*1 remaining proceeds Bank is entitled the sale. part, part,
Affirmed in reversed entry consistent
remanded opinion.
with this COONES, Appellant Albert
James
(Defendant),
v.
FEDERAL DEPOSIT INSURANCE COR-
PORATION, Liquidator for the First Sheridan, and as Re-
National Bank of Bank and ceiver Stockmen’s (Plaintiff). Appellee Company,
Trust COONES, Appellant Albert
James
(Plaintiff),
v.
FEDERAL DEPOSIT INSURANCE COR-
PORATION, as Receiver for Stock- Company, Appel-
men’s Bank and Trust (Defendant).
lee COONES, Cindy Albert Lee
James Jones,
Coones, Cindy Lee f/k/a
Randy Royal, Bankruptcy Trustee L. Coones, Cindy Appel-
for the estate of (Defendants),
lants
FEDERAL DEPOSIT INSURANCE COR-
PORATION, Liquidator First for the Re-
National Bank of Sheridan and as Bank & Trust
ceiver Stockman’s (Plaintiff). Appellee Company, 91-265, and 92-136.
Nos.
Supreme Wyoming.
March *2 MACY, C.J., THOMAS, Before and *
CARDINE, GOLDEN, URBIGKIT JJ.
URBIGKIT, Justice, Retired. litigation ap- These three commercial decision, present for one peals, consolidated rights, protection re- creditors’ debtor course of liti- plevin issues. convoluted gation pursued through various state and developed myriad courts has into a federal proceedings, contesting juris- of issues diction, procedural matters and substantive decisions. dispute attempts centers on the successor, Depos-
the creditors’ the Federal (FDIC), Corporation to collect it Insurance promisso- default on three after a debtor’s (Coones) ry A. is the notes. James remaining maker of the notes from whom recovery sought. appeals The three be- primarily challenge this court a sum- fore mary judgment granted in which was favor summary judgment of the FDIC. personal judgment entire granted a on the possession of the collateral debt and pre- post- issued writs both challenged post- judgment. Also are a permitting order intervention of directing sequester- a third releasing acquired ing and of funds proceeds from items of collateral and sales against a motion to dismiss sustained agister’s arising Coones on an lien action from his claim for maintenance of the live- during litigation. stock chattel part part. We affirm and reverse I. PROCEDURAL DISPOSITION AND ISSUES presented complex With the issues continuity, for the sake of some we find necessary begin description of the with a Winship R. of Donald R. Win- Stephen of the individual actions from character Associates, P.C., Casper, appel- for ship & origi- appeals which the before this court lants. nated. We will follow each with an enu- Lee, of the issues contended Timothy Kingston and Jeanne R. meration C. Denver, CO, litigants. appellee. January
*Retired against Civil Coones for the April the FDIC filed collateral’s assessed On Deposit Insur- personal judgment against Action No. Federal аnd a value Coones, Campbell Corp. ance Coones for the total amount of all debt Claiming court. County, district on three of the notes. The district owed makers, Cindy Lee Coones and partial denied motion Coones’ on a of four had defaulted total summary judgment, denied mo- the FDIC’s *3 notes, action, although this promissory pri- tion to dismiss the counterclaim based Campbell County, directed to filed in was marily on a claimed livestock maintenance mortgage on foreclose a real estate both lien agister’s just and certified that no Wyo- County, in property located Sheridan existed, delay for im- permitting cause an judgment ming and to on chattel obtain appeal. 54(b).2 mediate W.R.C.P. An in- of the which also some terim decision of the district court had elim- liquidator receiv- balances. As the or note inated issue of simultaneous real er, in interest the FDIC was successor a estate foreclosure on fourth note with Wyoming failed banks which were to two ruling proper pro- that the venue for that in- original creditors. in ceeding County was where the Sheridan pos- prayer requesting a immediate cluded That litigation real estate was situate. re- and for session and return of beyond pur- our mains somewhere current judgment replevin. The FDIC also view. sought personal judgment on obtain promissory copy summary judgment on A of this was total balance owed It was clear on the face of the attorney. notes. not furnished the debtor or his not reme- complaint if these were alternative judg- and his learned of the Coones counsel dies. ment’s terms the sheriff arrived with when replevin, post-judgment, writ of issued motions, of year After more cross- than directing the take of possession officer to motions, preliminary re- temporary equipment the livestock and collateral. proceedings, this straining orders and other This is somewhat like 4:00 a.m. no- litigation increasingly complex came to drug search in a knock warrant execution summary judg- by an order on “resolution” case. The was one of four issued raid writ dated 1991.1 The sum- ment October which, scope, FDIC, post-judgment extended mary judgment, in favor of the Wyoming found collat- addressed granted the FDIC eral, contingent personal judgment in South Dakota.3 action, presented (1) Granting in an for for relief is whether The "Order Motion 1. Plaintiffs Denying claim, counterclaim, cross-claim, (2) Summary or third- Judgment, Defendants’ claim, (3) Summary multiple parties Judgment party volved, And are in- for or when Motion Partial entry Denying To is locat- direct of Plaintiffs Motion Dismiss” the court page appeal judgment the record on on one or but fewer ed in Volume V of final as to more however, record, parties only upon end there. an does not all of or than the claims proceed- just express volumes of further is no An additional six determination there part upon express ings delay to this of di- have been certified for reason entry judgment. in this In the three consolidated actions. Included rection direction, developed a re- are materials after determination and collection absence any such Court, decision, Camp- to the Sixth Judicial District or form of however mand order other County, settling adjudicates purpose designated, than all the limited fewer bell "for which rights and sub- of fewer the limited remand or and liabilities the record.” Even the claims permit appeals apparently did not sequent parties not shall terminate than all agree parties, any record on parties to the contents of the as to of the claims or action subject argument a appeal. The FDIC submitted oral form of decision the order other entry styled "Affidavit of Authentica- time before the document as an revision at copies adjudicating and the purports to include all. claims tion” which parties. all rights sent to Coones sale of collateral notices liabilities Cindy notice to Coones Lee Coones. The sent try to enforce it will FDIC admitted 3.The already proceeding. record in in South for the collateral the writ FDIC, 54(b) briefing, citation 2. W.R.C.P. states: without Dakota. in the record involving contained information Judgment multiple upon claims Court of the the "District appeal, states that parties. multiple more claim than one —When order, the Following method of notiсe that a order amend order was not entered, Coones filed served on judgment had been Coones.5 relief on November motion for appeal notice was filed not final argued that the order was stated: which pending remained the counterclaim since hereby given that James NOTICE hearing exemption, or a and no Coones, one of the Albert Defendants thereon, given any property had been action, hereby ap- the above-entitled civil exempt might claimed to be peals Supreme State replevin. from the final en- pleadings in- various intermediate With (1) Granting titled “Order Plaintiffs Mo- volving South Dakota and courts both (2) Summary Judgment, Denying tion for granting an amended Wyoming, an order Summary Defendants’ Motion for Partial pro nunc tunc was entered December order *4 (3) Judgment Denying Plaintiff’s Mo- 9, 1991, stay which refused tion to Dismiss” entered herein on Octo- require the action or chattel sale but did ber 1991. immediately issue FDIC exemptions notice of a to claim In his statement of the issues from this 91-265, hearing Wyo.Stat. portion litigation, Appeal 1-15-107 No. promis- debtor, appellant, The district court also ordered the questions: Coones as “merged in sory notes be canceled as [the] Judgment Summary 1. Whether the judgment.” recovery. allows Plaintiff a double pro The amended order nunc tunc was 2. Whether the District Court erred by another issued on itself amended order denying in Defendant’s Motion for Par- acknowl March 1992. This amendment Summary Judgment. tial edged Cindy the now divorced Lee Coones’ 3. there material Whether were facts discharge bankruptcy August in dispute in at the time that Plaintiff’s Coones, Cindy In re Lee No. 90- Summary Judgment Motion for was Discharge (Bankr.Wyo. 00318-A of Debtor granted. 22, 1990). Aug. terms of the amend Under 4. Whether the District erred Court court, ed order of the state granting in Plaintiff’s Motion for Sum- against Cindy only to Lee Coones extended mary Judgment. “right the FDIC’s to foreclose on the collat- in the eralized listed December 5. Whether Defendant should given hearing exemp- 1991 Amended Order and on other have been on his property given by Cindy prior proper- Coones as collater tion claims of his sale ** original judgment al As with ty- Circuit, Lawrence, County Eighth Cindy appealed Judicial Lee Coones has not from the proceeds South Dakota ordered that held district court’s amended order and is not a Auction, generated Onge St. Livestock from the appeals. Chapter to these She found a Seven sale of some of Coones' livestock on October bankruptcy discharge and a divorce de- auction, deposited at that in escrow participation litiga- cree to her in the solution accounts. Pursuant to the South Dakota court’s Order, tion. deposited Key these funds were in Bank Gillette, Wyoming. The transfer of the funds court, April 5. The district in a letter dated from South Dakota to the bank took 1992, acknowledged original judg- that both the agreement. place with These cash [Coones] amending ment and the order the order nunc $216,000.00." proceeds approximately totalled pro properly tunc were not served. The district proceeds, In a motion to distribute filed court said the failure was due to errors within 4, 1992, May the FDIC asked the Sixth the Clerk of the District Court’s office. The Court, Campbell County,
