1978); Hamilton v. Southern Co., (5th
Discount Cir.1981). 656 F.2d court, again adopting the anal- America, UNITED STATES of ysis the court in Marroy, held that Plaintiff-Appellee, waiver did not create security interest which had to be disclosed because it did not extend to all exempted of the Watts’ prop- Henry L. and HENDERSON Earnestine automobile, erty, only but to the the mort- Henderson, W. Defendants-Appellants. gaged property. The court below achieved No. 82-4068. result the waiver of reading exemp- tions sentence in conjunction pre- of Appeals, States Court ceding sentence, which discussed “the prop- Fifth Circuit. First, erty.” We we disagree. think that a fair reading of 6 would Paragraph permit
creditor to assert a claim all property debtor,
owned aby currently exempt
from seizure Moreover, under state law.
this Court has recently addressed precisely
this issue in v. Abraham Stewart Lincoln Inc.,
Mercury, (5th Cir.1983), 698 F.2d
and in Bradley v. Marshall Brothers Lincoln Inc.,
Mercury, (5th Cir.1983). F.2d
In cases, those we that a similar held waiv-
er of exemptions” “all violated the TILA Regulation Z because unsettled na- *2 TUTTLE,* POLITZ and GAR-
Before WOOD, Judges. Circuit TUTTLE, Judge: Circuit Henry and Henderson secured Earnestine housing Farmers a rural (“FmHA”) Sep- Home Administration tember, loan to They 1970. used $9800 in a family room for their build a five home Mississippi. County, rural area Yazoo to of trust The Hendersons executed deed their designating property the FmHA They later became security for loan. After payments. on the loan delinquent notices, accelerated several non-judicial foreclo- and instituted debt sure in 1981. The United in a acquired title to the States 18, January sale foreclosure on brought by from a suit This action arises States to evict Hendersons home. The Hendersons counter- from their for to set the foreclosure and claimed aside hearing pending of the foreclosure stay appeal. and an administrative 16, court, on February trial non-jury after government, but ruled favor stay judgment granted a motion for appeal. pending significant three defi- Appellants assert in the accorded. ciencies notice First, claim were not notified to take an administrative opportunity appeal an decisionmaker impartial before stayed pending and have the foreclosure Second, they appeal. such an claim to inadequate availabili- received notice repay- on ty temporary moratorium Third, the Hendersons ment of loan. allege of acceleration notice sent FmHA affirmative- Gilchrist, Legal Elizabeth L. Central M.S. ly controlling law on the misrepresented the Services, Jackson, Miss., defendants-ap- for obligations necessary discharge of their pellants. Appellants urge avoid a foreclosure. Jackson, III, Asst. Smith, Atty., L.A. U.S. comport each deficiencies failed of these Miss., plaintiff-appellee. (1) the dictates of: procedural regulations gov- applicable administrative procedures, 7 C.F.R. erning appeals B; (2) portions Subpart Part relevant * Circuit, sitting designation. Judge, Appeals Eleventh Circuit U.S. Court of for the of the FmHA’s You should set out enabling legislation, all the information should you seq.-, et the Due considered U.S.C. Farmers Home Administration. You Process Clause of the Fifth Amendment. appear also in person to We now turn to these claims. present information. your The District 13, 1981, the Hendersons re- On *3 Director arrange mutually will a conve- a Delinquency ceived Notice of and Acceler- nient for such a meeting. time Dis- Indebtedness, portions ation of the relevant trict will Director also inform the you of provided: of which the meeting.... location of You obligations have breached the un- you Please remember that if to wish deed(s) said of by der trust failure to advantage take of this opportunity to be principal the and interest became as same heard, you may IMMEDIATELY contact Therefore, and payable. due the United the Director District because the United of America hereby informing States is to plans proceed States with foreclosure of you its election the to accelerate in- shortly after July deed(s) debtedness by secured said of (Emphasis original). trust. Appellants contend that the above notice Accordingly, States