In re Acme Motors, Inc.

68 B.R. 701, 2 U.C.C. Rep. Serv. 2d (West) 1441, 1986 Bankr. LEXIS 4709
District Court, D. Rhode Island·Decided December 29, 1986·No. Bankruptcy No. 860090·Published

Opinion

ARTHUR N. YOTOLATO, Jr., Bankruptcy Judge.

Submitted on exhibits and memoranda, on the motion of CIT Financial Services Corp. (CIT) for relief from stay, and for a ruling that it has a perfected purchase money security interest. in the proceeds from the sale of certain equipment of Acme Motors, the debtor. The motion is opposed by William Gabrilowitz and Irving Gabri-lowitz, temporary operating officers and former principals of the debtor, who argue that CIT’s security interest is invalid because it was not properly perfected.1 The equipment has been sold, and $12,000 is being held in escrow pending our decision as to the validity of CIT’s alleged security interest. See Order dated July 16, 1986.

The issue here is whether CIT filed a U.C.C. financing statement within the time allowed by R.I. GEN. LAWS § 6A-9-312(4). Briefly, the facts (not disputed) are as follows: On November 13, 1985, CIT entered into a lease agreement with Acme for one Toshiba Strata XII Electronic Key Telephone System, and took back a purchase money security interest. See Memorandum in Support of CIT’s Motion at 1. The lease, dated November 13, 1985, was for a term of five years and was signed by Pasquale Onorato, then vice-president of Acme, and witnessed by Edward Walmsley, treasurer.2 See CIT’s Exhibit A, Lease Agreement. On the same day, Onorato signed an “Acknowledgement of Receipt of Equipment.” See CIT’s Exhibit C. Twelve days later, CIT filed a Uniform Commercial Code financing statement3 describing the collateral with the Rhode Island Secretary of State’s office on Monday, November 25, 1985. See CIT’s Exhibit B. The system had been delivered to Acme by Tele-Dy-namics, Inc. which began the installation process on November 12 and completed it on November 13, 1985. See Gabrilowitz’s Exhibit A, Letter from Tele-Dynamics to Robert Davignon, Attorney for CIT.

DISCUSSION

To perfect a security interest in equipment, a financing statement must be filed, R.I.GEN. LAWS § 6A-9-302 (1985 Reenactment), and the priority of competing security interests is governed by R.I. GEN. LAWS § 6A--9-312 (1985 Reenactment). Subsection four states:

(4) A purchase money security interest in collateral other than inventory has priority over a conflicting security interest in the same collateral or its proceeds if the purchase money security interest is perfected at the time the debtor receives possession of the collateral or within ten (10) days thereafter.

If CIT’s purchase money security interest is properly perfected, it takes priority over the Gabrilowitz’s secured claim in the amount of $329,763, see Rainier National Bank v. Inland Machinery Co., 29 Wash. App. 725, 631 P.2d 389 (1981), and, of course, over unperfected security interests, see Noble Co. v. Mack Financial Corp., 107 R.I. 12, 264 A.2d 325 (1970).

The Gabrilowitzs argue that the correct date for determining the time period within which CIT could perfect its security interest is November 12, when installation of the system was commenced. They reason that “[i]f there was installation on November 12, 1985, there must have been delivery on or before November 12, 1985. Further, if Acme received possession of the collateral on November 12, 1985, the 10-day filing period would have begun on November 12,1985 and would have expired on Friday, November 22, 1985.” See Memo[703] randum of William and Irving Gabrilowitz in Opposition to the Motion at 1 (emphasis in the original). They rely upon In re Automated Bookbinding Services, Inc., 471 F.2d 546 (4th Cir.1972). In that case the debtor entered into a contract to purchase a bookbinding machine whose component parts were delivered during the period May 26 to June 2, 1970. Id. at 549. The contract provided for a purchase price of $84,265 for the machine, and a separate installation charge of $2160. Installation began on May 27, and the purchaser acknowledged satisfactory completion of installation on June 18. The financing statement was filed on June 15. Id. The court held that the ten day period allowed by § 9-312(4) within which to file the U.C.C.-l began to run on June 2, when the purchaser received possession of the last shipment of component parts for the machine. Since the financing statement was filed more than ten days after June 2, the court held that the supplier of the machinery lost “its favored position under § 9-312(4)” and that the holder of the security interest through an after acquired property clause was entitled to the equipment. Id. at 553.

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In re Acme Motors, Inc., 68 B.R. 701, 2 U.C.C. Rep. Serv. 2d (West) 1441, 1986 Bankr. LEXIS 4709 (D.R.I. 1986).

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