                  IN THE SUPREME COURT OF IOWA
                               No. 14–1522

                            Filed April 10, 2015


IOWA DEPARTMENT OF HUMAN SERVICES,

      Plaintiff-Appellee,

vs.

COMMUNITY CARE, INC.,

      Defendant,

and

DEWITT BANK & TRUST COMPANY,

      Intervenor-Appellant,

DAC, INC. and JACKIE SCOTT,

      Intervenors-Appellees,

MORRISANDERSON & ASSOCIATES, LTD.,

      Receiver-Appellee,

BANK IOWA,

      Intervenor.



      Appeal from the Iowa District Court for Polk County, Jeffrey D.

Farrell, Judge.



      A bank appeals a district court decision permitting the payment of

receivership expenses out of property in which it had a prior perfected

security interest. REVERSED AND REMANDED WITH DIRECTIONS.
                                       2

       Linda M. Kirsch and Kerry A. Finley, Shuttleworth & Ingersoll,

P.L.C., Cedar Rapids, for appellant.



       Thomas J. Miller, Attorney General, and Amy C. Licht, Assistant

Attorney General, for appellee Iowa Department of Human Services.



       Heather L. Campbell and David W. Nelmark, Belin, McCormick,

Des Moines, for appellee DAC, Inc.



       Chet A. Mellema and Donald F. Neiman, Bradshaw, Fowler, Proctor

& Fairgrave, P.C., Des Moines, for appellee MorrisAnderson & Associates,

Ltd.



       Matthew J. Reilly, Eells & Tronvold, P.L.C., Cedar Rapids, for

appellee Jackie Scott.



       Robert L. Hartwig, Johnston, for amicus curiae Iowa Bankers

Association.
                                    3

MANSFIELD, Justice.

      This case presents the question whether Iowa Code sections

249A.44(3) and 680.7 authorize the payment of a receiver’s expenses out

of property in which a secured creditor had a prior perfected security

interest.   Guided in part by the principle that we avoid interpreting

ambiguous statutes in a manner that leads to constitutional difficulties,

we hold these sections do not authorize a receiver to be paid out of assets

that are subject to a prior perfected lien.    Rather, we conclude Iowa

follows the common law rule that receivership expenses may be charged

to secured property only to the extent the secured creditor has received a

benefit from the receivership or the secured creditor has consented to the

receivership.

      I. Background Facts and Proceedings.

      For many years, Community Care, Inc. (CCI), based in DeWitt,

operated residential facilities and provided health care services for

persons with developmental and intellectual disabilities in eastern Iowa.

Payment for CCI’s services came in large part from the Medicaid

program. DeWitt Bank & Trust Company (the Bank) was CCI’s primary

lender and held perfected security interests on much of CCI’s real and

personal property.

      In the fall of 2013, following the filing of a qui tam action by a

former CCI employee, the Iowa Department of Human Services (DHS)

determined there was a credible allegation CCI had committed Medicaid

fraud. DHS suspended part of its Medicaid payments to CCI. In return,

CCI agreed to appoint a third-party manager for its operations.

Eventually the manager resigned.

      On March 31, 2014, DHS filed an application in the Polk County

District Court for injunctive relief under Iowa Code section 249A.44,
                                          4

which the general assembly had enacted the previous year. See 2013

Iowa Acts ch. 24, § 8 (codified at Iowa Code § 249A.44 (2015)). 1 This

provision is entitled “Overpayment — emergency relief” and, among other

things, authorizes DHS to obtain

       a temporary restraining order or injunctive relief to prevent a
       provider or other person from whom recovery may be sought,
       from transferring property or otherwise taking action to
       protect the provider’s or other person’s business inconsistent
       with the recovery sought.

Iowa Code § 249A.44(1).           CCI did not oppose DHS’s request for an

injunction.      On April 3, the district court granted DHS’s request and

enjoined CCI from “transferring property or otherwise taking any action

inconsistent with [DHS’s] right to recover overpayments of medical

assistance from CCI,” subject to CCI’s right to pay expenses or convey

assets in the ordinary course of business.

       Subsequently, CCI ceased operations. On May 8, CCI leased much

of its real and personal property to DAC, Inc. (DAC). DAC began serving

the former clients of CCI.

