General Electric Capital Corp. v. Dial Business Forms, Inc. (In Re Dial Business Forms, Inc.)

283 B.R. 537, 49 Collier Bankr. Cas. 2d 876, 48 U.C.C. Rep. Serv. 2d (West) 1461, 2002 Bankr. LEXIS 1078, 40 Bankr. Ct. Dec. (CRR) 61, 2002 WL 31163008
CourtUnited States Bankruptcy Appellate Panel for the Eighth Circuit
DecidedOctober 1, 2002
Docket02-6009WM
StatusPublished
Cited by11 cases

This text of 283 B.R. 537 (General Electric Capital Corp. v. Dial Business Forms, Inc. (In Re Dial Business Forms, Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
General Electric Capital Corp. v. Dial Business Forms, Inc. (In Re Dial Business Forms, Inc.), 283 B.R. 537, 49 Collier Bankr. Cas. 2d 876, 48 U.C.C. Rep. Serv. 2d (West) 1461, 2002 Bankr. LEXIS 1078, 40 Bankr. Ct. Dec. (CRR) 61, 2002 WL 31163008 (bap8 2002).

Opinions

DREHER, Bankruptcy Judge.

This is an appeal from an order of the bankruptcy court1 dated February 6, 2002, which held that the lien of Appellee, General Electric Capital Corporation (“GECC”), was prior to the subordinated hen of the Appellant, the Class 3 Unsecured Creditors (“Class 3”). For the reasons stated below, we affirm.

[539]*539 FACTS and PROCEDURAL HISTORY

Dial Business Forms, Inc. (“Dial”) borrowed $1,197,185.60 from GECC in three separate loans between July and August 1995. To secure the notes, Dial granted GECC a security interest in certain equipment and GECC duly perfected its interest. On November 10, 1997, Dial filed a Chapter 11 bankruptcy petition and in January 1999, the Bankruptcy Court confirmed Dial’s chapter 11 plan (“Plan”). The Plan granted GECC an allowed secured claim in the amount of $1,000,000.00 and further provided that GECC would retain its security interests and liens. Class 3, the class of unsecured creditors, would receive various distributions under the Plan secured by, as stated in paragraph 3.3(E) of the plan, “a subordinated interest” in all of Dial’s assets plus a pledge by Charles Barnett (Dial’s former owner) of all his stock in Dial. Paul D. Sinclair (“Trustee”) serves as the Trustee on behalf of Class 3.

On January 13, 1999, as required by the Plan, Dial executed a promissory note in the face amount of $950,000.00, a security agreement, and UCC-1 financing statements in favor of the Trustee. On January 19, 1999, the Trustee duly perfected the security interest by filing the financing statements.

Subsequently, GECC failed to file continuation statements and its UCC-1 financing statements lapsed in July and August 2000 pursuant to Missouri Revised Statutes § 400.9-403(2). On June 1, 2001, after Dial failed to make distributions to Class 3 as required by the Plan, the Trustee gave notice of intent to foreclose his security interest by conducting a sale of all of Dial’s assets. The Trustee asserted that the lapse of GECC’s financing statements elevated the Class 3 lien to first priority position on the equipment, superi- or to the GECC lien.

In response, GECC commenced an adversary proceeding against the Trustee seeking a declaration from the bankruptcy court that its lien was superior to the hen granted to Class 3 by the Plan. On November 9, 2001, the bankruptcy court held a pretrial conference during which the parties agreed to submit a stipulation of material facts in lieu of conducting an evidentia-ry hearing. The bankruptcy court issued a scheduling order requiring the parties to submit the stipulation of facts no later than November 30, 2001 and, in the event that any facts remained in dispute, the bankruptcy court scheduled the matter for trial on that date. Before the deadline, the parties filed a joint stipulation of material facts and informed the bankruptcy court that an evidentiary hearing was not needed.

On December 12, 2001, the Trustee attempted to supplement the evidentiary record by filing the affidavit of Tom Litton, chairperson of the unsecured creditors committee. The affidavit offered testimony concerning the committee’s intent regarding the subordination language contained in the Plan. In January 2002, the bankruptcy court heard oral arguments from counsel and denied the admission of the Litton affidavit offered by the Trustee. Thereafter, the bankruptcy court issued an order holding that the Trustee’s lien was subordinated to GECC’s lien by the terms of the Plan. The Trustee appeals.

