Federal Deposit Insurance Corp. v. Bowles Livestock Commission Co.

937 F.2d 1350
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 3, 1991
DocketNo. 90-2117
StatusPublished
Cited by1 cases

This text of 937 F.2d 1350 (Federal Deposit Insurance Corp. v. Bowles Livestock Commission Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Federal Deposit Insurance Corp. v. Bowles Livestock Commission Co., 937 F.2d 1350 (8th Cir. 1991).

Opinions

FLOYD R. GIBSON, Senior Circuit Judge.

Bowles Livestock Commission Company (Bowles) appeals the district court’s final judgment and order in favor of the Federal Deposit Insurance Corporation (FDIC) in the FDIC’s action for conversion against Bowles for its sale of certain livestock in which the FDIC had a security interest. We must decide who bears the loss for the failures of a certain hog farmer and a certain bank in Nebraska. Despite the never-lose position the FDIC ordinarily enjoys in the interests of sound national banking, we conclude that here the district court misapplied the law and that the FDIC cannot recover from Bowles. We therefore reverse the judgment of the district court.

I. BACKGROUND

We borrow liberally from the district court’s published opinion for our recitation of the facts.1

[1352]*1352Bowles ... is a sole proprietorship which at all times hereunder was doing business at 531 Livestock Exchange Building, Omaha, Nebraska.... Reed Frahm is an individual who is a resident of the State of Nebraska. The Johnson County Bank, Tecumseh, Nebraska (hereinafter “Bank”) was a banking corporation organized and existing under the laws of the State of Nebraska prior to February 7, 1986.
The Bank loaned to Steven G. Wehmer [three] certain sums of money on [January 28, 1986]. At the time each said sum was loaned to Wehmer, he executed promissory notes in favor of the Bank evidencing his indebtedness. Wehmer also executed a security agreement on January 28, 1986, in favor of the Bank covering, inter alia, all farm products or inventory, including livestock.
At various times from January 9, 1986, through January 8, 1987, hogs belonging to Wehmer were delivered to Bowles at the request of Wehmer for sale through Bowles. At various times from July 16, 1986, through January 8, 1987, hogs belonging to Wehmer were delivered to Bowles for sale under the name of “Reed Frahm” to be sold through Bowles.
At all times from January 9, 1986, through January 8, 1987, Bowles was operating as a livestock market agency and was registered under the Packers and Stockyards Act ... doing business in interstate commerce. At all times from January 9, 1986, through January 8, 1987, Bowles sold the hogs of Wehmer in the ordinary course of its business to buyers who had no actual knowledge of any purported security interest in the hogs. The livestock sold by Bowles was sold at fair market value.
On or about February 7, 1986, the Department of Banking and Finance of the State of Nebraska declared the Bank insolvent and appointed the FDIC as receiver and liquidating agent of the Bank. The FDIC gave notice to Wehmer on May 5, 1986, advising him that he could not sell livestock subject to its security interest without written approval from the FDIC (Exhibit No. 116). On July 7, 1986, FDIC sent written notice to Bowles of its security interest and lien upon Wehmer’s livestock (Exhibit No. 117). The net proceeds from each sale of Weh-mer’s livestock were delivered by Bowles to either Wehmer or Reed Frahm.
The essential issue in this case is what is the extent of liability, if any, of Bowles ... to the Bank’s successor, the FDIC, for sales of livestock owned by Steven Wehmer made through Bowles. There are four separate time periods in issue. The first ... is from January 9, 1986, the time the first sale of livestock in question was made, through February 7, 1986, the time the Bank was declared insolvent and the FDIC [was] appointed as receiver and liquidating agent. The second period is from February 7, 1986, through May 5, 1986, at which time the FDIC gave notice to Steven Wehmer not to sell any property subject to its security interests without first obtaining written approval from the FDIC. The third period is from May 5, 1986, through July 7, 1986, at which time Bowles received written notice from the FDIC advising it of the latter’s lien on Steven Wehmer’s livestock. The fourth period is from July 7, 1986, through January 8, 1987, the time period during which Steven Wehmer consigned hogs to Bowles under the name Reed Frahm. Sales were made under Reed Frahm’s name because ... Weh-mer’s name appeared on the lien list distributed July 7, 1986, by FDIC [which required the FDIC be a joint-payee of checks from Bowles].
Sales of hogs by Wehmer were made on an essentially continuous basis. The raising of hogs is a commodity in which sales occur as the livestock reaches an appropriate weight. Steven Wehmer testified that he first started borrowing money from the Bank for his hog operation in 1975. Although the Bank had a [1353]*1353security interest in Steven Wehmer’s livestock ..., the Bank never objected to Wehmer selling hogs and applying the proceeds to operating expenses. The Bank was familiar with this course of dealing and never objected throughout the entire period Wehmer conducted business with the Bank.

Bowles, 739 F.Supp. at 1366-67.

Wehmer, of course, used Frahm to fraudulently sell his livestock and avoid the issuance of the joint-payee checks to the FDIC.2 As long as Frahm brought the livestock in at Bowles, no one was the wiser when Frahm later signed over the sales proceeds checks to Wehmer, who could spend the proceeds as he saw fit, regardless of the security interest held by, and his indebtedness to, the FDIC. Weh-mer and Frahm are the culpable parties in this scheme.

Wehmer later filed for bankruptcy. The FDIC was left with the notion that it should get its bad loans satisfied by the livestock auctioneer, Bowles, and sued it for conversion. The FDIC also sued Frahm, and the district court granted summary judgment to the FDIC against Frahm for his part in the scheme, which judgment is not before this court.

The district court considered the liability of Bowles in the time frames set out above. For the period before the FDIC acquired an interest in the Bank’s notes from Wehmer (up to February 7, 1986), the court concluded that the course of conduct between the Bank and Wehmer evidenced a waiver by the Bank of its security interests in Weh-mer’s hogs. The FDIC could not recover from Bowles for these early sales. However, we are only concerned with the court’s decision as to sales of livestock after February 7, 1986, when the FDIC became the receiver of the Bank, through December 23,1986, when the Food Security Act took effect, and, according to the district court, cut off the FDIC’s cause of action against Bowles. Id. at 1375-76. During this period, the district court concluded that Bowles was strictly liable in conversion to the FDIC pursuant to federal common law. Id. at 1373.

The Food Security Act, 7 U.S.C. § 1631 (1988), provides that commission merchants like Bowles may escape the snag of security interests in farm products they sell unless certain conditions are met with respect to the filing of financing statements. The district court concluded that the FDIC had failed to “establish that an effective financing statement within the meaning of [the Food Security Act] ha[d] been filed.” Bowles, 739 F.Supp. at 1376. Thus, Bowles’ liability to the FDIC ended with the beginning of the absolution from Congress on December 23, 1986, and Bowles was not liable for sales after that date.

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Bluebook (online)
937 F.2d 1350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federal-deposit-insurance-corp-v-bowles-livestock-commission-co-ca8-1991.