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Copiah Bank, N.A. v. Federal Insurance Co., Inc.

United States District Court, Fifth Circuit

January 15, 2014

COPIAH BANK, N.A., PLAINTIFF
v.
FEDERAL INSURANCE COMPANY, INC. JOHN DOES 1-10; JOHN DOE CORPORATIONS 1-10, and JOHN DOE ENTITIES 1-10, DEFENDANTS

MEMORANDUM OPINION AND ORDER

F. KEITH BALL, Magistrate Judge.

This matter is before the Court on a Motion for Summary Judgment [78] filed by Defendant Federal Insurance Company, Inc. ("Federal") and opposed by Plaintiff Copiah Bank ("Bank"). The parties have consented to have a United States Magistrate Judge conduct all proceedings in this case and order the entry of final judgment, and the District Judge has entered a Reference Order [22]. For the reasons explained in this Memorandum Opinion and Order, the Court hereby grants Federal's Motion for Summary Judgment. Accordingly, a separate judgment dismissing this case with prejudice will be entered. Fed.R.Civ.P. 58.

I. FACTS AND PROCEDURAL HISTORY

A. Background

This case is part of the legal fallout from a bank fraud and money laundering scheme operated by Jon Christopher Evans and his brother, Charles Evans, from January 2003 to October 2009, and prosecuted in this Court. Info. [1], United States v. Evans and Evans, 3:10cr-118-DPJ-FKB.[1] According to the Information, Jon Christopher Evans and Charles Evans "devised a plan to fraudulently secure mortgage proceeds from financial institutions by misrepresenting to such financial institutions the legal descriptions, title and lien history, and ownership of real estate the Defendants were intending to purchase" in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and 18 U.S.C. § 1956(h). Info. [1] ¶ 7. In essence, the brothers conspired to set up a "Ponzi" scheme whereby they, inter alia, secured loans from banks using the same parcels of property as collateral on multiple occasions and used loan proceeds from later transactions to pay on loans owed from earlier transactions. Tr. Restitution Hr'g [96] at 30-31.

As part of the scheme, Charles Evans, an attorney, provided financial lending institutions with certificates of title which failed to disclose, misrepresented, and/or otherwise concealed encumbrances and liens on numerous properties given as collateral for many of these loans. Info. [1] ¶¶ 12, 13. Relying on these title certificates issued by Charles Evans, the lending institutions "believ[ed] [they] had received a priority security interest in said property as collateral for the respective loan when in fact [they] had not." Id.

According to a sentencing transcript, the scheme involved over $80 million in loans from almost fifty banks to almost thirty different shell corporations set up and controlled by the Evans brothers. Tr. [93] at 41. Over a period of six years, actual losses to banks from the scheme totaled in excess of $20 million. Id. at 47.

As a result of the scheme, the brothers pleaded guilty to bank fraud and conspiracy to commit money laundering. The Court sentenced Charles Evans to a 240-month term of imprisonment, followed by a period of supervised release. J. [66]. The Court sentenced Jon Christopher Evans to 168 months of imprisonment, followed by a period of supervised release. J. [67]. The Court also ordered forfeiture of assets totaling over $18 million, Tr. Restitution Hr'g [96] at 42, and ordered each defendant to pay restitution to affected institutions. Js. [66, 67]. Although Copiah Bank is listed in the Information as one of many banks victimized by the scheme, the Bank is not listed as an institution for which the Court awarded restitution. Id.

B. Claims

In the present case, Plaintiff Copiah Bank alleges that it suffered a $100, 545.00 loss due to the actions of Charles Evans and Jon Christopher Evans. In its Third Amended Complaint, the Bank asserts that Charles Evans provided it with a Certificate of Title, dated April 2, 2009, to a parcel of real property located in Rankin County, Mississippi, which "indicated that the real property had no prior liens or outstanding deeds of trust filed for record." Third Am. Compl. [46] ¶ 6. Copiah Bank alleges that "[i]n good faith reliance on the assurances of... Charles Evans, Plaintiff extended credit to Jon Christopher Evans" in the form of a line of credit in the amount of $100, 545.00. Id . ¶ 7. The Bank alleges that, on or about September 23, 2009, it learned of the Evans brothers' scheme and, at that time, retained a third party to perform a title search on the subject property. Id . ¶¶ 8, 9. The third party title search revealed that "two other persons or entities had priority interests in the subject property." Id . ¶ 9.

At the time of the subject loan to Jon Christopher Evans, Copiah Bank was the assured under a security bond issued by Federal. The Bank asserts that Jon Christopher Evans failed "to repay the funds obtained pursuant to the line of credit" and seeks to recover $100, 545.00 on the bond. Id . ¶ 10. The Bank also seeks attorneys' fees and punitive damages, alleging that Federal's denial of its claim constitutes bad faith breach of contract. Id . ¶ 29.

Copiah Bank contends that three provisions of the bond afford coverage for its loss. Those provisions include: Insuring Clause 1. - Dishonesty; Insuring Clause 2.A. - On Premises; and Insuring Clause 5. - Extended Forgery. See id. ¶¶ 11, 16, 19.

Insuring Clause 1. - Dishonesty covers:

1. A. Employee
Loss resulting directly from dishonest acts, other than stated in 1.B. below, of any Employee, committed alone or in collusion with others, except with a director or trustee of the ASSURED who is not an Employee, which result in improper personal financial gain to either such Employee or other natural person acting in collusion with such Employee, or which were committed with the intent to cause the ASSURED to sustain such loss.
B. Trade Or Loan
Loss resulting directly from dishonest acts of any Employee, committed alone or in collusion with others, except with a director or trustee of the ASSURED who is not an Employee, which arise totally or partially from:
(1) any Trade, or
(2) any Loan,
provided, however, the ASSURED shall first establish that the loss was directly caused by dishonest acts of any Employee which result in improper personal financial gain to such Employee and which were committed with the intent to cause the ASSURED to sustain such loss.
Notwithstanding the foregoing, when a loss is covered under this INSURING CLAUSE 1.B., and the Employee was acting in collusion with others and intended to receive improper personal financial gain, but said Employee failed to derive such improper personal financial gain, such loss will nevertheless be covered under this INSURING CLAUSE as it [sic] the Employee had obtained such improper personal financial gain provided that the ASSURED establishes that the Employee intended to receive such improper personal financial gain.
For the purpose of this INSURING CLAUSE, improper personal financial gain shall not include salary, salary increases, commissions, fees, bonuses, promotions, awards, profit sharing, incentive plans, pensions, or other emoluments.

Bond [78-1] at 4.

Insuring Clause 2.A. - On Premises, provides coverage for:

2. A. Loss of Property resulting directly from:
(1) robbery, burglary, misplacement, mysterious unexplainable disappearance, damage or destruction, or
(2) false pretenses, or common law or statutory larceny, committed by a natural person while on the premises of the ASSURED,
while the Property is lodged or deposited at premises located anywhere.

Id.

Insuring Clause 5. - Extended ...


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