       On May 15, DHS and CCI filed a joint motion for appointment of a

receiver for CCI. DAC intervened and joined in DHS and CCI’s motion.
The motion was based on another subsection of Iowa Code section

249A.44, which provides:

       If an injunction is granted, the court may appoint a receiver
       to protect the property and business of the provider or other
       person from whom recovery may be sought. The court shall
       assess the costs of the receiver to the provider or other
       person.

Iowa Code § 249A.44(3).


       1All   subsequent Iowa Code references are to the 2015 Code, unless otherwise
indicated.
                                          5

      Another financial institution, which was familiar with DHS’s

position that receiver fees and expenses could be paid out of property

despite the existence of prior liens, but which had a smaller security

interest at stake, 2 moved to intervene in the action. A hearing was held

on July 9.      The court noted the other institution’s claimed security

interest was limited to property with an estimated value of $229,528.81,

and CCI’s total assets were estimated to be $7,636,033.23. It appointed

the requested receiver, expressly giving the receiver “super-priority status

on the vast majority of the assets.”                 The court also approved

compensation for the receiver at the rate of $325 to $400 per hour, plus

six percent of the value received or debt assumed in any transaction and

travel reimbursements at the rate of $170 per diem and $.56 per mile.

      The Bank was not formally served with the motion for appointment

of a receiver and did not participate in the July 9 hearing. The court’s

order seemingly provided that the receiver’s compensation could be paid

out of CCI assets in which the Bank had a prior perfected security

interest.    On July 15, the Bank filed a motion to intervene and for

clarification. In the motion, the Bank explained that it had a number of

perfected liens, including five mortgages, securing a total debt of

approximately $2,965,000.          The Bank did not object to the receiver’s

appointment, but sought clarification that the receiver’s fees and

expenses would not be paid out of property in which it had prior lien

interests.     Meanwhile, concerns were developing that CCI’s earlier

valuations had been overstated and there would be insufficient assets to




      2The   other bank held a mortgage on one of CCI’s buildings located in Chickasaw
County.
                                      6

cover receivership expenses unless the Bank’s security interests could be

overcome.

      On August 22, 2014, the district court granted the Bank’s motion

to intervene but denied the substantive relief it had sought. It held that

Iowa law required “the expenses of the receiver to be paid before the

creditors, including secured creditors.” The Bank applied to this court

for interlocutory review. We granted the application and expedited the

appeal.

      II. Standard of Review.

      Receivership proceedings are equitable, and we therefore review

them de novo.     See Fed. Land Bank of Omaha v. Heeren, 398 N.W.2d

839, 841 (Iowa 1987); see also Iowa R. App. P. 6.907 (“Review in equity

cases shall be de novo.”). We review questions of statutory interpretation

for correction of errors at law. State v. Olsen, 848 N.W.2d 363, 366 (Iowa

2014).

      III. Analysis.

      During the 2013 legislative session, the general assembly enacted

and the governor approved a new law “relating to Medicaid program

integrity.”   See 2013 Iowa Acts ch. 24, preamble.              The legislation

contained     several   provisions   relating   to   recovery    of   Medicaid

overpayments made to health care providers. See id. §§ 2–7 (codified at

Iowa Code §§ 249A.2(11), .39–.43). The legislation further provided:

      Overpayment — emergency relief.

              1. Concurrently with a withholding of payment, the
      imposition of a sanction, or the institution of a criminal,
      civil, or administrative proceeding against a provider or other
      person for overpayment, the director or the attorney general
      may bring an action for a temporary restraining order or
      injunctive relief to prevent a provider or other person from
      whom recovery may be sought, from transferring property or
                                     7
      otherwise taking action to protect the provider’s or other
      person’s business inconsistent with the recovery sought.

              2. To obtain such relief, the director or the attorney
      general shall demonstrate all necessary requirements for the
      relief to be granted.

            3. If an injunction is granted, the court may appoint a
      receiver to protect the property and business of the provider
      or other person from whom recovery may be sought. The
      court shall assess the costs of the receiver to the provider or
      other person.

Id. § 8 (codified at Iowa Code § 249A.44(1)–(3)).

      Iowa also has a longstanding general statute regarding receivers,

which provides in part:

            680.7. Claims entitled to priority.

             When the property of any person, partnership,
      company, or corporation has been placed in the hands of a
      receiver for distribution, after the payment of all costs the
      following claims shall be entitled to priority of payment in
      the order named:

            1. Taxes or other debts entitled to preference under
      the laws of the United States.

             2. Debts due or taxes assessed and levied for the
      benefit of the state, county, or other municipal corporation
      in this state.