of because it deficient mis- affirmatively America unpaid declares that the entire represented the applicable law governing indebtedness is payable due and immedi- discharge obligations. Ap- debtor’s ately. assert, to pellants concedes, indebtedness referred con- and the FmHA $8,585.77 that the law the State of is principal plus Mississippi sists sum of applicable obligations to through underlying interest of May accrued $477.77 agreement. rural loan housing Specifically, 3, 1980, with accruing interest thereafter governs Miss.Stat.Ann. 89-1-59 the avoid- the daily rate of You are $1.8003. ance of foreclosure sales by cure of delin- hereby notified that unless said indebted- quent payments: debt paid days ness is in full within 20 there Where is a series of or *4 obligations of a tively misrepresent the loan to their repayments future of store remittance, that any debtor. The indication original schedule. entire payment principal short of of the were never informed The Hendersons interest, plus accrued would fail to save the pay just could to avoid $1200 arrangement indisputably dampened loan and continue the loan.1 To the foreclosure the Henderson’s efforts with comply, notice of acceleration of in- contrary, they surely regarded what as a deed term stated, “Any debtedness received ne- be fulfilled. More- possibly that could not gotiation by the United States of America over, Supervi- with the meeting County by you of remittance tendered ... will any government sor that the calls to our atten- not constitute a waiver of this acceleration one week before the only tion occurred or of foreclosure action.” This institution The FmHA not in foreclosure sale. only clause indicates that foreclosure could good faith contend that one week was an $9,000, by paying have been avoided over adequate period appellants time for to have outstanding which constituted the entire in placed their financial affairs order when of the plus balance loan accrued interest. regulations require FmHA’s own Hendersons, While it is conceivable that the days least 20 notice before institution of a family only of modest means whose main non-judicial proceedings.3 foreclosure ill, wage up earner was could have come asset, to save largest $1200 We are unable to countenance the $9,000 regarded of as next surely payment appellants defective notice received in this Nor, impossible. significantly, more was enti case. The should not be govern- such under the payment necessary profit by misrepresentations. tled to its own ing servicing statute to insure continued failed to address wholly The district court the loan.2 notions of fairness this issue. Fundamental process and due counsel our reversal of the responds by United States ar guing obligation opinion. generally it was under no district court’s See Bod 371, 380, Connecticut, the relevant explain appellants. statutes to die v. 401 91 U.S. apparently only subsequent acquisition $300 1. The Hendersons in of title at the sale were $20,- approximately arrears when the foreclosure were secured valued at 1, 1981, January first instituted. $9,000 On another obligation. in of a 000 satisfaction payment approximately $800 annual fell due. Hendersons, Although by way supple- days Mississippi’s be added to 3. These 20 must agreement, obligated mental publication requirements non-judicial for fore- basis, monthly appears loan on a it actions, requiring advertising of a real closure pattern accepting FmHA had established a preced- weeks estate sale for three consecutive yearly payments. sale, 89-1-55, ing Ann. § such Miss.Code determining just no- how far short the actual pointed govern- It should be out tice received the Hendersons falls conduct, misrepresenting ment’s to the Hen- proper notice. written default, ability dersons their to cure the hardly benign. government’s
857
780, 787,
(1971) (“the
28
S.Ct.
L.Ed.2d 113
obligations
escrowed all
that would
process
State owes to each individual that
have fallen due since the foreclosure sale if
which,
light
of a free
values
socie
agreement
was still in effect. Ap-
ty,
due.”);
can be
Goldberg
characterized as
pellants deserve new and accurate notice
254,
1011,
v. Kelly, 397 U.S.
90
25
S.Ct.
giving
days
them 20
in which to dispute the
(1970);