Judicial District to or- district court also issued a memorandum to the $231,933.89being der the distribution of held in Court, Clerk of the District which was entered bearing money escrow account. interest case, emphasizing into the record of this proceeds was identified as the of the South copies properly $16,000 direction that of all orders be nearly Dakota livestock sale. The crepancy dis- FDIC, explained by served. is never but may be earned interest on the account. escrow juris- 12.Did the district court District have Judicial the Sixth 6. Whether this case? diction of subject over the jurisdiction had Court this case. matter of Appeal pending, No. 91-265 this With erred District Court 7. Whether Ap- in district litigation continued court. Motion to Dis- denying Defendant’s was filed in the aftermath peal No. 92-136 hearing miss. of a consolidated the district hearing considered four issues. court. Court erred the District 8. Whether First, requesting a motion from the FDIC for Per- Motion denying Defendant’s $231,933.89 proceeds the distribution emptory Disqualification. from a cattle sale which occurred South FDIC, restates: Appellee, Dakota; second, a motion for intervention grant court’s 1. Did the district Cooperative from the Farmers Association the FDIC dou- summary judgment allow FDIC; (Farmers) opposed by recovery? ble third, objections to the collateral Coones’ appellate jur- have 2. Does fourth, sale; and, the FDIC’s motion to Appellant’s claim that the isdiction compel deposition which was W.R.C.P. col- post-judgment disposition of FDIC’s opposed Coones.6 wrongful? lateral was granted the FDIC’s The district court reversible error 3. Was there proceeds of the motion to distribute the collateral? disposition of post-judgment *5 Dakota cattle sale. Farmers’ inter- South grant- court err 4. Did the district granted and the district vention motion was Summary ing Motion for the FDIC’s complaint court directed Farmers to file a Judgment? asserting proceeds. its claims to the sale security inter- Did the have a 5. FDIC ruled that the collateral The district court acquired cat- Appellant’s in the after est personal judg- sale had not satisfied the tle? against ment and dismissed his ob- Appellant’s Counterclaim 6. Did the jections. Finally, granted the district court preclude summary judgment? compel seeking motion the FDIC’s district court have purpose 7. Should the of iden- deposition for Coones’ Appellant’s Motion for Par- granted the assets. The district court tifying additional Summary Judgment? just reason for tial ordered “that there is no entry this order as a final delay of the grant- err in 8. Did the district court 54(b)” with W.R.C.P. order accordance request attorney’s for ing the FDIC’s appeal. permitting an immediate fees and costs? right Appellant denied his 9. Was 29, 1992, appeal, filed June notice exemptions? to claim related:7 deny- err in 10. Did the district court given hereby that James NOTICE Appellant’s Disqualifi- for ing the Motion Coones, Plaintiff above- Albert cation? action, hereby appeals to the entitled civil origi- Supreme of the State Did fail to file the Court
11. the FDIC Intervention, Permitting promissory from the Order nals of the notes with Releasing Funds and Sequestering and court? district appeals the entire order of While Coones from 7. 6. W.R.C.P. 69 states: court, any not state issue or district he does pay- for the Process to enforce challenging the intervention contention execution, money shall be a writ of ment FDIC, op- Similarly, which had Farmers. the court directs otherwise. In aid of unless below, did file posed Farmers’ intervention execution, judgment and in addition to portion cross-appeal of the district from that statute, judg- proceedings provided file a brief or Farmers did not court's order. creditor or a successor in interest when ment Any objection participate appeal. record, in this appears that interest obtain considered waived intervention must be including discovery person, from propriety debtor, of that not consider the provided this court will in the manner portion the district court’s order. these rules. state a entered motion to dismiss for failure to Deposition Rule Requiring upon granted, the claim which relief can be 1992. herein on June complaint barred contended FDIC Coones, appel- identified The issues due the fact that the judicata res No. 92-136 lant, Appeal filed in in his brief requested already had denied relief been include: for the Bankruptcy States the United in which the manner 1. Whether Wyoming. also stat- The FDIC District Appel- and sold took FDIC complaint dismissed ed that the should be property precludes personal lant’s compulsory stated a counter- because it Appellant. deficiency collection arose out of the transaction claim which comply with the failure to 2. Whether subject pending litiga- was the that Exemption Right to Notice of Wyoming’s Campbell Action No. County, tion in Civil further enforce- eliminates Statutes in the first the action that resulted judgment. ment of FDIC’s Finally, in this the FDIC appeal series. Appel- provide 3. Whether failure to be dis- argued complaint should concerning his the documents lant with join indispensable par- for failure missed prior to this exemptions to claim ties, Randy Roy- L. Cindy Lee Coones and personal and sale of his seizure Royal Randy al. L. was the trustee process rights. his due violated Cindy Lee Coones. bankruptcy estate of FDIC, responds: Appellee, the The district ordered further en- Is the FDIC barred from dismissed, prejudice, failure to Judgment by of its the man- forcement upon claim relief could be state a disposition of post-judgment ner of its 12(b)(6). filed a granted. W.R.C.P. Appellant’s collateral? contending motion reconsideration further en- Is the barred from limitations, Wyo.Stat. 29- the statute of alleged its Judgment forcement of its 104(a)(iii)(1981), lien fore- required a 7— provide notice of Appellant failure action be filed within six months closure *6 exemptions? to claim filing agister’s of an lien. He also Appellant deprived of due 3. Was argued that no could be as- counterclaim alleged failure to process FDIC’s pending litigation Campbell serted Appellant right to provide the notice of 17324, Action County, Civil No. because exemptions? claim considering was still a motion to that court and no answer or counterclaim had dismiss origi- final action this court before been filed Coones. The district 5, Campbell County. nated in On October denied the motion for reconsideration. 1990, stating a complaint filed a 5,1992, appeal February notice of was filed agister’s averred claim on lien. Coones stated: 20, April 1988 and that between October 1990, 10, during pendency given of a bank- hereby NOTICE James Coones, involuntarily dis- ruptcy petition which Plaintiff in the above- was Albert missed, action, “debtor-in-posses- hereby had acted to the appeals he as a entitled civil personal property Supreme Wyoming of certain Court of sion” the State recovery Dismissing and was entitled to a Plaintiff’s estate from Order reasonable, necessary expenses May Complaint costs entered herein on of, proper- preserving, disposing Denying such and from the Plain- Order 506(c). ty under U.S.C. tiff’s Motion for Reconsideration entered $150,780.49 in- plus January 30, he was owed claimed herein 1992. terest. Coones, appeal, This interim filed responded rejected by to the this
The FDIC court. The district court issued, a motion to dismiss on December then on March an amend- filed 12(b)(6) Styled dismissing complaint.8 as a W.R.C.P. ed order 1990. Coones’ dismiss, disposition attorney’s fees 8. The a claim for In the FDIC’s motion a claim for complex litigation. of this illustrates nature appeal was filed which 3.Did the district court properly Anоther notice of dis- present jurisdic- Appellant’s the source of our provides Complaint miss the because tion: join indispensable he failed parties? given hereby that James NOTICE out, Sorted there are three determinative Coones, Plaintiff in the above- Albert inquiries complex from these events and action, hereby appeals civil entitled contentions: Wyoming of the State of Supreme Court processes, 1. procedures Whether Dismissing from the Amended Order obtaining and activities of the pos- Complaint Plaintiffs entered herein on liquidating session and the chattel collater- March rights al deficiency judg- forecloses to a 92-90, Appeal No. we find the issues ment. stated Coones to be: 2. Whether the trial court erred in dis- compulsory 1. Was this action a coun- tributing proceeds directing a debt- (Case companion terclaim in the case No. deposition following or’s a post-judgment 91-[2]65). hearing. Cindy 2. Are Lee Coones and the 3. Whether the precluded debtor was Chapter appointed 7 Trustee to adminis- lawsuit, asserting, independent in an Bankruptcy “indispens- her Estate ter any agister’s lien claim for maintenance of parties” to this action. able assets, including cultivation and hus- 3. Whether doctrines Stare De- bandry, following neglect the debtor’s cisis, Estop- Law Case Judicial present replevin-judgment the issues in the pel should have determined the issue of action; judicata bankrupt- res parties. indispensable court; cy join indispensable or failure to the District Court consider May parties when each of these issues were part pleadings matters not a be- by entry raised and determined of a 12(b) considering fore it in a Rule Motion. 12(b)(6) W.R.C.P. dismissal for failure to litigant’s cause action 5. Does state a claim. filing for his a motion for merit dismissal peremptory disqualification II. FACTS
