In re Lease-Sea, Inc.

140 B.R. 185, 18 U.C.C. Rep. Serv. 2d (West) 1263, 1992 Bankr. LEXIS 648, 1992 WL 95732
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedMarch 13, 1992
DocketBankruptcy No. 90-00862
StatusPublished
Cited by1 cases

This text of 140 B.R. 185 (In re Lease-Sea, Inc.) 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 Lease-Sea, Inc., 140 B.R. 185, 18 U.C.C. Rep. Serv. 2d (West) 1263, 1992 Bankr. LEXIS 648, 1992 WL 95732 (Ohio 1992).

Opinion

MEMORANDUM OPINION AND ORDER

RICHARD L. SPEER, Bankruptcy Judge.

This cause comes before the Court upon Resolution Trust Corporation’s Motion for Abandonment of Cash Collateral and Relief from Stay. The Court held a Hearing on the matter, at which time the parties presented the evidence and arguments they wished the Court to consider in reaching its decision. At the conclusion of the Hearing, the Court ordered that post-Hearing Briefs be filed on the matter. The Court has reviewed the evidence and arguments presented, the post-Hearing Briefs, as well as the entire record in this case. Based upon that review and for the following reasons, the Court finds that Resolution Trust Corporation’s Motion should be granted, in part, and denied, in part.

ISSUE I: CASH COLLATERAL

A. FACTS

This portion of the Opinion dealing with the Motion of Resolution Trust Corporation [hereinafter “RTC”], receiver of First Federal Savings and Loan Association of Toledo, concerns itself with the issue of whether the rental income collected from the lease of boat slips owned by Lease-Sea, Inc. [hereinafter “Lease-Sea”], the Debtor, which are subject to RTC’s mortgage constituted cash collateral; and if so, whether said income should be turned over to RTC.

In June 1987, RTC made three separate loans to Great Lakes Builders, Inc. These loans totaled Two Million Eight Hundred Fifty Thousand Dollars ($2,850,000.00). Contemporaneously therewith, the titled owner to the premises, Port Lawrence Title and Trust Company, as Trustee, executed and delivered to RTC three separate mortgages to secure the payment of the loans.

In March 1988, Lease-Sea assumed all three mortgages and payment obligations. By August 1989, all three mortgages were in default. In February 1990, RTC instituted a foreclosure action against Lease-Sea. On March 11, 1990, Barry E. Savage was appointed receiver. On March 16, 1990, Lease-Sea filed for Bankruptcy under Chapter 11. The case was converted to one under Chapter 7 on July 30, 1990. At the time of conversion, there was approximately Twenty-four Thousand Dollars ($24,-000.00) in a cash collateral account which had been established by the debtor-in-possession as the depository for this rental income during the Chapter 11. Elizabeth Vaughan, as Trustee in Bankruptcy [hereinafter “Trustee”], objected to the payment of this cash collateral to RTC.

B. LAW

Section 363(a) of the Bankruptcy Code defines “cash collateral” to mean “cash, negotiable instruments, documents of title, securities, deposit accounts, or other cash equivalents whenever acquired in which the estate and an entity other than the estate have an interest and includes the proceeds, products, offspring, rents, or profits of [187]*187property subject to a security interest as provided in section 552(b) of this title, whether existing before or after the commencement of a case under this title.” 11 U.S.C. § 363(a) (emphasis added).

Section 552(b) of the Bankruptcy Code provides, in pertinent part, that

[I]f the debtor and an entity entered into a security agreement before the commencement of the case and if the security agreement extends to property of the debtor acquired before the commencement of the case and to proceeds, product, offspring, rents, or profits of such property, then such security interest extends to such proceeds, product, offspring, rents, or profits acquired by the estate after the commencement of the case to the extent provided by such security agreement and by applicable nonbankruptcy law, except to any extent that the court, after notice and a hearing and based on the equities of the case, orders otherwise.

11 U.S.C. § 552(b).

There are two requirements that the Plaintiff must satisfy in order to obtain the income from the mortgaged property in accordance with Section 552(b). The first requirement is that a pre-petition security agreement must exist between the Plaintiff and the Debtor; the second is that the security interest must be perfected. The Court must look to state law to determine whether First Federal had the requisite security interest in the income and whether the security interest in the income was perfected. Butner v. United States, 440 U.S. 48, 55-57, 99 S.Ct. 914, 918-19, 59 L.Ed.2d 136 (1979).

This Court believes that the first requirement has been met. RTC’s claim to the rentals and income stem from the mortgages themselves. Paragraph Nine (9) of each mortgage agreement confers upon RTC a right to the rentals and income in the event of default. That paragraph provides that “[ujpon default in any of the terms of the note secured hereby, or upon any breach of any condition or covenant of this deed, all rentals or income from the real estate hereinbefore described shall become payable immediately when due to [RTC], who is authorized and empowered to collect the same.” Consequently, the first requirement of Section 552(b) is satisfied, i.e., pre-petition security agreements exist which specifically provide for an interest in the rentals and income.

The second requirement to be resolved is whether RTC perfected its interest in the income from the property. This Court must again look to state law for this determination. Butner, 440 U.S. at 55-57, 99 S.Ct. at 918-19. The Court notes that the case at bar concerns itself with perfection of the interest in the income from the mortgaged property as opposed to perfection of the mortgage instrument. A mortgagee can perfect an interest in the rentals and income from mortgaged property in one of two ways: (1) obtain possession, or the right thereto, or (2) have a receiver appointed. Jacks v. Virginia Joint Stock Land Bank, 17 Ohio Law Abs. 464, 466 (1934).

For a mortgagee to obtain the right to possession, the mortgagor must have defaulted on the terms of the mortgage. Metropolitan Securities Co. v. Orlow, 107 Ohio St. 583, 588, 140 N.E. 306, 308 (1923). Moreover, the mortgage agreement itself must pledge the rents to secure the mortgage upon default, except in situations whereby the mortgagee is prevented from taking possession of the property. Banc-Ohio National Bank v. Andrew J. Haas Irrevocable Trust, 33 Ohio App.3d 253, 254, 515 N.E.2d 1024, 1025-26 (1986); Hutchinson v. Straub, 64 Ohio St. 413, 60 N.E. 602 (1901). Such a situation, for example, would be when property passes into the jurisdiction of a probate court.

The second way to perfect an interest is for the mortgagee to have a receiver appointed by the court, thus placing the collection of the rents within the purview of the court’s jurisdiction. Id. O.R.C. Section 2735.01 entitles a mortgagee to have a receiver appointed. Before such appointment, O.R.C. Section 2735.01 requires that the mortgagee demonstrate that the mortgaged property is in danger of being lost, [188]*188removed, or materially injured or that the condition of the mortgage has not been performed, and that the property is probably insufficient to discharge the debt.

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140 B.R. 185, 18 U.C.C. Rep. Serv. 2d (West) 1263, 1992 Bankr. LEXIS 648, 1992 WL 95732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-lease-sea-inc-ohnb-1992.