In re Acme Motors, Inc.

68 B.R. 701, 2 U.C.C. Rep. Serv. 2d (West) 1441, 1986 Bankr. LEXIS 4709
CourtDistrict Court, D. Rhode Island
DecidedDecember 29, 1986
DocketBankruptcy No. 860090
StatusPublished

This text of 68 B.R. 701 (In re Acme Motors, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
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).

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]*703randum 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.

We agree with In re Automated Bookbinding Services, Inc., swpra, that possession of the collateral is the controlling factor for determining the beginning of the ten day filing period of § 6A-9-312(4). However, In re Automated Bookbinding Services, Inc. is clearly distinguishable from the case at bar, on several grounds. First, in Automated Bookbinding, there were two transactions — (1) an agreement to purchase the machine and (2) a separate contract to install it. In the instant matter we have a single contract covering both the delivery and installation of the telephone system. Because the contract in question differs markedly from that in Automated Bookbinding, we conclude that the agreement contemplated that Acme Motors obtain possession of an operating telephone system to be installed by the supplier, Tele-Dynamics, Inc. Since the supplier is not the secured party, it has no interest in being able to manipulate the period within which to file the financing statement. It was the ability of the secured party to affect the filing date which concerned the Automated Bookbinding court. See infra, at 703. The lease between CIT and Acme, in clause 4, specifically provides that the “[l]essor shall have no obligation to install, erect, test, adjust or service the equipment.” See CIT’s Exhibit A. Also, under the contract in question, Acme was not obligated to accept incomplete or inoperable equipment. See CIT’s Exhibit C (all items were received by Acme “in good order and acceptable to [Acme]”). Second, the Fourth Circuit, in Automated Bookbinding, held that the purchaser received possession of the collateral when all of the equipment had been delivered, and there the parties agreed that all of the equipment had been delivered by June 2. The telephone system delivered to Acme consists of three major components. See CIT’s Exhibit B. The Gabrilowitzs’ argument that Acme had possession of the collateral on or before November 12 is based on the inference they draw from the fact that installation began on November 12. See ante, at 702. The telephone system in question has three major components, and since Pasquale Onorato did not acknowledge receipt of the operating system until November 13, see ante, at 702, a stronger inference points to complete possession on November 13.4 Third, the Automated Bookbinding court was concerned with the policy of disclosure underlying Article 9, which allows prospective lenders to learn of any preexisting security interests before they extend credit.

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68 B.R. 701, 2 U.C.C. Rep. Serv. 2d (West) 1441, 1986 Bankr. LEXIS 4709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-acme-motors-inc-rid-1986.