Tcherepnin v. Franz

• Decision Date: 15 August 1979
• Docket Number: No. 64 C 1285.,64 C 1285.
• Citation: 475 F. Supp. 92
• Parties: Alexander TCHEREPNIN et al., Plaintiffs, v. Robert FRANZ et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

475 F. Supp. 92

Alexander TCHEREPNIN et al., Plaintiffs, v. Robert FRANZ et al., Defendants.

No. 64 C 1285.

United States District Court, N. D. Illinois, E. D.

August 15, 1979.

Don H. Reuben, James A. Klenk, Reuben & Proctor, Chicago, Ill., for receiver.

Laura R. Singer, Karon, Morrison & Savikas, J. Fred Schlafly, Schlafly, Godfrey & Fitzgerald, Alton, Ill., Edward Macie, Elward

& Macie, Chicago, Ill., Raymond F. McNally, Jr., St. Louis, Mo., L. Edward Bryant, Jr., Gardner, Carton & Douglas, Chicago, Ill., for defendants.

MEMORANDUM AND ORDER

ROBSON, Senior District Judge.

This cause is before the court on the motion of defendants Vincent Schroeder and Martin Schroeder to dismiss Count X of the Amended First Crosscomplaint of the City Savings Association, by its receiver Samuel Berke, hereinafter the receiver, for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) and the motion of the receiver pursuant to Fed.R. Civ.P. 56 for entry of summary judgment on Count X. For the reasons hereinafter stated, the motion of Vincent and Martin Schroeder to dismiss shall be denied, and the motion of the receiver for summary judgment shall be granted.

Count X is part of the protracted litigation arising out of the collapse of the City Savings Association, a savings and loan association chartered by the State of Illinois and presently under the control of a federal receiver.¹ This count is brought by the defendant and crossplaintiff receiver to set aside a fraudulent conveyance pursuant to Ill.Rev.Stat. ch. 59, § 4 (1977), and Fed.R. Civ.P. 18. Named and joined as defendants are crossdefendant First National Bank & Trust Co. in Alton, Illinois, as executor of the Estate of Joseph E. Knight, and defendants Vincent and Martin Schroeder.

On January 15, 1969, the receiver filed its first crosscomplaint praying that judgment be entered against Knight for $15,295,711. On September 23, 1969, the receiver filed an amended first crosscomplaint against Knight stating a claim in excess of $20,000,000. This court granted the receiver's motion for summary judgment against the executor of the Knight estate,² on April 14, 1975, reported at 393 F.Supp. 1197 (N.D.Ill. 1975), and entered judgment against the estate on November 30, 1976, in the amount of $13,969,504, reported at 424 F.Supp. 778 (N.D.Ill.1976). The judgment was affirmed by the Seventh Circuit Court of Appeals on January 23, 1978, reported at 570 F.2d 187 (7th Cir. 1978). The United States Supreme Court denied certiorari, reported at 439 U.S. 876, 99 S.Ct. 214, 58 L.Ed.2d 190 (1978).

In Count X, the receiver alleges that the assets of the estate of Knight are insufficient to satisfy its judgment against the Knight estate. Thus, the receiver seeks to set aside a conveyance by an agreement for a warranty deed of real estate in Jersey County, Illinois, executed by Joseph E. Knight and Helen Knight, the mother of Joseph Knight, conveyed to Martin and Vincent Schroeder on January 2, 1970, during the pendency of the receiver's action against Joseph E. Knight. The agreed purchase price for the property was $125,000. The Schroeders made a down payment of $10,000 and agreed to make payments of $10,000 a year plus interest every year thereafter until the balance due has been liquidated. The agreement further provided that if both Joseph and Helen Knight died prior to the completion of the payment schedule, then the Schroeders' outstanding debt was extinguished and an escrow agent who had custody of the warranty deed was directed to deliver title to the property to the Schroeders.

Helen Knight died on September 14, 1970. By the terms of the contract, the Schroeder's annual payments became the "sole property" of Joseph Knight. Joseph Knight died on April 2, 1973. By that date Knight had received a total of $40,000 for the conveyance of the property in question.

On April 6, 1973, a petition for the appointment of an administrator for the estate of Joseph Knight was filed in the Circuit Court for the Seventh Judicial Circuit of Illinois, Jersey County hereinafter circuit court of Illinois. The petition for probate of Knight's will was filed in the circuit court of Illinois on April 13, 1973, and the will was admitted to probate on May 16, 1973.

The executor of the Knight estate filed a petition for the completion of the contract between the Knights and the Schroeders on October 9, 1973. The executor stated in its petition that the agreement for warranty deed provided that upon the deaths of Joseph and Helen Knight full title to the subject property passed to the Schroeders. The petition further provided that if the circuit court of Illinois agreed with this interpretation of the contract, the court shall enter an order directing the escrow agent to deliver the warranty deed to the Schroeders. On December 8, 1973, the court issued an order stating its agreement with the executor that full title to the real estate passed upon the deaths of Helen and Joseph Knight and that the escrow agent should deliver the warranty deed to the Schroeder brothers. The warranty deed was delivered to the Schroeder brothers and the Knight estate has had no interest in the property since that time.

