Securities Investor Protection Corp. v. Wise

750 F.2d 464, 1985 U.S. App. LEXIS 27558
CourtCourt of Appeals for the Fifth Circuit
DecidedJanuary 17, 1985
DocketNo. 83-4775
StatusPublished
Cited by3 cases

This text of 750 F.2d 464 (Securities Investor Protection Corp. v. Wise) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Securities Investor Protection Corp. v. Wise, 750 F.2d 464, 1985 U.S. App. LEXIS 27558 (5th Cir. 1985).

Opinion

WISDOM, Circuit Judge:

In this appeal from an order of the Bankruptcy Court, Erbon W. Wise, a claimant in the bankruptcy proceedings of Stalvey & Associates, asks this Court to determine whether his claim against the debtor is protected as a “customer’s claim” under the Securities Investor Protection Act of 1970 (SIPA), 15 U.S.C. §§ 78aaa-78ll (1982). Wise seeks recovery for the value of his bonds, which the debtor, a broker-dealer, removed from the safe-keeping of a bank that held the bonds as collateral for a loan to Wise. The trustee in bankruptcy denied Wise’s claim on the grounds that he was not a customer under SIPA’s relevant provision. Id. § 78lll(2). The bankruptcy court reversed the trustee. The trustee and the Securities Investor Protection Corporation (“SIPC”) appealed to this court. We agree with the trustee and SIPC that Wise was not a customer within the meaning of SIPA, and accordingly reverse.

I. FACTS AND PROCEEDINGS BELOW

Erbon Wise, a retired general living in Sulfur, Louisiana, for over 20 years had invested in municipal bonds and revenue bonds. He bought his bonds from Sam Stalvey both before and after Stalvey organized his own company. Wise sought letters of credit from The Mississippi Bank of Jackson, Mississippi (“Bank”), for a venture unrelated to this proceeding. The Bank required that he deposit $500,000 worth of collateral bonds in their safekeeping department to secure these letters of credit. Wise delivered half of the bonds to the Bank personally, and sent the other half to Sam Stalvey, president of Stalvey & Associates, Inc. (“Debtor”), to be delivered to the Bank as collateral. Wise received the safekeeping receipts for these bonds. Under the terms of the agreement for the letter of credit and for safekeeping, no one could remove the bonds from the bank without a safekeeping receipt and without substituting replacement bonds having an equal value.

[467]*467The Bank informed Wise that it was reluctant to assume the responsibility of clipping the bonds’ coupons that would mature and could be cashed at various times. Wise, however, wished to avoid travelling extensively between his residence in Sulfur, Louisiana, and Jackson, Mississippi, to clip coupons. He therefore gave Stalvey authority to clip and cash these coupons and then deposit the proceeds to Wise’s account with the Debtor.1 Stalvey or one of his employees, usually Marcia Crisler, routinely clipped and cashed coupons for Wise as a free service to a “preferred customer”. The Debtor also absorbed the Bank’s safekeeping charges for Wise. On four occasions, however, Wise sent the safekeeping receipts for particular bonds to Stalvey with instructions to remove these bonds from the bank, replace them with other named bonds of equivalent value, and sell the former collateral.

On February 18, 1982, the Bank notified Wise that it had only one $5,000 bond in its safe-keeping account. The parties have stipulated that either Stalvey or his employee, Marcia Crisler, removed the missing bonds from the Bank. This removal of the bonds took place without Wise’s instructions, was not accompanied by safekeeping receipts, and was contrary to the agreement between Wise and the Bank. No one has contended that the removal of the bonds was within the Stalvey’s ordinary course of business as a broker. Wise still holds the safekeeping receipts for the missing bonds, but the bonds’ whereabouts are unknown.

On the same day the Bank notified Wise that the bonds were missing, the Securities Investor Protection Corporation (“SIPC”) obtained an order in the United States District Court for the Southern District of Mississippi appointing a trustee for the liquidation of the Debtor and transferring the cause to the Bankruptcy Court. On March 31,1982, Wise agreed with the Bank that he would first seek recovery from SIPC as a “customer” of the Debtor, but did not surrender any claims against the Bank. Wise filed his claim against SIPC on April 15, 1982.2 Under SIPA, if Wise were a “customer” of the Debtor, his claim would be insured by SIPC, just as the depositor of a failed bank receives protection from the FDIC.

On March 2, 1983, the trustee denied Wise’s claim for the bonds on the grounds that they were not covered under SIPA. Wise appealed to the bankruptcy court, and there prevailed. The trustee and SIPC appealed.

II, DISCUSSION

On appeal, SIPC and the trustee advance two contentions. First, they argue that the Bankruptcy Court’s determination that Wise was a “customer” under SIPA is a conclusion of law rather than a finding of fact, and therefore is not entitled to the deference appellate courts pay to the clearly erroneous standard of review. Second, the appellants argue that Wise is not a “customer” within the meaning of 15 U.S.C. § 78lll (2) (1982) because Stalvey did not “receive, acquire, or hold” the securities “in the ordinary course of business” [468]*468and because Stalvey neither had the securities “for safekeeping” nor had them “with a view to sale”. See id.

A. The Standard of Review

Wise has argued that the Bankruptcy Court’s determination that Wise was a customer within the ambit of SIPA is a finding of fact that cannot be set aside absent an express finding that it was clearly erroneous. In re McCrary’s Farm Supply, 8 Cir.1982, 705 F.2d 330, on which the claimant principally relies, fails to carry this burden. In McCrary’s, the bankruptcy court determined that a certain business outlet fell within the scope of the U.C.C.’s “place of business”. On appeal, the Eighth Circuit held that this finding was a factual issue that would not be set aside unless it was clearly erroneous. Id. at 332. That court, however, carefully limited its holding: “[T]his determination does not involve a conclusion based on an application of a legal standard, but rather involves a finding based on a non-technical statutory standard closely related to practical human experience.” Id. The “non-technical statutory standard” is nowhere defined in the U.C.C. Id.

“Customer”, by contrast, is a statutorily defined term of art as used in SIPA. The term is an integral part of a comprehensive statutory scheme governing the rights of creditors and brokers.3 It is not used in the colloquial sense of “one who buys or trades”. It is instead meant as a shorthand designation for those eligible under SIPA to receive special protection for their investments.

This Court has held that interpretations of such statutorily defined terms are a matter of law. In Donovan v. American Airlines, 5 Cir.1982, 686 F.2d 267, 270 n. 4, the Court (Rubin, J.) stated that in deciding whether student-trainees are “employees” under Fair Labor Standard Act’s statutory definitions, “[t]he standard of review ... is that of a legal, and not a factual, determination”. Some courts have explicitly held that the determination of a claimant’s status as a “customer” under the SIPA “presents solely a question of law”. SEC v. White & Co., E.D.Mo.1975, 406 F.Supp. 806, 807, aff'd, 8 Cir.1976,

Related

Ahammed v. Securities Investor Protection Corp.
295 F.3d 1100 (Tenth Circuit, 2002)
Focht v. Heebner
223 F.3d 1296 (Eleventh Circuit, 2000)
In Re Stalvey & Associates, Inc.
750 F.2d 464 (Fifth Circuit, 1985)

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Bluebook (online)
750 F.2d 464, 1985 U.S. App. LEXIS 27558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/securities-investor-protection-corp-v-wise-ca5-1985.