W.R.C.P. 40.1. FDIC, Appellee, the states the issues as: Coones is a rancher. The suc- failures jurisdiction 1. Does the lack cession of financial which devel- appeal? oped litigation began into this with a over bitter *7 proceeding divorce in 1983. As a result of properly 2. Did district court dis- settlement, mortgaged the divorce Coоnes Appellant’s Complaint miss the because Mutual Life Insurance his ranch to the brought claims that should have been (MONY). Company of York The bor- brought compulsory New as counterclaims purchase another case? rowed funds were used relief, request, for of an affirmative Coones filed his motion reconsideration nature January rejected by was added: order dated was WHEREFORE, Defendant, January amend- Federal De- 1992 and entered 1992. An posit Corporation, dismissing Insurance as Receiver for was en- ed order Coones’ Company, 30, 1992, Bank and Trust re- Stockmen’s quests ques- tered March which resolved Com- that this Court dismiss Plaintiffs requested affirmatively tion of the award plaint prejudice, with costs and reasonable stating: for defending attorney’s incurred in this ac- ORDERED, fees ADJUDGED IT IS FURTHER tion[.] considering after AND DECREED that added.) (Emphasis awarding proposed judgment Defendant costs court, dismissing district in its order The attorney's such costs and attor- and fees that plaintiff’s complaint, included: ney’s appropriate. fees are not ORDERED, ADJUDGED IT IS FURTHER cross-appeal filed a on this The FDIC has not AND DECREED that the Court will consider fees, attorney’s will so no consideration issue of attorney an award of costs and fees to given to this claim. upon of an itemized Defendant submission expenditures. account of said 790 Party rights former and the Secured have the awarded to the
portion of ranch provided remedies in Article 9 of the Uni- wife. addition, [Cjode and, form Commercial 1986, Coones, Cindy Lee remarried agreement.” provided those in this Coones, promissory three executed litiga- promissory The second execut- subject of this note was are the notes which May 16, Cindy exe- promissory note was ed 1986 The first tion. with the Lee Coones with the Stockmens Bank and April cuted on Sheridan, Gillette, (here- Wyoming Company Trust National Bank First Note”). princi- 1”). (hereinafter princi- The inafter “Stockmens Note The “Sheridan $400,000 $45,000 pal an interest amount with a variable with was pal amount was previ- adjusted rate percent per monthly. annum. interest combi- of 14.5 rate agreement security promissory note/security agreement stated nation ously executed purpose future advances stated credit was the collateral equipment field now “Business: Renewal & Purchase” and that “All oil would be: ** Money was a acquired *.”9 this “Purchase Loan” or hereafter owned farming operations. agreement specific The loan was secured security stated as “In real upon position the event a combination of second remedy default: agreement mortgage the Debtor estate and chattel collateral.10 default security agreement spe- Attached listing equipment which included: cific S.N. Mod. 900 Versatile Tractor 4X4 35,000.00 Leon Dozer Blade S.N. 16774-801 14' 9,500.00 yds. Scraper Bucyrus S.N. 5-91-63723 12,000.00 Winch V.I.N. 58288 1966 Auto Car Truck 12,000.00 1969 Peterbilt Tractor V.I.N. 33692K 10,000.00 CK Case Backhoe S.N. 8676724 8,500.00 Lowboy FWM Trailer Fruhauf 2,000.00 Belly dump V.I.N. 1968 Garwood 2,500.00 Amp Hobart Welder Trailer S.N. 10-4W-4716 1975 400 1,000.00 Challenge yd6 Cement Mixer Sprayer Washer on Trailer S.N. 69-10-23-03 1,000.00 1978 Thuren 1,000.00 40' V.I.N. Oil field 1956 Trailermobile flatbed D.R.638638 38' float
$94,500.00 agree- previously Security granted Another executed order for the herein Interest equipment). National Bank of Sheridan ment between First to be valid to all Borrower’s Coones, terms and products with the same material farms [x] FARM PRODUCTS: All Borrower, March covered much of the dated or here- whether now owned property. (i) same acquired including after but not limited to April appraisal An as of 1991 listed the young, poultry all and livestock their $39,700. of this value thereof, (ii) products produce all thereof crops, perennial, and the whether annual agreement specified: feed, seed, (iii) products all fertil- thereof checked, (e) If this Note [x] is secured izer, supplies and other used or medicines Agreement Security hereafter and Borrower produced by farming operations. Borrower in hereby grants Security the Lender Inter- *8 AND RIGHTS TO [x] ACCOUNTS OTHER Code in est under the Uniform Commercial every right the Bor- PAYMENT: Each and following the described Collateral: payment money, rower to right whether such inventory All INVENTORY: [x] payment to now or hereafter exists Borrower, whether now owned or hereafter arises, right payment arises whether such to acquired and wherever located. sale, disposition out of a or lease other EQUIPMENT: equipment All [x] Borrower, goods by property or other out Borrower, whether now owned or hereafter Borrower, rendering by of a of services acquired, including pres- but not to all limited Borrower, by furniture, out of loan out of the vehicles, machinery, and ent future overpayment by fixtures, taxes or other liabilities manufacturing equipment, ma- farm any the Borrower or otherwise arises under chinery equipment, shop equipment, and of- agreement, right contract or to keeping equipment, parts whether such and and fice tools, record already payment by perfor- goods any equip- or is not earned described in mance, right payment list such ment or schedule or hereafter and howsoever to herewith evidenced, (but may together no be furnished to Lender with all of the Borrower rights (including such schedule or list need furnished interest all liens and be note/security promissory agreement promissory The third note was also exe- May, cuted on following stated the remedies on default: Coones and Cindy Lee Coones with the Stockmens REMEDIES: the event of Default Gillette, Bank and Company Trust Wyo- under the Terms and Conditions of this (hereinafter ming 2”). “Stockmens Note Note, rights shall all Lender have The principal $70,017 amount was with a under the Uniform Commercial Code to variable interest rate. The combination rights realize on Collateral. These promissory note/security agreement stated right include the to take purpose of the credit op- was business Collateral, require the Borrow- erating expenses operations. for farming er to make Collateral available to the Unlike Stockmens Note the Stockmens place designated Lender at to be 2 agreement Note does not indicate is a Lender which is reasonably convenient purchase loan, money however, loan. The parties. both The Borrower and the was secured same chattel collateral agree any Lender that as to reasonable financing Stockmens Note 1 and a state- requirement notice Uniform May 19, ment was filed Code, Commercial that such Campbell County reasonable Clerk. Both Stockmens requirements notice shall consist of Note sev- Stockmens Note 2 used identi- language cal en to describe days notice the collateral and written mailed the last upon the remedies default. known address of the Borrower. Ex- penses retaking, holding, preparing payment records of the notes show sale, selling or the like will first be that Coones made some payments during paid proceeds before bal- 1986 on Stockmens Note 2 and borrowed applied ance will toward indebted- additional amounts. payments No are re- ness. corded on either Stockmens 1 or Note Sher- interest) any May which Borrower On the Stockmens Bank and agreement against any time law or have Company separate Trust of Gillette executed obligor obligated account debtor other security agreement which restated material payment against any such make promissory terms of the combination note/se- property of such account or other debtor obli- curity agreement. specific listing attachment gor; including pres- all but not limited all part various items of collateral was made instruments, pa- ent and debt future chattel specific This document. list included farm accounts, pers, obligations loans and receiva- equipment. vehicles and Also listed were the ble and tax refunds. following livestock: general [x] GENERAL INTANGIBLES: All Borrower, intangibles of the whether LIVESTOCK: BRANDS: now acquired, including hereafter Angus yrlgs. owned or but [Shown] Heifers — to, applications patents, copy- not limited Angus up 3’s & Cows trademarks, secrets, will, rights, good trade (1 Angus) 5 Bulls &[sic] Herford names, lists, permits trade chises, customer and fran- 5 Horses to use Borrower's name. Spot- all located 38 miles N.W. of Gillette generally In addition [x] ted Horse Creek. above, following described Collateral: 30, 1986, May Bank On the Stockmens CATTLE, HORSES, ALL INVENTORY OF financing Company of LIVESTOCK, Trust Gillette filed AND ALL OTHER ALL FARM Campbell County, Wyoming CATTLE, HORSES, statement with the OF PRODUCTS AND ALL MACHINERY, covering property EQUIPMENT as: Clerk described FARM AND MACHINERY, CATTLE, EQUIPMENT OTHER AND IN- ALL PRODUCTS OF HORS- FARM VENTORY, PRODUCTS, HAY, GRAIN, ES, GRAIN, CROPS, PRODUCTS, HAY, FARM FARM CROPS, CROP INVENTORY AND CROP CROP INVENTORY AND CROP FARM PROD- PRODUCTS, VEHICLES, ACCOUNTS, FARM RIGHTS, UCTS, ASSIGNMENT CONTRACT RIGHTS, CONTRACT OR GENERAL INTAN- INSURANCE, OF CROP ASSIGN- FEDERAL GIBLES ARISING FROM SALE OR DIS- THE CORPORA- MENT OF COMMODITY CREDIT OF POSITION PRODUCTS THEREOF NOW PROCEEDS, FROM THE TION ARISING *9 ACQUIRED OWNED OR HEREAFTER AND PRODUCTS SALE OR DISPOSITION OF LOCATED, WHEREVER THEREOF, OWNED HEREAFTER NOW OR accessories, together parts, repairs, all with ACQUIRED WHEREVER LOCATED. AND thereto; improvements and and accessions 1, appraisal April listed the An as of
proceeds, products and
therefrom
issue
now
$165,900.