L.Ed.2d 287
Thorpe Housing Au
amount claimed to be delinquent or to pay
Durham,
268,
thority of
393 U.S.
89 S.Ct.
arrearages
costs,
the full
plus
plus the es-
518,
(1969);
Appellants indicated at the trial their foreclosure notice that payment of the en willingness the full amount of the tire note balance required to avoid arrearages plus They costs. also claim to foreclosure.* * Appellants alleged Wholly apart also raise two other defi- requirements, from constitutional Delinquency ciencies in the Notice of which and Ac- I do not reach and do not understand the majority on, definitively celeration of apparent, Indebtedness. While it is not ab- rule it is solutely necessary seriously claims, disputed, and indeed not us to reach these that the fore- briefly Mississippi closure would be upon we do invalid under both comment them here be- applicable regulations law and appellants if cause the will be entitled to fresh notice appellants actually were misled to their attempt materi- again. should the FmHA to foreclose prejudice by potentially al misleading word- The notice right the Hendersons received of the ing of the notice. temporary payments to a moratorium on agree majority I appellants exceptional that appears re- perfectly circumstances adequate availability ceived notice of the proper. of a prior deficiency Three notifications of temporary right moratorium and of their to an special elaborated circumstances under appeal. administrative As the district court did which such a moratorium is available and the address, majority opinion not preter- and the Deficiency clearly Notice of and Acceleration mits, appellants giv- the issue of whether were right. referred to this While we believe that they respect- en such notice as were entitled to right appeal notice of the to an administrative ing stay pending admin- adequate, was also we do entertain serious appeal, istrative there is no occasion for this specify doubts about the failure to in the notice may dissent to reach that issue. There availability stay pending of foreclosure prejudice respect appellants, been- no in this appeal, required by 1900.53(a)(4) as 7 C.F.R. § they at all times remained in their home. If regulations of the 1979 and 7 C.F.R. 1900.- necessary, the issue could be addressed 56(a)(4)(v) regulations. of the 1981 district court on remand. were appellants argues never tendered prejudiced not delinquency, and at amount even the the foreclosure week before least a tender person informed
specifically foreclosure. prevent would amount
of that be- these contentions rejects majority misled may have been
cause into notice the foreclosure wording of them would what for faced
believing they impossible task of practically
have been prior to note balance the entire off
paying date, and hence scheduled raise efforts to insufficient have made until a week before amount delinquency longer was no
foreclosure, there when raise even that. them to time for
enough, observes, majority
As the “[t]he this issue.” to address failed wholly
court ad-
However, argument appellants oral on evidence that was no
mitted there of the foreclo- wording
were misled inferentially, and, least
sure notice for- ever
there was no evidence delinquency to raise
bore efforts majority does not construe
amount. The posture In this otherwise.
the record to be simply not case, I believe we should *6 law,
assume, as matter prejudiced misled or actually either misleading wording. potentially
the notice’s FAJARDO, Triananes
Manuel
Plaintiff-Appellant,
TIDEWATER, INC., Tidewater Marine
Service, Nautico, Inc. and Tidewater
Inc., Defendants-Appellees.
No. 82-3299. of Appeals,
United States Court
Fifth Circuit. notes the date of this notice the United States payments installment by secured a deed of America will take action to foreclose. trust, mortgage lien, or other a Any negotiation by the United States of provision inserted in is such instrument to of any by America remittance tendered secure to the upon them effect you, whether mailed to the National Fi- pay any failure to one note or install- nance Office or paid directly whether to ment, thereon, or the interest any part or County Supervisor or Director’s State thereof, ... that all the debts secured office, will not constitute a waiver become thereby should due and collecti- or acceleration institution of foreclosure ble, any and for such reason the entire action.... shall have been de- put indebtedness HOWEVER, THE YOU HAVE OP- due, debtor, any fault or declared or HAVE PORTUNITY TO A MEETING party, atmay interested time before BEFORE THIS FORECLOSURE a sale made under the pro- terms and you TAKES PLACE. If wish to make instrument, visions of such or by virtue use of this opportunity to meet because lien, stop such a threatened sale under you that the United is in States contained in such powers instrument account(s) error in accelerating your stop any proceeding or any court foreclosure, with the or be- proceeding enforce lien paying such the amount you have of your cause not been advised due actually past the terms of such of pay- moratorium lien, or instrument rather than account, on your housing ments rural accelerated, or amount and such taxes you should IMMEDIATELY contact the premiums paid, insurance due and not thereon, District Director of the Farmers Home proper interest if such writing.... paid by any Administration in should have been interested explanation such Appellee asserts Any pay- such such instrument. party to reinstate, accord- have been rendered Hender- shall should or payments ment instrument, sug- The United States also attorney. terms of such sons’ ing to the accelerated, as if any misrepresentation the same was incon- gests amount so by its terms had not due because the Hendersons received sequential such amounts put or in default. not been accelerated authority actual notice of their cure arrearages delinquency by paying only the added). provision permits This (Emphasis meeting with plus during costs to avoid a foreclosure debtor delinquent Supervisor. agree While we County arrearages all and costs. by paying sale obligation was under no the United States past amount due will not Tendering the interpretation with its provide appellant foreclosure, pro- it will also only prevent statutory provisions, the applicable scribe, regardless of the terms of the loan may not affirma- government nonetheless of the debt and re- agreement, acceleration