               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT



                               No. 92-4796



USX CORP., ET AL.,
                                               Plaintiffs-Appellees,

                                 versus

H. H. CHAMPLIN, ET AL.,
                                         Defendants-Appellants.
                  ******************************

GLADSTONE DEVELOPMENT CORP.,
                                               Plaintiff-Appellant,

                                 versus

USX FINANCIAL CORP., A Division
of USX CORP.,
                                               Defendant-Appellee.



          Appeals from the United States District Court
              for the Western District of Louisiana


                           (May 31, 1993)

Before WISDOM,* GARWOOD, and HIGGINBOTHAM, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

     This appeal comes from the trial of two cases consolidated for

trial.   The first case was a suit for declaratory judgment by USX

Corporation   against   H.H.    Champlin     and   the   FDIC   to   declare

Champlin's remedy as the holder of a second mortgage extinguished

when USX foreclosed its first mortgage without giving Champlin

     *
      Because of illness, Judge John Minor Wisdom was not present
at the oral argument of this case; however, having had available
the tape of oral argument, he participated in this decision.
notice.     Champlin had not requested notice under a Louisiana

statutory procedure nor contracted for notice in subordinating his

mortgage to the first position of USX.      The second is a suit by

Gladstone    Development   Corporation   against   USX   for    specific

performance of a contract for the sale of the property USX acquired

in the foreclosure sale.       The district court ruled that the

foreclosure sale was constitutionally deficient, did not extinguish

the mortgages, and ordered a resale by private auction.        The court

denied Gladstone's claim for specific performance.       We affirm.

                                  I.

     In 1985, H.H. Champlin obtained a mortgage on the Tiffany

Plaza Shopping Center located in Vermilion Parish, Louisiana, to

secure a debt of $959,712.85. Champlin later assigned the debt due

him to Republic Bank in Oklahoma City to secure his debt to the

Bank.1    In December 1986, Paramount Investment Properties, Ltd.

purchased the Shopping Center and refinanced its debt.         As part of

the refinancing transaction, USX and Landmark Savings Bank acquired

a $3.8 million mortgage on the Shopping Center, and for a fee of

$50,000 Champlin agreed to subordinate his mortgage to the USX

mortgage.    The subordination agreement did not require USX to

notify Champlin or the Republic Bank in the event of foreclosure.

     Paramount did not meet its obligations under the refinancing

arrangement, and in late 1988 USX started foreclosure proceedings

in Louisiana state court.    A foreclosure sale was held on February

22, 1989.    USX gave no notice to Champlin or the FDIC of the

     1
      The FDIC obtained the note when the bank failed in 1987.

                                  2
foreclosure proceeding or the sale.          The parties agree that the

foreclosure complied with Louisiana law, because no notice was

required in the absence of a request for notice of seizure, a

request no one made.    See La. R.S. 13:3886.2

     At the time of the foreclosure sale, the balance due on the

Champlin mortgage was     $1,331,308.        The FDIC had the Shopping

Center appraised in September 1988, six months before the sale, at

$2,250,000.   The Shopping Center was appraised for $3,500,000 in

the foreclosure    proceeding,   and   the    balance   owed   on   the   USX

mortgage at that time was $4,031,936.        USX successfully bid with a

credit against the USX note and mortgage of $2,450,000, 70% of the

appraised value.

     Following the foreclosure sale, USX contracted to sell the

Shopping Center to Gladstone. The contract provided for a purchase

price of $3,500,000, $525,000 in cash, with $50,000 in earnest

money.   USX financed the balance of $2,975,000.           The agreement

provided for closing on June 20, 1990 unless the parties agreed

otherwise.



     2
      La. R.S. 13:3886 provides:

     A. Any person desiring to be notified of the seizure of
     specific immovable property or of a fixture located upon
     specific immovable property shall file a request for notice
     of seizure in the mortgage records of the parish where the
     immovable property is located. The request for notice of
     seizure shall state the legal description of the immovable
     property, the owner of the property, and the name and
     address of the person desiring notice of seizure. The
     person requesting notice of seizure shall pay the sum of ten
     dollars to the sheriff.
     . . .

