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28 USC CHAPTER 127 - EXECUTIONS AND JUDICIAL SALES 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 127 - EXECUTIONS AND JUDICIAL SALES

-HEAD-

CHAPTER 127 - EXECUTIONS AND JUDICIAL SALES

-MISC1-

Sec.

2001. Sale of realty generally.

2002. Notice of sale of realty.

2003. Marshal's incapacity after levy on or sale of realty.

2004. Sale of personalty generally.

2005. Appraisal of goods taken on execution.

2006. Execution against revenue officer.

2007. Imprisonment for debt.

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28 USC Sec. 2001 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 127 - EXECUTIONS AND JUDICIAL SALES

-HEAD-

Sec. 2001. Sale of realty generally

-STATUTE-

(a) Any realty or interest therein sold under any order or decree

of any court of the United States shall be sold as a whole or in

separate parcels at public sale at the courthouse of the county,

parish, or city in which the greater part of the property is

located, or upon the premises or some parcel thereof located

therein, as the court directs. Such sale shall be upon such terms

and conditions as the court directs.

Property in the possession of a receiver or receivers appointed

by one or more district courts shall be sold at public sale in the

district wherein any such receiver was first appointed, at the

courthouse of the county, parish, or city situated therein in which

the greater part of the property in such district is located, or on

the premises or some parcel thereof located in such county, parish,

or city, as such court directs, unless the court orders the sale of

the property or one or more parcels thereof in one or more

ancillary districts.

(b) After a hearing, of which notice to all interested parties

shall be given by publication or otherwise as the court directs,

the court may order the sale of such realty or interest or any part

thereof at private sale for cash or other consideration and upon

such terms and conditions as the court approves, if it finds that

the best interests of the estate will be conserved thereby. Before

confirmation of any private sale, the court shall appoint three

disinterested persons to appraise such property or different groups

of three appraisers each to appraise properties of different

classes or situated in different localities. No private sale shall

be confirmed at a price less than two-thirds of the appraised

value. Before confirmation of any private sale, the terms thereof

shall be published in such newspaper or newspapers of general

circulation as the court directs at least ten days before

confirmation. The private sale shall not be confirmed if a bona

fide offer is made, under conditions prescribed by the court, which

guarantees at least a 10 per centum increase over the price offered

in the private sale.

(c) This section shall not apply to sales and proceedings under

Title 11 or by receivers or conservators of banks appointed by the

Comptroller of the Currency.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 958; May 24, 1949, ch. 139, Sec.

99, 63 Stat. 104.)

-MISC1-

HISTORICAL AND REVISION NOTES

1948 ACT

Based on title 28, U.S.C., 1940 ed., Sec. 847 (Mar. 3, 1893, ch.

225, Sec. 1, 27 Stat. 751; June 19, 1934, ch. 662, 48 Stat. 1119;

Apr. 24, 1935, ch. 77, Sec. 1, 49 Stat. 159; June 19, 1935, ch.

276, 49 Stat. 390).

A provision making the section applicable to pending proceedings

was deleted as obsolete.

The term "court of the United States" is defined in section 451

of this title.

Changes were made in phraseology.

1949 ACT

This section corrects a typographical error in subsection (a) of

section 2001 of title 28, U.S.C.

AMENDMENTS

1949 - Subsec. (a). Act May 24, 1949, corrected spelling of

"ancillary" in second par.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 2004, 3201, 3202 of this

title.

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28 USC Sec. 2002 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 127 - EXECUTIONS AND JUDICIAL SALES

-HEAD-

Sec. 2002. Notice of sale of realty

-STATUTE-

A public sale of realty or interest therein under any order,

judgment or decree of any court of the United States shall not be

made without notice published once a week for at least four weeks

prior to the sale in at least one newspaper regularly issued and of

general circulation in the county, state, or judicial district of

the United States wherein the realty is situated.

If such realty is situated in more than one county, state,

district or circuit, such notice shall be published in one or more

of the counties, states, or districts wherein it is situated, as

the court directs. The notice shall be substantially in such form

and contain such description of the property by reference or

otherwise as the court approves. The court may direct that the

publication be made in other newspapers.

This section shall not apply to sales and proceedings under Title

11 or by receivers or conservators of banks appointed by the

Comptroller of the Currency.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 959; May 24, 1949, ch. 139, Sec.

100, 63 Stat. 104.)

-MISC1-

HISTORICAL AND REVISION NOTES

1948 ACT

Based on title 28, U.S.C., 1940 ed., Sec. 849 (Mar. 3, 1893, ch.

