B-124724, DEC. 21, 1955
Highlights
ATTORNEYS AT LAW: REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 11. IN YOUR LETTER YOU AGREE WITH OUR CONTENTION THAT THE DEBTOR'S LIABILITY WAS CREATED WHEN THE LOAN WAS APPLIED FOR AND THAT THIS IS AN INDEPENDENT DEBT DUE TO THE UNITED STATES. THIS DEBT WAS DISCHARGED WHEN THE PROPERTY WAS SOLD WITHOUT APPRAISEMENT. YOU WILL ADVISE MR. ACHORD AND THE VETERANS ADMINISTRATION PURSUANT TO WHICH THE SECOND MORTGAGE WAS EXECUTED IS. IT IS UPON THAT AGREEMENT THAT THE GOVERNMENT BASES ITS CLAIM RATHER THAN UPON ITS RIGHT OF SUBROGATION TO THE LENDOR'S RIGHT WHICH POSSIBLY MAY BE LIMITED BY STATE LAW. THE RULE IS FIRMLY ESTABLISHED THAT WHERE THE UNITED STATES ACTS WITHIN THE PERMITTED SCOPE OF ITS GOVERNMENTAL AUTHORITY THE QUESTION OF THE CREATION OR NEGATION OF AN EXPRESS OR IMPLIED LIABILITY OF AN INDIVIDUAL TO THE UNITED STATES IS TO BE DETERMINED BY FEDERAL LAW.
B-124724, DEC. 21, 1955
TO DE BLIEUX AND MCKINNIS, ATTORNEYS AT LAW:
REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 11, 1955, RELATIVE TO THE INDEBTEDNESS TO THE UNITED STATES OF WILLIE A. ACHORD, 4812 MONARCH AVENUE, BATON ROUGE, LOUISIANA. THE INDEBTEDNESS IN THE SUM OF $1,493.68 REPRESENTS THE UNPAID BALANCE, PLUS INTEREST, DUE ON ACCOUNT OF DEFAULT ON GUARANTY LOAN NO. LH-10746-LANO.
IN YOUR LETTER YOU AGREE WITH OUR CONTENTION THAT THE DEBTOR'S LIABILITY WAS CREATED WHEN THE LOAN WAS APPLIED FOR AND THAT THIS IS AN INDEPENDENT DEBT DUE TO THE UNITED STATES. HOWEVER, IT APPEARS TO BE YOUR OPINION THAT, UNDER THE PROVISIONS OF LOUISIANA REVISED STATUTES 13:4106 AND 3:4107, THIS DEBT WAS DISCHARGED WHEN THE PROPERTY WAS SOLD WITHOUT APPRAISEMENT. YOU SAY THAT UNLESS WE CAN CITE LAW TO THE CONTRARY, WHICH WOULD SUPERSEDE THE STATE LAW APPLICABLE TO THIS SITUATION, YOU WILL ADVISE MR. ACHORD TO REFUSE PAYMENT OF OUR CLAIM.
THE GUARANTY AGREEMENT ENTERED INTO BETWEEN MR. ACHORD AND THE VETERANS ADMINISTRATION PURSUANT TO WHICH THE SECOND MORTGAGE WAS EXECUTED IS, IN EFFECT, AN AGREEMENT TO INDEMNIFY THE UNITED STATES AGAINST LOSS. IT IS UPON THAT AGREEMENT THAT THE GOVERNMENT BASES ITS CLAIM RATHER THAN UPON ITS RIGHT OF SUBROGATION TO THE LENDOR'S RIGHT WHICH POSSIBLY MAY BE LIMITED BY STATE LAW. THE RULE IS FIRMLY ESTABLISHED THAT WHERE THE UNITED STATES ACTS WITHIN THE PERMITTED SCOPE OF ITS GOVERNMENTAL AUTHORITY THE QUESTION OF THE CREATION OR NEGATION OF AN EXPRESS OR IMPLIED LIABILITY OF AN INDIVIDUAL TO THE UNITED STATES IS TO BE DETERMINED BY FEDERAL LAW. FURTHER, UNLESS CONGRESS HAS PROVIDED OTHERWISE, THE RIGHT OF THE UNITED STATES TO ENFORCE IN A FEDERAL COURT SUCH A LIABILITY MAY NOT BE DEFEATED OR LIMITED BY STATE LAW. SEE CLEAR FIELD TRUST CO. V. UNITED STATES, 318 U.S. 363; UNITED STATES V. STANDARD OIL CO., 332 U.S. 301; UNITED STATES V. INDEPENDENT SCHOOL DISTRICT NO. 1 OF OKMULGEE COUNTY, OKLAHOMA, 209 F.2D 578.
IN VIEW OF THE FOREGOING, IT IS AGAIN REQUESTED THAT MR. ACHORD BE ADVISED TO LIQUIDATE HIS INDEBTEDNESS TO THE UNITED STATES WITHOUT FURTHER DELAY IN ORDER TO AVOID THE NECESSITY OF INSTITUTING FORMAL COLLECTION PROCEEDINGS.