The opinion of the court was delivered by: BEEKS
Three elements must be satisfied under § 1921 before the Marshal is entitled to his commission. The Marshal must: (1) seize or levy on property (including seizures in admiralty), (2) dispose of same by sale, set-off, or otherwise, and (3) receive and pay over money. At issue here is whether the first element is satisfied.
Central to this dispute is the decision in Travelers Insurance Company v. M. T. Lawrence.
In Travelers, parties to a real estate mortgage foreclosure action challenged the Marshal's assertion of a § 1921 poundage fee for selling the mortgaged property pursuant to a decree of foreclosure. In denying the § 1921 commission, the court held that "FRCP 69(a) and § 1921 are interrelated. 69(a) provides that state procedure shall determine what services the marshal will perform. § 1921 prescribes the fees he may collect for these services. Thus, if state law does not require a levy or seizure to be made when mortgaged property is sold pursuant to a decree of foreclosure, then according to 69(a) the marshal does not make a seizure or levy. Nor should he be compensated for making one under § 1921."
Citing Travelers, Coast Engine maintains that under 69(a) the manner of procedure of the Marshal's sale pursuant to foreclosure of a preferred ship mortgage must be in accord with state law. Washington law requires no levy in aid of execution in such a sale. Therefore, the argument goes, § 1921 is inapplicable because a seizure or levy, being among the acts necessary for the statute to operate, is not required by the law of this state.
Alternatively, Coast Engine argues that even if 69(a) does not control, there was no levy in aid of execution as a matter of federal law. Thus, there can be no entitlement to § 1921 poundage as an essential element of § 1921 is lacking.
The Marshal contends that it is inappropriate to look to local law under the circumstances of this case and that the explicit language of § 1921 must control. Further, the Marshal asserts that all three elements of § 1921, particularly the first requiring a seizure or levy, have been met.
The positions taken by Coast Engine and the Marshal are wide of the mark. In essence, the only question before the court is whether the actions of the Marshal in this case amounted to a "seizure in admiralty" within the meaning of § 1921. As in Travelers, the controlling consideration here is legislative intent.
Prior to 1962, § 1921 had remained relatively unchanged since its enactment in 1853. The statute read in pertinent part:
" . . . and for . . . seizing or levying on property, advertising and disposing of the same by sale, set-off, or otherwise according to law and receiving and paying over the money, the same fees and poundage as are or shall be allowed for similar services to the sheriffs of the States, respectively, in which the service is rendered;
For the sale of vessels or other property under process in admiralty, or under the order of a court of admiralty, and for receiving and paying over the money, 21/2 per centum on any sum under $ 500, and 11/4 per centum on the excess of any sum over $ 500."
There is nothing in the legislative history of the 1962 amendment to § 1921 to suggest that Congress intended to expand, restrict, or otherwise alter the scope of the admiralty sales portion of the statute by its incorporation into the general sales commission section.
This characterization is not overcome by 69(a). Whatever the merits of the "interrelationship" of 69(a) and § 1921 in a realty mortgage foreclosure setting, there appears to be no nexus whatsoever ...