            3. Debts owing to employees for labor or work
      performed or services rendered as provided in section
      626.69.

Iowa Code § 680.7.     In Bahndorf v. Lemmons, we interpreted section
680.7 to mean that expenses of the receiver would be paid ahead of the

three categories of listed debts. 525 N.W.2d 404, 408 (Iowa 1994).

      The Bank argues that nothing in section 249A.44 or section 680.7

authorizes expenses of a receiver to be paid out of property subject to

prior perfected liens. In its view, section 249A.44(3) simply provides that

the receivership costs are “assess[ed]” to CCI.          See Iowa Code

§ 249A.44(3). It does not enable CCI to avoid third-party liens in order to
                                         8

pay the receiver ahead of the lienholder. And section 680.7, according to

the Bank, simply addresses priority among unsecured claims.                 See id.

§ 680.7.       The Bank further argues that its liens are property interests

and that it would be deprived of property without due process of law if

those liens could be avoided by a later unsecured claim.

        DHS responds that Iowa Code section 249A.44(3) allows the

receiver’s expenses to be recovered from any property to which the health

care provider (CCI) holds legal title, even if such property is subject to a

prior lien. DHS further maintains that Iowa Code section 680.7 gives the

receiver’s expenses priority over all claims, both secured and unsecured.

Lastly, DHS argues that Medicaid recovery statutes should be broadly

construed. See In re Estate of Melby, 841 N.W.2d 867, 876 (Iowa 2014).

According to DHS, if we adopt the Bank’s legal interpretation, persons

will be unwilling to become receivers of health care providers that are

highly leveraged with secured debt for fear of not having their expenses

paid.

        Upon our review, we think the Bank has the better argument. To

begin with, we do not believe the express language of either section

249A.44(3) or section 680.7 provides the answer here.                       Section

249A.44(3) states, “The court shall assess the costs of the receiver to the

provider or other person [from whom recovery will be sought].” 3               Iowa

Code § 249A.44(3). To “assess” in this context means “to subject to a tax

[or] charge,” or “to impose (as a tax [or charge]) according to an

        3The    “other person” language has no applicability here.    See Iowa Code
§ 249A.44(3). DHS does not maintain that it has the ability to pursue the Bank for
repayments it claims CCI owes. See id. § 249A.46(1) (providing, in section entitled
“[l]iability of other persons — repayment of claims,” that DHS “may require repayment
of medical assistance paid from the person submitting an incorrect or improper claim,
the person causing the claim to be submitted, or the person receiving payment for the
claim”).
                                             9

established rate.” See Merriam-Webster’s Collegiate Dictionary 74 (11th

ed. 2003). However, the mere fact that CCI will be charged with the costs

of the receiver does not tell us where those charges are prioritized in

relation to other debts.         The district court rightly found that section

249A.44(3) is not determinative here.

       The district court found, however, that section 680.7, part of the

general law relating to receiverships, governs here. It provides that when

property has been put into the hands of a receiver, certain claims “after

the payment of all costs” are entitled to payment priority—specifically,

taxes and debts owed the United States, taxes and debts owed state and

local government, and wage claims. See Iowa Code § 680.7. But that

provision is silent on the subject of secured claims; a logical inference is

that it does not address their priority.            If DHS were correct that such

claims are actually covered by the statute, then not only receivership

expenses (assuming “all costs” in Iowa Code section 680.7 refers to costs

of the receivership) but all Medicaid-related claims and even unsecured

claims of former CCI employees would have to be paid out of the Bank’s

security before the Bank could access it. See Iowa Code § 249A.53(1)

(classifying Medicaid claims as having tax status); id. § 680.7(2)

(providing for priority of state taxes for property held by a receiver); id.

§ 680.7(3) (providing for recovery of employee claims after payment of

taxes for property held by a receiver). 4 This interpretation seems to us

clearly wrong.



