Bank of North Georgia v. Strick Chex Columbus Two, LLC (In re Strick Chex Columbus Two, LLC)

542 B.R. 914, 2015 Bankr. LEXIS 4313
CourtUnited States Bankruptcy Court, N.D. Georgia
DecidedNovember 19, 2015
DocketCASE NUMBER 15-11276-WHD
StatusPublished
Cited by2 cases

This text of 542 B.R. 914 (Bank of North Georgia v. Strick Chex Columbus Two, LLC (In re Strick Chex Columbus Two, LLC)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bank of North Georgia v. Strick Chex Columbus Two, LLC (In re Strick Chex Columbus Two, LLC), 542 B.R. 914, 2015 Bankr. LEXIS 4313 (Ga. 2015).

Opinion

ORDER

W. Homer Drake, U.S. Bankruptcy Court Judge

Before the Court is the Motion of Bank of North Georgia, a division of Synovus Bank (hereinafter, the “Bank”), for Adequate Protection or in the Alternative for Relief from the Automatic Stay (hereinafter, the “Motion”) filed on July 24, 2015. The Court held a preliminary hearing on the Motion on September 2, 2015, and conducted an evidentiary hearing on October 27, 2015. The Court has jurisdiction over this matter as a core proceeding pursuant to 28 U.S.C. §§ 157(b)(2), 1334.

BACKGROUND AND PROCEDURAL FACTS

Strick Chex Columbus Two, LLC (hereinafter, the “Debtor”), filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code on June 16, 2015. The Debtor owns and operates a “Checkers” fast-food restaurant in Columbus, Georgia, under a franchise agreement with Checkers Drive-In Restaurants, Inc. (hereinafter, “Checkers Corporate”). No trustee has been appointed, and the Debtor is acting as a “debtor in possession.” See 11 U.S.C. §§ 1101(1), 1107.

On June 6, 2013, the Bank issued a loan to the Debtor in the amount of $329,941.51. In exchange for the loan, the Debtor executed a promissory note in favor of the Bank and granted the Bank a security interest in virtually all of the Debtor’s personal property and the proceeds of that property.1 The loan is also secured by a deed to secure debt on the Debtor’s leasehold interest in the real property upon which the Debtor’s restaurant is located and, by cross-collateralization, with the assets of Strick Chex Columbus Three, LLC (an affiliated business also operating a Checkers restaurant in Columbus) and Larry Strickland dba Strickland Ventures, LLC (a principal of the Debtor).

The Motion was filed shortly after the commencement of the case. In the Motion, the Bank argues that its collateral is subject to depreciation and that it is entitled to either relief from the automatic stay or adequate protection. The Bank particularly contends that because it has a blanket security interest in the Debtor’s personal property, particularly inventory, equipment, ■ and the Debtor’s franchise agreement with Checkers Corporate, all of the Debtor’s post-petition revenue constitutes the proceeds of the Bank’s collateral. Thus, by paying its principals and employees and purchasing new inventory with that revenue, the Debtor is using the Bank’s cash collateral without authorization. On its part, the Debtor argues that its revenue is not proceeds of the Bank’s collateral and, therefore, does not constitute “cash collateral.”

The Court held a hearing on the Motion on September 2, 2015, and granted the Bank interim relief in the form of adequate [918]*918protection payments of $750 per month. The Court • ordered the parties to submit briefs “on the question of the Bank’s interest in and the Debtor’s use of cash collateral” and scheduled an evidentiary hearing for October 27, 2015. Interim Order, Doc. No. 58. Having received the parties’ briefs and evidence and having heard their arguments at the September 2nd and October 27th hearings, the Court concludes as stated below.

DISCUSSION

To resolve the Motion, the Court must consider two questions: (A) whether and to. what extent the Debtor’s post-petition revenues constitute the Bank’s cash collateral; and (B) what relief is necessary to ensure that any interest the Bank has in the Debtor’s property is adequately protected.

A. Cash Collateral

“Cash collateral” is defined in § 363 as “cash, negotiable instruments ... deposit accounts, or other cash equivalents whenever acquired in which the estate and an entity other than the estate have an interest and includes the proceeds, products, offspring, rents, or profits of property ... subject to a security interest as provided in section 552(b) of this title.” 11 U.S.C. § 363(a). Section 552 in turn governs the application of pre-petition security interests post-petition. Séction 552(a) provides the general rule that “property acquired by the estate or by the debtor after the commencement of the case is not subject to any lien resulting from any security agreement entered into by the debt- or before the commencement of the case.” 11 U.S.C. § 552(a). Section 552(b) contains the sole exception to this rule:

[I]f the debtor and an entity entered into a security agreement before the commencement of the case and if the security interest created by such security agreement extends to property of the debtor acquired before the commencement of the case and to proceeds, products, offspring, or profits of such property, then such security interest extends to such proceeds, products, offspring, or profits acquired by the estate after the commencement of the case to the extent provided by such security agreement and by applicable nonbankruptcy law, except to any extent that the court, after notice and a hearing and based on the equities of the case, orders otherwise.

11 U.S.C. § 552(b)(1). Therefore, in order for a pre-petition security interest to attach to a debtor’s after-acquired cash, making it “cash collateral,” the secured creditor must show that the security agreement attaches to the proceeds of the collateral covered by the agreement and that the proceeds claimed as cash collateral are in fact “proceeds ... of pre-petition property subject to the lien.” In re Cafeteria Operators, L.P., 299 B.R. 400, 405 (Bankr.N.D.Tex.2003); see also 11 U.S.C. § 363(p)(2) (“[T]he entity asserting an interest in property has the burden of proof on the issue of validity, priority, or extent of such interest.”).

Here, the parties do not dispute the first prong of this analysis — that the Bank has a valid security interest in the Debtor’s property and that the Bank’s interest extends to the proceeds of that property. Instead, the parties focus on the second prong: whether the Debtor’s post-petition revenue is proceeds of the Debtor’s pre-petition property.

The Eleventh Circuit Court of Appeals has held that determining whether a party has a security interest within the meaning of § 552 is a question of state law, but whether the property at issue in a given case is “proceeds,” as that term is used in § 552, is a matter of statutory interpreta[919]*919tion and federal law. See Fin. Sec. Assurance, Inc. v. Tollman-Hundley Dalton, L.P., 74 F.3d 1120, 1123-24 (11th Cir.1996) (per curiam). Courts should “look to the plain meaning of the statute” and be mindful of the fact that “Congress intended [§ 552(b) ] to cover a wide range of derivative property.” See id. at 1124 (referencing Black’s Law Dictionary and concluding that “rents” included hotel revenues).

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542 B.R. 914, 2015 Bankr. LEXIS 4313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-north-georgia-v-strick-chex-columbus-two-llc-in-re-strick-chex-ganb-2015.