B-140526, NOV. 17, 1959

B-140526, NOV. 17, 1959

TO MR. D. E. JENSEN:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 14, 1959, TO THE VETERANS ADMINISTRATION, A COPY OF WHICH WAS FORWARDED HERE, REGARDING THE REQUEST OF MR. JOHN J. CONLIN, YOUR CLIENT, THAT A JUNIOR LIEN IN FAVOR OF THE UNITED STATES AGAINST A CERTAIN PARCEL OF LAND BE RELEASED. MR. CONLIN IS THE HOLDER OF A SENIOR LIEN AGAINST THE PROPERTY. THE GOVERNMENT LIEN WAS IMPOSED PURSUANT TO A JUDGMENT ENTERED ON NOVEMBER 10, 1955, AGAINST MR. LYNN R. JENSEN OF LUCK, WISCONSIN, IN THE AMOUNT OF $861.99.

THE RECORD SHOWS THAT MR. LYNN R. JENSEN IS STILL IN POSSESSION OF THE PROPERTY UNDER HIS LAND CONTRACT WITH MR. CONLIN. ON OCTOBER 27, 1959, WE WERE INFORMED BY THE VETERANS ADMINISTRATION THAT IN VIEW OF THE FACT THAT THE DEBTOR IS STILL IN POSSESSION OF THE PROPERTY IT APPEARS TO THEM THAT A RELEASE OF THE GOVERNMENT'S LIEN WOULD BE INAPPROPRIATE, OR AT LEAST PREMATURE, AT THIS TIME.

SECTION 2410 (D), TITLE 28, U.S.C. PROVIDES AS FOLLOWS:

"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 THE 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 HAD 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.'

THE PROVISION OF LAW QUOTED ABOVE REQUIRES AS CONDITIONS FOR THE EXECUTION OF A CERTIFICATE OF RELEASE BY THE COMPTROLLER GENERAL (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 UNITED STATES ON SUCH PROPERTY BE JUNIOR AND OTHER THAN A TAX LIEN, AND (3) 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.

THUS BEFORE A CERTIFICATE OF RELEASE MAY BE EXECUTED UNDER THE ABOVE CITED PROVISION OF LAW, IT IS NECESSARY THAT THE OFFICER CHARGED WITH THE ADMINISTRATION OF THE LAWS IN RESPECT OF WHICH THE LIEN OF THE UNITED STATES ARISES--- IN THIS CASE THE ADMINISTRATOR OF VETERANS AFFAIRS--- REPORT TO US THAT HE HAS FOUND 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. THE ADMINISTRATOR OF VETERANS AFFAIRS HAS MADE NO SUCH FINDING.

ACCORDINGLY, SINCE THE STATUTORY CONDITIONS HAVE NOT BEEN COMPLIED WITH, WE ARE WITHOUT AUTHORITY TO EXECUTE THE REQUESTED CERTIFICATE OF RELEASE. 17 COMP. GEN. 180.

IN VIEW OF THE FOREGOING IT WOULD APPEAR APPROPRIATE TO DIRECT ANY FURTHER CORRESPONDENCE IN THIS MATTER TO THE VETERANS ADMINISTRATION.