of the
as
value
any
acquired.
at
or
or hereafter
time made
sought
replevin
The
a
Eventually,
defaulted
first
writ of
Note.
Coones
idan
motion
$62,515.27
Key
in a
By
approximately
the time Coones
for
on
three notes.
all
defaulted,
FDIC,
Gillette,
capacity
Wyoming
in its
as the Bank
account. A
of
banks,
supporting
of
had
a
in interest
both
affidavit
from FDIC account
successor
two
money
proceeds
of
assets of the
banks.11
control
officer claimed
was
from the sale of Coones’ secured cattle.
de-
Cindy Lee
also
Coones
Coones
20, 1990,
April
prejudgment
a
of
On
writ
during
mortgage to MONY
faulted on the
replevin
directing the Sheriff of
was issued
separate
period. A
foreclosure
this time
Campbell County
of the
take
summary judgment
in a
action resulted
The
funds
bank account.13
Sheriff
an order
sell
of MONY and
favor
$62,963
indicating
return
filed a
was
$994,097.05.
satisfy
a
of
ranch
seized.
a
Cindy Lee Coones then filed
Coones and
bankruptcy
Chapter
for a
petition in
prejudg-
The
a
FDIC’s second motion for
sale.
reorganization stalling
foreclosure
replevin
remaining
ment
of
writ
Cindy Lee
In re
A.
James
Coones
security agree-
property identified
Coones,
Oct.
(Bankr.Wyo.
No. 88-05343-B
immediately granted.
In-
ments was not
1988).12
major
creditors of
two
stead,
district
order for
court issued an
bankruptcy
proceeding were MONY
hearing and
a
order to show cause direct-
FDIC.
ing
Cindy
ap-
Coones and
Lee Coones
pear
April
hearing
on the
of
Following
bankruptcy
a
court order
hearing
This
held
matter.
was never
be-
In
A.
dismissal,
see
re James
scheduled,
days
cause two
before it was
Coones,
88-05343-B,
Lee
Cindy
No
Order
Bankruptcy
the United
for the
States
Court
(Bankr.Wyo.
On
To Dismiss
March
Motions
stay-
1990),
District of
issued an. order
proceeded
the FDIC
ing
proceedings or actions to
“all
foreclose
No. 91-265
Appeal
action that became
A.
Along
repossess
or
of James
complaint,
with its
April
1990.
during
requesting
or FDIC”
FDIC filed two motions
MONY
re
In
hearing.
pendency
appeal.14
or
of a federal
writs of
without notice
court
17, 1986,
May
July
of
a
and wife each
11. On
the First National Bank
1.
husband
claim
failed,
$2,000.00
purchased
among
exempt
the "assets”
of
under W.S.
Sheridan
tools
trade
$4,000.00)
corporate capacity
l-20-106(b) (for
its
was the
the FDIC in
a
§
total
when
occupation.
Note. Stockmens Bank and Trust
Sheridan
Company
both are involved in the same
September
Gillette failed
May
2.
rancher or farmer claim as ex-
time
1987 at which
the FDIC assumed control
empt
proceeds
of the
derived from the
75%
1Note
and Stockmens Note 2.
Stockmens
money
non-purchase
livestock under
sale of
W.S.
1-15-408.
§
13, 1990,
April
Cindy
May
12. On
Lee Coones convert-
claim ex-
rancher or farmer
involving
portion
proceeding
her
ed the
of the
crops
empt
75% of the value of
live-
reorganization
Chapter
Chapter
offspring planted
per-
stock
or born after
liquidation.
W.S.
1-
fection of
interest under
15-408.
court,
surety
pursu-
post
questions,
answering
13. The FDIC did not
bond
the three
which,
part,
$4,000
provides:
exemption
ant to 28 U.S.C. 2408
determined that the total
exemption
rejected
available and
the claimed
Security
damages
or costs shall not be
percent
proceeds
seventy-five
of the
derived
States, any
required
department
United
money
non-purchase
from the sale of the
live-
any
agency
party acting under
or
thereof or
seventy-five percent
the value of
stock and
crops
agen-
department
the direction of
such
perfection
and livestock after the
process
cy on the issuance of
or the institu-
security interest.
prosecution
proceeding.
tion
proceeding,
timely
bankruptcy
In the
no
ob-
seventy-five
jection
exemption
claimed
bankrupt-
Issues of this case and
involved
grown
crops
percent
acquired
of livestock
cy proceeding
previously
have
been before
Coones,
after
See In re
1986 had been made.
from the United States
certification
cert,
(10th Cir.),
granted
judg-
Wyoming.
793 * * Coones, Plaintiff Cindy *,” Lee has claimed A. interest James including proceeds. (Bankr.Wyo. cattle sale April No. 88-05343-B 1990). later, Eleven months district court granted summary judgment in favor of the only continued The state court action af- FDIC, partial summary denied a judgment appeal in stay pending ter the bank- in favor of Coones and denied the FDIC’s ruptcy purpose. a limited was lifted for motion to dismiss a counterclaim filed ORDERED, AD- IT IS FURTHER Finding Coones. that there were genu- no DECREED, that the JUDGED and FDIC ine issues of material fact and that may proceed competent in Court of FDIC was judgment entitled to as a matter jurisdiction its inter- to foreclose law, the district ordered judg- property est in the or to take Debtor’s ment in entered favor the FDIC. The appropriate may other action which personal judgment terms create a against as be to the FDIC concerns the available Coones for the full amount of the debt and without Debtor’s collateral further re- give possession the collateral course from in this the Debtor Court. contingent with an personal additional Cindy In re James A. Lee judgment if the not delivered. Coones, 88-05343-B, Granting Order No Both the contingent judgment right and the Staying FDIC Relief From Order Execu- in the collateral are addi- Pending Appeal (Bankr.Wyo. tion October debt,- tion to on the with no 25, 1990). bankruptcy stay When the provision for offset: lifted, the court held state district a hear- ORDERED, IT IS FURTHER AD- ing on the motion pending FDIC’s for a judg- JUDGED AND DECREED that replevin. writ of district court deter- The ment be entered herein favor of Plain- injunction preliminary mined that a would tiff, Deposit Corpora- Federal Insurance preserve be issued tion, collateral and Liquidator as the First for National pre-judgment Sheridan, would be issued “in lieu of Bank of and Receiver of the * * *.” preliminary remedies Stockmens Bank and Trust Company, Defendant, against injunction prohibited James Albert specifically “encum- Coones as follows: bering, spending, hypothecating, disposing of, transferring any personal or otherwise 1. As to Plaintiff’s Second Cause of property Action, unpaid principal of the Defendants which the for the sum may had no valid state law basis. United States the Rule indicates that creditors not ob- "unless, District ject Court affirmed result in Coones v. days period, after within such
FDIC, No. C-89-243K. The United States Court
granted by
further
time is
court.” The
Appeals
for the
Circuit also
Tenth
affirmed.
