Bauer v. Sweeny

964 F.2d 305, 1992 WL 88634

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 4, 1992
• Docket: No. 91-2500
• Status: Published

Opinions

OPINION

RESTANI, Judge:

This case is before the court following the district court’s dismissal of the action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

The sole issue on appeal is whether the district court correctly concluded that shareholders of a failed savings bank do not have standing to bring a derivative action against former officers and directors because the bank’s claims have been assigned to the Resolution Trust Corporation.¹

Background

On April 27, 1989, SeaBank Savings, F.S.B. (“SeaBank”), a federally chartered savings bank located in Myrtle Beach, South Carolina, was placed into conservatorship. On September 20, 1989, SeaBank was placed in receivership and the Resolution Trust Corporation (“RTC”) was appointed receiver.² RTC then transferred SeaBank’s rights to sue its former officers, directors, and others to a new entity, Sea-Bank Federal Savings Bank, F.S.B. (“Sea-Bank Federal”).

On December 19, 1989 SeaBank Federal was closed by the Office of Thrift Supervision, and again RTC was appointed receiver. RTC, in its capacity as receiver (“RTC-Receiver”), sold to RTC, in its corporate capacity (“RTC-Corporate”), SeaBank’s potential claims against its officers, directors, and other employees. This contract of sale was dated December 19, 1989.

Appellants are shareholders of SeaBank. Their derivative action alleges breaches of various duties by former directors, officers, employees, attorneys, and accountants of SeaBank.

On March 7, 1991, the district court granted a motion to dismiss the complaint for failure to state a claim. The court held that the claims against former directors, officers, and other employees belong exclusively to RTC-Corporate, as purchaser for value of SeaBank’s choses in action. Thus, the trial judge reasoned, RTC-Corporate has the sole right to prosecute potential claims.

Discussion

The American Bank cases³ have application to the case at hand. In American Bank I, the Federal Deposit Insurance Corporation (“FDIC”)⁴ was appointed receiver for American Bank & Trust (“the bank”). As in the case at bar, FDIC, the receiver, then sold all claims and causes of action to FDIC, the corporation. FDIC filed suit against the bank, seeking a declaratory judgment that it owned all the causes of action for harm or wrong done to the bank. Bank shareholders launched a derivative suit against former officers and directors of the bank. The district court stayed the derivative suit pending the outcome of the suit for declaratory judgment. The district court then found that:

It is well settled ... that causes of action for losses sustained because of the mismanagement and negligence of directors, officers, and employees of a bank belong to the bank itself ... and in the event of its liquidation, such causes of action are vested in its receiver; and may be conveyed and sold as any other asset [citations omitted].

FDIC, the corporation, duly purchased for value any cause of action of ... [the bank] from FDIC, the Receiver ... [quoting from Brown v. New York Life Ins. Co., 152 F.2d 246 (9th Cir.1945)] “Among the assets so purchased by and assigned to the FDIC was the Bank’s claim [against certain officers and directors] .... FDIC acquired its cause of action herein as a purchaser for value by express contract with the Bank____ [W]hatever right of action the FDIC acquired, it acquired through this purchase and assignment. We view this a transaction for value, and so hold.”

American Bank I, 412 F.Supp. at 306. The court further found that: “To the extent such causes of action [alleged mismanagement by former officers and directors] are for harm done to ... [the bank], FDIC, the Corporation, is the owner of, and sole party entitled to assert, such causes of action.” Id. at 308.

On appeal, the appellate court stated: “We see no error in the district court’s determination that FDIC acquired apparent title to all choses in action against officers, directors and employees of [the bank].” American Bank I, 558 F.2d at 714. The court, however, vacated and remanded the case to the district court for a determination as to the validity of FDIC’s appointment as receiver and the legitimacy of the sale of the causes of action. Id. at 715. On remand, the district court examined the manner and method whereby FDIC acquired title to the causes of action, once again reaching the conclusion that “FDIC is the owner of all derivative causes of action.” American Bank II, 460 F.Supp. at 561. This decision was affirmed on appeal. American Bank II, 629 F.2d at 953. The validity of RTC’s appointment as receiver and the legitimacy of the December 19, 1989 contract of sale are not at issue here.

