[29ASR2d163]
v.
ATONIO MAILO,
Defendant
High Court of
Trial Division
CA No. 128-95
[1]
An assignment passes title from the assignor to the assignee, so that
the latter is normally the real party in interest for purposes of T.C.R.C.P.
17(a).
[2] The corporate existence of a federal credit
union continues for a period of three years from the date of such cancellation
of its charter, during which period the liquidating agent, or his duly
appointed successor, or such persons as its board shall designate, may act on
behalf of a federal credit union for the purpose of collecting and distributing
its assets, and it may sue and be sued in its corporate name. 12 U.S.C. § 1766(b)(5).
Before
Counsel: For
Plaintiff, Ellen A. Ryan
For
Defendant, Afoa L. Su`esu`e Lutu
Order
Denying Motion to Dismiss:
At issue in this case is a loan made by
plaintiff American Samoa Government Employees Federal Credit Union
("ASGEFCU") to defendant Atonio Mailo. ASGEFCU has filed this case to collect on the
loan, claiming Mailo has defaulted.
Before this case arose, ASGEFCU was closed and liquidated, with the
National Credit Union Administration ("NCUA") acting as the
liquidating agent. NCUA assigned all of
ASGEFCU's outstanding loans at the time of its liquidation to National
Collection Services, Inc. ("NCS").
Currently before the court is Mailo's
motion to dismiss. Mailo bases the
motion primarily upon the fact that the ASGEFCU has been liquidated. Unfortunately, neither party has presented a
valid argument to support its [29ASR2d164] position. This does not change the conclusion that,
under the law controlling federal credit unions, the motion to dismiss must be
denied.
Mailo argues that ASGEFCU cannot bring
this suit, because it has been "liquidated." Under the common law, when a corporation
ceases to exist, it loses its capacity to sue or be sued. Walling v. James V. Reuter, Inc., 321
[1]
ASGEFCU answers Mailo's motion with two assertions: first, that as assignee, NCS has a legal
right to pursue the loans originally made by ASGEFCU; and second, that this
court has allowed NCS to pursue collection efforts in the past. Both of these arguments miss the legal
point. First and most importantly, in
gaining legal title to the loans, NCS did not gain, without more, a right to
pursue actions in ASGEFCU's name. T.C.R.C.P.
17(a) requires an action to be brought in the name of the real party in
interest. An assignment passes title
from the assignor to the assignee, so that the latter is normally the real
party in interest for purposes of Rule 17(a).
Cf. 26 Fed. Proc. L. Ed.
§ 59:35 (stating the same rule for F.R.C.P. 17(a), upon which T.C.R.C.P.
17(a) is based). Thus, the assignment
allows NCS to bring suit in its own name not ASGEFCU's name. Additionally, the simple fact that a
plaintiff has been allowed to bring suit in the past, in his own name or that
of another, does not grant him an absolute right to continue bringing
suits. Whether a party is properly
involved in a suit must be decided on a case-by-case basis.
[2]
Both parties have clearly missed the pertinent legal point. A federal credit union is a creation of
federal law, and the federal law adequately provides for its existence
following liquidation:
Upon certification by the liquidating
agent in the case of an involuntary liquidation, and upon such proof as shall
be satisfactory to the Board in the case of a voluntary liquidation, that
distribution has been made and that liquidation has been completed, as provided
herein, the Board shall cancel the charter of such Federal credit union; but
the corporate existence of the Federal credit union shall continue for a period
of three years from the date of such cancellation of its charter, during which
period the liquidating agent, or his duly appointed successor, or such persons
as the Board shall designate, may act on behalf of the Federal credit union for
the purpose of . . . collecting and distributing its assets, . . . and it may
sue and be sued in its corporate name.
12 U.S.C. § 1766(b)(5) (emphasis
added). [29ASR2d165]
Mailo has made no allegation that this
statute does not apply or is not satisfied in this case. Thus, NCS possesses the ability to sue in
ASGEFCU's name for three years following the cancellation of ASGEFCU's
charter.
The motion to dismiss is denied. It is so ordered.