Bankruptcy
30-day
Court did not extend the
Coones,
In re
DATE: December
(Mountain
“Summary judgment
proper only
TIME: 11:00
a.m.
Standard
when
Time)
genuine
are
there
no
issues of material
prevailing party
fact and the
is entitled
Facilities,
Building
Western
PLACE:
judgment
as a matter of law.”
Gillette,
Mc-
14-16,
Highway
North
3801
U.S.
Inc.,
Donald v. Mobil
Producing,
Coal
Wyoming 82716
(Wyo.1990),
reh’g
869
820
Cash,
OF SALE:
Cashier’s
TERMS
(Wyo.1991).
56(c).
P.2d 986
See W.R.C.P.
Check,
Funds,
Certified
Wire Funds
The court considers the record from the
Transfer,
Company
Personal or
Check
viewpoint most
to the party
favorable
guarantee.
with a letter
bank
motion,
opposing
giving
all favorable
BE
Enclosed
ITEMS TO
SOLD: See
inferences to be drawn from the facts
Listings
affidavits, depositions
contained in
and
objection
filed an
to the sale and
proper
appearing
other
material
in the
enjoined.
that the sale
Coones’
asked
opposing party.
record to the
Roth v.
upon prior
motion was not acted
to sale and
Springs, Wyo.,
First Sec. Bank
Rock
injunction
preventing the
no
was issued
(Wyo.1984)
Wyoming. Decisions from
ques-
when
persuasive support
rights
act to enforce the
and reme-
tions offer
application
interpretation
provided
security agree-
tions of
dies
law
presented. B & W
are
promissory
of uniform laws
ments
notes. The
Inc.,
Glass,
Mfg.
Inc.
Shield
agreements
provided
Weather
parties
between the
(Wyо.1992).
Unif.
lenders,
including
after-
9-501,
3B U.L.A.
Commercial Code
acquired
sign-
accounts.
*13
(1992).
documents,
ing
agreed
the
accepted
terms
the
descriptions
and
broad
agreement that
a tacit
parties
Both
offer
record,
In reviewing
of collateral.
the
we
should,
contrary to law and
judgment
the
is
agree with the district court that there are
ar-
part,
in
reversed. Coones
at least
be
in dispute.
no issues of material fact still
summary judgment
favor of
gues the
However,
ap-
summary judgment
only
is
reversed
remanded
the FDIC should be
no
as
propriate
genuine
when there is
issue
impermissibly grants the FDIC
it
because
moving
party
and the
material facts
a trial on is-
recovery and because
double
judgment
was entitled a
a matter of law.
required.
fact
sues of material
should
56(c).
summary judgment in
W.R.C.P.
The
is
judgment
that if the
The FDIC contends
favor of the
must be reversed and
FDIC
incorrect,
suffi-
a limited remand would be
granted
beyond
remanded
relief
because
error” and
cient to correct the “technical
party
that which the secured
was entitled
recovering
the
prevent the
from
FDIC
Cordova,
to as matter of law.
the collateral.
independently
notes and
the
at 636. The
recovered more than
ignore
problem of
FDIC
arguments
Both
the
by
action,
damages
recovering
amount of its
both
the
from
whether
fundamental
results,
personal judgment for
full amount of
challenged
the
judgment
which this
promissory
multiple
pos-
the debt on the
notes and
permitted the
remedies obtained
court must
in the
session
the
collateral.
this
find
of
chattel
whether
implementation of
procedure and
chosen
default,
of
of
rele-
the event
all
the
explicit
implicit
the
an
limitation
FDIC
language stating
vant documents contained
range
available remedies which
on the
agreement
parties
the
that the
the
between
requires
judgment
modification of
rights and remedies available to both the
a matter
law.18
party
the secured
were those
debtor and
contained
Article
U.C.C.20
undisputed
It is
that
broadly
While
in the
are
as the
remedies
U.C.C.
in interest
successor
stated,
recognize
un-
is
commentators
party.
undisputed
It
also
wary
price
find
repayment
unаnticipated
at-
defaulted on the
Sheridan
liquidation
Note,
improvident
Note 1 and
tached to
activities.
Stockmens
Stockmens
specifically
propriety
appeal,
argues,
itself with the
the FDIC
without citation
concerned
18.On
disposition
occurring
any authority,
after the
collateral.
that events
judgment
properly
are
before this court.
not
partially agree.
We
The district court retained
defined
the U.C.C. or
19. "Default”
not
Burman,
jurisdiction
portion
litigation
Liability
over that
other law. John M.
Lender
summary judg
Wyoming,
XXVI Land & Water L.Rev.
which was not affected
(1991).
However,
agreement
only
we have
considered those
Default
determined
ment.
including
just
parties,
portions expressly
common law
limita-
determined to have "no
unconscionability
54(b).
imposed
tions
doctrine
delay” under
W.R.C.P.
reason
good
requirements
obviously
Appeal
faith
U.C.C.
91-265
issued in
No.
Summers,
S.
James J. White Robert
or
the events related to the amended
includes
Uniform
(3d
1988).
Code
27-2
ed.
pro
§
Commercial
der
tunc of December
1991 and
nunc
Wyo.Stat.
34.1-1-203
§
amend
involved in the order to
the order
events
Gil
Nat. Bank
March
1992.
Davis,
FDIC,
merit,
(Wyo.1989);
argument
had
lette v.
770 P.2d
20. The
without
1978).
Spomer,
(Wyo.
Spomer
choice of remedies was
contended
following
summary judgment
governed by
docu-
Even if events
We hold that the
U.C.C.
Appeal
regarding
properly
parties
were not
before the
ments
reme-
executed
and,
91-265,
thus,
directory
events
before the court
con-
No.
those
were
dies
definitive
are
Appeal No.
trolling.
from the consolidated
which calls
2.
Default
is the event
With
reference
accounts receiva-
* * *
ble,
lawyer’s
Here his
collect the same from
work to task.
advice
those
**
*
obligated thereon.
receive the
draftsmanship
“acid
Here,
Any
repossessing
special remedy provided
test.”
and realiz-
* * *
security agreement.
collateral,
ing
on the
the secured
path
satisfy
must tread a
narrow
his
Take
of the collateral
judicial process
without
yet
claim and
tort and
and either
statutory
accept
avoid
* * *
it in full
satisfaction
sell it.
liability.
sale
remedy
under this
must be commer-
Summers,
Robert
James J. White &
S.
* * *
cially reasonable.
This is the rem-
Code 27-1 аt 561
Commercial
Uniform
* * *
edy
commonly
most
used.
(3d
1988).
ed.
5. Take a
on the underlying
provisions
begin
on default
U.C.C.
obligation
proceed
judg-
under the
* * *
(1991)(herein-
Wyo.Stat.
34.1-9-501
procedure
ment.
The usual
9-501).
provisions permit
after
*14
§
judgments
enforcement of
for money is
party
example,
secured
some choices. For
1-17-101,
set out in
et seq., W.S.1977.
§
security
when a
agreement covers both
Usually
the
is
executed on
personal property,
real and
such as Stock-
issuance of a
writ
execution. The
1,
party may pro-
mens Note
the secured
sheriff
upon
goods
levies the
the
writ
provisions
ceed under
debtor,
U.C.C. as to
and chattels of
taking
the
them
9-501(d).
personal property.
actually
constructively
posses-
or
into his
§
proceed
sion. The
against
upon
FDIC made the choice to
various items levied
are
subject
then identified and are
to valua-
personal
property collateral of Stock-
inspection.
tion
If necessary,
mens Note 1 in the “Fourth Claim For
sheriff then holds an execution sale.
complaint.
