Davidson v. Arkansas River Valley Grain Drying Cooperative (In re Glass)

26 B.R. 166, 1982 U.S. Dist. LEXIS 17221
CourtDistrict Court, E.D. Arkansas
DecidedApril 16, 1982
DocketNo. LR-77-570-571B
StatusPublished
Cited by1 cases

This text of 26 B.R. 166 (Davidson v. Arkansas River Valley Grain Drying Cooperative (In re Glass)) is published on Counsel Stack Legal Research, covering District Court, E.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davidson v. Arkansas River Valley Grain Drying Cooperative (In re Glass), 26 B.R. 166, 1982 U.S. Dist. LEXIS 17221 (E.D. Ark. 1982).

Opinion

EISELE, Chief Judge.

ORDER

This is an appeal from a judgment of the Bankruptcy Court holding that a “Delivery Debenture,” issued to Owen C. Glass by Arkansas River Valley Grain Drying Cooperative, is an instrument in which a security interest is perfected by mere possession.

On the basis of the Findings of Fact, Discussion and Conclusions of Law set forth [167]*167in the Bankruptcy Court’s well-reasoned opinion, Davidson v. Arkansas River Valley Grain Drying Cooperative, No. LR-77-570-571B (April 21, 1980), it is Ordered that the Judgment be, and it is hereby, affirmed.

FINDINGS OF FACT

1. On April 1, 1976 Lonoke Production Credit Association (hereinafter “PCA”) loaned $30,000 to Owen C. Glass (hereinafter “Glass”). Glass signed a demand promissory note evidencing this indebtedness.

2. The money was loaned to Glass so that he could invest in a grain drying and storage facility operated by Arkansas River Valley Grain Drying Cooperative (hereinafter “ARV”).

3. In return for Glass’ investment, ARV issued to him a certificate called a Delivery Debenture, identified as Note No. 10677.

4. The Delivery Debenture evidenced two obligations by ARV to Glass. The first obligation, labeled as Part I of the Delivery Debenture and entitled “Registered Note,” was a promissory note under which ARV promised to pay, 15 years after date, $30,-000 to Glass, plus interest at the rate of 6% per annum, which was payable annually. The second obligation, labeled Part II of the Delivery Debenture and entitled “Delivery Privilege Contract,” afforded to Glass the right to dry and store a certain amount of rice and soybeans in the ARV facility.

5. The Delivery Debenture was retained by the PCA as security for its loan to Glass. It was stipulated by the parties that the PCA had possession of the Delivery Debenture except when delivered to ARV for the purpose of reissuance, so that if the Court determines that a security interest in the Delivery Debenture is perfected by possession, there is no dispute as to the PCA’s possession.

6. On October 20, 1976 two portions of the Delivery Debenture amounting to $3,500 each were transferred to Tom Ed Livesay and Robert E. Norman. Accordingly, a new Delivery Debenture was issued to Glass, identified as Note No. 11518, evidencing an indebtedness of $22,500.00. This Delivery Debenture also was in the possession of the PCA.

7.Glass failed to repay his $22,500.00 indebtedness to the PCA, and the Delivery Debenture was transferred into the name of PCA, thereby satisfying Glass’ indebtedness. This transfer was effectuated on August 31, 1978.

DISCUSSION

This Adversary Proceeding arises out of a dispute between Charles D. Davidson, the Trustee in this bankruptcy proceeding, and Lonoke Production Credit Association, a creditor of Owen C. Glass, the bankrupt herein. Under a demand promissory note executed by Glass on April 1,1976, the PCA loaned $30,000 to Glass so that he could become a member of and invest in the Arkansas River Valley Grain Drying Cooperative. The purpose of the investment was to enable ARV to acquire and maintain a grain drying facility near Morrilton. In return for this investment, ARV issued a Delivery Debenture to Glass. The Delivery Debenture evidenced two obligations on the part of ARV. Part I, the Registered Note, obligated ARV to repay the investment in 15 years, with interest accruing at 6% per annum, payable annually. Part II, the Delivery Privilege Contract, entitled Glass to use a certain amount of the drying and storage space in the facility.

When the Delivery Debenture was issued, the PCA took possession of it as security for Glass’ $30,000 indebtedness, as agreed between the PCA and Glass. Subsequently, on October 20, 1976 part of the Delivery Debenture was transferred to two individuals, and the proceeds of that transfer were applied against Glass’ indebtedness, reducing it to $22,500.00. A new Delivery Debenture was issued reflecting the transaction, and it was returned to PCA’s possession.

Thereafter, the PCA demanded payment on its promissory note. Glass defaulted, and on August 30, 1978 the PCA presented the Delivery Debenture to ARV so that a new certificate could be issued in its name, [168]*168thereby satisfying Glass’ indebtedness to the PCA. The transaction was completed on August 31, 1978.

On September 6, 1979 the Trustee instituted this Adversary Proceeding against ARV to have the Delivery Debenture included in the bankrupt estate. On October 19,1979 the Trustee amended his complaint to include the PCA as a defendant. Although none of the pleadings state the grounds upon which the Trustee relies to support his action, it is evident that the Trustee claims that the transfer of the Delivery Debenture into the name of the PCA constituted a preferential transfer in violation of Sec. 60 of the Bankruptcy Act of 1898, as amended. The relevant portions of Subsection (a) of that section basically state that a preferential transfer is a transfer made by the bankrupt, while insolvent and within four months of filing, to a creditor so that the creditor receives a greater percentage of his debt than some other creditor of the same class.

Subsection (b) of that section states in relevant part:

... [A] transfer of property other than real property shall be deemed to have been made or suffered at the time when it became so far perfected that no subsequent lien upon such property obtainable by legal or equitable proceedings on a simple contract could become superior to the rights of the transferee.

The only issues in this dispute center upon this provision. The Trustee argues, first, that no security interest attached because there is no written security agreement. Second, he argues that even if a security interest did attach, the PCA had an unper-fected security interest in the Delivery Debenture, and so the transfer was not “so far perfected” until the date that the Delivery Debenture was actually transferred into the name of the PCA. The PCA contends that its security interest did attach and was perfected through its possession of the Delivery Debenture, and thus it was “so far perfected” so as not to run afoul of Sec. 60. The record establishes that if the PCA’s security interest was indeed attached and perfected when it took possession of the Delivery Debenture, there is no violation of Sec. 60. Hence, as agreed at the pre-trial conference, the only issue before this Court is whether the PCA had an attached and perfected security interest. Sec. 60(a)(7) dictates that in determining this issue, the court is required to apply the local law relevant to perfection of security interests. In this instance, the applicable law is Article 9 of the Uniform Commercial Code, codified as Ark.Stat.Ann. Sec. 85-9-101 et seq.

I. Did a security interest attach?

The Trustee contends that no security interest attached to the Delivery Debenture, as required under Ark.Stat.Ann. Sec. 85-9-203. If this is true, then the question of perfection is moot. There is no doubt, however, that a security interest did attach. Ark.Stat.Ann. Sec. 85-9-203 (Cum.Supp. 1979) states in relevant part:

(1) ... [A] security interest is not enforceable against the debtor or third parties with respect to the collateral and does not attach unless
(a)

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Bluebook (online)
26 B.R. 166, 1982 U.S. Dist. LEXIS 17221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davidson-v-arkansas-river-valley-grain-drying-cooperative-in-re-glass-ared-1982.