Tubin v. Rabin
| Decision Date | 11 June 1976 |
| Docket Number | No. 75-1310,75-1310 |
| Citation | 533 F.2d 255 |
| Parties | 19 UCC Rep.Serv. 556 E. S. TUBIN, Plaintiff-Appellee, v. Meyer RABIN, a/k/a Meyer Raben, Consumer's Investment Co., Charles Cowart and C. D. Wyche, Defendants, Fair Park National Bank of Dallas, etc., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James A. Knox, Paul D. Schoonover, Dallas, Tex., for defendant-appellant.
Lawrence E. Ackels, Lawrence E. Ackels, Jr., Dallas, Tex., plaintiff-appellee.
Mike Joplin, John H. Hall, Dallas, Tex., for Wyche.
Appeal from the United States District Court for the Northern District of Texas.
Before WISDOM and INGRAHAM, Circuit Judges, and GROOMS, District Judge.
This is a diversity of citizenship claim predicated on the Uniform Commercial Code (U.C.C.). Max Triplett sought to acquire a $2,850,000 loan for the acquisition and development of a New Mexico ghost town. Triplett attempted to arrange the financing through Meyer Rabin and Consumers Investment Company (CIC). CIC issued a commitment letter conditioned on the payment of a $14,250 commitment fee and the personal guarantee of C. D. Wyche. Because Triplett lacked the personal resources to fund the commitment fee, he sought to secure an additional loan. Melvin Rueckhaus, a New Mexico attorney, arranged a meeting between Triplett and E. S. Tubin to discuss the transaction. Tubin agreed to provide the $14,250 if the money would be "safe" pending the closing of the $2,850,000 loan and if he would receive $4,500 for the use of his money. Triplett agreed and Tubin purchased a $14,250 cashier's check from First National Bank of Albuquerque payable to Rueckhaus.
Rueckhaus typed the following restrictive endorsement on the back of the check:
PAY TO THE ORDER CONSUMERS INVESTMENT CO. and CHARLES D. WYCHE, SR., of 1631 Rachelle Road, Irving, Texas, the same C. D. WYCHE mentioned in commitment letter 11/6/67 by CONSUMERS to Max Triplett. Endorsement constitutes acknowledgement by endorsees that the money represented by this check is the only remaining condition to funding the loan committee (sic commitment) and that endorsees will return the $14,250.00 to Melvin E. Rueckhaus Attorney for E. S. Tubin, within 30 days if the loan is not funded as per agreement before that time.
Rabin presented the check to Fair Park National Bank for deposit and immediate credit to CIC's account. Wyche's signature was forged, but Fair Park National Bank was unaware of the forgery and immediately credited $14,250 to CIC and Rabin's account. Rabin depleted the CIC account, including the $14,250 attributable to the credit for Tubin's cashier's check.
The loan was never closed, but the $14,250 was never returned to Tubin or Rueckhaus.
Tubin sued Fair Park National Bank for breach of warranty and conversion of the cashier's check. After a non-jury trial, Judge Taylor filed two opinions in favor of Tubin. Tubin v. Rabin, 382 F.Supp. 193 (N.D.Tex.1974); supplemental opinion, 389 F.Supp. 787 (1974). Essentially, in his memorandum opinion Judge Taylor held:
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Bank Polska Kasa Opieki v. Pamrapo Sav. Bank
...against a depositary bank. Tubin v. Rabin, 382 F.Supp. 193 (N.D.Tex.1974), supp. opinion, 389 F.Supp. 787 (N.D.Tex. 1974), aff'd, 533 F.2d 255 (5th Cir.1976), applied Texas law and involved a conversion claim by a lawyer's client against a depositary bank. The court held that the client cou......
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Al Sarena Mines, Inc. v. SouthTrust Bank of Mobile
...it accepted the check in accordance with reasonable commercial standards); Tubin v. Rabin, 389 F.Supp. 787 (N.D.Tex.1974), aff'd, 533 F.2d 255 (5th Cir.1976) (failure to authenticate endorsement of copayee); Empire Moving & Warehouse Corp. v. Hyde Park Bank & Trust Co., 43 Ill.App.3d 991, 2......
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Maddox v. First Westroads Bank
...holder in due course as defined under section 3-302, U.C.C., when it receives a check bearing a forged endorsement. See, Tubin v. Rabin, 533 F.2d 255 (5th Cir., 1976); Riggs Nat. Bank of Washington, D. C. v. Security Bank N. A., 10 U.C.C. Rptr.Serv. 460 (D.C.Super., 1972); Salsman v. Nation......
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Knesz v. Central Jersey Bank and Trust Co. of Freehold
...to depositary and collecting banks paying on forged indorsements. See, e.g., Tubin v. Rabin, 389 F.Supp. 787 (N.D.Tex.1974), aff'd 533 F.2d 255 (5 Cir.1976); Sherriff-Goslin Co. v. Cawood, supra, 91 Mich.App. 204, 283 N.W.2d 691 (Ct.App.1979). Still other courts have avoided the immunity co......