Bobick v. Community & Southern Bank
321 Ga. App. 855
| Ga. Ct. App. | 2013Background
- Bobick defaulted on a First National promissory note secured by WGNB stock; First National filed suit for breach in Carroll County, GA.
- FDIC became receiver after First National failed in January 2010; FDIC assigned loans and related documents to CSB under a Purchase and Assumption Agreement and an Assignment Agreement.
- CSB acquired the promissory note and security instruments from FDIC; CSB moved to substitute as plaintiff and for summary judgment on the note.
- Bobick answered with defenses and counterclaims including declaratory judgment, breach of contract, fiduciary duty, and fraud; Lipham joined as a counterclaim defendant.
- Superior Court granted CSB summary judgment on the note and dismissed Bobick’s counterclaims; this appeal followed.
- There is a potential civil procedure issue about substitution and the court’s subject matter jurisdiction under FIRREA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CSB was properly substituted as plaintiff. | Bobick contends CSB was never substituted. | CSB was intended as substitute in judgment; wording shows substitution. | No reversible error; substitution implied by final judgment and order. |
| Whether CSB had standing to enforce the note as assignee. | CSB proved complete chain of assignment from FDIC to CSB. | CSB was not a party to the note; lack of privity. | CSB validly assigned; summary judgment proper. |
| Whether Bobick’s counterclaims were subject to FIRREA administrative exhaustion. | Counterclaims fall within 12 USC § 1821(d)(13)(D). | Exhaustion not required for pre-receivership claims; FDIC not necessary party. | Counterclaims post-receivership must exhaust; properly dismissed. |
| Whether Bobick’s declaratory judgment claim falls within FIRREA exhaustion. | Declaratory relief sought relates to rights in assets after receivership. | Not a true counterclaim; should be allowed or treated as affirmative defense. | Declaratory judgment claim treated as counterclaim; subject to exhaustion and dismissed. |
| Whether Bobick’s breach of fiduciary duty claim against First National lacked standing; derivative claim issue under FIRREA. | FDIC as receiver owns shareholder derivative claims; Bobick lacks standing. | Some fiduciary duty theories are direct claims; not all derivative. | Derivative-standing issue upheld; claims dismissed.' |
Key Cases Cited
- American First Fed. v. Lake Forest Park, Inc., 198 F.3d 1259 (11th Cir. 1999) (fIRREA exhaustion applies to claims against receivers)
- Damiano v. Fed. Deposit Ins. Corp., 104 F.3d 328 (11th Cir. 1997) (pre- vs post-receivership claims and exhaustion rules)
- Interface Kanner, LLC v. JPMorgan Chase Bank, N.A., 704 F.3d 927 (11th Cir. 2013) (FIRREA exhaustion implications for declaratory actions)
- Lazarre v. JPMorgan Chase Bank, N.A., 780 F.Supp.2d 1320 (S.D. Fla. 2011) (exhaustion requirements under FIRREA apply to claims against failed banks)
- ABER-Shukofsky v. JPMorgan Chase & Co., 755 F.Supp.2d 441 (E.D.N.Y. 2010) (FIRREA applies to successor purchaser of failed bank assets)