Mall Bank v. State ex rel. Dept. of Ins.
| Decision Date | 03 January 1985 |
| Docket Number | No. BA-415,BA-415 |
| Citation | 462 So.2d 519,10 Fla. L. Weekly 94 |
| Parties | 10 Fla. L. Weekly 94 The MALL BANK, Appellant, v. STATE of Florida, ex rel., The DEPARTMENT OF INSURANCE of the State of Florida, and Florida General Life Insurance Company, Appellees. |
| Court | Florida District Court of Appeals |
Peter J. Aldrich, Gunster, Yoakley, Criser & Stewart, P.A., Palm Beach, for appellant.
Chester G. Senf, Tallahassee, for appellees.
This is an interlocutory appeal from the denial of The Mall Bank's motion to dismiss for improper venue. We affirm.
Florida General Insurance Company (the Insurer) maintained a deposit account with The Mall Bank (the Bank). On January 3, 1983, the Insurer executed an agreement with the Bank to guarantee a $340,000 loan made by the Bank to the Insurer's parent holding company, Fiduciary and General Corporation. On March 31, upon application by the Florida Department of Insurance (the Department), the Leon County Circuit Court issued an order to show cause on the appointment of a receiver and entered an order of seizure enjoining all persons from wasting the Insurer's assets and directing the Department to take immediate possession thereof. On that same day, the Bank withdrew $323,635.76 from the Insurer's account as payment on the loan it had guaranteed. On April 7, upon demand by the Department, these funds were restored.
On April 11, 1983, the Leon County Circuit Court issued an order appointing the Department as Receiver of the Insurer. The order contained directions of seizure and injunction similar to those contained in the March 31 order. When the Department demanded payment by the Bank of the Insurer's deposit account funds, the Bank first set off the balance due it on the loan. After the Bank's repeated refusals to pay over the funds, it was joined as a party to the delinquency proceedings.
Subsection (3) of Section 631.261, Florida Statutes, "Voidable transfers," provides:
(3) The department as receiver in any proceeding under this chapter may avoid any transfer of or lien upon the property of an insurer which any creditor, stockholder, subscriber, or member of such insurer might have avoided and may recover the property so transferred unless such person was a bona fide holder for value prior to the date of the entering of an order to show cause under this chapter. Such property or its value may be recovered from anyone who has received it except a bona fide holder for value as herein specified.
Pursuant to said Section 631.261(3), the Department then filed a petition in Leon County Circuit Court to void the guaranty agreement and to direct the Bank to pay over the Insurer's deposit account. The Bank filed a motion to dismiss the petition for, among other grounds, improper venue, as it maintains its principal place of business in Palm Beach County. The trial court denied the Bank's motion. We find no error in this denial.
The Bank stoutly argues that Sections 47.051 and 631.021(2) and (3), Florida Statutes, mandate maintenance of the delinquency proceedings in the judicial circuit of the insurer's place of business:
47.051 Actions against corporations.--Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its...
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