B-162827 December 4, 1967

B-162827 December 4, 1967

Attorneys

William A. Meadows, Jr., Esquire United States Attorney Southern District of Florida Post Office Box 1070 Miami, Florida 33101

Dear Mr. Meadows:

Subject: USA v. Donald M. Wingate - Judgment dated September 26, 1961, in amount of $362.03-- Our references: IW-Z-1898242-2859.

Your letter of September 21, 1967, file reference BLS:plg 10484-M-JI, advised that you have received a new case from the Veterans Administration for foreclosure section on property owned by Mr. Wingate, the debtor in the captioned case, and requested that we issue you a release of the old judgment so that you can proceed with the foreclosure without adding the United States as party defendant.

Our Office has no authority to issue a release of a judgment as such. However, we have limited authority under 28 U.S.C. 2410(d) to release liens acquired by judgment or otherwise. Since 28 U.S.C. 1962 provides that judgments rendered by a district court within a State shall be a lien on property located in such State in the same manner and extent as judgments of a court of general jurisdiction in such State, and section 55:10 of the Official Florida Statutes, 1965, provides that judgments of Florida State courts shall become liens on real estate in the county where said judgments are recorded upon being recorded as provided by subsection 28.21(11) of said statutes, we assume release of the lien created by subject judgment is desired.

Subsection 2410(d) of title 28, United States Code, provides as follows:

"(d) 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 attachee 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 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."

We have no authority, of course, to issue a certificate of release of a lien in favor of the United States except upon the conditions expressly stipulated in the quoted statute. Aside from the fact that the procedural requirements of the statute have not been met, in that the officer charged with administration of the laws under which the existing lien cross has not furnished the report to the Comptroller General required by the statute, it will be observed that two of the necessary conditions stipulated therein are that the applicant has a lien upon the property to which the Government lien attaches, and that the Government's lien be junior thereto. Since it is apparent from your letter that the stipulated conditions do not exist, we are without authority to issue a certificate of release. See 17 Comp. Gen. 180.

Sincerely yours,

FRANK H. WEITZEL Assistant Comptroller General of the United States