Bank of America, N.A. v. Case Credit Corp. (In re K & P Logging, Inc.)

272 B.R. 861
CourtUnited States Bankruptcy Court, D. South Carolina
DecidedJuly 19, 2001
DocketBankruptcy No. 00-6061-B; Adversary No. 00-80279-B
StatusPublished

This text of 272 B.R. 861 (Bank of America, N.A. v. Case Credit Corp. (In re K & P Logging, Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bank of America, N.A. v. Case Credit Corp. (In re K & P Logging, Inc.), 272 B.R. 861 (S.C. 2001).

Opinion

ORDER

WM. THURMOND BISHOP, Chief Judge.

Before the Court in this adversary proceeding are the cross-motions for summary judgment filed by the Plaintiff, Bank of America, N.A. (BOA), and the Defendant, ORIX Credit Alliance, Inc. n/k/a ORIX Financial Services, Inc. (ORIX).1 Based upon the record in this proceeding, the arguments of counsel, and a review of applicable law, the Court concludes that ORIX’s motion for summary judgment should be granted and BOA’s motion for summary judgment should be denied.

[863]*863 FINDINGS OF FACT

BOA and ORIX stipulated to the following facts:

1. This is an action to determine the validity, extent and priority of liens arising in the above-captioned case filed on July 14, 2000, by K & P Logging, Inc. (hereinafter K & P Logging or the Debtor).2

2. The Debtor is a South Carolina corporation with its principal place of business in Greenwood County, South Carolina. The Debtor is a timber logging company that owns and uses various items of equipment in the ordinary course of its business.

3. As of the date of filing of the petition, the Debtor owned a number of pieces of logging equipment, including two specific items in which BOA and ORIX assert competing security interests (the Disputed Collateral):

a. Timberjack 460 skidder s/n 985584 with 100" Esco grapple s/n SNSP22611; and
b. Hydro-Ax 511 EX cutter s/n 6663; with 20" Koehring sawhead s/n 980828.

4. On August 28, 1996, NationsBank, N.A. (NationsBank) made a loan to K & P Logging, Inc., Phillip E. Wood, and Kimberley M. Wood in the original principal amount of $522,000.00, which loan was guaranteed by the U.S. Small Business Administration (the SBA Loan). As security for the SBA Loan, BOA asserts that K & P Logging, Inc. granted to NationsBank a security interest in all of its then-existing and after-acquired equipment and machinery (along with other collateral not relevant to this action). The SBA Loan is evidenced by the following relevant loan documents prepared by the SBA and/or NationsBank:

a. U.S. Small Business Administration Note;
b. Loan Agreement;
c. Security Agreement (SBA Form);
d. Security Agreement (NationsBank Form); and
e. UCC-1 Financing Statement.

5. Subsequent to the making of the SBA Loan, ORIX (or its assignor) financed the Debtor’s purchases of a number of items of equipment. Each sale is evidenced by a Conditional Sale Contract Note prepared by ORIX (or its assignor) and signed by the Debtor, copies of which are attached to the UCC-1 Financing Statements referenced below.

6. The SBA Loan held by BOA (as successor by merger to NationsBank) remained unpaid as of the commencement of the Debtor’s Chapter 11 case.

7. Five of the six obligations owed to ORIX, including the obligations evidenced by the two Conditional Sale Contract Notes by which the Disputed Collateral were financed, remained unpaid as of the commencement of the Debtor’s Chapter 11 case.

8. BOA and ORIX rely upon the following UCC-1 Financing Statements signed by the Debtor and filed with the South Carolina Secretary of State to establish their claims to the Disputed Collateral:

Secured
Filing Date_Certificate No. Party_Collateral Description_
September 19, 1996 960919-113244A BOA All equipment, machinery, FF & E
[864]*864October 7,1997 971007-102204A ORIX The property and/or the equipment and all other types of collateral as described in the attached entire agreement and in any schedule attached thereto. The attached security agreement and any schedule attached thereto are being submitted for filing as a financing statement. The specific “property” was a Hydro Ax 411 EX s/n 6455, and the “collateral” included, among other things, all equipment then owned or thereafter acquired by __the Debtor._
November 4,1997 971104-124805B ORIX The property and/or the equipment and all other types of collateral as described in the attached entire agreement and in any schedule attached thereto. The attached security agreement and any schedule attached thereto are being submitted for filing as a financing statement. The specific “property” was an Evans Tandem 25-ton Skidder Trailer s/n 1J9E145B8V1003867 and Evans Drop Frame Pulpwood Trailer s/nlJ9G14QBlV1003884, and the “collateral” included, among other things, all equipment then owned or thereafter acquired _by the Debtor._
December 19,1997 971219-101247C ORIX The property and/or the equipment and all other types of collateral as described in the attached entire agreement and in any schedule attached thereto. The attached security agreement and any schedule attached thereto are being submitted for filing as a financing statement. The specific “property” was a Pitts log trailer Mod. LP40-4L, and the “collateral” included, among other things, all equipment then owned or thereafter acquired _by the Debtor._
October 5,1998 981005-140058A ORIX The property and/or the equipment and all other types of collateral as described in the attached entire agreement and in any schedule attached thereto. The attached security agreement and any schedule attached thereto are being submitted for filing as a financing statement. The specific “property” was a Timberjack 460 s/n 985584 with 100"Esco Grapple s/n SNSP22511, and the “collateral” included, among other things, all equipment [865]*865then owned or thereafter acquired _by the Debtor._
March 3,1999 990303-090153A ORIX The property and/or the equipment and all other types of collateral as described in the attached entire agreement and in any schedule attached thereto. The attached security agreement and any schedule attached thereto are being submitted for filing as a financing statement. The specific “property” was a Hydro Ax 511 EX s/n 6663; 20" Koehring sawhead s/n 980828, and the “collateral” included, among other things, all equipment then owned or thereafter acquired by the Debtor.

9. ORIX attached copies of its Conditional Sale Contract Notes as exhibits to its UCC-1 Financing Statements. The specific items financed by ORIX are listed on the face of each Note, and ORIX holds a purchase money security interest as to those items. ORIX’s Notes further contain grants of a blanket lien in all of the Debtor’s then-existing and after-acquired equipment (and other items) as additional collateral for the obligations referenced in the Notes.

10. ORIX’s Financing Statements contemporaneously executed in connection with the sale of the Timberjack skidder (UCC-1 filed on October 5, 1998) and in connection with the sale of the Hydro AX cutter (UCC-1 filed on March 3, 1999) were filed more than ten (10) days after the date on which the Debtor took possession of each item.

11. ORIX relies upon the filing of the October 7, 1997 Financing Statement, and/or the Financing Statements filed on November 4, 1997 and December 19, 1997, in asserting perfection of purchase money security interests in the Disputed Collateral.

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Bluebook (online)
272 B.R. 861, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-america-na-v-case-credit-corp-in-re-k-p-logging-inc-scb-2001.