362 F.2d 553
Jorge HEDDERICK, Jr., Appellant,
Edgar W. RICHARDS and United States of America, Appellees.
United States Court of Appeals Ninth Circuit.
May 16, 1966.
Neil N. Werb, Beverly Hills, Cal., for appellant.
Lloyd F. Dunn, Los Angeles, Cal., for appellee Edgar Richards.
Richard M. Roberts, Acting Asst. Atty. Gen., Lee A. Jackson, Joseph Kovner, Anthony Zell Roisman, Attys., Dept. of Justice, Washington, D. C., Manuel L. Real, U. S. Atty., Loyal E. Keir, Asst. U. S. Atty., Los Angeles, Cal., for appellee the United States.
Before BARNES and MERRILL, Circuit Judges, and TAYLOR, District Judge.
This action was brought by appellant in the United States District Court for the Southern District of California to collect on a promissory note executed by appellee Richards. The United States was made a party defendant pursuant to 28 U.S.C. § 2410(a).
On July 23, 1957, assessments in substantial amounts for unpaid taxes were made against Henry Albachten, payee of the note. Notices of the liens were filed on July 26, 1957, in Ashland, Oregon, Albachten's residence, and a notice of the liens was served on Richards on September 13, 1957.
Prior to the delivery of the note by Richards to Albachten and subsequent to the filing of the tax liens, Albachten assigned all his interest in the note to appellant Hedderick by a separate written document executed in Mexico. On or about December 17, 1957, Albachten delivered the note to Hedderick in Guadalajara, Mexico. Appellant did not contact Richards in regard to the note until May of 1961, shortly before it came due, at which time Richards advised appellant that he could not pay appellant until the tax liens were satisfied. This action resulted and the United States prevailed.
The controlling issue is whether the prior recording of the tax liens gave the United States priority to the obligation due and owing from Richards to the taxpayer Albachten over appellant as assignee of the obligation who did not pay adequate consideration therefor.
This issue was resolved by the District Judge in his Memorandum Opinion filed April 8, 1964, and in his Findings of Fact and Conclusions of Law, filed May 20, 1964, against the appellant and in favor of the United States. The facts as found by the District Court from the evidence are not clearly erroneous.
The District Court concluded that appellant failed to prove that he came within the category of "mortgagee, pledgee, or purchaser" as defined by Section 6323 of the 1954 Internal Revenue Code, and therefore is subordinate to the tax liens which were assessed and filed by the United States.
For the reasons found and concluded by the District Court the judgment is affirmed.