Fifth Third Bank v. Orix Credit Alliance (In re Leslie Brock & Sons)

147 B.R. 426
CourtUnited States Bankruptcy Court, S.D. Ohio
DecidedOctober 30, 1992
DocketBankruptcy No. 1-91-03732; Adv. No. 1-91-0247
StatusPublished
Cited by2 cases

This text of 147 B.R. 426 (Fifth Third Bank v. Orix Credit Alliance (In re Leslie Brock & Sons)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Ohio 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. Orix Credit Alliance (In re Leslie Brock & Sons), 147 B.R. 426 (Ohio 1992).

Opinion

ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT

J. VINCENT AUG, Jr., Bankruptcy Judge.

This matter is before the Court on the Motion for Summary Judgment (Doc. 18) and the Memorandum in Support (Doc. 19) filed by Orix Credit Alliance, Inc. (“Orix”), the Motion for Summary Judgment (Doc. 20) and Affidavit of Mark A. Brock (Doc. 22) filed by Fifth Third Bank (“Fifth Third”) and Agreed Stipulations of Fact (“Stipulations”) (Doc. 21).

The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334 and this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2).

BACKGROUND

There are no material facts in issue. On June 26, 1989, Leslie Brock & Sons (“Debt- or”), leased a forklift, serial number JD 2587N, from C & O Equipment Company (“C & 0”), as evidenced by an Equipment Lease Agreement (“June, 1989 Lease”) (Exhibit A-l to Stipulations). This June, 1989 Lease contains future advance and after acquired property language. Also, on June 26, 1989, the June, 1989 Lease was assigned to Orix. (Exhibit A-2 to Stipulations).

On June 30,1989 and July 5,1989 respectively, Orix filed financing statements with the Hamilton County, Ohio Recorder and the Secretary of State of Ohio regarding the June, 1989 Lease. (Exhibit A-3 to Stipulations; Exhibit A to Answer of Orix).

On August 15,1989, the Debtor executed and delivered to Fifth Third a Security Agreement regarding a note dated August 15, 1989 in the amount of $23,000 and a note dated August 15, 1989 in the amount of $20,000. (Exhibit B to Stipulations). This Agreement gave Fifth Third a blanket lien on all of the Debtor’s assets. This Agreement contains future advance and after acquired property language.

On August 25,1989, the Debtor executed and delivered to Fifth Third another Security Agreement regarding a note dated August 25, 1989 in the amount of $32,000 as well as the previous note dated August 15, 1989 in the amount of $20,000. (Exhibit C to Stipulations). This Agreement also gave Fifth Third a blanket lien on all of the Debtor’s assets. This Agreement also con[428]*428tains future advance and after acquired property language.

On August 21, 1989, Fifth Third filed financing statements with the Hamilton County Recorder and the Secretary of State of Ohio regarding these transactions. (Exhibit D to Stipulations).

The notes to Fifth Third were renewed several times, most recently on August 25, 1990 (Exhibit E to Stipulations) and on September 22, 1990 (Exhibit F to Stipulations).

On May 1,1990, the Debtor executed and delivered to Fifth Third a renewal note in the principal amount of $43,138.66 (Exhibit G to Stipulations) which was secured by yet another Security Agreement previously executed by the Debtor on January 17, 1990 again creating a blanket lien on all of the Debtor’s assets. (Exhibit G to Stipulations).

On June 4, 1990, the Debtor leased a second forklift, Serial Number JD 1241LN, from C & O as well as 50 sets of scaffolding, as evidenced by an Equipment Lease Agreement (“June, 1990 Lease”) (Exhibit H-l to Stipulations). This June, 1990 Lease, like the earlier lease with C & O, contains future advance and after acquired property language. Also, on June 4, 1990, the June, 1990 Lease was assigned to Orix. (Exhibit H-2 to Stipulations).

• On June 11, 1990 and July 18, 1990 respectively, Orix filed financing statements with the Hamilton County Recorder and Secretary of State of Ohio regarding the June, 1990 Lease (Exhibit H-3 to Stipulations; Exhibit D to Answer of Orix).

The Debtor filed its Chapter 7 bankruptcy petition on June 14, 1991.

The first forklift, Serial Number JD 2587N, was sold at public auction on February 13, 1992. The net proceeds of the sale were $33,337.41. The balance due to Orix on the June, 1989 Lease is $49,265.21. The second forklift, Serial Number JD 1241LN, was also sold at public auction on February 13, 1992. The net proceeds of the sale were $20,000. The balance due to Orix on the June, 1990 Lease is $76,388.33.

There is currently due and owing to Fifth Third the amount of $26,259.99 plus interest and other charges on the August 25, 1990 note (Exhibit E to Stipulations), $25,-000 plus interest and other charges on the September 22, 1990 note (Exhibit F To Stipulations) and $37,027.88 plus interest and other charges on the May 1, 1990 note (Exhibit G to Stipulations).

In November, 1991, both Orix and Fifth Third filed Complaints for the determination of priorities and for the turnover of assets of the Debtor held by the Trustee, which Complaints were consolidated into this single action. Orix claims that the future advance and after acquired property language of its June, 1989 Lease with the Debtor are effective to secure all amounts due Orix under the June, 1989 Lease and the June, 1990 Lease. Fifth Third claims that the June, 1989 Lease may be set aside or limited in its scope on the grounds of mistake, thereby giving priority to its August, 1989 security interest.

CONCLUSIONS OF LAW

I. The Language of the Agreement, Unless Unclear or Ambiguous, Represents the Intention of the Parties.

Fifth Third argues that the Debtor did not intend for the June, 1989 Lease to be secured by anything other than the forklift, Serial Number JD 2587N, itself. Despite the good faith requirement of the Uniform Commercial Code, it has been consistently held that where a contract is clear and unambiguous, the language of the contract controls. See, Kimbell Foods, Inc. v. Republic National Bank of Dallas, 557 F.2d 491 (5th Cir.1977) aff'd, 440 U.S. 715, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979) (subsequent lender not allowed to avoid prior lender’s security interest by introducing parole evidence regarding parties’ alleged intent); Wagner v. Glasgow Livestock Sales Co., 222 Mont. 385, 722 P.2d 1165 (1986) (unambiguous agreement covering future indebtedness means debtor’s subjective intent not material issue); In re Continental Resources Corp., 799 F.2d 622 (10th Cir. 1986) (where future advance language is clear, parole evidence of intent not admissible); In re Riss Tanning Corp., 468 F.2d 1211 (2d Cir.1972) (Court will not “interpret [429]*429away” obvious meaning of future advance clause).

The pertinent language in the June, 1989 Lease (as well as similar language in the June, 1990 Lease) is as follows:

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Bluebook (online)
147 B.R. 426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fifth-third-bank-v-orix-credit-alliance-in-re-leslie-brock-sons-ohsb-1992.