Relief” stated in
While
its
cumulative,
rights and
are
remedies
9-
(footnotes
Eggeman,
ed to obtain compliance could not be resumed until modified avoid item number but requirements dispo- statutory with the action sale. The FDIC use of an execution at 527. by sition of collateral.23 Id. may when viewed better evaluated be First, under the secu- component parts. its Eggeman lists While Durdahl and attempted ex- rity the FDIC agreement, exclusive, un are not we hold the FDIC’s col- possess and sell the ercise its remedy usual selection is not concurrent Second, promissory lateral. contemplated by the stat one U.C.C. judg- note, attempted to take a the FDIC utory Wyoming law. Dur provisions us The issue before ment on debt. 27; dahl, P.2d Eggeman, may remedies whether both considers being re- at 321-22. Because case using proce- single in a action achieved manded, necessary we find evaluate device, prejudgment attach- dural in light causes of action individual scope. ment, limited in statutorily provisions of We the various relevant law. begin security agree- with the action permits party a secured law possession of ment for the collateral. the collateral under recover and sell propriety of action determines the party security agreemеnt. The secured judgment. availability deficiency proceed with an action to recover then remaining the promisso- due on balance statutory rights One of the or remedies party proceeds with ry note. The secured provided by 9-501 states individual, sequential Eggeman, actions.22 “may judgment, claim fore- reduce his *15 321-22; Stephens v. 596 P.2d at Sheridan close or in- otherwise enforce Union, Emp. 594 Public Federal Credit any proce- judicial terest available (Wyo.1979). this cumula- P.2d 473 While 9-501(a) added). (emphasis dure.” § remedy permitted by is 9- tive selection § disjunctive statutory “any authorization for 501(a), “rem- party’s the fact that a secured judicial procedure” other includes those av- they not edies are cumulative does mean recovery permitted under state enues of applied simultaneously.” can be Farmers law, replevin prejudgment such as attach- Ballew, v. P.2d Bank 626 State Hawkland, A. ment. Richard 9 William D. Afton 337, (Okla.App.1981). 339 Lewis, 9- Lord & Charles C. Series UCC § (1991). Wyo. generally 501:05 at 709 See Datsun, Ayares-Eisenberg In Perrine (1988)(pro- Stat. 1-15-101 to 1-15-511 § § 525, Miami, 455 Inc. v. Sun Bank So.2d attachment, viding gar- replevin held that the (Fla.App.1984), 527 nishment). Wyoming, replevin pre- In permitted by remedies the U.C.C. “[do] recognized judgment attachment was a authority to give secured creditor the enforcing party’s method of secured pursuing contemporane- a debtor harass ** right possession of after the collateral ously or more remedies Sun two prior default of the even enactment gained peaceful possession of Bank had Cook, See, e.g., 9 Schlessinger U.C.C. promis- computer system which secured a 256, (1900). P. Wyo. 62 152 sory note default. Id. at 526. The bank computer important remedy notified the debtors that “The most available sale, private right posses- sold but before party would be at a secured is the to take occurred, following a disposition of the collateral sion of the collateral debtor’s Bros., Karp filed an action to recover on default.” Inc. v. West Ward bank Shamokin, 440 Pa. court held the & Loan promissory note. Id. The Sav. Ass’n of Datsun, Inc., sequence may Ayares-Eisenberg In 455 It been also Perrine has held 23. 527, may to sue be reversed and the creditor choose case So.2d at the court noted promissory note recover on the if fol- would not have been remanded Florida necessarily underlying debt on the without majority provide lowed the rule that failure to possessory rights waiving remedies created deficiency precludes a action. reasonable notice Fertilizer, security agreement. Ceres Inc. provide adequate had notice Sun Bank failed 447, 347, Beekman, v. (1981). Neb. 308 N.W.2d 349 209 liquidating before the collateral.
799
493,
583,
party
271 A.2d
495
Commenta-
cured
to file action in replevin to
“right
repossess
possession
property
indicate the
recover
tors
when debtor
Lanes,
Brandywine
defaults);
Inc. v.
the secured creditor’s ultimate
* *
Bank,
2
Pittsburgh
su-
Nat.
Summers,
weapon
499,
*.” White &
437 Pa.
pra,
377,
(1970)
27-5 at 574. The secured creditor’s A.2d
(noting
action in re-
§
right
possession
plevin
9-503);
immediate
of the collat-
is authorized
Barkley
§
The Law Secured Transactions
Clark,
upon
eral
the debtor’s default
is “well set-
Homeowners,
Citicorp
Code,
Under The
Commercial
tled” in the law.
Uniform
Co.,
Inc. v. Western Sur.
(2nd
1988).
131 Ariz.
4.05 at 4-63
ed.
Tí
(1981)
cases).
(collecting
Wyoming,
replevin
In
prejudgment
(hereinaf-
Wyo.Stat.
(1991)
remedy
34.1-9-503
attachment
statutorily
is a
based
§
Green,
9-503) provides,
action. Brown v.
pertinent
part:
ter
§
Schlessinger, Wyo.
agreed
party
(Wyo.1980);
“Unless otherwise
secured
800
Lanes, Inc.,
recovery.
Brandywine
no
In
264
meaning requires
clear, unambiguous
382,
379,
statutory interpretation.
Supreme
A.2d at
construction
Bd.
Wyoming
Pennsylvania
Inc. v.
State
held
secured
would
Allied-Signal,
(Wyo.
219
813 P.2d
Equalization,
receive
“windfall” if allowed to recover
provide
1991).
legislative purpose to
full
possession of the collateral and the
re-
attachment is
replevin prejudgment
damages. Wy-
property
In
value
1-15-301, which
Wyo.Stat.
inforced
§
oming,
recognized
a similar limitation was
1-15-101
“Subject
to W.S.
provides:
v.
Corporation
in Finance
1-15-108,
com-
filing the
through
after
Co., Wyo.
Commercial Credit
judgment,
any time
plaint and at
before
(1930).
P. 1100
We held that
secured
to recover
plaintiff in an action
already
posses-
creditor who had
obtained
may claim
personal property
possession of
replevin
of the collateral
a writ of
sion
pro-
to him as
property
of the
delivery
to an
would not be entitled
alternative
added.)
(Emphasis
in this article.”
vided
judgment for the value of the collateral.
is
Replevin prejudgment
attachment
Id. at 1104-05. See also Battle Creek
underlying action
deter-
used in
v.
Wrapping
Bread
Mach. Co. Paramount
personal
possession
mines the
Co.,
Baking
88 Utah
Wyo.Stat.
1-15-301.
property.
§
also
An alternative
is
Systems, Inc. v.
Honeywell
inappropriate
property
when the
is in the
Information
Inc.,
F.Supp.
Demographic Systems,
possession or control of the court or when
(S.D.N.Y.1975),
properly
the court
property
not
capability
to deliver the
is
“Re-
the nature of
action:
summarized
question.
Corp.
Selected Investments
provi-
in the nature of a
plevin, procedure
Lawton,
(Okl.
City
remedy,
ancillary
is
to an action
sional
1956);
supra,
Replevin,
C.J.S.
§
to be
recovery of a chattel.”
issue
plaintiff
defen-
“strictly
whether
tried
security
the terms of the
Under
superior
right.”
possessory
dant has the
to en
agreements, the FDIC was entitled
“Being purely
replevin
possessory,
Id.
by choosing
force
interest
for the collection of
proper remedy
not a
possession of the collateral when
obtain
account,
debt,
money due
or to recover
9-501(a).
does
default occurred.
duty.” 77
or to enforce a mere contractual
appeal,
validity
challenge,
(1952) (footnotes
Replevin
4 at 15
C.J.S.
actually
only prejudgment
writ of
omitted).
issued,
$62,963
for the seizure of
in a bank
remaining
account.25
underly-
Necessarily,
effectively placed
control
disput-
ing
grants
action
*17
by
pre
the district court
the terms of the
successfully
the
property
party
to
ed
granted
pre
“in
liminary injunction
lieu of
showing
ownership
special
makes a
of
or
of
judgment replevin remedies.” Because
justify possession.
to
interest sufficient
court,
by the district
Brown,
generally, 77 the control exercised
P.2d at 144. See
not
to
The we hold that the FDIC was
entitled
supra,
238-59.
Replevin,
C.J.S.
§§
of
judgment for the value
scope
limited in
to
double
an alternative
judgment is
avoid
l~15-103(a).
Wyo.Stat.
Effectively,
ac-
the
§
indicate the account
involved in
25. The facts
by
"special
the district
account"
on
count in this case was attached
this case was
established
by
pro-
the
issued
bankruptcy court
court. The sheriffs return on
writ
the
to handle
orders of
collateral,
was
the district court indicated that
account
ceeds
i.e.,
the sale of secured chattel
by
propriety
seizure
frozen
the bank. While
funds
While the
of the
cattle.
sufficiently
challenged
appeal,
“special
specifically
account” were
identifiable
was
not
rule, money,
subject
replevin,
did
general
labeled
to be
to a writ of
the FDIC
unless marked or
identification,
gain “possession"
capable
is not
until
the district
be
of
such as to
proceeds
disposition
subject
replevin.