                                   3
       As required by the contract, Gladstone furnished USX with a

commitment of title insurance.                   As a prerequisite for insurance,

the commitment required the cancellation of record of the Champlin

mortgage and a release from Champlin.                       USX attempted to secure the

required waiver from Mr. Champlin and the FDIC and ultimately filed

this    suit    for       a    declaratory       judgment        to    resolve    the     issues

attending the failure to give notice.

       The initial closing date was extended numerous times until

July    20,    1991.           The    parties     did      not   agree     to    any     further

extensions.         On July 15, 1991, Gladstone notified USX that it

wished to close the transaction and proposed that should USX be

unable to cancel the Champlin mortgage before closing, Gladstone

would    accept       a    bond      or   similar     indemnification           to     give   USX

additional time to do so.                 On July 16, 1991, USX advised Gladstone

that the Champlin matter had not been resolved and would not be

resolved before the July 20th closing date.                           USX stated that it had

no obligation to clear the Champlin mortgage and that under the

contract,      Gladstone            had   the   choice      of   either     purchasing        the

Shopping Center subject to the Champlin mortgage or terminating the

agreement.      Gladstone continued to insist that USX had a duty to

satisfy the mortgage and refused to take title.                                 USX therefore

concluded       that          the    agreement       was     terminated         and    returned

Gladstone's $50,000 deposit.                    Gladstone's suit against USX for

specific performance followed.

       In     the     consolidated          trial,         the   district        court     held:

(1) Champlin and FDIC's Fourteenth Amendment due process right to


                                                 4
notice was violated, (2) Champlin and FDIC were not injured because

there was no equity in the property above the first mortgage, (3)

both the USX mortgage and the Champlin mortgage survived the sale,

and (4) the property should be resold at private auction at which

USX, Champlin, and others could bid.

     The court also refused to order specific performance of the

USX-Gladstone contract, finding that under the agreement USX had no

duty to   cure   the   title   objection,   that   Gladstone   could   have

purchased the property or terminated the agreement, and that

Gladstone's failure to close terminated the agreement.          Champlin,

FDIC, and Gladstone appealed.

                                   II.

     We first consider Gladstone's claim for specific performance

of its contract with USX.       We must interpret section 2.1 of the

USX-Gladstone contract:

     Title. Buyer at its sole expense shall, on or before May 5,
     1990, furnish to Seller a commitment from Title Insurer to
     issue an ALTA Owner's Policy of Title Insurance (the
     "Commitment") and an ALTA survey relating to the Land. Buyer
     shall have fifteen days after its actual receipt of the
     Commitment to examine same and to notify Seller in writing of
     its objections to title due to the existence of any material
     items not described in Exhibit B hereto which are
     objectionable to Buyer. Failure of Buyer to notify Seller in
     writing of any such objections within such time period shall
     be conclusively deemed to be approved by Buyer of all items.
     If Buyer timely notifies Seller of any such objections, Seller
     shall have the right to cure or remove same to the
     satisfaction of the Title Insurer to enable the Title Insurer
     to insure at the closing good and marketable title in Buyer or
     its assigns to the Land subject only to easements not
     affecting the use of the Property as a shopping center, and
     subject to the purchase money mortgage described herein.
     Notwithstanding the foregoing, Buyer may not object to any of
     the items described in Exhibit B hereto after the Inspection
     Date.   If Seller does cure or remove all such objections
     within fifteen days, Buyer shall be obligated to proceed with

                                    5
     closing.    If Seller does not cure or remove all such
     objections, Buyer shall have the right to either proceed with
     the closing subject to such uncured objections or to terminate
     this Agreement.   Seller shall not be obligated to cure or
     remove any title objections.

