Botson v. Citizens Banking Co. (In re Botson)

531 B.R. 719
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedJune 1, 2015
DocketCase No. 11-36509; Adv. Pro. No. 14-3056
StatusPublished
Cited by6 cases

This text of 531 B.R. 719 (Botson v. Citizens Banking Co. (In re Botson)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Botson v. Citizens Banking Co. (In re Botson), 531 B.R. 719 (Ohio 2015).

Opinion

MEMORANDUM OF DECISION AND ORDER REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT

John P. Gustafson, United States Bankruptcy Judge

Plaintiffs Kymberly A. Botson and Christopher J. Botson are the debtors in the underlying Chapter 7 case. On May 2, 2014, Plaintiffs commenced this adversary proceeding, requesting injunctive relief against Defendant Citizens Banking Company (“Defendant” or “CBC”) for alleged violations of 11 U.S.C. § 524 and 11 U.S.C. § 524(a)(2). [Doc. # 1], Specifically, Plaintiffs allege that Defendant’s refusal to remove a 2009 UCC-1 financing statement, and Defendant’s filing of a UCC-3 continuation statement, are violations of the discharge injunction. This proceeding is now before the court on Plaintiffs’ Motion for Summary Judgment (“Plaintiffs’ Motion”) [Doc. #23], Defendant’s Combined Motion for Summary Judgment and Memorandum Contra to Plaintiffs’ Motion (“Defendant’s Motion”) [Doc. #24], Plaintiffs’ Response in Opposition to Defendant’s Motion (“Plaintiffs’ Response”) [Doc. #29], and Defendant’s Reply to Plaintiff s Response (“Defendant’s Reply”) [Doc. # 33],

Having considered • the parties’ respective arguments, for the reasons that follow, Plaintiffs’ Motion will be denied, and Defendant’s Motion will be granted.

FACTUAL BACKGROUND1

Unless otherwise indicated, the following facts are not in dispute. In 2009, Plaintiffs and Defendant entered into a loan and security agreement.2 At the time they received the loan, Plaintiffs were the owners of The Fremont Agency, Inc., an insurance agency with two locations. [Case No. 11-36509, Doc. # 12, p. 4]. On March 20, 2009, as part of the loan transaction, Defendant filed a UCC-1 financing statement with the Ohio Secretary of State. [Doc. [722]*722# 1-4, Ex. C]. Pursuant to the terms of the financing statement, Defendant was granted a lien in “[a]ll accounts receivable and all business assets, whether now owned or hereafter acquired by debtor, wherever located, together with any replacements thereof and additions and accessions thereto and all products and proceeds of the foregoing.” [Id.].

On December 8, 2011, Plaintiffs filed for Chapter 7 bankruptcy protection. [Case No. 11-36509, Doc. # 1]. Defendant was not initially notified of Plaintiffs’ Chapter 7 filing, as Plaintiffs did not list Defendant as a creditor in their bankruptcy schedules. [Id., Doc. ## 1, 6].

In its Motion, CBC states that it “happened upon the [Plaintiffs’] bankruptcy filing in February of 2012, when Plaintiffs and Defendant were discussing a possible settlement of the outstanding balance owed to Defendant. [Doc. #24, p. 3]. Upon discovery of Plaintiffs’ bankruptcy filing, CBC discontinued all contact with Plaintiffs. These factual allegations were, also asserted in the affidavit of Misty A. Baker, CBC’s Vice-President, Special Assets Group. [Doc. #24-1, Exhibit A], Ms. Baker’s affidavit avers that between the time of Plaintiffs’ filing on December 8, 2011, and January 31, 2012, CBC was not notified, either informally by Plaintiffs or formally through the court, that Plaintiffs had filed for Chapter 7 protection. [Id., ¶ 4], On March 2, 2012, Plaintiffs filed an Amended Summary of Schedules and an Amended Schedule F, adding CBC to their schedules as a creditor holding unsecured nonpriority claims. [Case No. 11-36509, Doc. # 18]. This caused the adjournment of the § 341 Meeting of Creditors, which was continued to April 2, 2012. [Id., Doc. #19].

On August 2, 2012, the Plaintiffs received tbeir order of discharge from the court. [Id., Doc. #49]. The Debtors’ Chapter 7 was an asset case, and court records reflect that Citizens Banking Company received a dividend of $324.32 on its claim for $49,987.10. [Id., Doc. # 59-1].

At an unspecified point in time, between August 2, 2012 and January 1, 2014, Plaintiffs allege that they contacted Defendant and requested that CBC remove the UCC-1 filing, based upon the underlying obligation having been discharged in their bankruptcy. Plaintiffs further allege in their Motion that CBC replied that the UCC-1 would “only be withdrawn after Plaintiff surrendered the full amount demanded by [CBC].” [Doc. # 23, p. 3]. On January 1, 2014, Plaintiffs’ attorney sent a letter to CBC, requesting that CBC withdraw the UCC filing, as “11 USC 524 of the bankruptcy code requires that all collection actions on the part of a creditor be discontinued” after debtors receive their discharge. [Doc. 1-6, Ex. E]. CBC did not respond to Plaintiffs’ request.

On January 14, 2014, Defendant filed a UCC-3 continuation statement with the Ohio Secretary of State. Several months later, on May 2, 2014, Plaintiffs filed the Complaint now before the court, requesting the court to find that CBC violated the discharge injunction. Plaintiffs seek in-junctive relief, in the form of the court ordering that Defendant remove the UCC-1 filing. Plaintiffs also request punitive damages in the amount of $10,000.00, along with legal fees “and any other remedy this Court would find appropriate.” [Doc. # 1].

In its answer to the Complaint, CBC states that it is a secured creditor, and as such, may file pursuant to 11 U.S.C. § 362(b)(3) “a UCC continuation statement to continue perfection of its security in its collateral.” [Doc. #5, ¶2], CBC also maintains that filing a UCC continuation statement in am effort to maintain its perfection of a security interest in collateral is [723]*723not a violation of the discharge injunction under 11 U.S.C. § 524(a)(2).

LAW AND ANALYSIS

I. Summary Judgment Standard

Under Rule 56 of the Federal Rules of Civil Procedure, made applicable to this proceeding by Federal Rule of Bankruptcy Procedure 7056, summary judgment is proper only where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In reviewing a motion for summary judgment, however, all inferences “must be viewed in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The party moving for summary judgment always bears the initial responsibility of informing the court of the basis for its motion, “and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits if any’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re: Duane L. Bentley
Sixth Circuit, 2020
In re Cascone
572 B.R. 379 (M.D. Florida, 2017)
In re Biery
543 B.R. 267 (E.D. Kentucky, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
531 B.R. 719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/botson-v-citizens-banking-co-in-re-botson-ohnb-2015.