       4For   example, we have previously stated, “The general policy of this state . . . in
receivership matters is to prefer taxes over other claims.” State ex rel. Mitchell v. Nat’l
Life Ins. Co., 223 Iowa 1301, 1314, 275 N.W. 26, 33 (1937).                 Under DHS’s
interpretation, its Medicaid claims, treated like taxes, would receive priority to be paid
in full before the Bank’s prior security interest could even be considered.
                                           10

       DHS invokes language from our decision in Bahndorf interpreting

section 680.7, Bahndorf, 525 N.W.2d at 408, yet we do not believe that

case addresses the relative priority of secured claims and receivership

expense claims either. Bahndorf involved a dispute over whether certain

taxes should have been paid ahead of receiver expenses. Id. There were

no security interests at issue in Bahndorf. See id. There we said,

              It is true, as the partners argue, that taxes are entitled
       to priority in a receivership. But that principle does not help
       them here. Expenses of a receivership (which, of course,
       would include receiver’s fees) are to be paid first.

Id. We then proceeded to quote Iowa Code section 680.7. Id. In context,

we were only indicating in Bahndorf that receivership costs are to be paid

ahead of taxes—i.e., as between taxes and receivership costs, the latter

get paid first. See id. We were not saying that receiver costs can be paid

by invading a secured creditor’s previously perfected security interest.

       We agree with the Bank that Iowa Code section 680.5 rather than

section 680.7 governs priority of secured claims.                  It states, “Persons

having liens upon the property placed in the hands of a receiver shall, if

there is a contest as to their priority, submit them to the court for

determination.” Iowa Code § 680.5. This provision dates back to 1897.

See Iowa Code § 3825 (1897) (now codified at Iowa Code § 680.5). In an

early case, we cited it for the proposition that “[t]he receiver takes the

debtor’s property subject to the payment of all valid prior liens.” Smith v.

Sioux City Nursery & Seed Co., 109 Iowa 51, 55, 79 N.W. 457, 458

(1899). 5


       5Another  of our other early cases supports the idea that prior liens take priority
over receiver costs. See Andrew v. Union Sav. Bank & Trust Co. of Davenport, 225 Iowa
929, 938, 282 N.W. 299, 303 (Iowa 1938) (“A receiver takes the property subject to
existing liens and equities and his exclusive possession thereof does not interfere with,
or disturb, any pre-existing liens, preferences, or priorities . . . .” (Internal quotation
                                          11

        In 1906, the general assembly added what is now Iowa Code

section 680.7. See 1906 Iowa Acts ch. 156, § 1 (codified at Iowa Code

§ 3825-a (Supp. 1907)). Still, the legislature left the existing counterpart

to section 680.5 in place.        See Iowa Code § 3825 (Supp. 1907).             This

supports the inference that section 680.7 was not intended to disturb the

existing law regarding the relative priority of secured and unsecured

claims.    Rather, it was designed to address the separate subject of

priority among unsecured claims.

        Notably, the priority provision in the Federal Bankruptcy Code

takes an approach analogous to section 680.7 and gives a first priority to

“administrative expenses” without mentioning secured claims. Compare

11 U.S.C. § 507(a)(1)(C) (2012), with Iowa Code § 680.7. Yet, it is clearly

understood as a matter of bankruptcy law that secured claims come

ahead of administrative expenses with respect to assets covered by the

security interest.     See 11 U.S.C. § 506(d)(2) (providing that a secured

claim retains secured status even if the secured creditor does not file a

proof of claim); H.R. Rep. No. 95-595, at 357 (1977), reprinted in 1978

U.S.C.C.A.N. 5963, 6313 (“Subsection (d) [of 11 U.S.C. § 507] permits

liens to pass through the bankruptcy case unaffected.”). Perhaps even

more noteworthy is the fact that the priority provision in the 1898

Federal Bankruptcy Act was silent on the subject of secured claims as

well.   See Bankruptcy Act of 1898, ch. 541, § 64, 30 Stat. 544, 563

(repealed 1978). Nonetheless, at the time, secured claims generally took

priority over administrative expenses. See Mills v. Va.-Carolina Lumber

Co., 164 F. 168, 171 (4th Cir. 1908) (holding that a secured creditor
______________________
marks omitted.)); see also Citizens Banking Co. v. Monticello State Bank, 143 F.2d 261,
265 (8th Cir. 1944) (applying Iowa law and stating that “a receiver takes the property
subject to all liens and incumbrances”).
                                      12

should not “be required to pay any part of the costs of administration of

[a] bankrupt’s estate” but rather, should be paid in full first).

Additionally, the 1898 Act was adopted around the same time as Iowa

Code section 680.7’s predecessor. Compare Bankruptcy Act of 1898, ch.

