Gallagher v. Berg

474 F. Supp. 876, 1979 U.S. Dist. LEXIS 10596, 5 Bankr. Ct. Dec. (CRR) 842
CourtDistrict Court, D. Minnesota
DecidedAugust 3, 1979
DocketNo. CIV. 3-79-116
StatusPublished
Cited by1 cases

This text of 474 F. Supp. 876 (Gallagher v. Berg) is published on Counsel Stack Legal Research, covering District Court, D. Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gallagher v. Berg, 474 F. Supp. 876, 1979 U.S. Dist. LEXIS 10596, 5 Bankr. Ct. Dec. (CRR) 842 (mnd 1979).

Opinion

MEMORANDUM AND ORDER

MacLAUGHLIN, District Judge.

This is an appeal by defendant Kenneth Hansen from an order and judgment of the bankruptcy court which found that an assignment of the vendor’s interest in two contracts for deed, dated April 22, 1977, from the bankrupt to Kenneth Hansen, which went unrecorded until after Forbrook Construction, Inc. was adjudicated a bankrupt, was void and of no effect against the trustee by virtue of Section 60(a) of the Bankruptcy Act. In effect, the bankruptcy court found that under state law the trustee could not be charged with constructive notice of Hansen’s interest, and that the transfer of the vendor’s interest in the contracts for deed, being unperfected, was therefore deemed to have been made within four months of bankruptcy pursuant to Section 60(a)(2)1 of the Bankruptcy Act. Thus, the bankruptcy court concluded that all the elements of a voidable preference under Section 60(a) were present. This Court has determined that the order and judgment of the bankruptcy court should be reversed.

The parties have stipulated to the facts in this matter. This stipulation, hereby adopted by the Court, provides as follows:

1. Prior to the dates hereinafter referred to Kenneth Hansen, who has been in business and residing at Farmington, Minnesota for the past 38 years, owned the land described as the North 120 feet of the South Half of the Southwest Quarter of Section 31, Township 114, Range [878]*87819, Dakota County, Minnesota, lying East of the right of way of the Chicago, Milwaukee, St. Paul & Pacific Railroad Company and had owned the same since June 30, 1964.
2. Forbrook Construction, Inc., the bankrupt in these proceedings, built two duplexes on said property, such construction taking place in 1975 or 1976.
3. May 12, 1975, Forbrook Construction, Inc. executed its promissory note to Kenneth Hansen for $10,000.00 with interest at 8%, as consideration for said real estate, which was transferred to For-brook Construction, Inc. in order to enable the company to mortgage the duplexes to First Federal Savings & Loan of Albert Lea which was done by two mortgages, each dated May 27, 1975.
4. The actual deed of conveyance from Hansen to Forbrook Construction, Inc. was executed May 23, 1975, and recorded on or about that date.
5. The property described in paragraph 1 above was divided into two parcels, one for each duplex, and both parcels were sold to Steven C. Berg and Mary P. Berg, husband and wife, as joint tenants as evidenced by two contracts for deed (one on each parcel) dated February 9, 1977. The contracts were not recorded at that time.
6. From the date of the contracts— February 9, 1977—rents from the premises were paid to Bergs.
7. On April 22, 1977, Forbrook Construction, Inc. acknowledged its indebtedness to Kenneth Hansen for said lots in the then amount of $11,333.33 and assigned the vendor’s interest in each of said contracts to Hansen subject to the first mortgages to First Federal with the proviso that the monthly contract payments be paid to J & F Enterprises, Inc. (Delma Jennorich) for the purpose of making the monthly mortgage payments to First Federal and paying the balance of $90.00 per month to Kenneth Hansen in payment of his indebtedness—subject to a monthly service charge of $20.00 to be retained by J & F Enterprises as a service charge for servicing said contracts.
8. Sometime between April 22 and June 1, 1977, Bergs were orally directed that payments on the Contracts for Deed were thereafter to be paid to J & F Enterprises, Inc. Said instructions being passed on to Bergs by a phone call from Delma Jennorich, speaking for Forbrook Construction, Inc.
9. Such was the situation on November 21, 1977 when Forbrook Construction, Inc. was adjudicated a bankrupt.
10. At the time of the commencement of the bankruptcy an inquiry of the tenants in the two duplexes, had such an inquiry been made, would have revealed that they were tenants under Berg. Had inquiry then been made of Bergs, such inquiry would have revealed that they had contracts for deed from Forbrook Construction, Inc. and that they were making their payments under the contracts to J & F Enterprises (Delma Jennorich) pursuant to an oral direction to do so, and that they had been doing so since June of 1977. Had inquiry then been made of J & F Enterprises, such inquiry would have revealed the assignments to Kenneth Hansen.
11. Each of the contracts for deed between Forbrook Construction, Inc. and Bergs were recorded January 6, 1978, subsequent to the adjudication of bankruptcy.
12. The assignment from Forbrook Construction, Inc. to Hansen was by law and by practice of the County Recorder within and for Dakota County, Minnesota, not recordable until the contracts for deed thereby assigned had been recorded.
13. The assignment to Hansen bearing the date of April 22, 1977, referred to in paragraph 6 above was not recorded until March 7, 1978, subsequent to the adjudication of bankruptcy herein.
14. At no time since his appointment as Trustee has the Trustee in Bankruptcy made any inquiry of the tenants in possession of any part of the property as to the true state of affairs with respect to [879]*879the ownership of the property or Kenneth Hansen’s interest therein; nor was any effort made to acquire from the tenants the knowledge such inquiry would have revealed.

Under Section 60(a) of the Act, a preferential transfer exists when a debtor transfers property to a creditor for or on account of an antecedent debt made while the debt- or is insolvent and within four months of bankruptcy, the effect of which allows the transferee to obtain a greater percentage of his debt from the estate of the bankrupt than other creditors. Although the unrecorded assignment from Forbrook to Hansen was made about six months before For-brook’s adjudication as a bankrupt, Section 60(a)(2) provides that a transfer is deemed to “have been made immediately before the filing of the petition” and thus within four months unless “it became so far perfected that no subsequent bona fide purchase from the debtor could create rights in such property superior to the rights of the transferee.” 11 U.S.C. § 96(a)(2).

In determining whether the transferee’s rights were perfected against subsequent bona fide purchasers or the like, reference must be made to state law. Corn Exchange National Bank v. Klauder, 318 U.S. 434, 63 S.Ct. 679, 87 L.Ed. 884 (1943). The central issue here is whether Hansen’s interest, acquired by assignment which went unrecorded until after the bankruptcy of the assign- or, is perfected under Minnesota law to the extent that Hansen would prevail over a subsequent purchaser in good faith or the equivalent thereof under state law, and thus the trustee.

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Related

In Re Forbrook Const., Inc.
474 F. Supp. 876 (D. Minnesota, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
474 F. Supp. 876, 1979 U.S. Dist. LEXIS 10596, 5 Bankr. Ct. Dec. (CRR) 842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallagher-v-berg-mnd-1979.