concurring:
While I concur in the result reached by the majority both as to jurisdiction and the merits, my understanding of the case is sufficiently different from that of the majority to justify setting forth my reasons for concurrence.
The relevant facts are not complex. This appeal grows out of a foreclosure action brought against Wilshire Apartments, Inc. (Wilshire) by the United States, federal jurisdiction being based on 28 U.S.C. § 1345 (1976).1 Pursuant to the foreclosure action, a receiver for Wilshire was appointed by the trial court. Among other things, the receiver sought an order requiring appellant Medical Center State Bank (the Bank) to turn over to the receiver certain deposit certificates which the receiver contends were the property of Wilshire. Although the Bank resisted in the belief the deposit certificates were its own property, the trial court granted the order in a summary proceeding, finding that the certificates were the property of Wilshire.
The Bank alleges error in the summary proceeding used by the trial court, contending that a plenary suit by the receiver is required when the receiver seeks to recover property in the possession of a third party claiming adversely. Alternatively, the Bank suggests that evidence in the record compels a legal conclusion that the certificates belonged to the Bank and could not be ordered turned over to a receiver in any event. I am persuaded by the former argument and therefore concur in the result reached by the majority.
JURISDICTION
While the question of what constitutes a 28 U.S.C. § 12912 “final decision” in situations where the order sought to be reviewed precedes final judgment has not been consistently answered,3 I believe the order in question here is a final, appealable order under the doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). It is for this reason alone that I believe we have jurisdiction to review the instant order. In Cohen, the Court recognized and defined a small category of cases, generally referred to as “collateral orders,” “which are offshoots from the principal litigation in which they are issued, and which are immediately appealable, as ‘final decisions,’ without regard to the posture of the principal litigation.” C. Wright, Handbook of the Law of Federal Courts 507 (3d ed. 1976). The Court in Cohen held the denial of defendant’s motion to require the posting of security for costs to be within that category of cases, “because it is a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it.” 337 U.S. at 546-47, 69 S.Ct. at 1226. Cohen requires that the matter under consideration have been finally disposed of by the trial court; that it be collateral to or separable from the underly*883ing claim;4 and that a risk of important loss will be engendered by failure to review immediately.5 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3911 at 470-71 (1976). This is the analysis I apply in determining we have jurisdiction to review the instant order.
The order appealed from was not tentative; it was intended to resolve the question of whether the property was the Bank’s or whether it was Wilshire’s and was thus properly available to the receiver. The trial judge concluded it was Wilshire’s and indicated to the Bank that appellate action would be necessary if the consequences of the order were to be avoided.6 It is also apparent that the questions of who was entitled to the deposit certificates and how that was to be determined are collateral to the merits of the underlying foreclosure action. Finally, the appeal will, if successful, prevent an important loss to the Bank. The Bank persuasively argues that under applicable state law the certificates were its own property at the time it was instructed to turn them over to the receiver. If that position is correct, only successful appeal by the Bank at this juncture will prevent its having to part with assets rightfully its own.
PROCEDURE BELOW
The trial court ordered the Bank to give the receiver the deposit certificates or their cash equivalent, finding the certificates had been an asset of Wilshire. The order was granted in summary fashion in the foreclosure proceeding. The majority finds this procedure improper, relying exclusively on bankruptcy precedents. While such cases are persuasive authority for the decision reached, they do not directly control the instant dispute, which arose in the context of a receivership proceeding. However, the applicable rule is the same in each situation.
In Cusack v. Prudential Ins. Co. of America, 192 Okl. 218, 134 P.2d 984 (1943), a case, like the instant one, in which a receiver had charge of real estate in connection with mortgage foreclosure actions, the court stated that “[i]t is the general rule that a receiver has no right through summary proceedings to obtain the possession of property found in the possession of third persons claiming adversely.”7 134 P.2d at 987. The court also noted that the federal courts treat differently situations where the possession and claim of the third party arose after, rather than before, the appointment of the receiver. Id. While the receiver may proceed summarily when possession follows appointment, when possession and claim precede appointment, “the receiver will be required to obtain possession by a plenary suit.” Id.
The Bank was in possession of the notes prior to the receiver’s appointment. The Bank’s claim to the certificates, especially in light of Bowles v. City National Bank & Trust Co., 537 P.2d 1219 (Okl.Cr.App.1975), was not frivolous. The Bank did not consent to summary adjudication in the foreclosure proceeding nor otherwise waive its right to a plenary proceeding. It follows that ordering transfer of the certificates on a summary basis was error.
*884Like the majority, I do not decide whether the receiver or the Bank is entitled to the proceeds of the deposit certificates as a matter of law. We agree that the receiver must, if he is to obtain those proceeds, institute a plenary suit against the Bank and there demonstrate his derivative entitlement to the proceeds.
. 28 U.S.C. § 1345 (1976) vests in the federal district courts jurisdiction over civil actions commenced by the United States.
. 28 U.S.C. § 1291 (1976) provides: “The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts . . except where a direct review may be had in the Supreme Court.”
. C. Wright, Handbook of the Law of Federal Courts, 505, 509 (3d ed. 1976).
. See Eisen v. Carlisle & Jacqueline, 417 U.S. 156, 172, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974).
. Whether the appeal must also involve an “unsettled” and “important” question has been the subject of some dispute. C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3911 at 471-72, 495-96 (1976). I am not sure that this factor has relevance to a determination of “finality.” In any event, some courts that recognize this requirement view it as satisfied “if the result would be to settle an important question that could affect many other cases.” Id. at 471. Our resolution settles the question of what procedure a receiver must follow to obtain property that is in the hands of a third party also claiming it. Other courts use the requirement only “to deny appeal of clearly discretionary matters.” Id. The instant case does not involve review of a discretionary matter.
. The fact that the Bank may be able ultimately to recover all or some part of the certificates’ proceeds as a creditor of Wilshire does not make the instant order any less final. This is a separate matter.
. The court noted certain recognized exceptions to this rule, none of which has applicability to the facts of this case. See 134 P.2d at 987.