541, § 64, 30 Stat. 544, 563, with 1906 Iowa Acts ch. 156, § 1.

          Furthermore, adopting DHS’s position that it can charge the costs

of a receivership against a secured creditor’s collateral without any

showing of benefit to the secured creditor (and without even notifying the

secured creditor) would raise serious constitutional concerns. A security

interest is a form of property protected by the Fifth and Fourteenth

Amendments to the United States Constitution and article I, section 18

of the Iowa Constitution. See United States v. Sec. Indus. Bank, 459 U.S.

70, 76, 103 S. Ct. 407, 411, 74 L. Ed. 2d 235, 241 (1982) (stating that

despite the government’s contention to the contrary, the interest of a

secured party is an interest in property); Ford Motor Credit Co. v. NYC

Police Dep’t, 503 F.3d 186, 191 (2d Cir. 2007) (holding that “a security

interest is indisputably a property interest protected by the Fourteenth

Amendment” and that it is “the property right to the collateral that

secures the debt in the event of non-payment”).        In this case, DHS’s

approach could effectuate an unconstitutional taking, especially given

that the perfected security interests in this case predate the 2013

enactment of Iowa Code section 249A.44(3), the source of DHS’s

authority for appointment of the receiver. See 2013 Iowa Acts ch. 24,

§ 8(3).     “The doctrine of constitutional avoidance suggests the proper

course in the construction of a statute may be to steer clear of

‘constitutional shoals’ when possible.”      State v. Iowa Dist. Ct., 843

N.W.2d 76, 85 (Iowa 2014); see also Iowa Code § 4.4(1) (“In enacting a
                                      13

statute, it is presumed that: (1) Compliance with the Constitutions of the

state and of the United States is intended.”).

      DHS counters with a policy argument that it will be difficult to hire

receivers for financially leveraged health care providers if secured assets

cannot be used to compensate the receivers.              See Iowa Code § 4.4(3)

(noting   the   further    presumption     that   with    respect   to   statutory

enactments, “[a] just and reasonable result is intended”); In re Det. of

Stenzel, 827 N.W.2d 690, 698–99 (Iowa 2013) (applying this principle).

There are several answers to this argument.               For one thing, many

government objectives could be achieved more easily if the government

were not required to honor private property rights.            Also, we do not

foreclose the possibility that DHS could demonstrate a superior right to a

health care provider’s assets, such as through an equitable lien, to the

extent those assets are traceable to a DHS overpayment. Finally, as we

now discuss, the law generally allows receiver expenses to be charged

against a secured         creditor’s collateral to the extent        it can be

demonstrated that the creditor benefited from or consented to the

receiver’s appointment.

      Around the country, the general rule is that receivership expenses

may be paid out of encumbered property only to the extent the lien

creditor benefits from or consents to the receivership. See, e.g., SEC v.

Elliott, 953 F.2d 1560, 1576, 1578 (11th Cir. 1992) (stating that

“[s]ecured creditors should only be charged for the benefit they actually

receive” and remanding for “a fuller and more accurate inquiry into the

services the Receiver provided to these secured creditors”); Gasser v.

Infanti Int’l, Inc., 358 F. Supp. 2d 176, 182 (E.D.N.Y. 2005) (“[W]hen there

is a specific lien on the [receivership] property at the time it comes into

the receiver’s hands, that lien has priority over the receiver’s fees and
                                     14

expenses . . . .” (Second alteration in original.) (Internal quotation marks

omitted.)); Dir. of Transp. v. Eastlake Land Dev. Co., 894 N.E.2d 1255,

1262 (Ohio Ct. App. 2008) (“It is well-settled law that neither the

mortgagee nor the mortgaged property is liable for a receiver’s fees and

expenses unless the mortgagee has acquiesced in the receivership

proceedings.”); S. Cnty. Sand & Gravel Co. v. Bituminous Pavers Co., 274

A.2d 427, 430 (R.I. 1971) ( “[A] judicial rule has evolved which permits

receivership expenses to be taxed against encumbered property when the

secured creditor or his property has been benefited or otherwise

advantaged by the receivership proceedings and then only in proportion

to the extent of the benefit or advantage conferred. In addition, and in

appropriate circumstances, the encumbered property may similarly be

entrenched upon if the secured creditor has expressly or impliedly either

acquiesced in or consented to the receivership proceedings . . . .”); Chase

Manhattan Bank v. Bowles, 52 S.W.3d 871, 880 (Tex. Ct. App. 2001)