225, Sec. 3, 27 Stat. 751; Apr. 24, 1935, ch. 77, Sec. 3, 49 Stat.

160; June 19, 1935, ch. 276, 49 Stat. 390).

A provision making the section applicable to pending proceedings

was deleted as obsolete.

Word "under" was substituted for "ordered pursuant to section 847

of this title by" after "A public sale of realty or interest

therein".

Sections 847 and 848, of title 28, U.S.C., 1940 ed., now sections

2001 and 2004 of this title, relate only to sales under orders or

decrees, without any reference to sales under judgments. In 1921

the Supreme Court held, in Yazoo & M. V. R. Co. v. City of

Clarksdale, 1921, 42 S.Ct. 27, 257 U.S. 10, 66 L.Ed. 104, that such

section 847 did not apply to sales under common law executions. At

that time such section 849 of title 28, U.S.C., 1940 ed., read as

it has been revised above, without any reference to such section

847. However, in 1935, such sections 847, 848 and 849 were amended

by one act, ch. 77, 49 Stat. 159, and, in such section 849, the

words "pursuant to the provisions of this Act" were inserted, but

the word "judgment," though retained in such section 849, was not

inserted in such sections 847 and 848. It is probable that Congress

did not intend, in 1935 to make such sections 847 and 848

applicable to sales under judgments in law actions. Hence, to make

all three sections consistent, the above-mentioned substitution was

made.

Reference to circuit was deleted from first and second paragraphs

as unnecessary and inappropriate. Publication in a newspaper in a

large circuit remote from the county in which the realty is

situate, might be wholly insufficient to give notice to interested

parties.

Changes were made in phraseology.

1949 ACT

This section corrects a typographical error in section 2002 of

title 28, U.S.C.

AMENDMENTS

1949 - Act May 24, 1949, substituted "11" for "II" after "Title"

in third par.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 3201, 3202 of this title.

-End-

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28 USC Sec. 2003 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 127 - EXECUTIONS AND JUDICIAL SALES

-HEAD-

Sec. 2003. Marshal's incapacity after levy on or sale of realty

-STATUTE-

Whenever a United States marshal dies, is removed from office, or

the term of his commission expires, after levying on realty or any

interest therein under a writ of execution issued by a court of the

United States, and before sale or other final disposition thereof,

like process shall issue to the succeeding marshal and the same

proceedings shall be had as if such contingency had not occurred.

Whenever any such contingency arises after a marshal has sold any

realty or interest therein and before a deed is executed, the court

may, on application by the purchaser, or the plaintiff in whose

action the sale was made, setting forth the facts of the case and

the reason why the title was not perfected by such marshal, order

the succeeding marshal to perfect the title and execute a deed to

the purchaser, upon payment of the purchase money and unpaid costs.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 959; May 24, 1949, ch. 139, Sec.

101, 63 Stat. 104.)

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HISTORICAL AND REVISION NOTES

1948 ACT

Based on title 28, U.S.C., 1940 ed., Sec. 850 (R.S. Sec. 994).

Word "realty" was substituted for "lands, tenements, or

hereditaments" in two places, the two terms being synonymous. (See

Black's Law Dictionary, 3d Ed., p. 1969.)

Word "action" was substituted for "suit", in view of Rule 2 of

the Federal Rules of Civil Procedure, prescribing but one form of

action.

Changes were made in phraseology.

1949 ACT

This section corrects a typographical error in section 2003 of

title 28, U.S.C.

AMENDMENTS

1949 - Act May 24, 1949, corrected spelling of "realty" in first

par.

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28 USC Sec. 2004 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 127 - EXECUTIONS AND JUDICIAL SALES

-HEAD-

Sec. 2004. Sale of personalty generally

-STATUTE-

Any personalty sold under any order or decree of any court of the

United States shall be sold in accordance with section 2001 of this

title, unless the court orders otherwise.

This section shall not apply to sales and proceedings under Title

11 or by receivers or conservators of banks appointed by the

Comptroller of the Currency.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 959.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based on title 28, U.S.C., 1940 ed., Sec. 848 (Mar. 3, 1893, ch.

225, Sec. 2, 27 Stat. 751; Apr. 24, 1935, ch. 77, Sec. 2, 49 Stat.

160; June 19, 1935, ch. 276, 49 Stat. 390).

A provision making the section applicable to pending proceedings

was deleted as obsolete.

Changes were made in phraseology.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 3202 of this title.

