THE MALL BANK, APPELLANT,
v.
STATE OF FLORIDA, EX REL., THE DEPARTMENT OF INSURANCE OF THE STATE OF FLORIDA, AND FLORIDA GENERAL LIFE INSURANCE COMPANY, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
This case involves an interlocutory appeal concerning venue in a receivership proceeding. The Florida District Court of Appeal affirmed the denial of a motion to dismiss, holding that the bank could not assert a venue privilege when it was joined as a party to the delinquency proceedings.
No, the Bank cannot successfully assert the venue privilege. The venue privilege was personal to the Insurer and was waived by the Insurer's failure to assert it. The Bank, as a third party joined in the delinquency proceedings, may not assert this privilege.
[1] A receiver may avoid any transfer of an insurer's property that a creditor could have avoided, unless the transferee was a bona fide holder for value prior to the order t…
[2] A third-party defendant joined in a delinquency proceeding cannot successfully assert a venue privilege that the original party waived.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“As this action against the Bank is essentially a third party action ancillary to the delinquency proceeding, the Bank, as a third party, may not successfully assert the venue privilege.”
Establishes the court's reasoning for denying the bank's venue claim.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFlorida General Insurance Company (Insurer) had a deposit account with The Mall Bank (Bank). The Bank guaranteed a loan to the Insurer's parent compan…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Voidable Transfers cases and more on FLexlaw
SHIVERS, Judge.
This is an interlocutory appeal from the denial of The Mall Bank’s motion to dismiss for improper venue. We affirm.
Florida General Insurance Company (the Insurer) maintained a deposit account with The Mall Bank (the Bank). On January 3, 1983, the Insurer executed an agreement with the Bank to guarantee a $340,000 loan made by the Bank to the Insurer’s parent holding company, Fiduciary and General Corporation. On March 31, upon application by the Florida Department of Insurance (the Department), the Leon County Circuit Court issued an order to show cause on the appointment of a receiver and entered an order of seizure enjoining all persons from wasting the Insurer’s assets and directing the Department to take immediate possession thereof. On that same day, the Bank withdrew $323,635.76 from the Insurer’s account as payment on the loan it had guaranteed. On April 7, upon demand by the Department, these funds were restored.
On April 11, 1983, the Leon County Circuit Court issued an order appointing the Department as Receiver of the Insurer. The order contained directions of seizure and injunction similar to those contained in the March 31 order. When the Department demanded payment by the Bank of the Insurer’s deposit account funds, the Bank first set off the balance due it on the loan. After the Bank’s repeated refusals to pay over the funds, it was joined as a party to the delinquency proceedings.
Subsection (3) of Section 631.261, Florida Statutes, “Voidable transfers,” provides: (3) The department as receiver in any proceeding under this chapter may avoid any transfer of or lien upon the property of an insurer which any creditor, stockholder, subscriber, or member of such insurer might have avoided and may recover the property so transferred unless such person was a bona fide holder for value prior to the date of the entering of an order to show cause under this chapter. Such property or its value may be recovered from anyone who has received it except a bona fide holder for value as herein specified.
Pursuant to said Section 631.261(3), the Department then filed a petition in Leon County Circuit Court to void the guaranty agreement and to direct the Bank to pay over the Insurer’s deposit account. The Bank filed a motion to dismiss the petition for, among other grounds, improper venue, as it maintains its principal place of business in Palm Beach County. The trial court denied the Bank’s motion. We find no error in this denial.
The Bank stoutly argues that Sections 47.051 and 631.021(2) and (3), Florida Statutes, mandate maintenance of the delinquency proceedings in the judicial circuit of the insurer’s place of business:
47.051 Actions against corporations. — Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located. Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located.
631.021(2) The venue of a delinquency proceeding against a domestic insurer shall be in the circuit court in the judicial circuit of the insurer’s principal place of business. The venue of such proceedings against foreign and alien insurers shall be in the Circuit Court of Leon County.
(3) At any time after the commencement of a proceeding under this chapter, the department may apply to the court for an order changing the venue of, and removing the proceeding to, Leon County or to any other county of this state in which it deems that such proceeding may be most economically and efficiently conducted.
The Bank has a claim against the Receiver based on the guaranty agreement which the Receiver is seeking to void pursuant to section 631.261. Section 631.181, Florida Statutes, requires that all claims against a company in receivership be filed with the Receiver. The validity of those claims subject to challenge must then be determined by the receivership court. Section 631.182, Florida Statutes. Here, in setting off the balance due it on its loan to the Fiduciary and General Corporation prior to paying over the Insurer’s deposit account, the Bank not only failed to follow the procedure required by statute, it also violated the orders of the receivership court. Consequently, it was joined as a party to the delinquency proceedings. As this action against the Bank is essentially a third party action ancillary to the delinquency proceeding, the Bank, as a third party, may not successfully assert the venue privilege. 6 Wright and Miller, Federal Practice and Procedure, § 1445 at 240; H. Trawick, Florida Practice and Procedure, Chapter 5, Venue, § 5-13, Third Party Claims (1982); Flagship National Bank v. Commercial Bank and Trust Company, 428 So. 2d 361 (Fla. 3d DCA 1983). The venue privilege was personal to the Insurer, Florida General Life Insurance Company. The Insurer waived the privilege by failing to assert it. See Finkelstein v. Godard, 404 So. 2d 831 (Fla. 3d DCA 1981). The present venue is proper and the denial of the motion to dismiss is AFFIRMED.
WENTWORTH and NIMMONS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Doyle Conner v. Mid-Florida Growers, Inc., 541 So. 2d 1252 (Fla. 2d DCA 1989)…ourt’s territorial limits. The taking of appellees’ property occurred in Hardee County and was properly adjudicated there. A subsequent enforcement proceeding is properly brought in the same venue. Mall Bank v. State ex rel. Department of Insurance, 462 So. 2d 519 (Fla. 1st DCA 1985). Conner also claims that the writ of mandamus seeks to compel actions which he is constitutionally unable to perform because they fall exclusively within the authority of the Comptroller. However, as appellees correctly point ou…
-
Capitol Fid. Life Ins. Co. v. State, 478 So. 2d 1105 (Fla. 1st DCA 1985)…wever, as third party defendants, appellants have no standing to challenge venue in this case. A third party proceeding is ancillary to the original action and venue of the original action applies. Mall Bank v. State ex rel. Department of Insurance, 462 So. 2d 519 (Fla. 1st DCA 1985); Flagship National Bank v. Commercial Bank & Trust Company, 428 So. 2d 361 (Fla. 3d DCA 1983). Appellants further assert the trial court’s lack of subject matter jurisdiction on the ground that they are not affiliates of Capito…
-
Sunset Commercial Bank v. Fla. Dep't OF Ins., 509 So. 2d 366 (Fla. 1st DCA 1987)…ion for mutual debts or credits, see section 631.281, Florida Statutes, neither this enactment nor section 631.281 contains any exemption from filing requirements for offset claims. As indicated in Mall Bank v. State ex rel. Department of Insurance, 462 So. 2d 519 (Fla. 1st DCA 1985), the statutory scheme contemplates that all claims against an entity in receivership be filed with the receiver and determined by the receivership court. Although Sunset Commercial Bank was thus not entitled to a self-executing…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Finkelstein v. Jefferson Godard, Jr., 404 So. 2d 831 (Fla. 3d DCA 1981)
- Taylor v. Taylor, 428 So. 2d 361 (Fla. 3d DCA 1983)