(stating that “a lienholder’s interest in property held in a receivership has

priority over costs and expenses incurred in the administration and

operation of the receivership” unless the receivership is “formed at the

instigation of the lienholder, or the lienholder acquiesces to the

receivership and seeks its benefits,” or the lienholder “knows of and

consents to the receivership, and fees, expenses, and debts are incurred

from a receiver’s operation of a business important to the public”

(internal quotation marks omitted)); 65 Am. Jur. 2d Receivers § 246, at

797–98 (2011) (“It is indispensable to the preference over existing liens of

any claim based on operating expenses of a receivership . . . that it be

founded upon property furnished or services rendered to the business,

which either preserved or enhanced the value of the security of the

mortgage or secured debt, and thereby inured to the benefit of the
                                          15

mortgagee or other lienee . . . .”); 6 75 C.J.S. Receivers § 361, at 597

(2013) (“Mortgaged or encumbered property or the proceeds thereof are

not chargeable with receivership expenses where the receiver was not

appointed at the instance or in the interest of the mortgagee or

encumbrancer and where no service was rendered to such property.”);

Annotation, Liability of Mortgagee or Mortgaged Property for Expenses of

Receivership Not Sought by Him, or for Expenditures by Receiver in

Connection with the Property, 104 A.L.R. 990, 991 (1936) (“Without

attempting at this point to distinguish between different types of

expenses involved, it may be stated as a general rule that neither a

mortgagee nor the mortgaged premises are liable for receivership

expenses not sought or acquiesced in by him; at least where he receives

no benefit therefrom.”). DHS cites no recent authority to the contrary. 7

       The leading treatise on receivers, although by now somewhat long

in the tooth, is to the same effect:

              When a court appoints a general receiver of the
       property of an individual or a corporation, . . . part or all of
       this property may be covered by liens or mortgages. The
       general purpose of a general receivership is to preserve and
       realize the property for the benefit of creditors in general. No
       receivership may be necessary to protect or realize the
       interests of lienholders. In such cases the mortgagees and

       6A   different section of this treatise states, with respect to counsel for the
receiver, “Such counsel fees are classed as receiver’s expenses and, like other expenses
of administration, take precedence over preexisting liens on the funds or property in
receivership.” 65 Am. Jur. 2d Receivers § 225, at 780. We quoted this sentence in
dictum in Foxley Cattle Co. v. Midwest Soya International, Inc., 585 N.W.2d 231, 233
(Iowa 1998). Regardless, we do not believe this passing statement in section 225
vitiates the treatise’s more detailed treatment of the subject of receiver expenses in
section 246.
       7Generally  speaking, the Federal Bankruptcy Code follows the same equitable
approach found in the common law. Thus, it provides that the bankruptcy trustee, who
is analogous to the receiver, “may recover from property securing an allowed secured
claim the reasonable, necessary costs and expenses of preserving, or disposing of, such
property to the extent of any benefit to the holder of such claim.” 11 U.S.C. § 506(c).
                                            16
       lienholders cannot be deprived of their property nor of their
       property rights and the receivership property cannot as a
       rule be used nor the business carried on and operated by the
       receiver in such a way as to subject the mortgagees and
       lienholders to the charges and expenses of the receivership.
       A court under such circumstances has no power to authorize
       expenses for improving or making additions to the property
       or carrying on the business of the defendant at the expense
       of prior mortgagees or lienholders without the sanction of
       such mortgagees or lienholders.

               ....

              If a lienor avails himself of the receivership, or if the
       activities of the receiver have been of benefit and advantage
       to the lienor, it is but right and fair that he should be
       required to pay his just burden of the costs, including
       allowances to the receiver.

              A lienor consenting to appointment of receiver and,
       therefore, to a liquidation of the insolvent’s affairs through
       the receivership instrumentality, is an exception to rule that
       receiver’s allowances are not entitled to outreach the priority
       of existing liens.

2 Ralph E. Clark, A Treatise on the Law and Practice of Receivers § 638,

at 1070–72 (3d ed. 1959) (footnotes omitted). 8
       DHS responds that this general rule, if it is a general rule, has not

been adopted in Iowa. It cites an 1898 case where we held the district

court could order the expenses of a receiver to be paid out of assets that

were subject to prior liens, after noting that “[n]o question was made as
to the legality and propriety of the appointment of this receiver.”