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28 USC Sec. 2005 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 127 - EXECUTIONS AND JUDICIAL SALES

-HEAD-

Sec. 2005. Appraisal of goods taken on execution

-STATUTE-

Whenever State law requires that goods taken on execution be

appraised before sale, goods taken under execution issued from a

court of the United States shall be appraised in like manner.

The United States marshal shall summon the appraisers in the same

manner as the sheriff is required to summon appraisers under State

law.

If the appraisers fail to attend and perform their required

duties, the marshal may sell the goods without an appraisal.

Appraisers attending and performing their duties, shall receive the

fees allowed for appraisals under State law.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 959.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based on title 28, U.S.C., 1940 ed., Sec. 846 (R.S. Sec. 993).

Words "shall be appraised in like manner" were substituted for

"the appraisers appointed under the authority of the State may

appraise goods taken in execution on a fieri facias issued out of

any court of the United States". The change precludes construction

that the State appraisers only are available to appraise such goods

in civil actions in the federal courts.

Changes were made in phraseology.

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28 USC Sec. 2006 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 127 - EXECUTIONS AND JUDICIAL SALES

-HEAD-

Sec. 2006. Execution against revenue officer

-STATUTE-

Execution shall not issue against a collector or other revenue

officer on a final judgment in any proceeding against him for any

of his acts, or for the recovery of any money exacted by or paid to

him and subsequently paid into the Treasury, in performing his

official duties, if the court certifies that:

(1) probable cause existed; or

(2) the officer acted under the directions of the Secretary of

the Treasury, the Director, Bureau of Alcohol, Tobacco, Firearms,

and Explosives, Department of Justice, or other proper Government

officer.

When such certificate has been issued, the amount of the judgment

shall be paid out of the proper appropriation by the Treasury.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 960; Pub. L. 107-296, title XI,

Sec. 1112(l), Nov. 25, 2002, 116 Stat. 2277.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based on title 28, U.S.C., 1940 ed., Sec. 842 (R.S. Sec. 989).

Changes were made in phraseology.

AMENDMENTS

2002 - Par. (2). Pub. L. 107-296 inserted ", the Director, Bureau

of Alcohol, Tobacco, Firearms, and Explosives, Department of

Justice," after "the Secretary of the Treasury".

EFFECTIVE DATE OF 2002 AMENDMENT

Amendment by Pub. L. 107-296 effective 60 days after Nov. 25,

2002, see section 4 of Pub. L. 107-296, set out as an Effective

Date note under section 101 of Title 6, Domestic Security.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 26 section 7422.

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28 USC Sec. 2007 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART V - PROCEDURE

CHAPTER 127 - EXECUTIONS AND JUDICIAL SALES

-HEAD-

Sec. 2007. Imprisonment for debt

-STATUTE-

(a) A person shall not be imprisoned for debt on a writ of

execution or other process issued from a court of the United States

in any State wherein imprisonment for debt has been abolished. All

modifications, conditions, and restrictions upon such imprisonment

provided by State law shall apply to any writ of execution or

process issued from a court of the United States in accordance with

the procedure applicable in such State.

(b) Any person arrested or imprisoned in any State on a writ of

execution or other process issued from any court of the United

States in a civil action shall have the same jail privileges and be

governed by the same regulations as persons confined in like cases

on process issued from the courts of such State. The same

requirements governing discharge as are applicable in such State

shall apply. Any proceedings for discharge shall be conducted

before a United States magistrate judge for the judicial district

wherein the defendant is held.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 960; Pub. L. 90-578, title IV,

Sec. 402(b)(2), Oct. 17, 1968, 82 Stat. 1118; Pub. L. 101-650,

title III, Sec. 321, Dec. 1, 1990, 104 Stat. 5117.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based on title 28, U.S.C., 1940 ed., Secs. 843, 844, and 845

(R.S. Secs. 990, 991, 992; May 28, 1896, ch. 252, Sec. 19, 29 Stat.

184; Mar. 2, 1901, ch. 814, 31 Stat. 956; Mar. 3, 1911, ch. 231,

Sec. 291, 36 Stat. 1167).

Changes were made in phraseology.

-CHANGE-

CHANGE OF NAME

"United States magistrate judge" substituted for "United States

magistrate" in subsec. (b) pursuant to section 321 of Pub. L.

101-650, set out as a note under section 631 of this title.

Previously, "United States magistrate" substituted for "United

States commissioner" pursuant to Pub. L. 90-578. See chapter 43

(Sec. 631 et seq.) of this title.

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