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IN RE ALBERT & MAGUIRE SECS. CO.

September 10, 1976

IN RE ALBERT & MAGUIRE SECURITIES COMPANY, INC., Bankrupt, INDUSTRIAL VALLEY BANK AND TRUST CO., Plaintiff,
v.
DONALD M. COLLINS, TRUSTEE, Defendant



The opinion of the court was delivered by: GORBEY

 GORBEY, J.

 This case presents a novel issue arising out of the Albert & Maguire Securities Company, Inc. bankruptcy. The Trustee and the Securities Investor Protection Corporation (SIPC) have appealed from an order of Bankruptcy Judge Goldhaber, entered on May 18, 1976, with respect to facts established by a stipulation of the parties, attached as Exhibit 1, pages 24 - 30 inclusive, of the record on appeal.

 A brief summary of the stipulated facts will serve to put the legal problems in their proper perspective. On May 10, 1972, Joseph and Helen Gradus opened a cash and carry account with Albert & Maguire Securities Co., Inc. (the debtor). All securities purchased by the debtor for that account were to be registered in their name and the proceeds of all sales made by the debtor were to be paid to the Graduses as received.

 On July 25, 1972, Pennsylvania Power & Light Company issued ten certificates in the names of the Graduses as joint tenants with the right of survivorship, each certificate being for 100 shares, and delivered them to the debtor, which converted them to its own use on July 27, 1972, when the debtor sold the shares to bona fide purchasers after having forged the signatures of the owners to the necessary stock transfer powers.

 Signature guarantees were affixed to each of the forged powers by the debtor, by the Industrial Valley Bank and Trust Company (IVB) and others. IVB had no knowledge of the forgery, and was not a party to any fraudulent scheme or conversion by the debtor.

 Upon receipt of the certificates and the forged stock powers, in good faith and in reliance on the IVB guarantees of the signatures, Pennsylvania Power & Light Company issued new certificates in the names of the bona fide purchasers.

 The proceeds of the sale of the shares were received by the debtor and converted to its own use, no portion thereof being received by either IVB or the Graduses, whose demand for delivery of the stock during August and September, 1972, were unheeded by the debtor, which, on October 19, 1972 was adjudicated as a firm whose customers were in need of protection under the Securities Investor Protection Act (SIPA), and Donald M. Collins was appointed Trustee of the debtor. As a result of the conversion by the debtor of the stock, the Graduses were "customers" of the debtor, pursuant to the definition in Section 6(c)(2)(A)(ii) of SIPA, and entitled to the statutory benefits afforded by the Act to cash customers of the debtor.

 On January 4, 1973, the Graduses filed a timely customer claim (claim no. 1217) in the instant proceedings for the shares. At the same time, the Graduses also made a claim against Pennsylvania Power & Light Company for the replacement of the shares, which company then advised IVB of the transfer of the stock to bona fide purchasers in reliance upon the forged signatures, and demanded that IVB reimburse it for any losses it might sustain, pursuant to its guarantee of said signatures.

 The Graduses also asserted a claim against IVB based upon the latter's guarantee. Subsequently, on or about February 21, 1973, the Graduses and IVB entered into a written agreement, Exhibit L of the record, under which IVB agreed to obtain and deliver to the Graduses 1,000 shares of Pennsylvania Power & Light Company 8% preferred stock, registered in their names, to replace the converted stock, in consideration of which the Graduses assigned to IVB "any and all claims, rights or causes of action, and any proceeds thereof, which they or either of them have or may have against Broker or any other person, including, without limitation, SIPC, arising out of their purchase of the Preference Shares and the subsequent transfer thereof without the endorsement of Claimants . . . Any recovery by Bank on any Assigned Claim shall inure solely to the benefit of Bank . . .". (Record, Exhibit L, pp. 77-78)

 Thereafter, IVB purchased 1,000 shares of stock of Pennsylvania Power & Light, paying a purchase price of $ 105,971.25 for the shares. Subsequently, on or about March 30, 1973, IVB delivered said stock to the Graduses, with the payment of $ 2,030, representing dividends payable on January, 1973, to shareholders of record on December 8, 1972 ($ 2,000 plus $ 30 interest thereon, and an additional sum of $ 500 in reimbursement for relevant counsel fees).

 On June 14, 1973, IVB filed a proof of claim (claim no. 1326) in the instant proceedings, asserting, inter alia, a claim for $ 108,501.25, on account of the payment to the Graduses.

 Pennsylvania Power and Light Company had at least one bank account with IVB and was at all relevant times a solvent corporation.

 Bankruptcy Rule 302(d)(2) applies to the transfer of the Gradus' claim to IVB and the parties authorized the Trustee to petition the court herein to enter an order substituting IVB for the Graduses on claim no. 1217. Upon the entering of such an order, IVB will amend the claim it has filed in this proceeding in its own name, ...


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