(emphasis added).       Under Louisiana law whether a contract is

ambiguous is a question of law as is the interpretation of an

unambiguous contract.     Spohrer v. Spohrer, 610 So.2d 849, 853 (La.

Ct. App. 1992); Bellina v. Graybar, 532 So.2d 847, 850 (La. Ct.

App. 1988).    Therefore our review is de novo.

     Gladstone first contends that because the purchase agreement

does not define "objection to title" its meaning should be implied

from custom.    See La. Civ. Code Art. 2054.3       The argument continues

that, generally, Louisiana law provides that a prior mortgage is

not a title defect in breach of the warranty of merchantable title

where the purchase price exceeds the amount of the mortgage.

Jaenke   v.   Taylor,   106   So.   711   (La.   1925);   Tolar   v.   Pacific

International Petroleum, Inc., 465 So. 2d 925, 928 (La. Ct. App.

1985).   The immediate flaw in this argument urging the court to

draw upon custom is that the parties anticipated this event in

their contract and there are no relevant provisions that custom

need furnish.    Moreover, even if we were to resort to custom, the

custom urged by Gladstone has little relevance here; section 3.2(C)

     3
      Art. 2054. No provision of the parties for a particular
          situation

     When the parties made no provision for a particular
situation, it must be assumed that they intended to bind
themselves not only to the express provisions of the contract,
but also to whatever the law, equity, or usage regards as implied
in a contract of that kind or necessary for the contract to
achieve its purpose.

                                      6
of the contract waives all warranties, including the warranty of

merchantability.

      Gladstone also argues that we should look to the parties'

course of performance to interpret "objection to title."               See La.

Civ. Code Art. 2053.4        USX agreed to extend the closing deadline

and filed for a declaratory judgment to resolve the problem with

the Champlin mortgage.       Gladstone argues these actions support its

reading that USX was obligated to cure the problem with the

Champlin mortgage.     The extensions by USX were consistent with the

agreement.    USX had the right to cure any objections and obligate

Gladstone    to   purchase   the   Shopping     Center,   but   the   contract

expressly provides that USX had no obligation to do so.                  This

agreement contemplated attempts by USX to cure objections.

      We agree with the district court that the Champlin mortgage,

raised by the title insurer in the commitment, was an "objection to

title" within the meaning of section 2.1.          Because USX did not cure

the   objection    before    closing,       Gladstone   had   the   option   of

purchasing the Shopping Center despite the defect in title.

                                    III.

                                     A.

      Turning to USX's suit for declaratory judgment, the district

court correctly found that USX's failure to notify Champlin and the

      4
       Art. 2053. Nature of contract, equity, usages, conduct of
           the parties, and other contracts between same parties

     A doubtful provision must be interpreted in light of the
nature of the contract, equity, usages, the conduct of the
parties before and after the formation of the contract, and of
other contracts of a like nature between the same parties.

                                        7
FDIC violated their right not to be deprived of property without

due process under the Fourteenth Amendment.   In Mennonite Board of

Missions v. Adams, 462 U.S. 791 (1983), the Supreme Court held that

"[n]otice by mail or other means as certain to ensure actual notice

is a minimum constitutional precondition to a proceeding which will

adversely affect the liberty or property interests of any party,

whether unlettered or well-versed in commercial practice, if its

name and address are reasonably ascertainable."        Id. at 800.

Applying this holding to the case before it, the Court concluded

that due process entitles a mortgagee with a recorded mortgage to

actual notice of a tax sale.     In this case, there is no dispute

that the Champlin mortgage was a property interest and that this

interest was reasonably ascertainable from the public records.

     Soon after the foreclosure sale in this case, we decided Davis

Oil Co. v. Mills, 873 F.2d 774 (5th Cir. 1989), holding that a

failure to request notice under La. R.S. 13:3886 is not a waiver of

due process notice under Mennonite.    See also Small Engine Shop,

Inc. v. Cascio, 878 F.2d 883, 890 (5th Cir. 1989) (holding that La.

