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NCUA BD. v. CONCORD LIMOUSINE

January 9, 1995

NATIONAL CREDIT UNION ADMINISTRATION BOARD as liquidating agent for AMALGAMATED TAXI FEDERAL UNION, Plaintiff, against - CONCORD LIMOUSINE, INC. and CONCORD TWO WAY RADIO, INC., Defendants.


The opinion of the court was delivered by: EUGENE H. NICKERSON

 NICKERSON, District Judge:

 On August 17, 1990 the National Credit Union Administration Board (the "Board") declared Amalgamated Taxi Federal Credit Union ("Amalgamated") insolvent and appointed itself as liquidating agent.

 The Board as Liquidating Agent for Amalgamated ("plaintiff") brought this action under 12 U.S.C. § 1789(a)(2) alleging that defendants fraudulently induced Amalgamated to make certain loans and failed to honor a guarantee of the loans.

 Pursuant to Federal Rule of Civil Procedure 65 and 12 U.S.C. § 1787(b)(2)(G), plaintiff now moves for a preliminary injunction placing defendants' assets in the control of a trustee appointed by the court. Plaintiff also moves for leave to file an amended complaint.

 I

 Defendants, corporations operating a radio-dispatched car service, sell franchises or "radio rights" that entitle the purchasers to obtain fares through defendants' dispatcher.

 From September 1986 to May 1990, Amalgamated made loans to several of defendants' franchisees. The loans were secured by the borrowers' franchises. Thereafter, the borrowers defaulted on the loans, and plaintiff auctioned the franchises securing the loans.

 Defendants answered on April 21, 1994 alleging that they did not enter into the Guarantee, that they were not aware of Amalgmated's liens, and that plaintiff's auction of the collateral was ineffective without their consent.

 On December 15, 1994 plaintiff moved for and this court denied a temporary restraining order restraining defendants from transferring any of their assets pending decision of plaintiff's motion for a preliminary injunction placing defendants' assets in the control of a trustee. Plaintiff also filed and served a proposed amended complaint.

 The court held a hearing on the preliminary injunction motion on December 20, 1994. Plaintiff said that defendants had fraudulently conveyed the collateral securing the loans, and that this effort to defraud plaintiff demonstrated the need for the injunction. Defendants admitted that they had sold the franchises, but alleged that they had done so because their franchisees had failed to make monthly fee payments to them. Defendants also offered to set aside the same number of franchises as security for plaintiff's claims.

 II

 Federal Rule of Civil Procedure 15 provides that after a responsive pleading is served, "a party may amend the party's pleading only by leave of court . . . and leave shall ...


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