B-134689, JAN. 8, 1958

B-134689, JAN. 8, 1958

TO MR. W. M. WILSON, SPECIAL DISBURSING AGENT, DEPARTMENT OF THE ARMY:

BY THIRD INDORSEMENT OF DECEMBER 16, 1957 (FINEY 167/7 OCT 57 DWIGHT H. SELIX, ET AL), THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED HERE YOUR REQUEST OF OCTOBER 4, 1957, FOR A DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER TRANSMITTED THEREWITH IN THE AMOUNT OF $798, STATED IN FAVOR OF ROBERT F. MALMBERG, RECEIVER, REPRESENTING RENTAL UNDER LEASE DA-25-066-ENG-4224, DATED JANUARY 1, 1957, FOR THE PERIOD BEGINNING JULY 1, 1957, AND ENDING SEPTEMBER 30, 1957. THE CITED LEASE WAS EXECUTED BY DWIGHT H. SELIX AND DONNA M. SELIX.

YOU STATE THAT ROBERT F. MALMBERG WAS APPOINTED RECEIVER ON JANUARY 24, 1957, BY THE DISTRICT COURT IN AND FOR APPANOOSE COUNTY, IOWA, IN THE CASE OF THE CENTERVILLE NATIONAL BANK, CENTERVILLE, IOWA V. DWIGHT SELIX, ET AL; THAT ON JANUARY 29, 1957, THE SHERIFF OF APPANOOSE COUNTY SERVED A NOTICE OF SHERIFF'S SALE ON THE PROPERTY HERE INVOLVED, WHICH ACTION WAS AUTHORIZED BY VIRTUE OF A SPECIAL EXECUTION TO THE SHERIFF, DIRECTED BY THE CLERK OF THE DISTRICT COURT IN FAVOR OF THE ABOVE PLAINTIFF FOR $13,499.55; AND THAT YOUR OFFICE WAS NOT AWARE OF THE ABOVE COURT ACTION UNTIL BROUGHT TO YOUR ATTENTION BY LETTER OF JULY 26, 1957, FROM COMPANY A, 328TH ENGINEER BATTALION.

ATTACHED TO THE VOUCHER IS LETTER DATED AUGUST 19, 1957, TO THE OFFICE OF THE DISTRICT ENGINEER, FROM THE ATTORNEY OF THE O-DEA FINANCE COMPANY, DES MOINES, IOWA, WHEREIN IT IS STATED THAT IN THE ABOVE COURT ACTION THE COURT RENDERED A JUDGMENT AND DECREE IN FAVOR OF THE PLAINTIFF IN THE FORECLOSURE OF ITS FIRST MORTGAGE LIEN ON THE PROPERTY COVERED BY THE LEASE; THAT THE SAME DECREE ALSO PROVIDED FOR JUDGMENT AGAINST THE GOVERNMENT'S LESSORS IN FAVOR OF THE O-DEA FINANCE COMPANY IN THE AMOUNT OF $52,176.73, PLUS INTEREST AND COSTS; AND THAT THE PROPERTY WAS SOLD AND BID IN BY THIS COMPANY FOR AN AMOUNT SUFFICIENT TO PAY THE JUDGMENT IN FAVOR OF THE BANK, BUT THAT THE JUDGMENT IN FAVOR OF THE FINANCE COMPANY HAS NOT BEEN PAID. THE LETTER QUOTES FROM THE JUDGMENT, AS FOLLOWS:

