GPO-CONAN-2017-10-15.pdf

Due process question must take account not only of

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due process question must take account not only of the interests of the buyer of the property but those of the seller as well.” 863 Thus, Sniadach v. Family Finance Corp. , 864 which mandated pre- deprivation hearings before wages may be garnished, has appar- ently been limited to instances when wages, and perhaps certain other basic necessities, are in issue and the consequences of depri- vation would be severe. 865 Fuentes v. Shevin , 866 which struck down a replevin statute that authorized the seizure of property (here house- hold goods purchased on an installment contract) simply upon the filing of an ex parte application and the posting of bond, has been limited, 867 so that an appropriately structured ex parte judicial de- termination before seizure is sufficient to satisfy due process. 868 Thus, 862 Mathews v. Eldridge, 424 U.S. 319, 339–49 (1976). 863 Mitchell v. W.T. Grant Co., 416 U.S. 600, 604 (1975). See also id. at 623 (Jus- tice Powell concurring), 629 (Justices Stewart, Douglas, and Marshall dissenting). Justice White, who wrote Mitchell and included the balancing language in his dis- sent in Fuentes v. Shevin, 407 U.S. 67, 99–100 (1972), did not repeat it in North Georgia Finishing v. Di-Chem, 419 U.S. 601 (1975), but it presumably underlies the reconciliation of Fuentes and Mitchell in the latter case and the application of Di- Chem . 864 395 U.S. 337 (1969). 865 North Georgia Finishing v. Di-Chem, 419 U.S. 601, 611 n.2 (1975) (Justice Powell concurring). The majority opinion draws no such express distinction, see id. at 605–06, rather emphasizing that Sniadach - Fuentes do require observance of some due process procedural guarantees. But see Mitchell v. W.T. Grant Co., 416 U.S. 600, 614 (1974) (opinion of Court by Justice White emphasizing the wages aspect of the earlier case). 866 407 U.S. (1972). 867 Fuentes was an extension of the Sniadach principle to all “significant prop- erty interests” and thus mandated pre-deprivation hearings. Fuentes was a decision of uncertain viability from the beginning, inasmuch as it was four-to-three; argu- ment had been heard prior to the date Justices Powell and Rehnquist joined the Court, hence neither participated in the decision. See Di-Chem , 419 U.S. at 616–19 (Justice Blackmun dissenting); Mitchell , 416 U.S. at 635–36 (1974) (Justice Stewart dissenting). 868 Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974); North Georgia Finishing v. Di-Chem, 419 U.S. 601 (1975). More recently, the Court has applied a variant of the 1991 AMENDMENT 14—RIGHTS GUARANTEED
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laws authorizing sequestration, garnishment, or other seizure of prop- erty of an alleged defaulting debtor need only require that (1) the creditor furnish adequate security to protect the debtor’s interest, (2) the creditor make a specific factual showing before a neutral of- ficer or magistrate, not a clerk or other such functionary, of prob- able cause to believe that he is entitled to the relief requested, and (3) an opportunity be assured for an adversary hearing promptly after seizure to determine the merits of the controversy, with the burden of proof on the creditor.
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