In Sandpiper North Apartments, Ltd. v. American Nat'l Bank and Trust Co. of Shawnee, 680 P.2d 983 (Ok. 1984), Sandpiper hired a general contractor, who in turn hired Midwest Engineering as a subcontractor. Midwest obtained financing from American National Bank and Trust Co., and "assigned to the Bank the proceeds of its subcontracts as security for loans made with the contractor's knowledge." Id. at 986.
Under the agreement, Midwest and the bank were to be made co-payees of checks for work done on the projects. After Midwest failed to keep the projects free of liens, the general contractor sued Midwest and the bank for restitution of payments not applied to discharge valid liens. The general contractor argued that under the Oklahoma construction trust fund statute, "Midwest and the Bank became 'co-trustees' of all the progress payments made to Midwest." Id.
The court rejected the general contractor's contention that liability under the statute extends to any party receiving any money. The court did, however, hold that the bank may be liable if it had knowledge that the funds were to be used as trust funds earmarked for subcontractors.
The Legislature's intent doubtless was that the named recipients be charged with a fiduciary duty over construction funds. The term 'recipient,' within the context of these enactments, denotes one who is in control of the trust funds and is thus able to effect their disbursement. . . . If some person other than a statutorily identified recipient is found to have actually exercised control over disbursement of any money, knowing it to be a part of the trust funds, that person may be regarded pro tanto as an involuntary trustee. But the mere fact that one other than a statutory trustee is actually able, or has the opportunity, to control the application of some or all trust funds is alone insufficient to cast that person in the role of involuntary trustee. The involuntary trustee status may be imposed only on one who knowingly takes charge of the trust res, or any of its parts. A lender may thus become liable qua trustee of a construction trust res over which it assumed to exercise control and from which money came to be wrongfully diverted or misapplied. (Id. at 988.)
The court held that the Bank would be entitled to proceeds out of the trust fund to the extent that Midwest was permitted to keep funds as a lien claimant on the project. (Sandpiper, 680 P.2d at 989.)