Re-
of the
of
77 C.J.S.
ordered a
to an action of
sale,
replev-
post judgment,
proрer remedy, after
so the writ of
plevin, supra,
cattle
§
pre-
give
filing
the FDIC
the recov-
in was never utilized to
in a civil action for
Replevin
judgment possession
funds.
is
ery money,
of the
of
is to seek a writ of attachment
tangible
possessory proceed-
security
any potential
limited
asset
of
satisfaction
ing.
judgment. Wyo.Stat.
l-15-201(a).
also
§
Corporation
Finance
301(a) (1988
collateral.
Murphy v.
Cum.Supp.1992);
&
of
Wyoming, Wyo. 198,
Sales, Inc.,
dy sought allegations pro- plaint are admitted and it, and retain collateral, sell light in favor- bankruptcy must viewed most seeking be was ceeds.33 is a plaintiffs.’ Dismissal drastic af- able to the decision appealing protection sparingly remedy, granted.” and is bankrupt- stay The fecting that action. spe- for the lifted cy, pending appeal, was County v. Weston Weed & Pest Cranston the FDIC to permitting purpose of cific Bd., (Wyo.1992)(quot 826 P.2d 254-55 security interest its “to foreclose proceed of JRW, 814 Paternity ing Matter of any other or take property” in the Debtor’s (Wyo.1991)and Mostert v. CBL In re the collateral. James to obtain action Associates, (Wyo. 741 P.2d & Coones, No. 88- Cindy Lee A. Coones 1987)). 05343-B, Granting FDIC Relief Order to dismiss under W.R.C.P. A motion Pending Staying Execution From Order (hereinafter 12(b)(6))may 12(b)(6) Rule be 25, 1990). The (Bankr.Wyo. Appeal Oct. judg- summary to motion for converted remedies cou- attempt to seek simultaneous 56(c), ment, requiring sufficient W.R.C.P. judg- nаture of the oppressive with the pled notice, pleadings are if matters outside as commer- sought must be viewed ment Twiford, Torrey 713 P.2d considered. harassment which fur- cially unreasonable (Wyo.1986). Conversion is deficiency judg- precludes obtaining a ther judge affida- automatic when the considers Summers, supra, 27- 2 White & ment.34 12(b)(6) a Rule mo- vits connection with FDIC that the is 4 at 572. We determine Id. Consideration of other materials tion. it to retain the funds has received entitled pleadings may also result outside $69,300 remaining plus ac- any of the Cranston, 826 P.2d 254. If conversion. presently retained crued interest occurs, resulting summary conversion might it court to which clerk of district may unfairly inappropriately judgment priority to have hereafter be determined surprise party without notice or a rea- However, deficiency no be- over Farmers. respond. opportunity to Shriners sonable granted. will yond those amounts be Children, Crippled Inc. v. Hospitals For Utah, N.A., Bank First Sec. are remanded to the district These cases of (Wyo.1992). con- entry of a opinion. forms with this complaint, filed Coones on Octo- 5, 1990, payment due him ber claimed was Appeal B. No. 92-90 interest, for $150,780.49, plus services review that occurs appellate maintaining expenses rendered in his trial court order dismisses a com when a property for the of the FDIC own benefit frequently plaint has been stated: during pen- Coones’ secured creditor proceeding. dency bankruptcy “According to our standard of review we against prayer Coones' was for will sustain a dismissal of for the value of the services and only if it on its face that shows ag- expenses performed and foreclosure plaintiff not entitled to relief under notation, Commercial Code: Burden directs our attention 33. Neither Uniform Of accounting proceeds Disposi- Commercially from the December As To Reasonable Proof briefing, appellant Collateral, (1974 sale. states the 59 A.L.R.3d tion Of $105,228. proceeds gross sale were The FDIC Donaldson, Supp.1992); The Com- Michael P. contends, briefing, proceeds that net sale mercially Disposition Collateral Reasonable $81,473.94. with the were Even additional Question Under Article 9 the UCC: $231,933.89 proceeds, cattle sale this amount Proof, L.J. 307 Burden 20 UCC $534,344.45 considerably less than the value placed which was on the collateral in sum- FDIC is not entitled to 34. Our decision that the mary judgment. explanation No dis- deficiency judgment makes unneces- seek crepancy provided. discrepancy could Such a depo- requested sary for Coones to submit become a factor to considered in a determi- W.R.C.P. 69. sition. disposi- commercially nation tion reasonable Gary Spivey, D. An- collateral. *21 7—101(a)(ii)in Wyo.Stat. a state court action. ister’s liens. civil Kathleen § 29— liens, Bussart, Annotation, filed A. (Gum.Snpp.1992). Coones the Authority Con- against personal proper- gress April Bankruptcy Under Clause Fed- Of (Art. ty repay- j) in eral I his to secure the Constitution CL To § Legislate Subject On premised right pay- Bankrupt- ment. his The to Of Cases, 71 con- cies—Federal ment on federal statute which is L.Ed.2d 905 part Bankruptcy Code, As of the Bankruptcy tained in the Code: U.S.C. 506(c) is for bankrupt- the benefit of the § The trustee recover estate, cy it is provide not intended to com- securing an allowed secured claim the pensation for the trustee. 3 Collier on reasonable, necessary expenses costs and Bankruptcy (Lawrence 506.06 at 506-56 § preserving, of, disposing prop- such King al, 1992). P. et only ed. relief erty the extent to benefit to the cognizable court, therefore, in the state holder of such claim. analogous equitable recoupment for the 506(c). 11 U.S.C. Coones claimed he was § “bailment-agistment arrangement” claimed acting debtor-in-possession as a and that resulting agister’s and the liens. the bankruptcy estate entered into a “bail- The failure to aver relief ment-agistment which was arrangement” with Coones available state for court a claim under 11 for which was to compensation. he entitled 506(c) U.S.C. the means denial of § Attached the the complaint were lists by claim the United personal Bankruptcy States property, which the FDIC claimed Court for the in, Wyoming District of an would copies interest of the liens filed represent not judicata res on the along state еxpense with itemized court agister’s claim for foreclosure on an statements. liens. Our test to determine if the doctrine FDIC, dismiss, in its motion judicata applies requires res an exami- claimed the action was barred judi- res nation four factors: the cata because United Bankruptcy States “(1) identity (2) parties; identity Court for the District of had matter; (3) subject are issues previously denied the claims. The FDIC matter; same and subject relate to the complaint contended the a compulso- stated (4) capacities persons of the are [and] ry which counterclaim should have been identical in subject reference both the filed in action Appeal which became matter the issues between them.” Finally, No. 91-265. the FDIC said that complaint should Moore, be dismissed for fail- Moore v. 835 P.2d 1151 (Wyo. indispensable ure join parties, 1992) Cindy CLJ, Lee (quoting CLS Coones and trustee of her bankruptcy (Wyo.1985)). parties While the are estate, identical, proper- who claim interest identity subject matter ty the subject which was of the action. and the issues bankruptcy differs. The Attached to FDIC’s motion to dismiss litigated court could not have the claim for pleading, was a of a form motion relief under agister’s liens since the Coones to the United States Bankruptcy liens were not until filed after the bank Wyoming, Court for the District of re- ruptcy proceeding involuntarily termi questing ex- Co., reimbursement for costs and nated. Equipment Buran 190 Cal. penses 506(c). Therefore, Rptr. at- U.S.C. Also decision tached to the FDIC’s bankruptcy represent motion dismiss was court could res copy judicata of an order from agister’s the United States to claim the Wyo- Bankruptcy Court for District liens.
ming
denied
motion
ex-
which
agree
We
district
penses.
action,
complaint in this
at the time it was
filed,
compulsory
must be
as a
viewed
begin
recognition
We must
with a
13(a) provides:
counterclaim. W.R.C.P.
action
limits of the
filed
Coones. The
(a)
rights
Compulsory
never avers that the
pre-
counterclaims. —A
506(c)
pleading
11 U.S.C.
are
shall
as a counterclaim
cognizable
served
state
request
rehearing.
presenta
serving
at the time
claim
pleading
failure to exclude the
аgainst any tion and
has
pleader
pleading
*22
proceed
bankruptcy
the
order from
the
party,
it arises out
opposing
if
pro
review of
ing and the district court’s
is the
occurrence
or
transaction
pending
ceedings in other
cases converted
opposing party’s
subject
the
matter of
summary judgment.
adjudi-
motion to one
require for
the
its
and does not
claim
States,
F.2d 259
v. United
927
parties of
of third
Friedman
presence
the
cation
Cir.1991);
(6th
United Steelworkers
acquire jurisdic-
cannot
the court
whom
America,
American Intern.
