Commodity Futures Trading Commission v. Heritage Capital Advisory Services, Ltd.
Commodity Futures Trading Commission v. Heritage Capital Advisory Services, Ltd.
Opinion of the Court
Saelens Beverages, Inc. appeals the denial of its motion to intervene as a matter of right, pursuant to Fed.R.Civ.P. 24(a)(2),
Subsequently, two separate motions were filed seeking to segregate some of the Heritage funds held in an account at Independence Bank in Elkhorn, Wisconsin.
On February 9, 1983, Saelens moved to intervene in the CFTC enforcement action to impose a constructive trust on $179,-346.55. Saelens contended that this sum
Intervention is the procedural device by which Saelens, as a stranger to the CFTC enforcement action, seeks to present its claim and become a party with regard to that claim only. See J. Moore, 3B Moore’s Federal Practice, II 24.02 at 24-13. Four requirements must be satisfied for Saelens to intervene as a matter of right, pursuant to Fed.R.Civ.P. 24(a)(2),
Although it seeks to intervene in this case, Saelens has available at least two alternative forums in which to press its constructive trust claim. First, and preferably, it may assert this claim in the claims procedure established by the receiver and supervised by the district court (App. 50). Second, since there is no stay imposed on actions against the receiver, Saelens may sue the receiver directly to recover the $179,346.55 allegedly wrongfully held by the receiver. This availability of other forums distinguishes this case from S.E.C. v. Flight Transportation Corp., 699 F.2d 943 (8th Cir. 1983), on which Saelens relies. In Flight, pursuant to an SEC enforcement action, the district court had appointed a receiver to take control of the assets of a corporation which was allegedly in violation of federal securities laws. That court also stayed all other proceedings against the corporation, apparently without even establishing a procedure for filing claims with the receiver. See id., 699 F.2d at 946-948. Under these circumstances, the Eighth Circuit panel allowed a private creditor to intervene in the SEC proceeding, noting that otherwise the creditor’s interests “may be foreclosed by the action of the District Court.” Id. at 948.
It is true that where a proposed intervenor’s interest will be prejudiced if it does not participate in the main action, the mere availability of alternative forums is not sufficient to justify denial of a motion to intervene. Central States, Southeast and Southwest Areas Health and Welfare Fund v. Old Security Life Insurance Co., 600 F.2d 671, 681 (7th Cir. 1979); Clark v. Sandusky, 205 F.2d 915, 919 (7th Cir. 1953). However, presenting its constructive trust claim in either of these forums will not prejudice Saelens in its ability to protect its interest in the Heritage funds. Saelens, which has already filed its priority claim with the receiver, admits that it may assert its constructive trust claim as vigorously before the receiver as it could before the district court.
Saelens notes that Schaumburg Bank has filed a district court motion seeking release, under an assignment theory, of $208,946.55 to it rather than to the receiver. Because Heritage’s account
. Fed.R.Civ.P. 24(a)(2) provides as follows:
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: * * * or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
. The CFTC sought to enjoin and otherwise remedy violations of the Commodity Exchange Act, 7 U.S.C. §§ 1-24, arising out of the involvement of Heritage and the Weavers with an investment scheme developed by Financial Partners Brokerage Ltd. and its principal Robert B. Serhant. That scheme itself has been the subject of CFTC enforcement activity.
. Originally, Independence Bank refused to release the funds to the receiver because it was not a party to the preliminary injunction proceedings, so that the restraining order, sent to the bank by ordinary mail, was not properly served. Subsequent to a Show Cause hearing initiated by the receiver against Independence Bank, the district court ordered the Heritage funds to be transferred to an account in that bank in the receiver’s name. This Court was advised by the receiver that he now has possession of those funds.
. Alternatively, intervention may be obtained as a matter of district court discretion pursuant to Fed.R.Civ.P. 24(b). However, Saelens has not argued that intervention should be allowed on that basis.
. It is noteworthy that a Tenth Circuit panel in C.F.T.C. v. Chilcott Portfolio Management, Inc., 725 F.2d 584 (10th Cir. 1984), also decided that a claim superior to that of general creditors (i.e., a claim as a bailor) could be presented adequately at a receiver’s claim proceeding so that intervention in the main action was not necessary.
. At oral argument the CFTC conceded that it would not oppose Saelens’ constructive trust claim.
. At the time the CFTC action originated, the Heritage account contained approximately $330,000. (Dec. 14, 1982 Tr. at 5). A provision of the February 10, 1983 order implementing the consent decree authorized the receiver to disburse $100,000 of that amount. Thus, even assuming no further disbursement has taken place, the account is no larger than approximately $230,000.
Reference
- Full Case Name
- COMMODITY FUTURES TRADING COMMISSION and Tyrone C. Fahner, Attorney General of the State of Illinois v. HERITAGE CAPITAL ADVISORY SERVICES, LTD., Jeffrey W. Weaver and Ward A. Weaver, Appeal of SAELENS BEVERAGES, INC., Proposed Intervenor
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- 1 case
- Status
- Published