In re Purdy

490 B.R. 530, 2013 WL 781630, 2013 Bankr. LEXIS 772
CourtUnited States Bankruptcy Court, W.D. Kentucky
DecidedMarch 1, 2013
DocketNo. 12-11592
StatusPublished
Cited by4 cases

This text of 490 B.R. 530 (In re Purdy) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Purdy, 490 B.R. 530, 2013 WL 781630, 2013 Bankr. LEXIS 772 (Ky. 2013).

Opinion

MEMORANDUM-OPINION

JOAN A. LLOYD, Bankruptcy Judge.

This matter came before the Court for an evidentiary hearing on the following Motions:

[532]*532Motion of Creditor Citizens First Bank (“CFB”) to Prohibit Use of Cash Collateral;
Motion of CFB for Relief from the Automatic Stay on Livestock and Farm Equipment;
Motion of Sunshine Heifers, LLC (“Sunshine”) to Extend Time to Assume or Reject Unexpired Leases; and
Motion for Relief from Stay on Livestock.

The Court determined at the hearing that a decision regarding whether the Sunshine documentation constitutes a true lease or a disguised financing transaction, as well as the post-petition effect of the milk assignments, must be made prior to a decision on the other pending matters.

Therefore, the Court reviewed the entire record, considered the testimony of the witnesses, Debtor Lee Purdy (“Debtor”), Karissa Peterson, Becky Moore, Jeff E. Blevins, Martin Anthony Martinez and the depositions of Linus Kuennen and Kendall Branstetter. For the following reasons, the Court DENIES Sunshine’s Motions to Extend Time to Assume or Reject Unexpired Leases and for Relief from Stay on Livestock and by separate Order reschedules CFB’s Motions to Prohibit Use of Cash Collateral and Relief from the Automatic Stay for hearing. An Order incorporating the findings herein accompanies this Memorandum-Opinion.

I. FINDINGS OF FACT

Debtor is a dairy farmer who currently operates on property he leases from Martin Martinez in Cave City, Kentucky. In 2008, Debtor entered into a loan agreement with CFB pledging, among other things, his dairy cattle herd as collateral. In 2009 Debtor refinanced the loan, executing a new Promissory Note in the amount of approximately $460,000 and on July 3, 2009, an Agricultural Security Agreement (“Agreement”). Pursuant to the Agreement Debtor granted CFB a:

Purchase Money Security Interest in all Chattel Paper, Accounts, Equipment, Farm Products, Livestock (including all increase and supplies) and Farm Equipment currently owned hereafter acquired located on his farm at 884 Hise-ville Road, Cave City, Barren Co., Ky., and located at other real estate.

See, JT Index. No. 1. On July 6, 2009, CFB filed a Financing Statement with the Kentucky Secretary of State perfecting its security interest referenced above. For identification, CFB required its livestock collateral to bear white ear tags and by the terms of the Agreement and Financing Statement, its lien extended to all livestock on the farm then owned by Debtor and thereafter acquired.

On August 19, 2010, Debtor and CFB executed an Agricultural Security Agreement in which Debtor granted CFB a security interest in the following:

All Crops, Farm Products and Livestock (including all increase and supplies) currently owned and hereafter acquired including but not limited to all dairy cattle currently owned and hereafter acquired regardless of location of cattle....

See, JT Ex. 3. On September 1, 2010, CFB filed a UCC Financing Statement with the Kentucky Secretary of State perfecting its security interest referenced above.

On May, 31, 2012, Debtor and CFB executed an Agricultural Security Agreement in which Debtor gave CFB a security interest in “All Farm Products.” See, JT Ex. 5. On June 26, 2012, CFB filed a UCC Financing Statement with the Kentucky Secretary of State perfecting its security interest referenced above.

At the time of the hearing, Debtor had outstanding loans of approximately $455,000, $153,000 and a $40,000 line of [533]*533credit with CFB. Debtor held only one bank account and that was with CFB. All business cash from whatever source derived was deposited in the CFB account. All disbursements made by the Debtor were made from this same account.

A. Dairy Cow Leases.

While utilizing the CFB loans for operations, Debtor decided he wanted to increase his herd. Debtor met with Jeff Blevins of Sunshine, a knowledgeable dairy farmer and financier, at Debtor’s operation. During May and June of 2009, 45 head of cattle were delivered to the farm. This small group of stock had been recovered by Blevins from a farm upon which he had foreclosed. 16 of those cows were unfit and had to be culled from the herd. Blevins bought replacements from Darol Hartzler and supplied them to Debt- or. Debtor paid Blevins by check for the cattle. Blevins accepted the check for payment. Nearly three months after the cows were delivered to Debtor’s farm, on August 7, 2009, Debtor and Sunshine executed a “Dairy Cow Lease” (“Lease 1”) and a Security Agreement in connection with the Lease which identified the collateral as:

All cows, heifers, offspring or replacements including, but not limited to cattle on Exhibit “A” attached.

See, Sunshine Ex. 6. Debtor, however, scratched out the term “heifers” and the term “offspring” in the description of the collateral.

On December 15, 2010, Debtor entered into a “Dairy Cow Lease” (“Lease 2”) with Sunshine for 240 head of Holstein heifers for a term of 50 months. Debtor had 2 cattle buyers, Danny Layton and Kendall Branstetter, find these cattle and purchase them for Debtor. Once the cows were delivered to Debtor’s farm he began milking and caring for them. Sunshine later sent Debtor a check which he used to reimburse Layton and Branstetter for the cattle purchases. The parties also entered into a Security Agreement and a Financing Statement covering the 240 cows. See, Sunshine Ex. 1. In July 2011, Debtor had Linus Kuennen purchase 50 head of cattle for him. Kuennen selected the cattle for Debtor. Sunshine wrote Kuennen a check for the cattle. On July 22, 2011, Debtor entered into a “Dairy Cow Lease” (“Lease 3”) with Sunshine for this 50 head of cattle for a term of 50 months. On cattle purchased by Linus Kuennen for Debtor, the cattle were branded and tagged on behalf of Sunshine prior to delivery to Debtor’s farm pursuant to the terms of Lease 3.

On July 14, 2012 Sunshine had Debtor enter into a “Dairy Cow Lease” (“Lease 4”) to cover 285 head of cattle as documentation to “wrap up” the cattle covered by Leases 1 and 2.

Debtor testified that in May 2012, he asked Blevins if he had built up enough equity to acquire more cattle although Blevins testified that he never saw his transactions with the Debtor involving “equity.” Nevertheless, Blevins checked and told him if he paid $1,500 more per month, he could acquire another 100 head of cattle. On July 14, 2012, Debtor entered into a “Dairy Cow Lease” (“Lease 5”) with Sunshine for 100 head of cattle for a term of 50 months. Kendall Branstetter purchased the 100 head from different places and they were placed on Debtor’s farm between June and July 2012. Debtor paid Branstetter for the cattle. Sunshine eventually sent a check to Debtor for the money he had advanced Branstetter to purchase the cattle. The cattle, however, had already been delivered to Debtor’s farm and he was milking and caring for them prior to the time Sunshine sent the check to Debtor. The cattle purchased and delivered to Debtor by Layton and Branstet-[534]*534ter, however, were branded with Sunshine’s brand and tagged by Debtor and his employees after they reached Debtor’s farm.

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Related

Sunshine Heifers, LLC v. Moohaven Dairy, LLC
13 F. Supp. 3d 770 (E.D. Michigan, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
490 B.R. 530, 2013 WL 781630, 2013 Bankr. LEXIS 772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-purdy-kywb-2013.