White v. Federal Deposit Insurance
Opinion of the Court
Intervenors-Appellants, Toni Y. Kozak, Howard R. Block, Porter & Clements and John E. O’Neill (the “Appellants”), appeal from a summary judgment rendered in favor of Defendant-Appellee, the FDIC. Finding that the district court erred in granting summary judgment, we reverse.
I.
FACTS AND PROCEEDINGS
This matter comes to the court for the second time. An earlier panel reversed summary judgment in favor of NCNB Texas National Bank (NCNB) on the ground that the Appellants had not been given an opportunity to present their respective oppositions to NCNB’s motion for summary judgment.
While this matter was pending on appeal for the first time, NCNB transferred to the FDIC, inter alia, all of its interests in this matter. On remand,, therefore, the district court ordered that the FDIC, in its corporate capacity, be substituted as a party defendant for NCNB. The appellants filed briefs in opposition to the FDIC’s motion for summary judgment (formerly NCNB’s motion for summary judgment), as well as cross motions for summary judgment. After exhaustive briefing by all parties, the district court granted summary judgment in favor of the FDIC. The Appellants timely appealed the final judgment.
ANALYSIS
As noted by the earlier panel, the FDIC (as successor in interest to NCNB) is either an unsecured judgment creditor or a lien creditor of White, and the Appellants have either valid assignments of, or merely unper-fected security interests in, White’s share of the proceeds of the Southwest note.
Appellants argue that the district court erred in concluding that the FDIC was a lien creditor. Alternatively, the Appellants argue that the documents executed by White were sufficient to constitute an assignment under Texas law. The district court’s conclusion that the FDIC’s claim is superior to that of the Appellants-is premised upon the court’s implicit assumption that activity subsequent to the time that the interpleader fund has been deposited into the registry of the district court can affect the relative rights of the potential claimants to that fund. Finding that the rights of claimants to an interpleader fund should normally be determined as of the time that the fund was created, this court does not reach the issue of whether the actions of NCNB were sufficient to create a lien under Texas law. Further, we need not address Appellants’ assertion that they were assigned White’s interests in the note proceeds.
In this case, Southwest Airlines filed a counter-claim and a cross-claim in inter-pleader and deposited the 1989 and 1990 installments on the note into the registry of the district court because there was a genuine dispute among a .number of parties as to who was entitled to the funds. Southwest filed its original claims in interpleader on September 22, 1989, and deposited the 1989 note installment on September 25, 1989. In September of 1990, Southwest amended its claims in interpleader and deposited the 1990 note installment into the court’s registry. NCNB, and thus the FDIC, became a judgment creditor of White in December of 1989.
Interpleader is a procedural device which entitles a person holding money or property, concededly belonging at least in part to another, to join in a single suit two or more persons asserting mutually exclusive claims to the fund.
In Avant Petroleum, Inc. v. Bangue Paribas,
While the interpleader action was pending, the five year U.C.C. financing statements filed by Paribas lapsed, and Paribas failed to file new financing statements for two months. BP moved for summary judgment, arguing that the filing lapses had caused Paribas’s security interest to become subordinate to BP’s judicially created lien. Paribas filed a cross-motion for summary judgment, which the district court granted. On appeal, the judgment was affirmed.
The Avant Petroleum court held that the retroactive unperfection of a security interest which takes place subsequent to the date that the interpleader action was initiated and the funds were deposited does not divest the secured creditor of his superior interest in the funds. In so holding, the court concluded “that where an interpleader action is brought to have the court determine which of two parties has priority with respect to the interpleader fund, the court should normally determine priority as of the time the fund was created.”
Once money is deposited into the court’s registry, the money is held by the court pending a determination of which party’s claim is superior. In other words, “[t]he court can be said to have taken custody of the money for the benefit of the rightful owner, creating a trust for the purpose of preserving the funds and thereby securing the rightful owner’s claim to them.”
In the instant ease, NCNB (now the FDIC) sought a writ of garnishment against the interpleader funds. Garnishment is a statutory proceeding brought by a creditor (the garnishor) of a person (the debtor) against a third party in order to satisfy a debt owed to the garnishor.
This is not to say that one can never garnish funds which are the subject of an interpleader action.