R.S. 13:3886 does not shift the constitutional burden of notice to

the party desiring to be notified).   In Sterling v. Block, 953 F.2d

198 (5th Cir. 1992), we held that Davis Oil applies retroactively.

Against this background it is clear that although Louisiana law did

not entitle Champlin and the FDIC to notice of foreclosure, the

Fourteenth Amendment did require USX to notify them.

     We are not persuaded by USX's attempt to distinguish these

decisions on their facts.   USX refers to the fact that the Shopping


                                  8
Center in this case sold for 70% of its appraised value at the

foreclosure sale whereas the property involved in Mennonite and

Sterling     sold       at   a   fraction         of    their    fair      market    value.

Additionally,       Champlin      knew   of       the    USX    mortgage,     unlike       the

situation in Mennonite, Sterling, and Davis Oil where the inferior

interest holder was unaware of the superior interest.                         Finally, it

is true that Champlin's inferior mortgage proved to offer little

security,       given    the     value   of       the    property     at    the     time    of

foreclosure and the existence of USX's first mortgage.                              Champlin

nonetheless held a valid, but inferior, and at the time of sale a

nigh    valueless,       mortgage.       Champlin's            interest,     even    though

terminable by foreclosure of the superior loan was sufficient to

trigger due process.

                                            B.

       In its complaint for declaratory judgment, USX sought a

declaration upholding the foreclosure sale and declaring that the

Champlin mortgage was extinguished.                     Alternatively, if the court

found    that    the     Champlin    mortgage           was    not   extinguished,         USX

requested a private auction of the property or an order annulling

the foreclosure and returning both the USX and Champlin mortgages

to their positions before the sale.                       Champlin contested these

remedies arguing that the foreclosure sale extinguished the USX

mortgage but not the Champlin mortgage, leaving Champlin as first

mortgagee.      The district court found that the USX mortgage and the

Champlin mortgage survived foreclosure and ordered the property

resold at private auction, giving USX the right to bid to the full


                                              9
amount due under its first mortgage.           Champlin urges us to reverse

the district court's remedy and make him first mortgagee.

     Champlin      first   argues    that    the   district      court's   remedy

effectively     nullifies     the   foreclosure     sale    in    violation      of

Louisiana law. La. R.S. 13:4112 provides that a judicial sale of

immovable property may not be annulled.             La. Civ. Code Art. 2619

further provides that a sale may only be set aside in the case of

fraud.      However,   the    remedy   for   the   violation      of   a   federal

constitutional right is a matter of federal law, and therefore

these    provisions    are    not   controlling.       In   any     event,   even

Champlin's proposed remedy would not leave the foreclosure sale in

tact.5

     We cannot agree that Champlin is entitled to a first mortgage

to remedy the lack of notice.           This primitive remedy would put

Champlin and the FDIC in a better position than they enjoyed before

the sale; it would elevate their subordinated mortgage to a first

mortgage.    Cf. Verba v. Ohio Cas. Ins. Co., 851 F.2d 811, 816 (6th

Cir. 1988).     In Verba, the IRS foreclosed on an interest in real

estate to satisfy a tax lien without giving actual notice to Ohio

Casualty,     an   inferior     judicial     lienor.        After      finding   a

constitutional violation under Mennonite, the court stated:

     we wish to clearly emphasize our belief that this conclusion
     does not entitle Ohio Casualty to have its lien elevated in
     priority over that of the United States. Although it is for
     the district court to determine the precise procedures by
     which Ohio Casualty's rights will be vindicated, the remedy

     5
      We also note that Louisiana has recently enacted La. R.S.
13:3886.1 which provides for an action for damages as the
exclusive remedy for failure to give notice.

                                       10
     should provide Ohio Casualty with no interest greater than
     that which it possessed when the foreclosure proceedings were
     first instituted.

Id. (emphasis added).

