B-178601, JUN 4, 1973

B-178601, JUN 4, 1973

APPLICATION FOR RELEASE OF LIENS OF THE UNITED STATES UNDER PROVISIONS OF 28 U.S.C. 2410(E) IS INSUFFICIENT TO MEET THE STATUTE'S REQUIREMENTS AND REQUEST IS DENIED.

TO MR. NORMAN REDLICH:

REFERENCE IS MADE TO YOUR LETTER OF MAY 1, 1973, REQUESTING A RELEASE OF A LIEN IN FAVOR OF THE UNITED STATES ON PROPERTY OWNED BY THE CITY OF NEW YORK, KNOWN AS 258-262 SIEGEL STREET, IN THE BOROUGH OF BROOKLYN, CITY OF NEW YORK.

OUR AUTHORITY TO RELEASE LIENS IN FAVOR OF THE UNITED STATES IS, AS RECOGNIZED IN YOUR LETTER, CONTAINED IN 28 U.S.C. 2410(E) WHICH PROVIDES AS FOLLOWS:

(E) WHENEVER ANY PERSON HAS A LIEN UPON ANY REAL OR PERSONAL PROPERTY, DULY RECORDED IN THE JURISDICTION IN WHICH THE PROPERTY IS LOCATED, AND A JUNIOR LIEN, OTHER THAN A TAX LIEN, IN FAVOR OF THE UNITED STATES ATTACHES TO SUCH PROPERTY, SUCH PERSON MAY MAKE A WRITTEN REQUEST TO THE OFFICER CHARGED WITH THE ADMINISTRATION OF LAWS IN RESPECT OF WHICH THE LIEN OF THE UNITED STATES ARISES, TO HAVE THE SAME EXTINGUISHED. IF AFTER APPROPRIATE INVESTIGATION, IT APPEARS TO SUCH OFFICER THAT THE PROCEEDS FROM THE SALE OF THE PROPERTY WOULD BE INSUFFICIENT TO WHOLLY OR PARTLY SATISFY THE LIEN OF THE UNITED STATES, OR THAT THE CLAIM OF THE UNITED STATES HAS BEEN SATISFIED OR BY LAPSE OF TIME OR OTHERWISE HAS BECOME UNENFORCEABLE, SUCH OFFICER SHALL SO REPORT TO THE COMPTROLLER GENERAL WHO MAY ISSUE A CERTIFICATE RELEASING THE PROPERTY FROM SUCH LIEN.

UNDER THE ABOVE STATUTE, THE COMPTROLLER GENERAL HAS NO AUTHORITY TO ISSUE A CERTIFICATE OF RELEASE OF LIENS OF THE UNITED STATES EXCEPT UPON THE CONDITIONS EXPRESSLY STIPULATED THEREIN. FOUR OF THE CONDITIONS EXPRESSLY STIPULATED ARE (1) THAT A WRITTEN APPLICATION THEREFOR BY THE SENIOR LIEN-HOLDER BE MADE TO THE OFFICER CHARGED WITH THE ADMINISTRATION OF THE LAWS IN RESPECT OF WHICH THE LIEN OF THE UNITED STATES ARISES, (2) THAT THE LIEN OF THE APPLICANT BE DULY RECORDED. (3) THAT THE LIEN OF THE UNITED STATES ON SUCH PROPERTY BE JUNIOR AND OTHER THAN A TAX LIEN, AND (4) THAT A FINDING AND A REPORT THEREOF BE MADE BY THE OFFICER TO WHOM THE APPLICATION IS MADE THAT THE PROCEEDS FROM THE SALE OF THE PROPERTY WOULD BE INSUFFICIENT TO WHOLLY OR PARTLY SATISFY THE LIEN OF THE UNITED STATES, OR THAT THE CLAIM OF THE UNITED STATES HAS BEEN SATISFIED OR BY LAPSE OF TIME OR OTHERWISE HAS BECOME UNENFORCEABLE. WE HAVE CONTINUOUSLY REQUIRED ADHERENCE TO ALL SUCH CONDITIONS BEFORE A RELEASE MAY BE EXECUTED UNDER THE PROVISIONS OF THE STATUTE. SEE B-165746, DECEMBER 26, 1968; B-152569, FEBRUARY 17, 1964; B-152569, OCTOBER 21, 1963; AND B-147347, OCTOBER 11, 1961.

IN THE PRESENT CASE THE PROCEDURAL REQUIREMENTS OF THE STATUTE HAVE NOT BEEN MET IN THAT THE FEDERAL HOUSING ADMINISTRATION HAS NOT FURNISHED THE NECESSARY REPORT TO THE COMPTROLLER GENERAL. HOWEVER, EVEN IF SUCH PROCEDURAL REQUIREMENT COULD BE MET THE RECORD SHOWS THAT THE APPLICANT IN THIS CASE IS THE OWNER OF THE PROPERTY RATHER THAN ONE THAT "HAS A LIEN" ON THE PROPERTY AS STIPULATED IN THE STATUTE. THE ENCLOSURE WITH YOUR LETTER SHOWS THAT IN-REM FORECLOSURE ACTION HAS BEEN COMPLETED AND TITLE TO THE PROPERTY WAS ACQUIRED BY THE CITY OF NEW YORK AND THAT ON JULY 21, 1971, THE CITY SOLD THE PROPERTY AT PUBLIC AUCTION TO THE HIGHEST BIDDER BUT HE HAS REFUSED TO TAKE TITLE UNTIL THE GOVERNMENT LIEN IS CLEARED UP.

AS STATED PREVIOUSLY, THIS OFFICE HAS NO AUTHORITY TO ISSUE A CERTIFICATE OF RELEASE OF LIENS OF THE UNITED STATES UNDER THE ABOVE QUOTED STATUTORY PROVISION EXCEPT UPON THE CONDITIONS EXPRESSLY STIPULATED THEREIN. IN THE PRESENT INSTANCE, INSOFAR AS CONCERNS THE REQUEST FILED WITH OUR OFFICE BY THE CITY OF NEW YORK, SUCH APPLICATION DOES NOT MEET THE REQUIREMENTS OF THE STATUTE SINCE THE CITY OF NEW YORK IS THE OWNER OF THE PROPERTY RATHER THAN THE HOLDER OF A SENIOR LIEN THEREON.

FOR SUCH REASON, THE REQUEST MADE IN YOUR LETTER MUST BE DENIED ON THE PRESENT RECORD. SEE 30 COMP. GEN. 268 (1951) AND 17 COMP. GEN. 180 (1937).