In sum, when an action in interpleader is brought, the court should, absent extraordinary circumstances, determine the relative priorities of all claimants as of the time that the interpleader was initiated. NCNB, the FDIC’s predecessor in interest, was not a lien creditor of White as of the date of Southwest’s original interpleader action. Thus, any claim that the FDIC may have as a lien creditor of White can not be asserted against the interpleader fund. At the time that the interpleader action was initiated, NCNB (now the FDIC) was merely a judgment creditor. Thus, any claim that the FDIC has against the interpleader fund must be evaluated in accordance with its status as an unsecured judgment creditor.
III.
CONCLUSION
For the foregoing reasons, the judgment of the district court is REVERSED, and we REMAND this case to the district court for proceedings consistent with the terms of this ruling.
. See White v. Texas American Bank/Galleria, 958 F.2d 80 (5th Cir. 1992).
. Id. at 85 n. 17.
. Tex.Bus. & Com.Code § 9.301. In relevant part the statute provides:
(a) Except as otherwise provided in Subsection (b), an unperfected security interest is subordinate to the. rights of
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(2) a person who becomes a lien creditor before the security interest is perfected;
(c) A "lien creditor" means a creditor who has acquired a hen on the property by attachment, levy or the like and includes an assignee for benefit of creditors from the time of assignment, and a trustee in bankruptcy from the date of the filing of the petition or a receiver in equity from the time of appointment.
. Under Texas law, no lien is created by the mere rendition of a judgment. Citicorp Real Estate, Inc. v. Banque Arabe Internationale D'Investissement, 747 S.W.2d 926, 929 (Tex.Ct.App. 1988) (citing Burton Lingo Co. v. Warren, 45 S.W.2d 750, 751-52 (Tex.Civ.App. — Eastland 1931, writ ref’d)).
. Gaines v. Sunray Oil Co., 539 F.2d 1136, 1141 (8th Cir. 1976); U.S. v. Estate of Swan, 441 F.2d 1082, 1085 (5th Cir. 1971); Wittry v. Northwestern Mutual Life Ins. Co., 727 F.Supp. 498, 499 (D.Minn. 1989); and 3A Moore’s Federal Practice ¶22.02[1] (1993).
. 853 F.2d 140 (2nd Cir. 1988).
. Id. at 144.
. Id. at 145 (quoting Avant Petroleum, Inc. v. Banque Paribas, 652 F.Supp. 542, 547 (S.D.N.Y. 1987)).
. Avant Petroleum, 853 F.2d at 145 (quoting Avant Petroleum, 652 F.Supp. at 547).
. Millard v. U.S., 916 F.2d 1, 3 (Fed.Cir. 1990) (citing Harris v. Balk, 198 U.S. 215, 226, 25 S.Ct. 625, 628, 49 L.Ed. 1023 (1905)); and In re Olivas, 129 B.R. 122, 124 (W.D.Tex. 1991).
. “Any attempt to attach funds deposited in the registry of a federal district court is subject to the doctrine of custodia legis." U.S. v. Rubenstein, 971 F.2d 288, 294 (9th Cir. 1992); see also U.S. v. Van Cauwenberghe, 934 F.2d 1048, 1062 (9th Cir. 1991). “[U]nder the doctrine of custodia legis, funds deposited in the registries of federal courts may not be attached ‘except by order of the judge or judges of said courts.' ” Van Cauwenberghe, 934 F.2d at 1062 (quoting The Lottawanna, 87 U.S. (20 Wall.) 201, 225, 22 L.Ed. 259 (1874).
.Although the earlier panel did not the reach the merits of whether NCNB was in fact a Hen creditor, it noted that the record would have had to have been "augmented significantly to sustain [such] a judicial determination. ..." White, 958 F.2d at 85 n. 17. While we too do not reach the merits of this issue, we concur in the earlier panel’s observation.
Concurring Opinion
concurs in the judgment only.
Reference
- Full Case Name
- Charles W. WHITE v. FEDERAL DEPOSIT INSURANCE CORPORATION, As Receiver for Texas American Bank-Galleria, Defendants FEDERAL DEPOSIT INSURANCE CORPORATION, As Successor in Interest to NCNB Texas National Bank v. Toni Y. KOZAK, Trustee of Black Family Trust, Howard R. Block, Porter & Clements and John E. O'Neill, Intervenors-Appellants
- Cited By
- 3 cases
- Status
- Published