The Schroeder brothers seek to dismiss Count X on the grounds that based on the doctrine of prior exclusive jurisdiction, the circuit court of Illinois has exclusive jurisdiction and that this federal court action is an impermissible collateral attack upon a state court judgment. The receiver seeks summary judgment on Count X on the ground that Knight's conveyance of real estate to the Schroeder brothers constitutes a partial fraudulent conveyance under Illinois law. Both motions have been fully briefed.

I. The Schroeder Brothers' Motion to Dismiss

A. Prior Exclusive Jurisdiction

The Schroeder brothers contend that the circuit court of Illinois asserted jurisdiction over the property in question and rendered a judgment regarding that property. Thus, they contend that the doctrine of prior exclusive jurisdiction precludes this court from asserting jurisdiction over the property at issue.

The doctrine of prior exclusive jurisdiction provides that where two courts have concurrent jurisdiction and two in rem actions are pending, the court which first acquired jurisdiction over the property must be granted exclusive jurisdiction. Kline v. Burke Construction Co., 260 U.S. 226, 229, 43 S.Ct. 79, 67 L.Ed. 226 (1922). This doctrine of prior exclusive jurisdiction is not applicable here because the conditions for the application of the doctrine are not present. First, no concurrent state court action is pending. There is no property in the possession of the circuit court of Illinois, so the present action makes no attempt to take property out of the jurisdiction of the state court. Lion Bonding & Surety Co. v. Kavatz, 262 U.S. 77, 88, 90, 43 S.Ct. 480, 67 L.Ed. 871 (1923); Fischer v. American United Life Insurance Co., 314 U.S. 549, 553-54, 62 S.Ct. 380, 86 L.Ed. 444 (1942) hereinafter Fischer. Thus, the doctrine of prior exclusive jurisdiction does not bar the present action. Fischer, supra at 554-55, 62 S.Ct. 380. Second, two in rem actions are not pending. Because a fraudulent conveyance action is an in personam action rather than an in rem action, under both Illinois and Federal common law, Tcherepnin I, supra at 1345, there is no interference by this court with any exercise of in rem jurisdiction by the Illinois state court.

The doctrine of prior exclusive jurisdiction is not applicable to this in personam action even though the rights of the parties in the res are at issue. Kline v. Burke Construction Co., supra, 260 U.S. at 231-32, 43 S.Ct. 79; Fischer, supra 314 U.S. at 555, 62 S.Ct. 380. Because a personal judgment is sought in this fraudulent conveyance action, this court "is fully capable of preventing inappropriate conversion of the suit to a proceeding truly in rem" and of preventing interference with any previous assertion of in rem jurisdiction by the circuit court of Illinois. Central States, Southeast and Southwest Areas Health and Welfare Fund v. Old Security Life Insurance Co., 600 F.2d 671 (7th Cir. 1979). Thus, the assertion of Federal jurisdiction is not barred in these circumstances especially because determination of the issues presented here does not require an examination of the issues presented before the circuit court of Illinois. See Kittredge v. Stevens, 126 F.2d 263, 267 (1st Dist.) cert. denied, 307 U.S. 642, 63 S.Ct. 64, 87 L.Ed. 517 (1942).

The Schroeder brothers further argue that this federal court action is an improper collateral attack upon a state court judgment warranting dismissal for lack of subject matter jurisdiction. This fraudulent conveyance action is not an action like that in Holley v. General American Life Insurance Co., 101 F.2d 172, 173-74 (8th Cir. 1939), where a complainant and intervenor sought the interference of a federal court in matters within the exclusive jurisdiction and control of a state court so as to constitute a collateral attack. Because the present action is an in personam action, there is no interference with the limited assertion of in rem jurisdiction by the circuit court of Illinois. General Atomic Co. v. Felter, 434 U.S. 12, 17, 98 S.Ct. 76, 54 L.Ed.2d 199 (1977); Central States, Southeast and Southwest Areas Welfare Fund v. Old Security Life Insurance Co., 600 F.2d 671, 675 n. 7 (7th Cir. 1979).

Furthermore, Ill.Rev.Stat. ch. 110½, § 20-17 does not require any action by the probate court to complete a contract of a decedent. The executor of the Knight estate sought confirmation by the circuit court of Illinois of the explicit directive of the contract between the Knights and Schroeders to transfer the full title to the real estate on the death of the Knights to the Schroeders. The executors sought court approval to relieve itself of any personal liability for its actions. See Kadish v. Lyon, 229 Ill. 35, 41, ...