AFL-CIO v.
tion,
pleader need
state
but
(5th
147,
334 F.2d
Corp.,
(1)
the action was Aluminum
if:
at the time
claim
Cir.1964),
subject
cert. denied 379 U.S.
claim was
commenced the
(1965);
action;
(2)
Ryan
Therefore, court, we direct the district on bandry, following neglect debtor’s remand, to order this action be consolidated present the in the replevin/judgment issues 42(a). with the counterclaim. W.R.C.P. byor in judicata bankruptcy action res
court,
join indispensable,
or failure to
par-
IV. CONCLUSION
ties when each of these issues were raised
12(b)(6)
by entry
a Rule
determined
tangled history
disguises
of this case
dismissal for failure to state a claim?
simple
Despite
some
truths.
obvious
12(b)(6)
which
financial difficulties
Coones found
The Rule
motion was
ANSWER:
in,
difficulty
granted regarding any
himself involved
he had little
improperly
claim
eager
obtaining
preclusion
from
more
judicata
lenders
credit
from either
res
by inadequate
missing indispensable parties.
collateral.
lack
Other con-
difficulty
may
experienced
jectures
proceeding
he
well ex-
are
included
that
plain
required
temporarily
the reason that neither financial insti-
con-
resolved
today. Unfortunately,
presented
tution is
business
solidation of
case
in the
FDIC,
92-90,
Appeal
in its zeal to
recover
these
found in
No.
money
pleaded by
regarding
purchase
36. Under
facts
Stockmens Note 1. While
time,
bankruptcy arrangement,
arguable
agreement
it is
not
we need
decide
this
equitable
represented
the liens
claim
"Ac-
rendering
specifically
covers liens and the
Rights
Payment” subject
To
counts and Other
by the
services
borrower.
security agreement governing
terms
case, replevin
In this
as a
counterclaims found in
used
pending
the still
remedy
provisional
against
92-136.
to secure
Appeal
91-265 and
Nos.
tangible personal property pending
loss
recognize
decision to
be
Caveat—We
adjudication
possessory rights.
Re-
pending
liquidation
chattel
confined to the
plevin
was used in the first
instance
Campbell County
litigation
with
pursued
purpose
for the
seize a bank account
by that court
jurisdiction
exercised
part,
expected money
an
satisfying,
instruments
parties,
over
account, however,
judgment.
rep
A bank
promissory
This decision
and the
notes.
only
intangible right
pay
resents
of the real estate
reflects no resolution
Intangible property rights
ment money.
mortgage
proceeding
foreclosure
which has
very
physically
by their
nature cannot be
been, may
pursued in
or will be
Sheri
be
possessed
subject
and cannot serve
Furthermore,
County.
the decision
dan
See,
replevin.
e.g.,
a writ of
Walther
precludes, incorporates nor antici
neither
N.A., 70
Company,
Trust
Ohio
Central
authority
jurisdictional
pates
(1990);
App.3d
Ayares should be stating that concerns of engaged in abu- “double-bar a creditor has tions where applicable); Inger attacks were not given not be reled” It should practices. sive limiting v. reading majority Corp. Financial Electro soll-Rand broad Coal, ability Inc., F.Supp. (Ky. elect remedies. the creditor’s 1980). not appeals have also First Florida courts Mushitz v. Bank Other See approach. Dakоta, N.A., Ayares N.W.2d followed South 1033, 1036 Kloeppel, (S.D.1990). 537 So.2d v. Williams Land v. Cessna (Fla.App.1988); Aircraft majority based in Ayares follows Co., (Fla.App.1985) 466 So.2d might part on the notion that creditor adminis- (remedies in UCC are to be recovery if he is receive a double able liberally). tered collect both the collateral and obtain unlikely That is personal judgment. follow the rationale I not would case, hold, many present no risk here. I Ayares. Instead would promis- court ordered that the have, creditor The district that a secured other courts “ sory ‘merged reason- notes be canceled I find this need not elect remedies. [the] ” Maj. op. at judgment.’ ing persuasive: more recognized that most “It has been The court cites Tanenbaum v. Econom- remedy available a secured important Inc., Laboratory, 628 S.W.2d 771- ics possession of right to take is the creditor (Tex.1982) legislative in- and indicates de- following the debtor’s must choose tent that a creditor between required creditor is fault. A secured of the collateral as satisfaction retention remedy. can He take elect sale proceed under ac- permitted action combination Maj. op. at Of course a 9-504. tions.” eventually have to make creditor will mutually choice between two inconsistent Wauford, 104 N.M. Kimura v. omitted) However, (citations it does not follow that (1986) (quoting remedies. Homeowners, requires rem- the statute a choice when the Inc. Citicorp Western *26 248, simultaneously. Co., 334, pursued That Ariz. edies can be 131 Surety purpose with the (1981)). Valley Nat’l result is more consistent also Olsen v. 250 See 365, plain language. Aurora, Ill.App.2d 234 and its 91 UCC Bank of 547, (1968). N.E.2d 550 NOTICE required first to party not A secured place I would hold the notice of time the collateral. A secured exhaust sufficient, and that the notice may proceed judicial of sale was he re- appellant to could required note and is not which advised action on the at the was essen- position by purchasing of an unse- deem sale itself to the reduce tially in a The 21st notice long so as it correct. November cured creditor acts regular regard- sent certified and mail and commercially reasonable manner via and time under impair not the was sufficient substance ing the collateral does agreement. parties’ The November position of debtor. provided: 21st notice Valley Nat’l Bank v. Luis Alamosa San Dear Mr. Coones: Inc., 1022, Growers, P.2d 1025 756 Grain you to that the FDIC This is advise (Colo.App.1988). See also Ruidoso State 288, public sale Garcia, conducting be 92 N.M. P.2d will Bank v. posses- gained items which we (1978); Terryphone Corp. v. Modems attached ITT pursuant Replevin the Writs of Plus, Inc., Ga.App. 320 S.E.2d sion of to Judge on October (1984); v. Bal issued O’Brien Farmers State Bank pro- lew, (Okla.App.1981); In 1991. The items will be sold and applied ceeds be the debts that Corp. v. Atlantic will gersoll-Rand Financial FDIC Receiver for Consulting Corp., F.Supp. you have with the as Mgmt. Ill Company (N.J.1989) Bank & Trust (explicitly rejecting Stockmens Liquidator for the First National there Bank would not be that threat in any A deficiency of Sheridan. Dickensheet Associates case. always lim- conducting sale. be You will will ited to what the creditor did not receive opportunity have the at that time to bid after sale of the collateral. you on whatever items of collateral chose For the respect- reasons stated herein I public redeem. The sale will take fully dissent. date, time, [listing place follows:
place, terms of sale and items to be sold]. majority requires notice the
The would required by burdensome and is stat- not purpose required by notice
ute. 34.1-9-504(c) inform the is to debtor
W.S. sale and
of what will occur at the what the can day do the sale. The debtor court confuses two different time frames PARK, SHERIDAN COMMERCIAL responsible only and holds creditors for not INC., Wyoming corporation, sale, notifying the debtor of but also (Defendant), Appellant informing possible what his debtor of pre-sale options during peri- would be statutorily required. This is not od. BRIGGS, Representa Almira L. Personal (1991). Although W.S. 34.1-9-506 Briggs, tive of the Estate of William W. pre-sale gives rights, the debtor certain Briggs, William Walter a/k/a a/k/a require notify not does creditor (Plain deceased, Briggs, Appellee W.W. rights. those W.S. debtor 34.1-9-506 tiff). only the creditor notice is re- No. 92-139. give quired is notice sale under 9-§ 504(c) was satisfied Novem- Supreme of Wyoming. 21st notice. ber Marсh
I would not hold that the November 21st misled was “an attempt notice Coones and abrogate statutory rights.” Maj. op. phrase the notice to which the objects surplusage. is no than more also do agree
I with the statement: attempt
“The seek simultaneous reme- *27 coupled oppressive
dies nature of judgment sought must be viewed as
commercially unreasonable harassment precludes obtaining further a defi-
ciency judgment.” op. at 804. Maj. attempting oppressive
is not obtain recovery. or a double FDIC ac-
knowledges in proper its brief
remedy is to remand so that it does not
appear that FDIC recover in could excess what it was owed. is true
It that FDIC is entitled to a recovery and should not receive a
windfall personal judgment pos- addition to if
session the collateral the debt. There is
satisfied no realistic case, of a
threat
windfall to FDIC in this
notes
addition
disposition
contract
its
under sec-
Lanes, Inc.,
Brandywine
the collateral.
obligation
tion 34.1-9-504 or before the