Isenhart v. Monty

• Decision Date: 20 February 1967
• Docket Number: No. 22142,22142
• Citation: 161 Colo. 589,423 P.2d 836
• Parties: H. C. ISENHART, Deputy State Bank Commissioner and Liquidator of Home Industrial Bank, Plaintiff in Error, v. Stanley E. MONTY, Defendant in Error.
• Court: Colorado Supreme Court

Page 836

423 P.2d 836

161 Colo. 589

H. C. ISENHART, Deputy State Bank Commissioner and Liquidator of Home Industrial Bank, Plaintiff in Error, v. Stanley E. MONTY, Defendant in Error.

No. 22142.

Supreme Court of Colorado, In Department.

Feb. 20, 1967.

Mason, Reuler & Peek, Denver, for plaintiff in error.

J. E. Kuttler, Aurora, for defendant in error.

MOORE, Chief Justice.

The instant action grows out of a business transaction between Stanley E. Monty and the Home Industrial Bank which occurred prior to the time on which the plaintiff in error took charge of the business affairs of the bank as the Liquidator thereof under authority of C.R.S.1963, 14--14--6. The facts are presented in an agreed statement which contains the following assertion:

'* * * The questions presented here are clear questions of law of interest not only to the litigants involved, but also to the banking industry as a whole, since we are of the opinion that the same have never been decided in this state.'

The stipulation of facts includes the following pertinent statements:

'The substantive facts of the case are: The plaintiff, Mr. Monty, on or about the 4th day of February, 1964, applied to the Home Industrial Bank for a loan in the amount of $3,000.00. The bank approved the loan subject to receiving security therefor. The plaintiff, in order to provide the security, took from his savings account at the Lowry Air Force Credit Union, the sum of $3,000.00. This money was given to the Home Industrial Bank, and in return therefor, the plaintiff received a thrift certificate in the amount of $3,000.00, said certificate being No. A566, drawing interest at 6% Per annum and being due within a year and a half from date of issue.

'Simultaneously therewith, Mr. Monty executed a promissory note in the amount of $3,300.00, secured by said thrift certificate, payable at the rate of $142.05 per month until paid in full. He, of course, received $3,000.00 from the bank at that point. It would appear that the funds received by the bank from Mr. Monty were placed with the general funds of the Home Industrial Bank. Thereafter, Mr. Monty began to make monthly payments on the note. After making two payments, but prior to the third, the bank was taken over by the State Bank Commissioner pursuant to statute. * * *'

The plaintiff filed a claim with the State Bank Commissioner in which he sought to set off the face value of the thrift certificate against the amount due the bank on the promissory note which he had signed in its favor. The Commissioner denied the claim of setoff on the ground that Monty was not a 'depositor' in the bank within the meaning of C.R.S.1963, 14--14--8, which provides that upon liquidation...