DECISION

Confirmation of a plan “acts like a contract.” See e.g., United States v. Lincoln Sav. Bank (In re Commercial Millwright Serv. Corp.), 245 B.R. 603, 606 (N.D.Iowa 2000)(quoting First Union Commercial Corp. v. Nelson, Mullins, Riley & Scarborough (In re Varat Enterprises, Inc.), 81 F.3d 1310, 1317 (4th Cir.1996); Consumers Realty & Dev. Co., Inc., v. [540]*540Goetze (In re Consumers Realty & Dev. Co., Inc.), 238 B.R. 418, 425 (8th Cir. BAP 1999)). As with any contract, if the bankruptcy court’s review did not go beyond the “four corners” of an unambiguous plan, we review its interpretation of the plan de novo. See Stevenson v. Stevenson Assocs. (In re Stevenson Assocs., Inc.), 777 F.2d 415, 418 (8th Cir.1985). Contra In re Weber, 25 F.3d 413, 416 (7th Cir.1994)(holding instead that bankruptcy court’s interpretation of a confirmed plan should receive deferential review). We also review de novo the bankruptcy court’s determination that the plan was unambiguous. See John Morrell & Co. v. Local Union 304A United Food & Commercial Workers, 913 F.2d 544, 550 (8th Cir.1990); Porous Media Corp. v. Midland Brake, Inc., 220 F.3d 954, 959-60 (8th Cir.2000). If the plan was ambiguous, the interpretation implicates questions of fact which we review for clear error. See Stinnett v. Colorado Interstate Gas Co., 227 F.3d 247, 254 (5th Cir.2000); Platinum Tech., Inc. v. Federal Ins. Co., 282 F.3d 927, 930 (7th Cir.2002). And finally, we review the bankruptcy court’s exclusion of the affidavit of Litton for a clear abuse of discretion. Stephens v. Rheem Mfg. Co., 220 F.3d 882, 885 (8th Cir.2000).

The bankruptcy court found, and GECC does not contest, that if Missouri’s version of the Uniform Commercial Code (“UCC”), specifically section 400.9-403(2),2 controls, GECC’s financing statements lapsed and Class 3 would hold a lien superior to the hen of GECC. Mo. Ann. Stat. § 400.9-403(2) (West 2000). As recognized by the bankruptcy court, “when the drafters of the UCC amended Article 9 in 1972, they added a sentence to section 9-403(2) that made it clear that a junior creditor who filed its financing statement before the lapse wih move up in priority, even though it had actual knowledge of the prior lien.” GECC v. Dial Bus. Forms, Inc. (In re Dial Bus. Forms, Inc.), 273 B.R. 594, 597 (Bankr.W.D.Mo.2002). Instead, the bankruptcy court held that the subordination language in the plan and not the lapse provision of the UCC determined the priority of the liens. Id. In making this determination, the bankruptcy court interpreted the plan as a contract between all the parties, including Class 3 and GECC. Moreover, it interpreted the provision that Class 3 receive a “subordinated interest in all of Dial’s assets” to permanently subordinate Class 3’s security interest to that of GECC. Dial Bus. Forms, 273 B.R. at 598-600.

A confirmed chapter 11 plan binds the debtor and creditors, whether of not the creditors accepted the plan. 11 U.S.C. § 1141(a). Confirmation of the Plan created a new and legally binding agreement among all the parties to Dial’s bankruptcy case. See, e.g., Xofox Indus., Ltd., 241 B.R.

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283 B.R. 537, 49 Collier Bankr. Cas. 2d 876, 48 U.C.C. Rep. Serv. 2d (West) 1461, 2002 Bankr. LEXIS 1078, 40 Bankr. Ct. Dec. (CRR) 61, 2002 WL 31163008, Counsel Stack Legal Research, https://law.counselstack.com/opinion/general-electric-capital-corp-v-dial-business-forms-inc-in-re-dial-bap8-2002.