Gallagher v. Gingrich, 105 Iowa 237, 239, 74 N.W. 763, 763 (1898). We


       8DHS    directs us to some old authority to the effect that funds advanced for the
operational costs of a railway, as a quasi-public entity, can take priority over prior liens.
See, e.g., Union Trust Co. of N.Y. v. Ill. Midland Ry. Co., 117 U.S. 434, 455–56, 6 S. Ct.
809, 820–21, 29 L. Ed. 963, 970 (1886). DHS asserts that Medicaid providers are
quasi-public entities. This principle appears to be limited to railroads by the weight of
authority. See Lewis & Dalin, Inc. v. E.H. Clarke Lumber Co., 204 P.2d 130, 133 (Or.
1949) (noting this principle “evolved in railway receiverships” and declining to apply it
to “a purely private corporation”). We are not aware of it having been applied to other
types of entities (or even to railroads in the recent past).
                                    17

went on to say, “The contention is that [payment of the receiver’s

expenses] must be deferred to the payment of existing liens, but such is

not the law.” Id.

      Standing on its own, our decision in Gallagher might have

considerable persuasive force; however, we believe much of that force has

been drained by the following year’s decision in Smith, 109 Iowa at 55, 79

N.W. at 458, and by another decision we rendered just six years later,

Frick v. Fritz, 124 Iowa 529, 536–37, 100 N.W. 513, 515–16 (Iowa 1904).

In Frick, we held that chattel mortgage holders could not be required to

pay out of their secured property for the expenses of a receiver of cattle,

noting, “We find no merit in the contention for plaintiff that interveners

have been benefited by the receivership, and should bear the expense

thereof.” Id. at 536, 100 N.W. at 515. We added,

      Had it been made to appear that in making claim to the
      proceeds of the property realized by means of the
      receivership they had availed themselves of any benefits
      resulting from such receivership, they might, no doubt, have
      been properly required to submit to an equitable
      apportionment of the costs in accordance with the benefits
      received. But no showing for an equitable apportionment of
      costs is made, and under the record we think that no such
      showing could be made.

Id. (citations omitted).

      Based on the foregoing, we hold that neither Iowa Code section

249A.44(3) nor Iowa Code section 680.7 authorizes the expenses of a

receiver appointed under section 249A.44(3) to be charged against a

secured creditor’s collateral.   Instead, our state follows the general

equitable rule on receiverships, under which the costs of a receiver may

be charged against a third party’s security interest only to the extent the
                                            18

secured party has been shown to benefit from the receiver’s services or in

the event the secured party has consented to the receiver. 9

       As an alternative ground for affirmance, DHS argues that the Bank

consented to the receivership.           The record shows otherwise: The Bank

was not formally notified of the proceedings and took action as soon as it

became potentially clear that its security interests were threatened. The

Bank has consistently objected to the payment terms for the receiver.

However, on remand we leave open the question of whether the Bank has

received a benefit from the receiver’s work and if so, how much.

       IV. Conclusion.

       We reverse and remand for further proceedings consistent with

this opinion. Costs on appeal are taxed against DHS.

       REVERSED AND REMANDED WITH DIRECTIONS.

       All justices concur except Waterman, J., who takes no part.




       9We   do not think Medicaid’s principle of “broad recovery so as to promote the
future provision of services,” see Estate of Melby, 841 N.W.2d at 880, overrides the
considerations we have noted here. This priority contest is between a court-appointed
receiver for a Medicaid provider and a prior secured lender to the same provider. It is
not clear that favoring the former over the latter will lead to greater availability of
Medicaid services. If DHS’s position were to prevail, lenders might be reluctant to make
credit available in the future to entities that provide Medicaid services, since they could
not be assured of the priority of their liens. This could potentially limit the availability
of Medicaid services.
        Regardless, DHS is not without potential options. As noted here, DHS can
charge receivership expenses against assets covered by a third-party security interest to
the extent the secured creditor is benefiting from the receivership. Also, nothing we
have said herein forecloses the possibility that DHS could assert an equitable lien on
former Medicaid funds traceable to the hands of a health care provider or “other person”
or could enter into an arrangement under which it receives some lien protection for
future Medicaid payments. Those issues are not before us. What DHS cannot do is
simply charge the costs of a receivership to assets covered by a preexisting security
interest.
