In re the Liquidation of United Southern Bank of Nashville

718 S.W.2d 251, 1986 Tenn. LEXIS 797
CourtTennessee Supreme Court
DecidedOctober 6, 1986
StatusPublished
Cited by1 cases

This text of 718 S.W.2d 251 (In re the Liquidation of United Southern Bank of Nashville) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Liquidation of United Southern Bank of Nashville, 718 S.W.2d 251, 1986 Tenn. LEXIS 797 (Tenn. 1986).

Opinion

OPINION

FONES, Justice.

This is a Rule 10 application. Appellants filed a motion to intervene in a bank receivership, pursuant to Tennessee Rules of Civil Procedure 24. Two of appellants are stockholders and they and the other appellants are former Directors of the United Southern Bank of Nashville (USBN).

The trial judge held that although the Court had been asked to and had approved a sale of the assets of USBN to Union Planters National Bank of Memphis (UPNB) in May 1983, there was no receivership pending in which appellants could intervene.

The Court of Appeals denied appellants’ Rule 10 discretionary appeal without reaching the merits.

I.

Appellants attached to their motion to intervene the complaint that they sought permission to file against Federal Deposit Insurance Corporation (FDIC) in its capacity of receiver (FDIC-R) of USBN in the receivership proceeding which they asserted was pending. In the complaint appellants recited the following background events: that on 27 May 1983 the Commissioner of Banking of Tennessee assumed possession of USBN, determined that it should be liquidated, appointed FDIC as receiver pursuant to the authority granted the Commissioner in T.C.A. § 45-2-8021, and filed notice of possession in the trial court, pursuant to T.C.A. § 45-2-1502; that on the same day FDIC-R entered into a purchase and assumption agreement with UPNB wherein that bank acquired certain assets and assumed the deposit obligations of USBN; that FDIC-R entered into a second contract that same day with FDIC in its corporate capacity (FDIC-C) wherein all assets of USBN not purchased by the assuming bank were transferred to FDIC-C. A copy of that contract was attached as an exhibit to the proposed complaint.2

It was further alleged that FDIC-R filed a petition in the Chancery Court of Davidson County seeking ex parte approval3 of [253]*253the sale of the assets of USBN to UPNB and FDIC-C in accord with the two contracts aforesaid, and that an order approving those sales was entered on that day, 27 May 1983.

Appellants alleged that on 30 May 1985, FDIC-C filed suit against appellants and others in the United States District Court for the Middle District of Tennessee asserting a cause of action based upon failure to exercise reasonable care, skill and diligence in the discharge of their duties resulting in loss and damage to USBN of not less than twenty million dollars; that FDIC is authorized to function in the dual capacity of receiver of a state bank and in its corporate capacity and that jurisdiction over FDIC-C is in the federal courts but jurisdiction over FDIC, as a receiver of a state bank, is in the appropriate state court, in this instance Tennessee. Further, that any issue as to the powers, duties and acts of FDIC-R arise under the laws of Tennessee and must be determined by the courts of Tennessee.

Continuing, appellants alleged therein that their interests,

[a]re, or may be, affected by the contract of sale, exhibit A hereto, and these plaintiffs are entitled to have the validity and proper construction thereof and their rights, status and legal relations thereunder, determined and declared pursuant to chapter 14, of title 29, Tennessee Code Annotated.

Thereafter, three counts were included in the proposed complaint. In the first count it was asserted that the claims against appellants and others were “conditional assets” that did not vest in the receiver, unless and until the court determined that it was necessary to resort to them; that no such determination had been made and the transfer of those claims was invalid; that a receiver is without authority to transfer an equity claim such as the claim asserted in the federal court against appellants, and which could only be pursued by the receiver, implicitly after receiving the express authorization of the Tennessee Court wherein the receivership was pending.

In the second count, as alternative relief, appellants sought a construction of the contract of sale wherein FDIC-R transferred all claims and dioses in action against the directors, officers, employees, etc., of USBN to FDIC-C and a finding that (1) the claim was not included in the assets to FDIC-C, (2) the contract transferred only the right to proceeds of any claims that might be pursued by FDIC-R or (3) if the contract be construed as transferring the claim, that it be construed as imposing the obligations and duties of FDIC-R upon FDIC-C. In both count one and count two appellants alleged that they were entitled to declaratory judgments on the issues asserted therein.

In count three appellants alleged that the only report filed by FDIC-R was filed in December 1983, which merely reflected the status of the assets of the bank as of 27 May 1983; that the extent of liability of appellants as directors, if any, will depend upon the collection of assets and enforcement of claims, which are duties imposed upon FDIC-R; that since appellants’ direct and immediate interests are thus affected, they are entitled to an order requiring FDIC-R to file an accounting, “showing the results, extent and status of efforts made by it, or on its behalf, to enforce the claims of the bank, and to collect its assets.”

II.

In this Court appellants say there are two issues: first, is a receivership pending in the Chancery Court of Davidson County in which intervention is possible; and second, are appellants entitled to intervene and file their proposed complaint in the receivership proceeding?

[254]*254FDIC-R says the threshold issue is whether FDIC-R is subject to and governed by T.C.A. § 45-2-1502, et seq., as it insists, or whether it is a general equity receivership, as appellants contend. In either event, FDIC-R asserts that applicants as potential debtors have no standing to intervene for the purpose of controlling or influencing the bringing of a suit against themselves, which is the gravamen of the proposed complaint; that the claims against appellants were sold under statutory authority to FDIC-C, that the sale was approved by the court and the court’s order approving the sale is not subject to attack by appellants or any other inter-venor.

FDIC-R acknowledges that in due course it must file an accounting in the Chancery Court of Davidson County and that it is subject to the duties imposed upon a commissioner-appointed receiver as set forth in T.C.A. § 45-2-1501, et seq.

III.

The first issue we will consider is whether there is a receivership proceeding pending in the Chancery Court of Davidson County in the matter of the liquidation of USBN.

The chancellor’s order denying the motion to intervene reads in part as follows:

This court has never appointed a receiver in this suit and there is no such receivership. In May 1983, this court was asked to and did approve a sale of assets to Union Planter’s Bank.

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Related

In re the Liquidation of United American Bank in Knoxville
743 S.W.2d 911 (Tennessee Supreme Court, 1987)

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Bluebook (online)
718 S.W.2d 251, 1986 Tenn. LEXIS 797, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-liquidation-of-united-southern-bank-of-nashville-tenn-1986.