Harris v. Akchin (In re R & L Furniture Co.)

49 B.R. 790, 1985 Bankr. LEXIS 6151
CourtDistrict Court, M.D. Louisiana
DecidedMay 10, 1985
DocketBankruptcy Nos. 84-00117, 84-00523; Adv. No. 84-0085
StatusPublished

This text of 49 B.R. 790 (Harris v. Akchin (In re R & L Furniture Co.)) is published on Counsel Stack Legal Research, covering District Court, M.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harris v. Akchin (In re R & L Furniture Co.), 49 B.R. 790, 1985 Bankr. LEXIS 6151 (M.D. La. 1985).

Opinion

MEMORANDUM OPINION

WESLEY W. STEEN, Bankruptcy Judge.

This memorandum explains the reasons for a judgment entered in adversary number 84-0085, Jack Patrick Harris vs. David A. Akchin, and also explains the reasons for an order disposing of a motion entered in Case No. 84-00523, In re Commercial Helicopters, Inc.; the latter is a motion of the Federal Deposit Insurance Corporation seeking an order modifying the automatic stay with respect to property subject to chattel mortgage. Both cases involve La.R.S. 9:5352 regarding the statutory requirements for a chattel mortgage. Separate orders are entered in the two cases; this opinion explains the reasons for those orders.

I. Louisiana Chattel Mortgages: La.R.S. 9:5351 et seq.

La.R.S. 9:5351 states that “... it shall be lawful ... to mortgage any and every kind of movable property, materials ... or other things in bulk, but changing in specifics ... even though the same may not be all of a similar nature or kind.” La.R.S. 9:5352 then establishes the requirements for a chattel mortgage; it must:

A. Be in writing;
B. Describe the obligation secured and the exact (or maximum) sum secured;
C. State the due date or state that the obligation is due on demand;
D. Meet the following requirements for description of the property:
1. Bulk Mortgage — If a mass or assemblage of things is involved, the document must state the location at which the mass or assemblage will be kept and must describe the mortgaged property as either:
(a) “all of a particular class or classes or grade or kind or type or species or dimensions” or
(b) “as a stock of merchandise”.1
2. Mortgages on particular pieces of property — If the mortgaged property is not a mass or assemblage of things, “... a full description of the property ... shall be set forth so that it may be identified ...”, and the location must be specified, but failure to state the location does not affect the validity of the mortgage.

In summary, and specifically addressing the requirements related to property descriptions and location, there are two kinds of chattel mortgages: First, a mortgage may be granted on nonspecific property (i.e., “in bulk”); there are two types of such bulk mortgages: a mortgage on property within a common class or classes, [792]*792grade, kind, type, species, or dimensions; and a mortgage on a “stock-of merchandise.”2 Second, a chattel mortgage may be granted over specifically described property.

The statutory construction is confusing regarding the requirement that the document state the location of property which is the subject of a bulk mortgage. It is possible to conclude that the location requirement only applies to inventory bulk mortgages, but it is also possible to conclude that the location must be specified for both kinds of bulk mortgages. The parallelism of the sentence construction leads to the first conclusion, as follows: the document is required to describe the property “as all of a particular class, grade, etc.,” “or as a stock of merchandise to be kept at a certain location.” [Emphasis supplied.] The inclusion of the additional conjunction “as” before “stock of merchandise” seems to imply that the parenthetical phrase “to be kept at a certain location” modifies the term “stock of merchandise” rather than modifying all of the types of masses or assemblages of things.

However, the other interpretation seems more reasonable. First, location specificity is a method of identifying the property to which the mortgage applies; there would appear to be no reason why such specificity would apply to inventory but not to other masses or assemblages. Second, the language of both § 5351 and in § 5352 indicates that the inventory mortgage is merely a type of bulk mortgage; since “bulk mortgage” is the category, and since no other differentiation applicable to documentary requirements is apparent within that category, the location specificity requirement in § 5352 is probably intended to apply to the entire category and not merely to a particular subset of the category. The distinction appears to be made between the two categories themselves; thus, it appears that the specification of a location is not mandatory for a mortgage of specifically described property, but is vital for the validity of a bulk mortgage.

While the statute provides that failure to specify location is not fatal to a mortgage of specifically described property, the jurisprudence indicates that specification of the wrong location is fatal;3 The same conclusion regarding location specificity would appear to apply a fortiori to bulk mortgages, since location specificity is a statutory requirement.

These conclusions can be applied to the cases at issue as follows.

II. The R & L Furniture Company, Inc., Mortgage

On October 10, 1983, Durl W. and Fay Raines granted a chattel mortgage on the following property:

“Any and all property of a business or personal nature belonging to Durl W. and/or Fay Raines, or R & L Furniture Co., Inc. including but not limited to [793]*793property located at 11218 Airline Hwy. Baton Rouge, La. 70816.”

Obviously, this is not a mortgage of specific property. But neither does it appear to be a bulk mortgage. Clearly this is not a description of “a stock of merchandise to be kept at a certain location”; while the property at the stated address might include such a stock of merchandise, this is not a description of a stock of merchandise as required' by the statute. Neither is this a description of “all of a particular class or classes or grade or kind or type or species or dimensions” of property; this is a description of all property, not any specified subset, particular or otherwise.

There is no authority in La.R.S. 9:5351 simply to mortgage all of one’s property. This mortgage is not valid against the Trustee. The Trustee shall submit an order so holding and relegating the Defendant’s claim to unsecured status.

III. Commercial Helicopters, Inc.

On December 2, 1982, the Debtor granted a collateral chattel mortgage covering property described as shown in Exhibit A. There was no location specified, but the mortgage stated that the Debtor would not remove the property from East Baton Rouge Parish. In fact, the property was not then or subsequently located in East Baton Rouge Parish. The mortgage was recorded in East Baton Rouge Parish and also in Lafayette Parish, where the majority (and perhaps all) of the property was located.

This mortgage is not a valid bulk mortgage for two reasons. First, it fails to specify a location; if the agreement not to remove the property from East Baton Rouge Parish constitutes the specification of a location, then the specification is wrong. Second, the descriptions do not indicate that “all” of the class, type, etc. of a class of property is mortgaged. Thus, the description states “Mise. Tools”; a valid mortgage would necessarily state “all ” tools of a certain description.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Williams v. Miller
160 So. 165 (Louisiana Court of Appeal, 1935)
Auto Paint & Supplies Co. v. Hale
408 So. 2d 346 (Louisiana Court of Appeal, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
49 B.R. 790, 1985 Bankr. LEXIS 6151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-akchin-in-re-r-l-furniture-co-lamd-1985.