In re Deeb

59 B.R. 661, 1 U.C.C. Rep. Serv. 2d (West) 296, 1986 Bankr. LEXIS 6343
CourtUnited States Bankruptcy Court, N.D. Alabama
DecidedApril 2, 1986
DocketBankruptcy No. 83-04327
StatusPublished
Cited by1 cases

This text of 59 B.R. 661 (In re Deeb) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Deeb, 59 B.R. 661, 1 U.C.C. Rep. Serv. 2d (West) 296, 1986 Bankr. LEXIS 6343 (Ala. 1986).

Opinion

FINDINGS OF FACT, CONCLUSIONS BY THE COURT, AND ORDER ON MOTION FOR REHEARING

L. CHANDLER WATSON, Jr., Bankruptcy Judge.

The above-styled bankruptcy case is pending before this Court under title 11, chapter 11, United States Code, and no trustee has been appointed. On November 25, 1985, the bankruptcy judge entered findings, conclusions, and an order granting to Central Bank of the South (hereinafter “bank”) relief from the stay provided by 11 U.S.C. § 362(a), by way of leave to enforce its security interest in one of the debtor’s Arabian mares, named “Anna Ko-sandra.”

The order of the Court was the culmination of a contested matter which was instituted by a motion of the bank for such relief. After the filing of the motion and by consent of the movant, the Court had entered an order that the slay would continue in effect pending the further order of the Court, “without regard to the provisions of 11 U.S.C. § 362(e).” In this contested matter, the debtor opposed the granting of the motion and sought to defeat the bank’s request upon the general proposition that the bank did not hold a perfected security interest in the horse.

The debtor’s position, of course, rests upon the provisions of 11 U.S.C. §§ 544(a)(1) [see § 101(30), (31)] and 1107(a), together with Uniform Commercial Code § 9-301(3).1 That position2 would not enable the debtor to defeat the bank’s request for relief from the stay, unless the bank fails reasonably to satisfy the Court that its security interest in the debtor’s horse is perfected. In support of this aspect of its motion, the bank introduced into evidence a copy of an appropriate financing statement which had been filed for record with the probate judge at Huntsville, Alabama, county seat of Madison County, on July 21, 1980. This was to show compliance with the requirement that a financing statement be filed in order to secure perfection of the security interest, as set out in U.C.C. § 9-302(l).3 Under U.C.C. § 9-109(3)4 the debtor’s horse is classified as “farm products,” and under the Alabama version of U.C.C. § 9-401(1)5 the filing of the financing statement must be made “in the office of the judge of probate in the county of the debtor’s residence.” The debtor maintains that the filing of the financing statement was ineffectual to perfect the bank’s security interest in the horse for that Madison County, where the financing statement was filed, was not “the county of the debtor’s residence.” Initially, some contention was made that, at a point during the period of time involved here, the debtor’s indebtedness to the bank had been paid off or had reached a zero balance and that the financing statement was ineffectual to perfect a security interest in collateral for a subsequent indebtedness owed by the debtor to the bank. Counsel for the debtor now advises the Court that the latter contention is no longer insisted upon.

On November 27, 1985, the debtor filed in this case a motion requesting that the Court reconsider its order of November 25, 1985, and amend or vacate said order. The basis for this motion was the debtor’s contention that the phrase “the county of the debtor’s residence” in U.C.C. § 9-401(1) re[663]*663ferred to, in this instance, Clay County, Alabama — not Madison County, that the Court had misfound the facts, and that the basis for the order was inconsistent with the Court’s findings on other contested matters in this case. The Court must now determine whether it should reconsider the question of whether the financing statement was filed “in the county of the debt- or’s residence”; and, if so, whether the previous findings and order should be overturned.

The bankruptcy judge, upon a due consideration of the motion and the previous findings and order, is of the opinion that a somewhat unique question is presented here, that it was not fully explored by the Court in its previous determinations, and that the entire matter should be reconsidered. As will appear, this requires a re-examination of the facts involved, as well as the applicable law. As will further appear, the debtor, at the times involved, had, in fact, a place, of residence in Madison County and a place of residence in Clay County.

Findings of Fact—

During the course of the proceedings on the bank’s motion leading to the order of November 25, 1985, counsel for the bank took the deposition of the debtor in regard to the matter before the Court, and this testimony, with the documentary evidence of the bank and matters stipulated by counsel, constitutes the evidence from which the facts must be found. Because a determination of “the county of the debtor’s residence” is the only factual issue which springs from the limited dispute now before the Court, findings by the Court of primary facts initially pertinent in general to this contested matter may be and will be pretermitted. From the evidence, the bankruptcy judge finds the facts on the limited issue before the Court, as follows:

1. The debtor’s father was a native of Clay County, but, before retirement from work, was last employed by “N.A.S.A.” and maintained a residence or home in Huntsville, Madison County, Alabama;

2. The debtor lived with her parents at Huntsville, when she graduated from high school in the year 1961, and she continued to live in Huntsville through approximately 1972;

3. From 1964 to sometime in 1968, the debtor was employed by Chrysler Corporation, at Huntsville, and at all times after-wards the debtor has been self-employed, “raising Arabian horses”;

4. The debtor’s horses were kept by her in Madison County until the year 1972, when she began moving her horses to Clay County, where one of her grandmothers had a home and land on which the horses moved to Clay County were kept over a period of several years;

5. In 1972, or shortly thereafter, the debtor had moved a part of her horses to Clay County and was residing at her grandmother’s home there a majority of the time;

6. The debtor, however, continued to spend a substantial amount of time at Huntsville, where her parents continued to maintain a home until 1978 (two or three years after her father’s retirement) when he moved back to Clay County;

7. Until the debtor’s father moved from Huntsville back to Clay County in the year 1978, the debtor utilized her parents’ home in Huntsville as a place to “live” or to “stay” for the times spent in Huntsville by the debtor;

8. In the year 1978, the debtor purchased a farm of some 25 acres, with a dwelling house on it, in Clay County and rented an apartment in Huntsville;

9. The farm was purchased to provide a place to keep a portion of the debtor’s horses, with some part of the horses still kept at her grandmother’s place, and the debtor occupied the dwelling house on the farm during the times which she spent there;

10.

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Related

In Re Henderson
197 B.R. 147 (N.D. Alabama, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
59 B.R. 661, 1 U.C.C. Rep. Serv. 2d (West) 296, 1986 Bankr. LEXIS 6343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-deeb-alnb-1986.