In re B & B Marine Sales & Service

133 B.R. 99, 16 U.C.C. Rep. Serv. 2d (West) 875, 1991 Bankr. LEXIS 1558, 1991 WL 222110
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedMarch 28, 1991
DocketBankruptcy No. 90-33399
StatusPublished
Cited by1 cases

This text of 133 B.R. 99 (In re B & B Marine Sales & Service) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re B & B Marine Sales & Service, 133 B.R. 99, 16 U.C.C. Rep. Serv. 2d (West) 875, 1991 Bankr. LEXIS 1558, 1991 WL 222110 (Ohio 1991).

Opinion

OPINION AND ORDER GRANTING MOTION TO LIFT STAY AND TO ABANDON PROPERTY

WALTER J. KRASNIEWSKI, Bankruptcy Judge.

This matter came on for hearing upon ITT Commercial Finance Corp.’s motion to lift stay imposed by 11 U.S.C. § 362 and to abandon property to which the trustee and Central Trust Company of Northern Ohio have objected. Upon consideration of the evidence adduced at trial and the parties’ post-trial briefs, the court finds that said motion should be granted.

FACTS

On October 2, 1990, Debtor filed its voluntary petition under chapter 7 of title 11. Debtor was, formerly, engaged in the business of retail sales of boats, motors and trailers. In 1985, Messrs. William Fannin and Robert E. McCoy, partners of Debtor, executed an agreement for wholesale financing with ITT Commercial Finance Corp. (ITT). ITT’s Exhibit 1. The financing arrangement provided by this document is commonly referred to as a “floor plan”. That is, pursuant to the agreement for wholesale financing between the parties, ITT financed Debtor’s acquisition of inventory. Id. In exchange for this extension of credit, Debtor gave ITT a security interest in the inventory financed by it. Id. ¶ 3. Upon sale of the inventory items, Debtor agreed to remit the proceeds. Id. After ITT’s advancement of funds, ITT “may” send Debtor “a Statement of Transaction or other statement” if it chose. Id. Debtor was permitted “ten days” after its mailing to notify ITT of any correction or objection. Id.

Debtor and ITT, subsequently in 1990, executed another agreement for wholesale financing. ITT’s Exhibit 1. The provisions of this later agreement also included Debt- or’s desire that ITT finance Debtor’s acquisition of inventory, in exchange for which a security interest would be extended ITT in its inventory. Additionally, Debtor was permitted seven days, not the previous ten day period, in which to question or object to ITT’s advancement of funds after its mailing, if any, of a statement of transaction. Id.

On November 17, 1990, ITT filed the instant motion to lift stay and to abandon property, claiming a valid and perfected security interest in certain inventory, to-wit: 42 boats of the Debtor. The trustee [100]*100objected to said motion claiming that ITT had failed to perfect its security interest in this inventory and that, as a result, the trustee could avoid ITT’s security interest in the inventory. At the preliminary hearing held upon ITT’s motion on December 11, 1990, at which the following appearances were made: Perry Newman, attorney for ITT, Louis Yoppolo, trustee; Vaughan Hoblet, attorney for Debtor, and Kenneth Stumphaizer, attorney for Central Trust, the parties agreed that ITT’s motion should be granted as to 32 items of Thompson boat inventory. However, the parties could not agree as to disposition of the remaining 10 boats.

Central, an unsecured creditor of Debt- or’s estate, filed a brief in opposition to ITT’s motion claiming that Debtor did not authorize or consent to ITT’s extension of credit on ten boats delivered to Debtor from Thompson Boat Co., the manufacturer of the boats in issue. See ITT’s Exhibit 5 (copies of MSO’s of boats in issue). Rather, Central claims it advanced funds directly to Debtor, at Debtor’s request, to finance these ten boats; Central does not, however, claim a security interest in these boats. Central asserts that because Debt- or did not consent to the extension of funds for payment of the ten boats in issue, a necessary element for attachment pursuant to O.R.C. § 1309.14(A), no attachment of ITT’s security interest occurred. At the final hearing, the parties stipulated that the remaining issue for the court’s determination was whether, initially, a valid security interest was created and attached to the ten boats.

Mr. Tim Bowen, regional branch manager for ITT, testified that his responsibilities include managing branch operations in the credit collection and sales areas. Mr. Bowen stated that ITT financed inventory for Debtor by first being contacted by the product manufacturer, Thompson Boat Company, for approval authorization. If approved, the manufacturer would deliver the product to Debtor, Debtor would then review the product to ensure that its condition was acceptable. Mr. Bowen testified that pursuant to the parties’ underlying documents, Debtor had the opportunity within seven days after ITT sent a statement reflecting the floor planning of certain inventory, to object to the transaction, thus protecting Debtor from any unwanted inventory or defective inventory. Additionally, pursuant to a repurchase agreement between ITT and Thompson Boat, and as a result of Debtor’s default, Thompson was responsible for repossession of the ten boats in issue. See Central’s Exhibit E. Lastly, Mr. Bowen testified that ITT received certain FAX communications from Debtor, specifically Mr. Fannin, requesting that ITT not “floor” certain boats. See Central’s Exhibits A, B, C, and D. Mr. Fannin did not testify at the final hearing on ITT’s motion.

Mr. Dale Anderson, president of Thompson Boat Company, confirmed Mr. Bowen’s testimony that this procedure was followed by Thompson in manufacturing and distributing a boat to Debtor for resale. Deposition of Dale Anderson of February 7, 1991 at 11-17 (February 13, 1991). That is, after verbal request for production of boats, Thompson would contact ITT for a credit approval number. Mr. Fannin, at his § 341 meeting, identified this same procedure as that followed by the parties. Post-Hearing Brief of ITT, Fannin at 66.

Specifically, regarding the ten boats in issue, Mr. Steve Wandschneider, employed by Thompson Boat Company as vice president of finance, reviewing a boat order form used by Thompson in its ordinary course of business, testified that an order was phoned in by the dealer on or about February 20, 1990. Deposition Transcript of Steve Wandschneider of February 7, 1991 at 24 (February 14, 1991); Post-Hearing Brief of ITT, Wandschneider at 24. Because no special financing arrangements about these ten boats had been made, Mr. Dale Anderson, president of Thompson Boat Company, stated that Thompson then contacted ITT for a credit approval number. Deposition Transcript of Dale Anderson of February 7,1991 at 13 (February 13, 1991); Post-Hearing Brief of ITT, Anderson at 13. After delivery and inspection of these boats, Mr. Fannin on behalf of Debtor requested they be returned as they [101]*101were not in a saleable condition. Post-Hearing Brief of ITT, Fannin at 181. Subsequently, Thompson removed the boats from Debtor’s place of business and sent them to Collins Marine. Deposition Transcript of Dale Anderson at 57-60.

Admitted into evidence were copies of three FAX transmissions signed by “Bill Fannin”, “Bill” and from “Bill Fannin”, a partner of Debtor. Central’s Exhibits A-3. These transmissions list serial numbers, including those of the ten boats in issue, requesting that these inventory items not be floored by ITT. Id. The reasons given for this request is that repairs were necessary for these boats.

Mr. Vaughan Hoblet, legal counsel employed by Debtor for partnership purposes, prior to filing its petition, testified that he recalled speaking to Mr. Jeff Pike, an employee of ITT, regarding ITT’s removal of certain inventory items from Debtor’s floor plan financing. Mr.

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133 B.R. 99, 16 U.C.C. Rep. Serv. 2d (West) 875, 1991 Bankr. LEXIS 1558, 1991 WL 222110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-b-b-marine-sales-service-ohnb-1991.