Tipton v. Zions First Nat. Bank, Spanish Fork, Utah

• Decision Date: 28 June 1979
• Docket Number: No. 78-361,78-361
• Citation: 601 P.2d 352,42 Colo.App. 534
• Parties: Stanley D. TIPTON, a/k/a Stan Tipton, Plaintiff-Appellant, v. ZIONS FIRST NATIONAL BANK, SPANISH FORK, UTAH, Defendant-Appellee, and Central Adjustment Bureau, Inc., Defendant. . III
• Court: Colorado Court of Appeals

Page 352

601 P.2d 352

42 Colo.App. 534

Stanley D. TIPTON, a/k/a Stan Tipton, Plaintiff-Appellant, v. ZIONS FIRST NATIONAL BANK, SPANISH FORK, UTAH, Defendant-Appellee and Central Adjustment Bureau, Inc., Defendant.

No. 78-361.

Colorado Court of Appeals, Div. III.

June 28, 1979.

Rehearing Denied Aug. 2, 1979.

Certiorari Denied Oct. 9, 1979.

E. Rick Watrous, III, Denver, for plaintiff-appellant.

Holland & Hart, R. Brooke Jackson, Denver, Callister, Greene & Nebeker, John A. Beckstead, Salt Lake City, Utah, for defendant-appellee.

RULAND, Judge.

Plaintiff, Stanley D. Tipton, appeals from a judgment dismissing his complaint against defendant, Zions First National Bank of Spanish Fork, Utah. We affirm.

In his complaint, Tipton alleged that in March of 1970 while a resident of Springville, Utah, he obtained a loan from the bank which was secured by a trailer and truck. In May of 1977 Tipton left Utah and began residing in Denver. Tipton was in default on payments due the bank, and on June 16, defendant, The Central Adjustment Bureau, Inc., acting for the bank, repossessed the trailer and truck at Tipton's residence.

In conjunction with the repossession, Tipton alleges two torts: (1) Conversion based upon his contention that the repossession and subsequent sale were not conducted in compliance with applicable statutes; and (2) negligent damage to another automobile on the Tipton premises during the course of the repossession.

In response to the complaint, the bank moved to quash service of process and for dismissal, contending that venue of the action could only be maintained in Utah pursuant to 12 U.S.C.A. § 94. This motion was granted and the order dismissing the complaint as to the bank was made final for purposes of appeal pursuant to C.R.C.P. 54(b). See Jenkins v. Glen & Helen Aircraft, Inc., Colo.App., 590 P.2d 983 (1979).

Insofar as pertinent here, 12 U.S.C.A. § 94 provides:

"Actions and proceedings against any national banking association . . . may be had . . . in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases."

Tipton concedes that, unless the bank waives the protection of the statute, the venue requirements are mandatory. See National Bank of North America v. Associates of Obstetrics & Female Surgery, Inc., 425 U.S. 460, 96 S.Ct. 1632, 48 L.Ed.2d 92 (1976); Colorado National Bank v. District Court, 189 Colo. 522, 542 P.2d 853 (1975). However, Tipton contends that, because the bank used self-help provisions of the Uniform Commercial Code in its repossession and because both the torts of conversion and negligence were allegedly committed, the bank must be deemed to have waived its rights under the quoted statute.

In order for the bank to...