Nevada Nat. Bank v. Superior Court

• Decision Date: 12 March 1975
• Citation: 119 Cal.Rptr. 778,45 Cal.App.3d 966
• Court: California Court of Appeals Court of Appeals
• Parties: NEVADA NATIONAL BANK, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; Bill BOGART, Real Party in Interest. Civ. 45456.

Page 778

119 Cal.Rptr. 778

45 Cal.App.3d 966

NEVADA NATIONAL BANK, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent Bill BOGART, Real Party in Interest.

Civ. 45456.

Court of Appeal, Second District, Division 4, California.

March 12, 1975.

McClean, Greenwald & Hoffman, and Stephen R. Smith, Los Angeles, for petitioner.

Litt, Wells, Volchok, Inc., and Paul M. Volchok, Van Nuys, for real party in interest.

No appearance for respondent Court.

KINGLSEY, Associate Justice.

Pursuant to subdivision (c) of section 418.10 of the Code of Civil Procedure, petitioner, a national banking association with its principal office in Nevada, seeks a writ of mandate to compel the granting of its motion to quash service of summons on it in an action brought against it by the real party in interest in the Superior Court, Los Angeles County. For the reasons hereinafter set forth, we grant the petition and order a peremptory writ to issue as prayed.

In 1971, the Real Party in Interest (Bogart), purchased an automobile in Nevada and, pursuant to a conditional sale agreement, financed the purchase with petitioner. The papers then signed by Bogart gave his address as being in Nevada. In 1973, Bogart became a resident of California, brought the automobile to this state and thereafter remitted payments on his loan from California. Bogart fell behind in his payments and, on March 20, 1974, petitioner mailed to Bogart, at the address in California that Bogart previously had given petitioner, a letter demanding payment. ¹ The letter was forwarded to Bogart who was then working in Nevada. On March 18th, Western Adjustors, Incorporated, acting on the orders of petitioner, repossessed the automobile. Bogart thereafter paid to petitioner the sums demanded of him (including a 'repossession fee') and secured possession of his automobile. Thereafter Bogart filed the action herein involved against petitioner and against Western Adjustors and two individuals, seeking damages for the repossession and its consequences. Petitioner's motion to quash service of summons as to it was denied and the instant petition followed.

Unlike the typical case involving suits against a foreign corporation, we proceed here within statutorily prescribed narrow limits. Section 94 of Title 12, United States Code, requires that actions against a national banking institution be brought only in a county in which the association is located. (Mercantile Natl. Bank at Dallas v. Langdeau (1963) 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523). The cases, however, have held that section 94, being for the protection of the bank, may be waived by it. (First Natl. Bank of Charlotte v. Morgan (1889) 132 U.S. 141, 10 Cal.Ct. 37, 33 L.Ed. 282; Michigan Natl. Bank v. Superior Court (Kell) (1972) 23 Cal.App.3d 1, 99 Cal.Rptr. 823).

However, unlike the Bank of Charlotte case, where the bank went to trial without raising the issue, and unlike the Michigan Natl. Bank case, where all of the transactions between the bank and the plaintiff were in California, the California contacts initiated by the bank in the case at bench were minimal. The removal of the automobile to California was an action of Bogart, not...