D & M, Inc. v. United New Mexico Bank at Gallup (In re D & M, Inc.)

114 B.R. 274, 1990 Bankr. LEXIS 983
CourtUnited States Bankruptcy Court, D. New Mexico
DecidedMay 9, 1990
DocketBankruptcy No. 11-87-01333 M A; Adv. No. 88-0126 M
StatusPublished

This text of 114 B.R. 274 (D & M, Inc. v. United New Mexico Bank at Gallup (In re D & M, Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. New Mexico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D & M, Inc. v. United New Mexico Bank at Gallup (In re D & M, Inc.), 114 B.R. 274, 1990 Bankr. LEXIS 983 (N.M. 1990).

Opinion

MEMORANDUM OPINION

MARK B. McFEELEY, Bankruptcy Judge.

This matter came before the Court on March 7, 1990, for presentment of a judgment submitted by the debtors. The two issues before the Court are the priority of claims to Liquor License Number 1429 and the effect of the Thirty Day Credit Law, N.M.S.A, § 60-7A-9 (Repl.Pamp.1987), on the liquor wholesalers’ liens. Having considered the arguments of counsel, legal memoranda submitted by the parties, having consulted the appropriate authorities and being otherwise fully informed and advised, the Court issues this memorandum opinion.

FACTS

A complaint to determine value, priorities, and extent of liens; allowance or disal-lowance of secured claims; and sale of property pursuant to § 368 out of the ordinary course of business was filed May 16, 1988. The liquor license was allowed to be sold free and clear of liens, pursuant to 11 U.S.C. § 363 by order of this Court filed March 6, 1989. United New Mexico Bank at Gallup (bank) was allowed to bid a portion of its claim to acquire some or all of the assets being sold. The bank had perfected a security interest in the liquor license by filing a financing statement with the New Mexico Secretary of State on April 26, 1985. A portion of the proceeds from the sale, in the amount of $34,000.00, were ordered to be segregated pending the decision of this Court on the claimed priority of the New Mexico Taxation and Revenue Department, Quality Import Company, and Joe G. Maloof & Company (wholesalers), or if the bank acquired the liquor license, it would refund this sum of money to these parties if their liens were determined to have priority. The liens of the parties attached to the proceeds of the sale as set forth in the March 6, 1989, order. The State of New Mexico’s Alcohol and Gaming Division was authorized by this Court to transfer Liquor License Number 1429 free and clear of all liens or claims of liquor wholesalers or the New Mexico Department of Taxation and Revenue. On March 7, 1989, the real estate, chattels and liquor license were sold at auction. United New Mexico Bank was the highest bidder and acquired the liquor license. On August 7, 1989, a partial settlement agreement was filed resolving all of the pending issues except the priority of claims to Liquor License Number 1429, and the effect of the Thirty Day Credit Law on the wholesalers’ liens.

DISCUSSION

A. Priority of Claims to Liquor License Number 1429

The bank alleges that its lien has priority over debts to liquor wholesalers arising after April 26, 1985, as its security interest was perfected on that date. Further, the bank alleges that the financing statement was filed prior to the date all of the unpaid claims of either wholesaler originated, with the exception of the sum of $264.70 which is shown as dated April 2, 1985, in favor of Joe G. Maloof & Company. The wholesalers claim priority over the bank, regardless of when it perfected its lien, alleging that the New Mexico legislature statutorily created a priority lien for wholesalers, the [276]*276payment of which is a condition precedent to the transfer of liquor licenses.

The applicable authority is set forth in N.M.S.A. § 60-6B-3(E) (Repl.Pamp.1987):

Transfer of licenses.
E. The transfer, assignment, sale or lease of any license shall not be approved until the director is satisfied that all wholesalers who are creditors of the licensee have been paid or that satisfactory arrangements have been made between the licensee and the wholesaler for the payment of such debts. Such debts shall constitute a lien on the license, and the lien shall be deemed to have arisen on the date when the debt was originally incurred.

The interpretation of this statute was set forth in In re What D’Ya Call It, Inc., 105 N.M. 164, 730 P.2d 467 (1986). The New Mexico Supreme Court held:

The requirements of Section 7-1-38 and general lien law do not apply to claims made under Section 60-6B-3(E). A lien pursuant to Section 60-6B-3(E) has a superpriority status over other lienhold-ers, including the tax lien in favor of the State, unless the latter liens were perfected under Section 7-1-38 or under applicable general law prior to the date the licensee incurred debts owed to wholesaler creditors.

Id. at 165, 730 P.2d at 468.

The bank argues that the above language in What D’Ya Call It describing “latter liens” includes other perfected security interests, and concludes that its security interest was perfected first by filing on April 26, 1985, and therefore has priority over the wholesalers’ liens arising after that date under the general Uniform Commercial Code priority rule, N.M.S.A. § 55-9-312(5)(a) (Repl.Pamp.1987).1 The Court disagrees.

This Court’s interpretation of N.M.S.A. § 60-6B-3(E) (Repl.Pamp.1987) and In re What D’Ya Call It, Inc., 105 N.M. 164, 730 P.2d 467 (1986) is that liquor wholesalers have a superpriority lien over all lien holders, with the exception of the New Mexico State Taxation and Revenue Department, if the tax lien is perfected pursuant to N.M.S.A. § 7-1-38 (Repl.Pamp. 1988).2 The tax lien is effective as of the date the notice is filed. What D’Ya Call It, 105 N.M. at 165, 730 P.2d at 468. Section 60-6B-3(E), on the other hand, does not require notice of the lien to be filed to perfect the liquor wholesaler’s lien. Id. Automatic perfection of the wholesaler’s lien occurs on the date the debt is incurred. The statute allows a wholesale liquor distributor to forego the requirement of filing a financing statement each time a credit sale is made to a retail distributor. It does not, however, allow the wholesaler to claim priority for each subsequent sale as of the date of the first transaction. Instead, each separate credit sale creates a separate lien. All liens other than tax liens become subordinate to the wholesaler’s liens regardless of the date of perfection. “General lien law do[es] not apply to a claim made under [277]*277Section 60-6B-3(E).” What D’Ya Call It, 105 N.M. at 165, 730 P.2d at 468. Thus, the liquor wholesalers’ liens have priority over the bank’s security interest in this case.

The Court need not reach the issue of whether the statute creates a condition precedent to the transfer of the liquor license in favor of the wholesalers. The wholesalers waived the argument by signing and agreeing to the March 6, 1989, order allowing the sale of the liquor license free and clear of liens, with the liens attaching to the proceeds of the sale, and authorizing the State of New Mexico’s Alcohol and Gaming Division to transfer the license free and clear of liens or claims of liquor wholesalers.

B. The Thirty Day Credit Law

The bank argues that its security interest has priority over the wholesalers’ liens which violate the Thirty Day Credit Rule because the statute does not provide that the lien it creates primes prior filed security interests which have been properly perfected.

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Bluebook (online)
114 B.R. 274, 1990 Bankr. LEXIS 983, Counsel Stack Legal Research, https://law.counselstack.com/opinion/d-m-inc-v-united-new-mexico-bank-at-gallup-in-re-d-m-inc-nmb-1990.