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED, THAT ROBERT MALMBERG, OF CENTERVILLE, IOWA, BE, AND HE IS HEREBY, APPOINTED RECEIVED FOR THE FOLLOWING DESCRIBED REAL ESTATE, TO WIT: THE NORTH 75 FEET OF LOT TWO (2) IN BLOCK FOUR (4) RANGE FOUR (4) IN THE ORIGINAL TOWN OF CENTERVILLE, APPANOOSE COUNTY, IOWA, AND BEFORE ENTERING UPON HIS DUTIES HE SHALL QUALIFY BY; (1) TAKING THE OATH OF OFFICE; (2) FILING A BOND WITH SURETIES TO BE APPROVED BY THE CLERK IN THE AMOUNT OF $--- -----, WHEREUPON HE SHALL BE VESTED WITH THE DUTIES, RIGHTS AND POWERS CONFIRMED UPON RECEIVERS IN SUCH CASES AND HE SHALL TAKE IMMEDIATE POSSESSION OF SAID REAL ESTATE AND LOOK AFTER, MANAGE AND CONSERVE THE SAME AND COLLECT THE RENTS, PROFITS AND INCOME THEREFROM, AND APPLY SAID RECEIPTS TO THE COST AND EXPENSES OF THE RECEIVERSHIP, INCLUDING PAYMENT OF ANY TAXES DUE OR BECOMING DUE, DURING SAID RECEIVERSHIP, AS WELL AS ANY INSURANCE AND THE BALANCE TO THE SATISFACTION OF ANY PART OR PORTION OF THE PLAINTIFF'S JUDGMENT, AND COSTS REMAINING UNPAID HEREIN, AND AFTER THE PLAINTIFF'S JUDGMENT AND COSTS HAVE BEEN PAID, THEN UPON THE JUDGMENT OF THE O-DEA FINANCE COMPANY, MAKING PROPER REPORTS OF HIS DOINGS TO THIS COURT FROM TIME TO TIME, OR WHENEVER REQUIRED BY THE COURT TO DO SO, ALL AS PROVIDED BY LAW.'

IN CONCLUSION THE ATTORNEY STATES THAT IT IS HIS UNDERSTANDING THAT THE DEPARTMENT HESITATED MAKING RENTAL PAYMENTS TO MR. MALMBERG, AS RECEIVER, BECAUSE THE MORTGAGE HELD BY THE O-DEA FINANCE COMPANY CONTAINED AN ASSIGNMENT OF RENTS. IT IS POINTED OUT, HOWEVER, THAT UNDER THE TERMS OF THE ABOVE JUDGMENT AND DECREE THE RIGHTS OF THIS COMPANY ARE BEING PROTECTED AND ENFORCED BY THE RECEIVERSHIP; THAT THE COMPANY REQUESTS AND CONSENTS TO PAYMENT OF RENT IN THE FUTURE TO MR. MALMBERG AS RECEIVER AND THAT THE COMPANY HAS BEEN PRESSING THE RECEIVER TO COLLECT THE RENTS ACCRUING UNDER THE LEASE AS DIRECTED BY THE COURT.

IN ADDITION TO THE FOREGOING THERE IS ATTACHED TO THE VOUCHER A CERTIFIED STATEMENT DATED AUGUST 5, 1957, BY THE CLERK OF THE ABOVE COURT TO THE EFFECT THAT MR. MALMBERG WAS APPOINTED RECEIVER ON JANUARY 24, 1957; THAT HE QUALIFIED AS RECEIVER BY FILING A RECEIVER'S BOND ON JANUARY 29, 1957, IN THE AMOUNT OF $10,000 AND THAT HE IS STILL QUALIFIED AND ACTING IN THAT CAPACITY IN SAID CASE.

UNDER THE LAW OF IOWA IT HAS BEEN HELD THAT WHERE A RECEIVER IS APPOINTED IN A MORTGAGE FORECLOSURE ACTION, NO PERSON CAN LAWFULLY DEPRIVE HIM AS RECEIVER OF POSSESSION OF THE PROPERTY SO LONG AS HE REMAINS UNDISCHARGED. YOUNG V. MILLER, 292 N.W. 845. IN THE INSTANT CASE THERE IS NO INDICATION OR SUGGESTION THAT AN ORDER OF THE COURT HAS ISSUED TERMINATING THE RECEIVERSHIP OR DISCHARGING THE RECEIVER. ON THE CONTRARY, THE RECORD SHOWS THAT THE RECEIVER HAS QUALIFIED BY FILING A RECEIVER'S BOND; THAT AS OF AUGUST 5, 1957, HE WAS STILL ACTING IN THAT CAPACITY; AND THAT THE O-DEA FINANCE COMPANY HAS REQUESTED AND CONSENTED TO THE PAYMENT OF RENT TO MR. MALMBERG AS RECEIVER.

ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH, IS AUTHORIZED IF THERE BE ATTACHED THERETO A CERTIFICATE BY THE CLERK OF THE COURT THAT ROBERT F. MALMBERG IS STILL ACTING AS RECEIVER IN THE ABOVE MENTIONED CASE TOGETHER WITH A COPY OF THE ABOVE JUDGMENT. 9 COMP. GEN. 154.