Fifth Third Bank v. Comark, Inc.

794 N.E.2d 433, 51 U.C.C. Rep. Serv. 2d (West) 533, 2003 Ind. App. LEXIS 1306, 2003 WL 21699896
CourtIndiana Court of Appeals
DecidedJuly 23, 2003
Docket49A02-0211-CV-921
StatusPublished
Cited by3 cases

This text of 794 N.E.2d 433 (Fifth Third Bank v. Comark, Inc.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fifth Third Bank v. Comark, Inc., 794 N.E.2d 433, 51 U.C.C. Rep. Serv. 2d (West) 533, 2003 Ind. App. LEXIS 1306, 2003 WL 21699896 (Ind. Ct. App. 2003).

Opinion

OPINION

SHARPNACK, Judge.

Fifth Third Bank ("Fifth Third") appeals the trial court's grant of summary judgment to Comark, Inc., ("(Comark"), denial of summary judgment to Fifth Third, and denial of Fifth Third's motion to correct error. 1 Fifth Third raises two issues, which we restate as:

I. Whether the trial court erred by finding that Comark had a security interest in collateral owned by Ver-tica Solutions, LLC; and
II. Whether the trial court erred by finding that Fifth Third, as a creditor of Vertica Solutions, Inc., had no security interest in the collateral owned by Vertica Solutions, LLC.

We affirm.

The relevant facts designated by the parties follow. Vertica Solutions, LLC ("Vertieca, LLC") was organized in October 1999. « Christopher Heath is a principal and founding member of Vertica, LLC. Heath also incorporated Vertica Solutions, Inc., ('Vertica, Inc.") "as a vehicle to receive venture capital." Appellant's Appendix at 289. Vertica, Inc., never operated as a business, held any assets, issued any stock, or held a meeting of board members or shareholders.

In July 2000, Vertica, LLC, purchased computer products from Comark for $2,800,000.00. Vertica, LLC, granted a security interest to Comark. The Comark security agreement identified the collateral as:

inventory consisting of all computers and perifierials (sic) including but not limited to: CPU's, monitors, cables, modems, hard and floppy drives, random access memory, keyboards, mice, power cords and components of every kind, nature and description bearing the tradename or distributed by "COMARK *435 INC" or "PC WHOLESALE" together with all accessories thereto, now in Debtor's possession or hereafter acquired by Debtor, all additions and accession thereto, substitutions therefore and all inventory of like kind hereafter acquired by Debtor, as well as all proceeds from the sale or any other disposition of such inventory, which inventory together with such additions, accessions, and substitutions thereof as there may be..

Id. at 125. Comark filed a UCC 1 financing statement with the Indiana Secretary of State in August 2000. The financing statement provided that:

Debtor HEREBY GRANTS to the secured party a PURCHASE MONEY SECURITY INTEREST in all its inventory, now in [Debtor's] possession or hereafter acquired consisting of all computer products of every kind, nature and description bearing the tradename or purchased from Comark, Inc. and including all proceeds from the sale or any other disposition of the collateral.

Id. at 341.

In November 2000, Fifth Third loaned $250,000.00 to Vertica, Inc. In making the loan, Fifth Third met with Brian Joseph Locke and Tyrone Owens to discuss the business strategy of Vertica, Inc., visited the offices of Vertica, LLC, and reviewed computer equipment located in the offices. According to a website designated as simply "Vertica Solutions" without a corporate designation, Owens was the technology leader of "Vertica Solutions." Owens's business card identified him as the president and chief technology officer of "Verti-ca Solutions." Locke signed the promissory note and security agreement as CEO of Vertica, Inc. However, Locke was never a CEO, shareholder, or officer of Vertica, Inc., and Vertica, Inc., "never granted Locke the authority to enter into an agreement on behalf of" Vertica, Inc. Id. at 290.

Fifth Third filed a UCC 1 financing statement regarding its security interest with the Indiana Secretary of State in November 2000. The financing statement covered:

All inventory, chattel paper, accounts, equipment, general intangibles, securities, investment properties and financial assets; whether any of the foregoing is owned now or acquired later; all accessions, additions, replacements, substitutions relating to any of the foregoing; all records of any kind relating to any of the foregoing; all proceeds relating to any of the foregoing (including insurance, general intangibles and accounts proceeds).

Id. at 279. In January 2001, Fifth Third requested that the Indiana Secretary of State perform a UCC search for Vertica, Inc., which revealed Comark's UCC filing against Vertica, LLC, Fifth Third's UCC filing against Vertica, Inc., and a UCC filing against Vertica, Inc., by Unisys Corporation ("Unisys"). 2

After Vertica, Inc., defaulted on the loan, Fifth Third filed a complaint against Vertica, Inc., Locke, Owens, Comark, and Unisys. Fifth Third obtained a default judgment against Vertica, Inc., entered into an agreed judgment with Locke, and obtained summary judgment against Owens. Comark filed a motion for summary judgment alleging, in part, that Fifth Third had a security interest in nonexis *436 tent collateral owned by Vertica, Inc., rather than collateral owned by Vertica, LLC, being held by Comark. Thus, Comark alleged that it was entitled to summary judgment on Fifth Third's claim to Vertica, LLC's collateral. Fifth Third filed a cross-motion for - summary - judgment against Comark alleging, in part, that Co-mark's security agreement and UCC filing were ineffective because they described the collateral as "inventory" rather than "equipment" and Vertica, LLC, had no "inventory." Id. at 325-826. Fifth Third further alleged that it had a proper security interest in the collateral owned by Ver-tica, LLC.

The trial court entered findings of fact and conclusions thereon granting Co-mark's motion for summary judgment and denying Fifth Third's motion for summary judgment. The trial court found, in part, that:

I. Findings of Fact
[[Image here]]
8. - [Vertica, LLC,] granted Comark a security interest in the computer products which it purchased from Comark.
4. - The computer products were equipment, not inventory, of [Vertica, LLC]
5. - [Vertica, LLC,] did not have any inventory.
6. - Comark filed a UCC-1 Financing Statement on August 24, 2000 which named [Vertica, LLC,] and describes an interest in "inventory" of [Vertica, LLC,] "consisting of all computer products of every kind, nature and description bearing the tradename or purchased from Co-mark, Inc."
[[Image here]]
11. [Fifth Third] filed a UCC-1 Financing Statement concerning its security agreement with [Vertica, Inc.,] on November 20, 2000, which identified a security interest in "all inventory, chattel, paper, accounts, equipment, general intangibles ... of debtor [Vertica, Inc.]"
12. [Vertica, Inc.] had no "inventory, chattel, paper, accounts, equipment, general intangibles. . . ."
13. There is no designated evidence that the Bank had a security agreement or an UCC-1 Financing Statement relating to any property of [Vertica, LLC].... Thus, this Court finds that [Fifth Third] does not have a security interest in the computer products purchased by [Vertica, LLC,] from Comark, Inc. in July 2000.

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794 N.E.2d 433, 51 U.C.C. Rep. Serv. 2d (West) 533, 2003 Ind. App. LEXIS 1306, 2003 WL 21699896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fifth-third-bank-v-comark-inc-indctapp-2003.