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SECURITY SAV. BANK v. GREEN TREE ACCEPTANCE

January 9, 1989

SECURITY SAVINGS BANK, SLA, Plaintiff,
v.
GREEN TREE ACCEPTANCE, INC. and MIDWEST FEDERAL SAVINGS AND LOAN ASSOCIATION OF MINNEAPOLIS, Defendants



The opinion of the court was delivered by: COHEN

 In this breach of contract action brought by plaintiff, Security Savings Bank, SLA, ("Security"), defendant, Green Tree Acceptance, Inc. ("Green Tree"), has moved to dismiss plaintiff's complaint pursuant to Fed. R. Civ. P. 8(a); to dismiss certain of plaintiff's claims pursuant to Fed. R. Civ. P. 9(b); to dismiss certain other claims pursuant to Fed. R. Civ. P. 12(b)(6); or in the alternative, to transfer the entire action to the United States Court for the District of Minnesota pursuant to 28 U.S.C. § 1404(a) (1988). Defendant, Midwest Federal Savings and Loan Association of Minneapolis ("Midwest"), has moved to dismiss the claims against it for lack of in personam jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2). Plaintiff opposes these motions, however, Midwest apparently does not oppose Green Tree's transfer motion.

 As this Court finds merit to defendant Green Tree's request for transfer and will grant such a transfer pursuant to 28 U.S.C. § 1404(a), we expressly decline to rule on any other aspects of its motion. Green Tree will be left to reassert its various motions to dismiss to the District Court of Minnesota. As we are transferring the action with respect to Green Tree, we find it to be substantially in the interests of justice to transfer the entire case; we also find, however, in personam jurisdiction lacking in this Court and thus pursuant to 28 U.S.C. § 1406(a) the action against Midwest will also be transferred to the District of Minnesota.

 I. Factual Background

 Defendant Green Tree is a corporation organized and existing under the laws of the State of Minnesota with its principal place of business in St. Paul, Minnesota. Green Tree purchases conditional sales contracts or retail installment sales agreements ("CSCs") for manufactured housing and recreational vehicles throughout the United States. *fn1" A conditional sales contract, or CSC, is a writing consisting generally of: 1) an agreement to purchase and sell property; 2) a promissory note and security agreement; and 3) an assignment from the seller to the financing party. Green Tree's policy is to have all CSCs it purchases written on forms it has previously provided to the retail dealers. The retail dealer submits the application to Green Tree, and then Green Tree is responsible for completing a credit investigation of the retail or ultimate purchaser. Green Tree only purchases those CSCs from the retail dealer which meet the company guidelines for creditworthiness. Green Tree then generally pools these individuals CSCs within 30 to 120 days of purchase for sale as a package to other investors. This pooled package is routinely sold in the form of modified pass-through certificates *fn2" with payment to the investor who purchased the pool usually based on a fixed rate of interest on the unpaid principal amount of the underlying CSCs.

 Plaintiff, Security, is a New Jersey State-Chartered Savings and Loan Association engaged in the business of banking, which includes investing for its own account in CSCs. Security purchased two pools of contracts from Green Tree with servicing obligations remaining with Green Tree. Security represents to us that there has been a lack of payments properly due on these contracts caused by the interference of Midwest, acting as a subservicer of the pooled CSC agreements between Security and Green Tree, in breach of contract, repudiation, negligence, fraud and misrepresentation claims. Security has also alleged violations of the RICO statute, 18 U.S.C. §§ 1961, et seq. and of the Clayton Act, 15 U.S.C. §§ 14 and 15 in its 171 count complaint.

 The two pooled contract agreements entered into between Security and Green Tree on February 9, 1984 each consist of a Sale and Servicing Agreement and two Purchase Contracts. The two Purchase Contracts are one page documents which merely set forth the terms of the purchase of the pooled CSCs with no forum selection or choice of law provision. The Purchase Contracts do, however, state that:

 
This is evidence that Buyer [Security] has purchased the Contracts identified on the attached exhibits pursuant to the terms of that certain Sale and Servicing Agreement dated February 9, 1984, between Green Tree Acceptance, Inc. as Seller-Servicer and [Security].
 
* * * *
 
Subject to the terms of such Sale and Servicing Agreement, Seller-Servicer will remit to Buyer, Buyer's monthly principal and finance charge on the Contracts. [emphasis supplied]

 Provision 17 of the Sale and Servicing Agreement between Security and Green Tree dated February 9, 1984 states:

 
17. GOVERNING LAW. This Agreement shall be deemed to be a Contract made under the laws of the State of Minnesota, and shall be construed in accordance with and shall be governed by the laws of such jurisdiction.

 To further complicate matters, Green Tree apparently sold the servicing component of its agreement with Security to Midwest, allegedly without the knowledge or approval of Security. Midwest is a federally chartered Savings and Loan Association with its principal place of business in St. Paul, Minnesota. Midwest is a substantial sole preferred shareholder of Green Tree; Green Tree was previously a wholly owned subsidiary service corporation of Midwest. Green Tree and Midwest entered into an agreement for the servicing of the pooled CSCs sold to Security. That contract, entered into on May 20, 1985, also has a valid choice of law provision, located at paragraph 6.07, which provides that Minnesota law shall apply to any action concerning that agreement.

 II. Factors Warranting Transfer

 We decide today to transfer this action in its entirety to the United States District Court for the District of Minnesota pursuant to 28 U.S.C. § 1404(a) as to the portion against Green Tree, and 28 U.S.C. § 1406(a) as to the remainder against Midwest. *fn3"

 A. Transfer Pursuant to 28 U.S.C. § 1404(a)

 Section 1404(a) states:

 
(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

 The statute requires that the action be transferred only to another district or division where the original action "might have been brought." Plaintiff's action could clearly have been brought against Green Tree in the District Court of Minnesota since that is both Green Tree's place of ...


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