Citicorp Person-To-Person Financial Center, Inc. v. Fremont National Bank

738 P.2d 29, 4 U.C.C. Rep. Serv. 2d (West) 852, 1987 Colo. App. LEXIS 764
CourtColorado Court of Appeals
DecidedApril 2, 1987
Docket85CA0002
StatusPublished
Cited by3 cases

This text of 738 P.2d 29 (Citicorp Person-To-Person Financial Center, Inc. v. Fremont National Bank) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Citicorp Person-To-Person Financial Center, Inc. v. Fremont National Bank, 738 P.2d 29, 4 U.C.C. Rep. Serv. 2d (West) 852, 1987 Colo. App. LEXIS 764 (Colo. Ct. App. 1987).

Opinions

METZGER, Judge.

In this action to determine the right to the proceeds from an installment land sale contract, defendant, Fremont National Bank (the Bank), appeals the summary judgment entered in favor of plaintiff, Citi-corp Person-to-Person Financial Center, Inc., (Citicorp). Citicorp had claimed a right to the proceeds by virtue of the “rents, issues and profits” clause in a deed of trust it held on the real property. The Bank had claimed a right to the proceeds by virtue of an assignment of the proceeds from the seller, and a perfected security interest therein pursuant to Article 9 of the Uniform Commercial Code. We reverse and remand with directions.

Monte and Martha Campbell owned a 40-acre tract of land in Fremont County, Colorado. This land was subject to a deed of trust in favor of the Federal Land Bank of Wichita, which is not a party to this dispute. The land was also subject to a second deed of trust in favor of Nationwide Finance Corporation, Citicorp’s predecessor in interest.

On June 15, 1977, the Campbells entered into and recorded with the Fremont County Clerk and Recorder an installment land sale contract agreeing to convey 11.26 acres of their 40-acre tract to Charles and Mona Randal. This contract specifically referred to the two deeds of trust mentioned above.

On June 23, 1977, Citicorp entered into a loan agreement with the Campbells. To secure the promissory note involved in that transaction, the Campbells executed a deed of trust covering the entire 40-acre tract, and recorded it that same day with the [31]*31Fremont county clerk and recorder. The note provided that the sole collateral for the loan was the land itself, and made no mention of the installment land sale contract between the Campbells and the Ran-dals. The deed of trust included a clause granting Citicorp the right to “rents, issues and profits” upon default by the Camp-bells. As part of this transaction, the note and deed of trust in favor of Nationwide Finance were cancelled.

In December 1980, the Campbells obtained a loan from the Bank. As part of this transaction, the Campbells assigned their right to receive monthly payments under the Randal installment land sale contract, and gave the Bank possession of the installment land sale contract documents. The loan documents were filed with the county clerk and recorder that same month, and on February 13, 1981, the Bank filed with the Secretary of State an appropriate Uniform Commercial Code financing statement, specifically describing the installment land sale contract.

Thereafter, Monte Campbell filed a petition for bankruptcy, and Martha Campbell disappeared. Citicorp sought relief from the automatic stay and obtained an order of abandonment. It then initiated foreclosure proceedings, bid in the full amount of the debt still owing under its 1977 note, and obtained a trustee’s deed.

The Bank continued to collect the monthly payments from the Randal installment land sale contract pursuant to its assignment. Citicorp brought this action seeking a determination that it had a prior right to the proceeds from the installment land sale contract pursuant to its now foreclosed deed of trust and its trustee’s deed.

The parties stipulated to the above facts for the hearing on their cross-motions for summary judgment. The trial court found that, despite Citicorp’s failure to secure a specific interest in the proceeds from the installment land sale contract in its 1977 note and deed of trust, the Bank was on record notice of Citicorp’s deed of trust when it entered into its loan agreement with the Campbells in 1980. The court further found that Citicorp’s deed of trust secured its interest as to all “rents, issues, and profits” and ruled that the proceeds from the installment land sale contract constituted “rents, issues, and profits” as contemplated by the default provisions of Citi-corp’s deed of trust. Thus, it concluded, upon foreclosure, Citicorp obtained legal title to the entire 40 acres, subject only to the Randal’s equitable interest under the installment land sale contract, and Citicorp was therefore entitled to receive the proceeds from the installment land sale contract, which were not governed by Article 9 of the Uniform Commercial Code. The court then entered summary judgment in favor of Citicorp and against the Bank.

I.

The Bank contends that the trial court erred in its determination that the right to the proceeds from the installment land sale contract did not constitute a security interest governed by Article 9 of the Uniform Commercial Code. As authority for this proposition, it relies on § 4-9-102(3), C.R.S., which provides: “[T]he application of this article to a security interest in a secured obligation is not affected by the fact the obligation is itself secured by a transaction or interest to which this article does not apply.”

Citicorp asserts that the trial court correctly determined that the right to the proceeds from the installment land sale contract did not constitute a security interest governed by Article 9 of the Uniform Commercial Code. As authority for this proposition it relies on § 4-9-104(j), C.R.S., which excludes “the creation or transfer of an interest in or lien on real estate, including a lease or rents thereunder” from application of the Uniform Commercial Code.

We hold that the right to the proceeds from an installment land sale contract are governed by Article 9 of the Uniform Commercial Code.

The apparent conflict between these two sections is discussed in § 4-9-102, C.R.S. (Official Comment 4), which provides the following illustration:

“The owner of Blackacre borrows $10,-000 from his neighbor, and secures his [32]*32note by a mortgage on Blackacre. This Article is not applicable to the creation of the real estate mortgage. However, when the mortgagee in turn pledges this note and mortgage to secure his own obligation to X, this Article is applicable to the security interest thus created in the note and the mortgage.”

See also J. White & R. Summers, Uniform Commercial Code, § 22-6 at 890 (2d Ed. 1980).

Security interests in realty paper represent a personal property right to receive payment and are governed by the Uniform Commercial Code. United States v. PS Hotel Corp., 404 F.Supp. 1188 (E.D. Mo.), aff'd, 527 F.2d 500 (8th Cir.1975); Jackson Co. Fed. Sav. & Loan Ass’n v. Maduff Mortgage Corp., 608 F.Supp. 588 (D.Colo.1985); Black v. Sullivan, 48 Cal. App.3d 557, 122 Cal.Rptr. 119 (1975); H. & Val J. Rothschild, Inc. v. Northwestern Nat’l Bank, 309 Minn. 35, 242 N.W.2d 844 (1976); In re Freeborn, 94 Wash.2d 336, 617 P.2d 424 (1980). See also B. Clark, The Law of Secured Transactions Under the Uniform Commercial Code, § 1.8[10](a) (1980); J. White and R. Summers, Uniform Commercial Code § 22-6 at 890-91 (2d Ed.1980).

A seller’s right to receive payment by virtue of an installment land sale contract is a personal property right. In re Estate of Hills, 222 Kan. 231, 564 P.2d 462 (1977); In re Freeborn, supra.

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738 P.2d 29, 4 U.C.C. Rep. Serv. 2d (West) 852, 1987 Colo. App. LEXIS 764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citicorp-person-to-person-financial-center-inc-v-fremont-national-bank-coloctapp-1987.