Credit General Insurance v. NationsBank, N.A.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-2934
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Credit General Insurance *
Company, *
*
Plaintiff/Appellee, *
*
v. *
*
NationsBank, N.A. Midwest, *
*
Defendant/Appellant, *
* Appeal from the United States
______________________________ * District Court for the
* Western District of Missouri.
NationsBank, N.A. Midwest, *
*
Third Party Plaintiff/Appellant, *
*
v. *
*
L&S General Contractors, LLC; Larry *
Mikels; and Ireneusz Kuligowski, *
*
Third Party Defendants/Appellees. *

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Submitted: April 16, 2002

Filed: August 14, 2002
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Before BOWMAN, RILEY, and MELLOY, Circuit Judges.
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RILEY, Circuit Judge.

L&S General Contractors, LLC (L&S) purchased an uncertified book-entry
certificate of deposit (CD 005) in the principal amount of $100,000 from
NationsBank, N.A. Midwest (NationsBank). L&S later assigned CD 005 to Credit
General Insurance Company (Credit General) as collateral security for performance
and payment bonds on a Howard Johnson construction project. Credit General
forwarded to NationsBank a written notice of the assignment which stated, "Please
hold this account as assigned to us until demanded or released by us." NationsBank
recorded the assignment and executed a written acknowledgment. When CD 005
matured, L&S rolled over the proceeds into a short-term certificate of deposit (CD
058) and, upon maturity, rolled over the proceeds of CD 058 into another short-term
certificate of deposit (CD 072). The bank book entries of CD 058 and CD 072
recorded L&S as the only principal/payee and did not reflect Credit General's
assignment interest. NationsBank admitted its failure to show Credit General as
assignee on the rollover book entries for CD 058 and CD 072 was a mistake.

Upon maturity, L&S withdrew the proceeds of CD 072 without the knowledge
or consent of Credit General. Later, Credit General made written demand on
NationsBank for the proceeds of CD 005, and NationsBank informed Credit General
that CD 005 had been redeemed and refused payment. Credit General sued
NationsBank for wrongful payment of proceeds. Following discovery, both parties
filed cross motions for summary judgment. The district court,1 upon reconsideration
of its earlier ruling, granted summary judgment to Credit General based on L&S's

1
The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
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written assignment of CD 005 to Credit General, awarding $100,000 in damages, plus
interest and costs.

Seeking a reversal, NationsBank argues (1) CD 005 was controlled by the
Missouri Uniform Commercial Code (UCC), (2) the Missouri Adverse Claims Statute
applies, and (3) the assignment was conditional and limited in time to the completion
of the Howard Johnson project. We disagree. After carefully examining the record,
the Court finds sufficient evidence to support the district court's findings that the
assignment was valid and its notice effective. We affirm the well-reasoned opinion
of the district court.

DISCUSSION
This diversity case is controlled by applicable Missouri law. In Missouri, a
validly executed assignment "vests the rights and interests of the assignor in the
assignee," Miller v. Dannie Gilder, Inc., 966 S.W.2d 397, 399 (Mo. Ct. App. 1998),
and "divests the assignor of all right of control over the subject matter." Marvin v.
State Farm Mut. Auto. Ins. Co., 894 S.W.2d 712, 713 (Mo. Ct. App. 1995); see also
Sunnen v. Comm'r, 161 F.2d 171, 175 (8th Cir. 1947), rev'd on other grounds, 333
U.S. 591 (1948). An assignment of proceeds is a contract between the assignor and
assignee, which upon receipt of notice requires a debtor to pay the proceeds due only
to the assignee. See, e.g., Am. Nursing Res., Inc. v. Forrest T. Jones & Co., 812
S.W.2d 790, 795 (Mo. Ct. App. 1991). The failure of a debtor to make payment to
an assignee after receiving notice of the assignment gives rise to a cause of action by
the assignee for wrongful payment. See Leahey v. Dugdale, 41 Mo. 517, 519 (Mo.
1867) (declaring "[p]ayments made after notice were made at [debtor's] own peril,
and he cannot complain if he is compelled to pay twice."). Therefore, absent
authorization or a release by Credit General, NationsBank, with actual notice of the
assignment, could not lawfully pay the proceeds of CD 005 to L&S.

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 Payment of CD 005 was not controlled by Missouri's version of the UCC. CD
005 was a non-negotiable, non-transferable book entry certificate of deposit. No
writing evidenced the right to payment of the proceeds. As such, CD 005 was a
"deposit account" and was not subject to Article 9 of the UCC. See Mo. Rev. Stat.
§§ 400.9-101 cmt. 12 & 400.9-104(a)(1) (Supp. 2001).

We flatly reject NationsBank's contention that the Missouri Adverse Claims
Statute applies to this case. See Mo. Rev. Stat. § 362.375 (2000). Credit General was
not an adverse claimant nor was it asserting an adverse claim. L&S expressly
assigned this account to Credit General. Upon notice and acknowledgment of the
assignment, NationsBank incurred a legal duty to pay the account proceeds only to
the assignee Credit General, in whom the account was vested by the terms of the
assignment. See Am. Nursing Res., 812 S.W.2d at 795.

We further reject NationsBank's argument that the assignment was limited in
its scope and duration. NationsBank contends the assignment is conditional and
limited in time to the completion of construction on the Howard Johnson project. In
an attempt to modify or amend the assignment, NationsBank refers us to events and
other documents outside of the written assignment itself. The assignment is absolute
and unambiguous on its face and clearly is not limited as NationsBank proposes. The
assignment language controls.

CONCLUSION
The district court properly granted summary judgment on Credit General's
wrongful payment claim. Under Eighth Circuit Rule 47B, no further commentary is
necessary. Accordingly, we affirm.

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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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