Farm Credit Bank of St. Louis v. National Bank of Aledo (In re Swanson)

104 B.R. 1, 10 U.C.C. Rep. Serv. 2d (West) 996, 1989 Bankr. LEXIS 1488
CourtDistrict Court, C.D. Illinois
DecidedSeptember 5, 1989
DocketBankruptcy No. 88-81338; Adv. No. 89-8081
StatusPublished
Cited by1 cases

This text of 104 B.R. 1 (Farm Credit Bank of St. Louis v. National Bank of Aledo (In re Swanson)) is published on Counsel Stack Legal Research, covering District Court, C.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farm Credit Bank of St. Louis v. National Bank of Aledo (In re Swanson), 104 B.R. 1, 10 U.C.C. Rep. Serv. 2d (West) 996, 1989 Bankr. LEXIS 1488 (C.D. Ill. 1989).

Opinion

OPINION

WILLIAM V. ALTENBERGER, Bankruptcy Judge.

The Debtors, RICHARD L. SWANSON and JANET SWANSON, (jointly referred to as DEBTORS and individually referred to as RICHARD and JANET respectively) and their son, ROGER W. SWANSON, (SON) are farmers. The DEBTORS and their SON have independent farming operations located on the same real estate owned solely by the DEBTORS. In June of 1983 the DEBTORS and their SON filed separate Chapter 11 proceedings. In August of 1983 the DEBTORS filed a Disclosure Statement that provided:

(A) new short term lender, the National Bank of Aledo, will loan $170,000 to the Swansons. Out of these loan proceeds plus cash on hand, The Farmers State Bank of Alpha and the Conrads along with all unsecured creditors will be paid 100% of their debts by the Swan-sons. The National Bank of Aledo will take as collateral all livestock and machinery of the Swansons.

Under the proposed plan, all creditors were to be paid 100% and long-term indebtedness, including that of the Farm Credit Bank of St. Louis (FARM CREDIT), was to be brought current. The reorganization was in the nature of a take-out arrangement between the DEBTORS, the National Bank of Aledo (BANK), and FARM CREDIT. No other creditors were too concerned or involved. On September 15, 1983, the DEBTORS executed and delivered to the BANK a Guaranty of their SON’S debt to the extent of $125,000.00. On September [2]*216,1983, RICHARD executed and delivered a promissory note and security agreement to the BANK which gave the BANK a security interest in certain collateral:

To secure payment of this note to Bank and all other existing and future indebtedness and obligations of Debtors, or any of them, ...

On that same date the SON borrowed from the BANK the sum of $125,000.00. Subsequently, in the DEBTORS’ Chapter 11 proceeding, a plan was proposed on November 17, 1983, and confirmed on February 10, 1984,1 all without mentioning the guaranty.

On December 16, 1986, the SON signed another note and security agreement for the balance then due of $100,594.70. On July 1, 1988, the DEBTORS filed a Chapter 12 proceeding. At this time the DEBTORS owed the BANK $96,881.53 and the SON owed the BANK $82,931.47. The DEBTORS and the BANK contend that the collateral described in RICHARD’S note to the BANK is also security for the DEBTORS’ guaranty of their SON’s debt to the BANK.

FARM CREDIT, a secured creditor of the DEBTORS, filed an adversary proceeding, contending that the collateral given to the BANK by RICHARD does not secure the SON’s debt to the BANK.. The BANK takes the position, first, that the language of the note is clear and unambiguous, in that the collateral is security for all of RICHARD’S obligations which would include the obligation under the guaranty; and, second, even if the note is not clear and unambiguous, the intent was to have the collateral stand as security for the SON’s debt to the BANK. Naturally, FARM CREDIT disagrees with both positions.

In In re Hunter, 68 B.R. 366 (Bkrtcy.C.D.Ill.1986), this Court had occasion to discuss the use of dragnet clauses under the Uniform Commercial Code and stated as follows:

Dragnet clauses are specifically authorized by Section 9-204(3) of the Uniform Commercial Code
“Obligations covered by a security agreement may include future advances or other value whether or not the advances or value are given pursuant to commitment....”

In discussing this authorization, Professor Gilmore in his work (1 Gilmore, Security Interests in Personal Property, Section 35.5 [1965]) states as follows:

“However, ‘covered by the security agreement’ is to be read, Section 9-204(5) should certainly not be taken to overrule the so-called ‘dragnet’ cases under pre-Code law. Legitimate future advance arrangements are validated under the Code, as indeed they generally were under pre-Code law. This useful device can, however, be abused; it is abused when a lender, relying on a broadly drafted clause, seeks to bring within the shelter of his security arrangement claims against the debtor which are unrelated to the course of financing that was contemplated by the parties. In the dragnet cases, the courts have regularly curbed such abuses; no matter how the clause is drafted, the future advances, to be covered, must ‘be of the same class as the primary obligation ... and so related to it that the consent of the debtor to its inclusion may be inferred.’ The same tests of ‘similarity’ and ‘relatedness,’ vague but useful, should be applied to Section 9-204(5).” (Footnotes omitted)

Some courts have applied the tests of “similarity” and “relatedness” as suggested by Professor Gilmore. Others have not. The Illinois Code comments to Section 9-204 provides as follows:

“A future advance clause was given effect under this subparagraph in United States v. Kimbell Foods, Inc., 440 U.S. 715, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979) and in Stannish v. Community Bank, 24 B.R. 761 (N.D.Ill.1982), a decision under this subparagraph of the Illinois Uniform Commercial Code. In Stannish, the court stated that [3]*3‘dragnet’ clauses are not favored under Illinois law but that they must be enforced under this subparagraph where no ambiguity exists in a dragnet clause. (Citations omitted) Some courts in other states have imposed a ‘relatedness’ test to determine whether future advances are covered. (Citation omitted) (future advances, to be covered, must be of the same class as the primary obligation and so related to it that the debtor’s consent to its inclusion may be inferred). (Citations omitted) The minority view espoused in the latter line of cases cannot be reconciled with the express language of Paragraph 9-204(3).” Ill.Ann.Stat. ch. 26, para. 9-204 (Smith-Hurd 1986).

In Stannish v. Community Bank of Homewood-Flossmoor, 24 B.R. 761 (Bkrtcy.1982), the bankruptcy court had occasion to examine the enforceability of dragnet clauses under Illinois law. In that opinion, the bankruptcy court indicated that although they are not favored under Illinois law, they will be upheld where no ambiguity exists and will be interpreted according to the language used. That court, in turn, relied upon In re Riss Tanning Corporation, 468 F.2d 1211 (2nd Cir. (1972). In this latter case, the Federal Court of Appeals had occasion to rule on dragnet clauses based upon the law of New York. In upholding the dragnet clause, the Federal Court of Appeals indicated that New York courts for many years have construed future advance clauses liberally, and that the Uniform Commercial Code supports their use, and went on to hold the contractual provision valid where it was clear and unambiguous the equipment was security for the note as well as for the payment of any other obligations or liability due or to become due whether now existing or hereafter arising.

This Court believes that the decisions in Stannish and in Riss Tanning are a proper application of Section 9-204 to dragnet clauses, and that the decision in Stannish represents the law in Illinois.

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

Related

In Re Swanson
104 B.R. 1 (C.D. Illinois, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
104 B.R. 1, 10 U.C.C. Rep. Serv. 2d (West) 996, 1989 Bankr. LEXIS 1488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farm-credit-bank-of-st-louis-v-national-bank-of-aledo-in-re-swanson-ilcd-1989.