Hanington v. Palmer (In re Palmer)

103 B.R. 348, 10 U.C.C. Rep. Serv. 2d (West) 229, 1989 Bankr. LEXIS 1158
CourtDistrict Court, D. Georgia
DecidedJune 30, 1989
DocketBankruptcy No. 88-10705-ALB
StatusPublished
Cited by2 cases

This text of 103 B.R. 348 (Hanington v. Palmer (In re Palmer)) is published on Counsel Stack Legal Research, covering District Court, D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hanington v. Palmer (In re Palmer), 103 B.R. 348, 10 U.C.C. Rep. Serv. 2d (West) 229, 1989 Bankr. LEXIS 1158 (gad 1989).

Opinion

MEMORANDUM OPINION

JOHN T. LANEY, III, Bankruptcy Judge.

STATEMENT OF THE CASE

On April 20, 1989, a hearing was held on John Hanington’s (hereinafter “Movant”) Motion to Determine Secured Status as to DOCO School Employees Federal Credit Union (hereinafter “DOCO”) and Motion to Modify Stay. At the conclusion of the hearing, the court invited the parties to submit briefs on the issue of whether Mov-ant’s lien was superior to the lien of DOCO. This court, having considered the evidence presented and briefs of counsel, now publishes its Findings of Fact and Conclusions of Law.

[349]*349FINDINGS OF FACT

The Debtor is the president and principal shareholder of Mariah Sailboats, Inc. (hereinafter “Mariah”), a Georgia corporation located in Albany, Georgia, whose business is selling sailboats. On May 2, 1986, Mari-ah and First State Bank and Trust Company of Albany, Georgia (hereinafter “First State Bank”) entered into an agreement in which First State Bank agreed to floorplan inventory of Mariah. To secure the indebtedness to First State Bank, the Debtor also gave First State Bank a lien on his house, and it appears that he was personally liable on the debt to First State Bank. A financing statement was executed on May 2, 1986, which included inventory of new and used sailboats, proceeds, and trade-ins.

On May 7, 1986, the Debtor, individually and as president of Mariah, executed a promissory note and security agreement to Movant. The security agreement covered all furniture, fixtures, tools, equipment, and inventory now or hereinafter existing at Mariah. The Debtor also pledged 100 shares of common stock of Mariah, being all the issued and outstanding shares, and the power to vote said shares. A UCC-1 financing statement was filed on May 22, 1986, showing Mariah as Debtor and Mov-ant as a secured party. On April 1, 1987, the original promissory note and security agreement were refinanced and replaced by a new promissory note conveying a security interest in the same inventory collateral. This renewal note was in the principal amount of $45,000.00.

On October 19, 1987, Mariah transferred to the Debtor a 1987 Hunter 26.5 foot boat with motor and executed a bill of sale for $22,575.00. The Debtor financed this purchase for $18,000.00 at DOCO which obtained a promissory note and security agreement from the Debtor. DOCO had checked the UCC financing dockets only under the Debtor’s name and apparently was unaware that the Debtor was president of Mariah. DOCO filed a UCC-1 financing statement under the Debtor’s name showing the boat and motor as collateral. The $18,000.00 was deposited into Mariah’s general corporate bank account. The Hunter 26.5 foot boat and motor did not appear on the floor plan of First State Bank. No payment was made to Movant for release of his lien on the inventory, although some payments on the Movant’s note may have been made after the October 19, 1987, sale date. The downpayment sum of $4,575.00, representing the difference between the purported sale from Ma-riah to the Debtor and the amount paid by the Debtor to the Movant, was never paid.

On June 20, 1988, there was a substitution of collateral to DOCO by the Debtor. The Hunter boat and motor was sold to another purchaser, and the funds deposited into Mariah’s corporate account. Mariah then sold to the Debtor a Capri 22 foot sailboat, motor, and trailer for $9,295.00, and also sold to the Debtor a Hunter 23 foot sailboat, motor, and trailer, for a purchase price of $13,600.00. The combined total purchase price was $22,895.00. The Debtor substituted the above collateral at DOCO for the Hunter boat and motor and gave a DOCO a financing statement. Subsequently on June 24, 1988, DOCO refinanced the loan on which the Capri and Hunter 23 foot boats served as collateral. Mariah paid First State Bank the remaining balance on the Capri which was $1,108.71 and the $2,733.32 on the 23 foot Hunter. First State Bank released the boats. The Debtor received no additional monies from DOCO on June 20, 1988.

Mariah has sold between 50 and 150 boats over the existence of the business since 1986. The normal course of business was to sell the boats for cash with the buyer arranging any necessary financing or to arrange financing for the buyer. Lending institutions would not finance more than 80 percent of the purchase price, and the buyer would have to pay the difference in cash. The Debtor testified that the sales from Mariah to himself were the same as the sales from Mariah to others. However, there are no indications that he ever sold to others without collecting the downpayment. The Debtor knew of the financing statement to the Movant when he went through these transactions, but did not think it was of any significance. The Debtor never asked the Movant for his [350]*350permission to transfer the boats to himself, nor did he ask Movant's permission to transfer any boats to third party purchasers. The Debtor as president of Mariah acted as the principal in obtaining loans from First State Bank and from the Mov-ant.

Movant in his Motion to Determine Secured Status asks this court to determine that the lien of DOCO is invalid. This court notes that under Rule 7001(2) of the Bankruptcy Code,1 proceedings to determine the validity of liens should be brought as Adversary Proceedings. No objections to Movant’s procedure having been filed by Respondents, this court will consider that any procedural objections have been waived by Respondents.

CONCLUSIONS OF LAW

Movant holds a perfected security interest in the inventory, equipment, tools, fixtures, and furniture of Mariah. In the instant case, there is no contention that Movant’s financing statement was insufficient. DOCO had no knowledge of any UCC statement or security agreement between Movant and Mariah.

DOCO contends that pursuant to O.C. G.A. § 11-1-201(9),2 the sale from Mariah to the Debtor was in the ordinary course of business. O.C.G.A. § 11-1-201(9)3 requires that a buyer in the ordinary course of business: (1) purchase in good faith; (2) purchase without knowledge that the sale to him is in violation of any security agreement; and (3) purchase goods in the ordinary course from a person in the business of selling goods of that kind.

DOCO maintains that each of these elements of O.C.G.A. § 11-1-201(9)4 have been satisfied. Evidence at the hearing substantiated the first two elements of the above code section, but this court does not find that the third element has been satisfied. The Debtor was not a bona fide purchaser due to the irregularities in sales from Mariah to the Debtor. These irregularities are based on the facts that Mariah sold the boats to the Debtor at a greater discount than given to other purchasers, and that Mariah sold the boats to the Debt- or without collecting any downpayment.

The court in Merchants & Planters Bank & Trust Co. v. Phoenix Housing Systems, Inc., 21 Ark.App. 153, 729 S.W.2d 433, 4 U.C.C.Rep.Serv.2d 1630 (1987), faced a similar issue as in the instant case. In Phoenix Housing Systems,

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103 B.R. 348, 10 U.C.C. Rep. Serv. 2d (West) 229, 1989 Bankr. LEXIS 1158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hanington-v-palmer-in-re-palmer-gad-1989.