Wiley v. Hicks et al

Filing 59

ORDER granting 55 Motion to Turn Over as set forth. Signed by Honorable Jimm Larry Hendren on June 28, 2011. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
ISAAC WILEY
v.

PLAINTIFF
Civil No. 08-03056

WAYNE HICKS, ET AL.

DEFENDANTS

PULASKI BANK AND TRUST CO.
AND FEDERAL DEPOSIT INSURANCE CORP.,
AS RECEIVER FOR ANB FINANCIAL, N.A.

GARNISHEES

BENTLEY INVESTMENTS OF NEVADA, L.L.C.

INTERVENER

ORDER
NOW on this the 28th day of June 2011, this matter comes on
for consideration on Intervener Bentley Investments of Nevada,
LLC’s Motion to Turn Over (Doc. 55).

The Court, being well and

sufficiently advised, finds and orders as follows:
1.

By the Court’s Amended and Substituted Order filed on

September 29, 2010, this Court held that Intervener, Bentley
Investments of Nevada, LLC (“Bentley”), was entitled to:
*

the insured portion of a bank account previously held
at now-defunct ANB Financial, N.A., in the name of MY
ICIS, Inc. (the “Account”), which at the time was
$100,000; and

*

a FDIC’s Receiver’s Certificate in the sum of
$498,712.78, which constituted the uninsured portion of
the Account.

The reasons for these findings are set out in the Court’s
Amended and Substituted Order.
2.

(See Doc. 54).

Bentley advises in its motion that it has received from

the FDIC the $100,000 representing the insured portion of the
Account but, despite repeated requests, the FDIC has not provided
Bentley with the Receiver’s Certificate.
3.

In addition, Bentley advises the Court that, under the

Emergency Economic Stabilization Act, as extended by the Helping
Families Save Their Homes Act, Congress temporarily increased the
standard

deposit

insurance

amount

to

$250,000

per

depositor

through December 31, 2013, and that this provision is retroactive
to January 1, 2008, pursuant to the Dodd-Frank Wall Street Reform
Act and Consumer Protection Act, which is codified at 18 U.S.C. §
1821(a)(1)(E).
Specifically,

12

U.S.C.

§

1821(a)(1)(E)

provides,

relevant part, as follows:
the term "standard maximum deposit insurance amount"
means
$
250,000,
adjusted
as
provided
under
subparagraph (F) after March 31, 2010. Notwithstanding
any other provision of law, the increase in the
standard maximum deposit insurance amount to $ 250,000
shall apply to depositors in any institution for which
the
Corporation
was
appointed
as
receiver
or
conservator on or after January 1, 2008, and before
October 3, 2008.

2

in

4.

ANB was placed into receivership on May 9, 2008, thus

Bentley asserts that 12 U.S.C. § 1821(a)(1)(E) applies and the
insured portion of the Account was retroactively insured for
$250,000,

meaning

that

Bentley

is

entitled

to

an

additional

$150,000 for the insured portion of the Account from the FDIC.
Bentley further asserts that this payment of $150,000 should
be properly set-off from the Receiver’s Certificate.
5.

The FDIC denies that Bentley is entitled to the relief

that it seeks, but cites no law or fact to refute the authorities
cited by Bentley in its motion.
6.

The

Court

finds

that,

pursuant

to

12

U.S.C.

§

1821(a)(1)(E), Bentley is entitled to an additional $150,000,
which represents the additional insured portion of the Account.
IT IS THEREFORE ORDERED THAT Intervener Bentley Investments
of Nevada’s Motion to Turn Over (Doc. 55) is hereby GRANTED.
IT

IS

additional

FURTHER

ORDERED

$150,000,

which

that

Bentley

represents

the

is

entitled

additional

to

an

insured

portion of the ANB account, and that the FDIC is hereby ordered
to pay Bentley such amount within thirty (30) days from the date
of this Order.
IT IS FURTHER ORDERED that Bentley is the proper party to
receive the Receiver’s Certificate in the amount of $348,712.78

3

($498,712.78 less $150,000), and the FDIC is hereby ordered to
turn over such Receiver’s Certificate to Bentley within thirty
(30) days from the date of this Order.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

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