In re Babbidge

159 B.R. 532, 23 U.C.C. Rep. Serv. 2d (West) 299, 1993 Bankr. LEXIS 1487, 1993 WL 427059
CourtDistrict Court, W.D. Missouri
DecidedSeptember 16, 1993
DocketBankruptcy No. 89-61045
StatusPublished
Cited by1 cases

This text of 159 B.R. 532 (In re Babbidge) is published on Counsel Stack Legal Research, covering District Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Babbidge, 159 B.R. 532, 23 U.C.C. Rep. Serv. 2d (West) 299, 1993 Bankr. LEXIS 1487, 1993 WL 427059 (W.D. Mo. 1993).

Opinion

MEMORANDUM OPINION AND ORDER

KAREN M. SEE, Bankruptcy Judge.

Timothy J. Seyferth filed a proof of claim alleging a secured claim for $575,378.75, plus interest from June 21, 1989, based on a settlement agreement. Trustee Thomas Carlson filed an objection to the claim. Seyferth requested a hearing to determine his secured status and whether he is entitled to funds in possession of a third party but claimed by the trustee. At a hearing on June 18, 1993, the court requested briefs and continued the hearing to July 15, 1993. After review of briefs, exhibits, and oral arguments the court finds the following facts are essentially undisputed.

/. FACTS

Seyferth was seriously injured in an industrial accident and received a settlement for his support. He invested part of the settlement in California limited partnerships formed by Steve Babbidge and Gary Opdahl. When the limited partnerships failed to produce the financial return promised by Babbidge, Seyferth sued Babbidge and other parties, including Opdahl. The parties settled the suit and on September 30, 1983, executed an Assignment of Note, Beneficial Interest Under Mortgage and Beneficial Interest In Certain Limited Partnerships As Collateral Security.

The Settlement Agreement executed by Babbidge and Opdahl assigned to Seyferth, as security for payment of a note payable to Seyferth, “all right, title and beneficial interest” Babbidge and Opdahl had in California limited partnerships named Haven-dale Plaza Associates, Havendale Plaza Associates I, Havendale Plaza Associates II and 3040 Oakmead Associates. The partnerships held as an asset a note secured by a mortgage (“Crocker note and mortgage”) on real estate in Polk County, Florida known as Havendale Plaza. The Settlement Agreement also assigned whatever interest Babbidge and Opdahl had under the Crocker mortgage, and the legal description of the property was set forth in detail.

The Crocker note and mortgage were assets of the partnerships, so Babbidge and Opdahl could not grant a security interest in or assignment of the note or mortgage; they granted a security interest only in their partnership interests, which included the right to distribution of funds eventually received by the partnerships when the Crocker note was paid. The description of the mortgage and real estate in the Settlement Agreement served only to identify assets of the partnerships in which Bab-bidge and Opdahl had partnership interests.

[534]*534Seyferth filed the Settlement Agreement with the California Secretary of State on December 3, 1987. He also filed the Settlement Agreement with the recorder of Polk County, Florida, where the real estate was located.

Babbidge and Opdahl failed to pay the note, so Seyferth filed suit in California state court to enforce the Settlement Agreement. He received a summary judgment on May 30, 1989, against Babbidge, Opdahl and Steven R. Babbidge & Associates for $575,378.75, plus interest at the rate of 10% per annum, representing the unpaid principal and interest on the note.

In October 1989, Steven Babbidge filed a bankruptcy case in Missouri. The Crocker note was paid in August 1990, with the Havendale partnerships receiving approximately $956,000. Upon payment of the Crocker note to the partnerships, Gary Op-dahl established an account in his control from which he paid certain partnership expenses. After payment of expenses, Op-dahl opened a separate account and deposited the remaining proceeds from the Crocker note. From the second account, Opdahl distributed payments to the limited partners, including himself. Pursuant to the settlement with Seyferth, Opdahl then paid his share to Seyferth.

Opdahl held Babbidge’s share of approximately $132,000 ($142,000 according to Sey-ferth) in the account and did not distribute it due to potential conflicting claims to the funds, and due to the filing of Babbidge’s bankruptcy case. Based on evidence the parties presented at the hearing, the court finds Opdahl did not commingle any funds from the Crocker note with any funds of debtor Babbidge. Opdahl deposited the proceeds of the note in a separate account and then transferred the remainder to a second separate account, both of which were under his exclusive control.

Following Opdahl’s refusal to turn over Babbidge’s share of the distribution from collection of the Crocker note, in February 1991 Seyferth filed an action in California to obtain the funds from Opdahl. In that suit, Opdahl moved to substitute certain parties for Opdahl, including the trustee and any other parties who claimed to have an interest in the funds.

On June 9, 1992, this court entered an Order Overruling Motion for Reconsideration of Orders Overruling Motion to Dismiss and Adjudication of Bankruptcy, Consolidating Cases, and for Turnover. The Order denied reconsideration of two earlier orders. The first order consolidated the limited partnerships known as 3040 Oak-mead Associates, Havendale Plaza Associates I “A” and Havendale 2 Associates into the Babbidge bankruptcy case, and the second ordered Opdahl to turn over to the bankruptcy estate funds he held, and permitted Seyferth to take action to preserve whatever claim he had to the funds without being prejudiced by the turnover order against Opdahl. Opdahl has appealed the portion of the order denying reconsideration which consolidated the partnerships into the Babbidge bankruptcy case, but he has not appealed the turnover portion of the order or filed a request for stay or a supersedeas bond. Opdahl has not complied with the turnover order.

Previously, Seyferth’s counsel filed two identical claims, Nos. 7 and 200, listing Seyferth as a secured creditor for $575,-378.75 plus interest from June 21, 1989. The second, duplicate claim was filed after counsel received a notice that all claims must be filed by a certain date. The trustee filed an objection to the claims. In response, Seyferth requested a hearing to determine the status of the claim and to determine whether Seyferth is entitled to the funds that were the subject of the Turnover Order. No party, other than the trustee through the operation of 11 U.S.C. § 544, has claimed a secured interest in the funds held by Opdahl from payoff of the Crocker note.

The funds subject to the turnover order apparently are still in Opdahl’s possession, although earlier the trustee commenced proceedings to obtain possession of the funds. The parties in this matter do not dispute that Opdahl filed a motion in the California action requesting that the state court permit him to pay the remaining [535]*535funds into court in order to allow the court to determine which parties are entitled to the funds.

II. DISCUSSION

The issue is whether the Settlement Agreement filed centrally with the California Secretary of State constituted a valid absolute assignment or granted an effective security interest to Seyferth. The court finds the Settlement Agreement granted an enforceable security interest in Babbidge’s and Opdahl’s partnership interests, and it is not necessary to determine whether the document also constituted a valid absolute assignment.

California’s version of the Uniform Commercial Code in § 9401 provides central filing to perfect a security interest except in limited circumstances.

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

Related

In Re Babbidge
175 B.R. 708 (W.D. Missouri, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
159 B.R. 532, 23 U.C.C. Rep. Serv. 2d (West) 299, 1993 Bankr. LEXIS 1487, 1993 WL 427059, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-babbidge-mowd-1993.