John G. Bookout, as Receiver for Modern Home Life Insurance Co. v. First National Mortgage and Discount Company, Inc., and Atlas Financial Corporation, 514 F.2d 757

John G. Bookout, as Receiver for Modern Home Life Insurance Co. v. First National Mortgage and Discount Company, Inc., and Atlas Financial Corporation

514 F.2d 757 | 1st Cir. | 1975

514 F.2d 757

John G. BOOKOUT, as receiver for Modern Home Life Insurance
Co., Plaintiff-Appellee,
v.
FIRST NATIONAL MORTGAGE AND DISCOUNT COMPANY, INC., and
Atlas Financial Corporation, et al., Defendants-Appellants.

No. 74-3769
Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

May 1, 1975.

Warren A. Rosser, Chamblee, Ga., for Atlas.

J. Roger Thompson, H. A. Stephens, Jr., Atlanta, Ga., for First Nat'l Mortgage & Discount.

Warren W. Wills, Jr., Atlanta, Ga., Charles M. Crook, Montgomery, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before THORNBERRY, MORGAN and RONEY, Circuit Judges.

PER CURIAM:

Following discovery and a conference with the parties, the district court found substantial reason to suspect that the Atlas defendants had caused certain collateral to be fraudulently conveyed by, through, and to affiliated corporate defendants, to the probable detriment of a secured party which is the plaintiff in Modern Home Life Ins. Co. v. Atlas Financial Corp., et al., Civ. No. C74-302A, now pending before the district court. The court thereupon appointed a receiver pendente lite for the purposes of managing the defendants and marshaling the collateral together with its proceeds.

We have carefully examined the defendants'-appellants' objections to the receivership and find them to be without merit. The appointment of a receiver, otherwise proper, is not to be defeated for lack of sworn pleading or the absence of a full evidentiary hearing. See Haase v. Chapman, W.D.Mo.1969, 308 F.Supp. 399. Considering the probability of success on the merits, the appearance of fraudulent conduct, the imminent danger of further injury to the collateral, and the balance of the equities,1 we are of the opinion that no abuse of discretion has been demonstrated.

Finding no error, the order appointing the receiver pendente lite is affirmed on the basis of District Judge Freeman's well-reasoned opinion, --- F.Supp. --- (1974).

Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al., 5 Cir. 1970, 431 F.2d 409, Part I

See 12 Wright & Miller, Federal Practice and Procedure § 2983, at 22-24