Opinion
No. 78-361
Decided June 28, 1979. Rehearing denied August 2, 1979. Certiorari denied October 9, 1979.
Conversion and negligent damage action against Utah bank was dismissed on basis of improper venue, and plaintiff appealed.
Affirmed
1. BANKS AND BANKING — Commission of Tort — Repossession — Not — Waiver — Statutory Right — Local Venue. The commission of a tort in Colorado by agents of a Utah bank in connection with repossession of property held as security for a loan does not constitute a waiver by the bank of its federal statutory right to be sued by its borrower in the county in which the bank is located.
Appeal from the District Court of the City and County of Denver, Honorable James C. Flanigan, Judge.
E. Rick Watrous III, for plaintiff-appellant.
Holland Hart, R. Brooke Jackson, Callister, Greene Nebeker, John A. Backstead, for defendant-appellee.
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., 42 Colo. App. 118, 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, 48 L.Ed.2d 92, 96 S.Ct. 1632 (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.
[1] In order for the bank to waive its privilege under the statute, it must appear that the bank voluntarily and intentionally relinquished that privilege. Northside Iron Metal Co. v. Dobson Johnson, Inc., 480 F.2d 798 (5th Cir. 1973). Moreover, there is no waiver merely because a bank repossesses property in which it holds a security interest where, as here, that property has been removed to another jurisdiction by the debtor. Nevada National Bank v. Superior Court, 45 Cal. App. 3d 966, 119 Cal. Rptr. 778 (Dist. Ct. App. 1975). Nor may the commission of a tort in that jurisdiction, see, Landmark Bank v. Giroux, 358 So.2d 180 (Fla. 1978), including the tort of conversion, be deemed a waiver of the statute. See, e.g., Central Bank v. Boyles, 355 So.2d 98 (Ala.Civ.App. 1978); Prince v. Franklin National Bank, 62 Misc. 2d 855, 310 N.Y.S. 2d 390 (1970). Hence, the order dismissing the complaint was correct.
Judgment affirmed.
JUDGE BERMAN and JUDGE KELLY concur.