In re B&M Hospitality LLC

584 B.R. 88
CourtUnited States Bankruptcy Court, E.D. Pennsylvania
DecidedApril 3, 2018
DocketBankruptcy No. 17–15092–AMC
StatusPublished
Cited by4 cases

This text of 584 B.R. 88 (In re B&M Hospitality LLC) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re B&M Hospitality LLC, 584 B.R. 88 (Pa. 2018).

Opinion

Ashely M. Chan, United States Bankruptcy Judge

I. INTRODUCTION

In the instant matter, the Chapter 7 Trustee ("Trustee") and M & T Bank ("M & T") seek to have this Court determine the validity of M & T's lien on the liquor license ("Liquor License") owned by B & M Hospitality ("Debtor"). Because Pennsylvania law permits the creation of security interests in liquor licenses and M & T created and properly perfected its security interest in the Liquor License, M & T has a valid, perfected lien on the Liquor License.

II. FACTUAL BACKGROUND

The Trustee and M & T stipulated to the following facts. Prior to the Debtor's bankruptcy filing, M & T made a commercial loan ("Loan") to the Debtor in the principal amount of $85,000. Joint Stip. at ¶ 2. On September 10, 2014, M & T and the Debtor executed a term note and a security agreement ("Security Agreement") to secure repayment of the Loan. Id. at ¶¶ 2, 3, Ex. A, Ex. B. Pursuant to the Security Agreement, the Debtor specifically granted M & T a security interest in "Collateral" which was defined as "general intangibles limited to that certain restaurant *90liquor license number R-1140 issued by the Pennsylvania Liquor Control Board" and "all proceeds of collateral of every kind and nature in whatever form, including, without limitation, both cash and noncash proceeds resulting or arising from the sale or other disposition by the Borrower of the collateral." Id. at ¶ 3 and Ex. B. at ¶ 1.2(c)(I)-(II). As a result, the Loan was secured by the Liquor License pursuant to the terms of the Security Agreement. Id. at ¶ 3.

On September 25, 2014, M & T filed a UCC-1 Financing Statement, File No. 2014093002347 ("UCC-1"), in the Office of the Secretary of the Commonwealth. Id. at ¶ 4. The UCC-1 describes M & T's collateral as "all assets of the debtor, whether now existing or hereafter acquired or arising, wherever located" but does not specifically mention the Liquor License. Id., Ex. C.

On July 28, 2017, the Debtor filed for relief under Chapter 7 of the Bankruptcy Code and the Trustee subsequently was appointed to administer the Debtor's bankruptcy estate. Id. at ¶ 1. On October 19, 2017, the Trustee filed a Motion of Trustee to Sell Debtor's Asset Pursuant to 11 U.S.C. § 363(f) Free and Clear of all Liens, Claims and Encumbrances ("Sale Motion") seeking authority to sell the Liquor License free and clear of all interests. Id. at ¶¶ 6, 7. The Trustee contended in the Sale Motion that there were no liens on the Liquor License. Id. at ¶ 7.

On November 1, 2017, M & T filed its Response in Opposition to the Sale Motion, contending that it had a valid, perfected security interest in the Liquor License by virtue of the Security Agreement and the UCC-1. Id. at ¶ 8. On November 10, 2017, M & T filed Proof of Claim No. 3-1 evidencing its secured claim against the Debtor on account of the Loan in the amount of $55,166.54, consisting of principal in the amount of $54,996.05 and accrued and unpaid interest in the amount of $170.49. Id. at ¶ 5.

The Trustee and M & T subsequently agreed to the terms of an order ("Sale Order") which provided that: (1) the Liquor License would be sold free and clear of all interests for $175,000 with any such interests to attach to the proceeds of the sale; and (2) the Trustee would escrow proceeds from the sale in an amount sufficient to protect M & T's security interest in the Liquor License pending the Court's determination of the validity of M & T's lien on the Liquor License. Id. at ¶ 9. The Sale Order was entered by the Court on November 27, 2017. Id.

III. DISCUSSION

The Trustee and M & T primarily dispute whether a security interest can be created in a liquor license under Pennsylvania law. Trustee's Brief at 1; M & T's Brief at 3. The Trustee argues that, because the Pennsylvania Supreme Court held in 1984 that third parties cannot hold security interests in liquor licenses, M & T's purported security interest in the Liquor License cannot be valid. Trustee's Brief at 6. According to the Trustee, the Pennsylvania Supreme Court relied on a Pennsylvania Liquor Code ("Liquor Code") provision, 47 P.S. § 4-468(b.1), providing that liquor licenses constitute a privilege and not property. Id. at 2.

The Trustee argues that, despite the enactment of a 1987 amendment to the Liquor Code, 47 P.S. § 4-468(d) ("the 1987 amendment") which defined a liquor license as property between third parties and the licensee, third parties cannot create security interests in liquor licenses because: (1) the 1987 amendment directly conflicts with 47 P.S. § 4-468(b.1), which the Pennsylvania Legislature did not repeal; (2) certain cases decided after 1987 *91still cite to the Pennsylvania Supreme Court's holding as good law; and (3) the Pennsylvania Supreme Court's holding has not been overturned. Id. at 2-6.

In response, M & T relies upon numerous cases issued after 1987 which confirm that it is well established under Pennsylvania law that a third party can hold a security interest in a liquor license based upon the 1987 amendment. M & T's Brief at 3-4.

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Cite This Page — Counsel Stack

Bluebook (online)
584 B.R. 88, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bm-hospitality-llc-paeb-2018.