In this case, the district court discussed the American Bank cases extensively and found them to be determinative. The district court also stated, however, that the case of Womble v. Dixon, 585 F.Supp. 728 (E.D.Va.1983), aff'd in part, vacated in part and remanded, 752 F.2d 80 (4th Cir. 1984), contained language which seemed to conflict with the reasoning contained in the American Bank cases. The district court reconciled the statement in Womble that, “A derivative action is not precluded simply because a bank, or a savings and loan association, is placed in receivership____” (quoting Womble, 585 F.Supp. at 731), with the American Bank cases by limiting this proposition to situations in which the bank still owns the causes of action the shareholders seek to assert or in which the receiver manages the bank’s assets. This distinction is well made.

In Womble, FSLIC did not challenge the shareholders’ standing, as the parties did here. In Womble, the issue before the court was whether shareholders lacked standing “because they failed to demonstrate under Rule 23.1 [Fed.R.Civ.P.] that the FSLIC refused to assert a right it properly could have asserted.” ⁵ Womble, 585 F.Supp. at 731.

In the case at hand, SeaBank Federal’s rights to pursue claims were sold to a third party, RTC-Corporate, for consideration. As consideration for the sale and assignment by RTC-Receiver to RTC-Corporate, RTC-Corporate agreed to provide certain indemnities, discharge certain duties of the receiver, and pay the receiver any amount recovered in excess of the costs of liquidation and a reasonable return. Plaintiff shareholders, while they might have some distant interest in a recovery of funds, do not have standing to pursue this action. Derivative rights of shareholders are lost after claims are sold. See Tucker v. New Orleans Laundries, 145 So.2d 365, 369 (La.App.1962) (“[where] the corporation has voluntarily or involuntarily disposed of its right or cause of action, it has lost its right to assert such right, and the plaintiffs [shareholders] had nothing to assert on its behalf.”); see also Crossland v. Canteen Corp., 711 F.2d 714, 720 n. 3 (5th Cir.1983) (derivative suit “presupposes that the corporation has a right for the shareholder to enforce”). Accordingly, a sale for value of claims to a third party precludes a derivative action by shareholders with regard to such claims.

Conclusion

On December 19, 1989, the assets and claims of SeaBank were sold by RTC-Receiver to RTC-Corporate. The shareholders received consideration for the sale of claims and appellants do not challenge the legality of the sale.

We affirm the district court’s finding that the American Bank cases are controlling on the facts of this case and the shareholders of the former owner of the causes of action at issue lack standing to pursue this action.

AFFIRMED.

1 . This opinion does not address the question of whether the Resolution Trust Corporation may assign its rights in the cause of action at issue to the shareholders.

2 . On August 9, 1989, RTC was established to replace the Federal Savings and Loan Insurance Corporation (“FSLIC") pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989. See 12 U.S.C.A. § 1441a(b)(6) (West Supp.1991). The purpose behind the establishment of the RTC was to "contain, manage and resolve failed savings associations.” Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. No. 101-73, § 101, 103 Stat. 183, 187, 1989 U.S.Code Cong. & Admin.News. RTC possesses, with certain exceptions, all of the receivership and conservatorship powers and duties of the Federal Deposit Insurance Corporation ("FDIC”). See 12 U.S.C.A. § 1441a(b)(4) (West Supp.1991). In acting as a conservator or receiver, FDIC and RTC are directed, inter alia, to "preserve and conserve the assets and property" of the failed savings institution. See id. at § 1821 (d)(2)(B)(iv) (1989). RTC also must “maximize the net present value return from ... the assets” of the insolvent institution. Id. at § 1441 a(b)(3)(C)(i) (West Supp.1991).

3 . FDIC v. American Bank Trust Shares, Inc., 412 F.Supp. 302 (D.S.C.1976), vacated and remanded on other grounds, 558 F.2d 711 (4th Cir.1977) ("American Bank I"), on remand, 460 F.Supp. 549 (D.S.C.1978), aff'd, 629 F.2d 951 (4th Cir. 1980) ("American Bank II").

4 . As noted by the district court, FDIC and RTC are authorized to operate in both receiver and corporate capacities. Compare 12 U.S.C. § 1441a(b) (West Supp.1991) (RTC) with 12 U.S.C. §§ 1821-23 (1989) (FDIC).

5 . Rule 23.1 states that in a derivative action, the shareholder must establish that the corporation failed to enforce a right which it properly could have asserted. Fed.R.Civ.P. 23.1. The district court in Womble addressed the issues of whether the shareholders had made proper demand on FSLIC and whether FSLIC should be removed as receiver because of an alleged conflict of interest.