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Essential Savings and Loan Association v. Howell

Decided: May 1, 1969.

ESSENTIAL SAVINGS AND LOAN ASSOCIATION, CALDWELL-VERONA SAVINGS AND LOAN ASSOCIATION, AND WEST ORANGE SAVINGS AND LOAN ASSOCIATION, SAVINGS AND LOAN CORPORATIONS DULY ORGANIZED UNDER THE LAWS OF THE STATE OF NEW JERSEY, APPELLANTS,
v.
CHARLES R. HOWELL, COMMISSIONER OF BANKING AND INSURANCE OF THE STATE OF NEW JERSEY, POLICE SAVINGS AND LOAN ASSOCIATION, A SAVINGS AND LOAN CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF NEW JERSEY, AND BERKELEY SAVINGS AND LOAN ASSOCIATION, A SAVINGS AND LOAN CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF NEW JERSEY, RESPONDENTS



Gaulkin, Collester and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.

Labrecque

In this consolidated appeal the objectors challenge the determination and judgment of the Commissioner of Banking and Insurance permitting the establishment of a branch office by the Berkeley Savings and Loan Association at 611 Bloomfield Avenue, Verona, in connection with its purchase of the assets of the Police Savings and Loan Association.

Police Savings and Loan Association (Police) was a state-chartered association with assets of approximately $376,000 which was operated on a part-time basis from an office located on the second floor of Newark Police Headquarters, 22 Franklin Street, Newark. It had about 48 mortgage-borrowing members and 193 savings members.

Berkeley Savings and Loan Association (Berkeley), also state-chartered, had its main office at 88 Lyons Avenue and a branch office at 401 Chancellor Avenue, both in Newark. It had assets of approximately $85,000,000 and had approximately

26,000 savings and 6,500 mortgage-borrowing members.

All three appellants are also state-chartered savings and loan associations having offices which serve the area proposed to be served by Berkeley's new branch. Essential, with headquarters at 304 Bloomfield Avenue, Verona, 0.6 miles from the proposed branch, had assets (estimated savings capital) of approximately $2,500,000; Caldwell-Verona, located at 266 Bloomfield Avenue, was 1.5 miles from the proposed site and had assets of approximately $7,000,000, and West Orange, located at 459 Pleasant Valley Way, West Orange, was 1.7 miles from the proposed branch and had assets of over $4,000,000.

On July 18, 1967 Police made an application to move its office from 22 Franklin Street, Newark, to 611 Bloomfield Avenue, Verona, a distance of 12 miles. On August 24, 1967 Berkeley purchased the property where it was proposed to establish the new branch and on August 31, 1967 Police disclosed to the Commissioner that its ultimate purpose was not merely to move its office but to effect a merger with Berkeley. Following objections from other associations in the area, Police withdrew its application on September 19, 1967.

On October 25, 1967 formal agreement was reached between Berkeley and Police for the bulk sale of the assets of Police to Berkeley and the removal of its office to Verona. It would appear that the agreement of sale was so worded as to make the sale contingent upon permission to remove the office, but this is denied by counsel for Berkeley and, for reasons which will appear hereafter, we need not decide the point. On November 2, 1967 Berkeley and Police filed simultaneous applications for approval of the the bulk sale and authority to operate a branch office in Verona as a "substitute" for the present office of Police in Newark. Among the objectors were Essential, Caldwell-Verona and West Orange.

At the hearing on January 3, 1968 Robert G. Strong produced an economic feasibility study prepared by Herbert H. Smith Associates which concluded that Berkeley could successfully operate the proposed branch and Richard Gartenberg, Berkeley's vice-president, produced a brochure listing Berkeley's services and details of its operations. These were received in evidence and formed the basis for the cross-examination of both witnesses which took place on January 24, 1968. Some reference will be made to them hereafter.

The Commissioner approved the bulk sale to Berkeley and separately approved the proposed Verona branch as a "suitable substitute" for the Newark office of Police. In so doing he held that the application was controlled by N.J.S.A. 17:12 B -27 and 17:12 B -204(1) and (4). The present appeal is from the approval of the Verona branch.

N.J.S.A. 17:12 B -204(1) authorizes the sale in bulk of the assets of a state association to any other association. Subsection 4 thereof permits the purchasing association, subject to the limitations of N.J.S.A. 17:12 B -27, to simultaneously apply to the Commissioner for the establishment of a "section 27" branch office. Section 27 (N.J.S.A. 17:12 B -27) provides, in pertinent part:

"Any State association, into which another association has been merged or which has acquired by purchase, reorganization or in any other manner, all or a substantial portion of the assets of another association, may make application to the commissioner for authority to operate the office previously operated by such other association, or a suitable substitute therefor, as a section 27 branch office. The commissioner may grant authority for the operation of such section 27 branch office under such terms and conditions as he shall prescribe, and such authority may be inclusive of authorized branch offices operated by the selling or merging association; provided, however, that no branch office or offices shall be established under this section, unless the offices of the associations are in the same or contiguous counties and that the commissioner ...


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