     Champlin's authorities do not support the remedy he seeks. In

Magee v. Amiss, 502 So. 2d 568 (La. 1987), Dr. and Mrs. Magee had

received a judgment of separation and were waiting for a judgment

of divorce and a settlement of their community property.          Dr. Magee

contracted with Reynolds Roofing Company, Inc. for the repair of

the community home.      After refusing to pay Reynolds Roofing, Dr.

Magee allowed the home to be seized and sold at a sheriff's sale.

The original Act of Sale to Dr. Magee reflected Mrs. Magee's

ownership interest in the property; however, she was not given

notice before the sheriff's sale. La. Civ. Code Art. 2347 requires

the concurrence of both spouses for the alienation of immovable

property.    The Louisiana court held that the foreclosure sale did

not extinguish her interest, because the sale was without Mrs.

Magee's consent and her due process right to notice under Mennonite

was violated.      Therefore, the subsequent purchasers only owned Dr.

Magee's one-half interest.         Id. at 572-73.     The interest of co-

owner, not mortgagee, was at issue in Magee.         Moreover, the court's

holding did not give Mrs. Magee a greater interest after the sale

than she enjoyed before. Magee does not support elevating Champlin

to first mortgagee.

     In Myers v. United States, 647 F.2d 591 (5th Cir. 1981), we

considered   the    effect   of   a   Louisiana   foreclosure   sale   on   an

inferior federal tax lien where the Government was not given proper


                                       11
notice of the sale.      Because the sale was an "other sale" under 26

U.S.C. § 7425(b), the foreclosing creditor's failure to serve

notice upon the United States precluded the discharge of the tax

liens.    Section 7425(b) provides that a foreclosure sale is made

subject to federal tax liens unless the United States is given the

proper notice.        If seen as an elevation of a tax lien to first

position, it is a federally prescribed remedy.                  Regardless, this

federal remedy has no comfort for Champlin. His strange contention

for a "leapfrogging" lien is even more problematic given USX's

payment to Champlin of $50,000 to subordinate his mortgage and

Champlin's failure to require notice from USX in the subordination

agreement.     These     facts   are   relevant     to    the   crafting    of    an

equitable remedy.

       We think the district court's order that the Shopping Center

be resold at private auction is an appropriately tailored remedy.

It does not completely restore the parties to the status quo, but

it does restore the opportunity to bid the property and purchase at

the foreclosure sale while avoiding the wastefulness of a second

foreclosure proceeding.

       Finally, the district court found that Champlin had failed to

show   any   damage    from   USX's    failure    to   give     notice.     As    we

explained, the FDIC appraised the property six months before the

sale at $2,250,000.           The USX appraisal, at the time of the

foreclosure, was $3,500,000.          The balance due USX at that time was

$4,032,000.      From    these   facts,     the   court   concluded       "[i]t   is

impossible for this court to believe that Champlin, as second


                                       12
mortgage holder, would have bid in excess of $4,032,000 to acquire

property valued at between $2,250,000 and $3,500,000."           We agree.

       AFFIRMED.

GARWOOD, Circuit Judge, concurring:

       I join in the affirmance and in all of Judge Higginbotham's

cogent opinion except only part III A thereof.         While I agree that

Champlin's subordinated lien was a sufficient property interest to

trigger due process, I have grave reservations about extending

Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983) so far as

to invalidate as to Champlin USX's foreclosure sale under the

circumstances here. Perhaps we have already gone this far in Davis

Oil Co. v. Mills, 873 F.2d 774 (5th Cir. 1989); Small Engine Shop,

Inc. v. Cascio, 878 F.2d 883 (5th Cir. 1989); and Sterling v.

Block, 953 F.2d 198 (5th Cir. 1992), but I would leave that

question open until necessary for decision.            For the reasons so

well   explained   by   Judge   Higginbotham,   even    if   there   were   a

Mennonite violation neither Champlin nor Gladstone has any valid

grounds to complain of the judgment below, and USX may not do so as

it has not appealed.




                                    13
