In re Seco, Inc.

64 B.R. 368, 2 U.C.C. Rep. Serv. 2d (West) 349, 1986 Bankr. LEXIS 5427
CourtDistrict Court, C.D. Illinois
DecidedAugust 27, 1986
DocketBankruptcy No. 285-01022
StatusPublished
Cited by1 cases

This text of 64 B.R. 368 (In re Seco, Inc.) is published on Counsel Stack Legal Research, covering District Court, C.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Seco, Inc., 64 B.R. 368, 2 U.C.C. Rep. Serv. 2d (West) 349, 1986 Bankr. LEXIS 5427 (C.D. Ill. 1986).

Opinion

OPINION

LARRY LESSEN, Chief Judge.

This matter is before the Court on Heller Financial, Inc.’s (hereinafter referred to as Heller) Motion for Additional Relief from the Automatic Stay to Compromise and Settle Accounts and for Allowance of Secured Claim. In this Motion, Heller asks the Court to determine whether it has a perfected, first and senior security interest in all accounts receivable of the Debtor, Seco, Inc. Heller also asks the Court to lift the automatic stay so it can take the steps necessary to collect the accounts. Shortly before the bankruptcy case was commenced, Heller had begun efforts to collect the accounts receivable. On November 11, 1985, the Ohio Bankruptcy Court authorized continued collection efforts by Heller.1 However, the Ohio Bankruptcy [369]*369Court’s Order did not determine the extent and priority of Heller’s security interest in the accounts, nor did it authorize Heller to compromise and settle the accounts without Court approval. Heller asserts it is not prepared to bear the significant costs and expenses required to effectively collect the accounts unless and until this Court determines the perfection and priority of its security interest in the accounts. Heller alleges that the debtor lacks both the time and resources to pursue vigorous collection of the accounts and that Heller’s continue collection efforts would benefit all parties in interest.

In August, 1983, Heller and Seco, Inc. entered into a Loan Security Agreement which granted Heller a security interest in all existing and subsequently acquired accounts and inventory of Seco, Inc. In 1983, to perfect its security interest, Heller filed financing statements against “Seco, Inc.” with the Ohio Secretary of State. (These filings will hereinafter be referred to as the original filings.) On or about March 28, 1984, Seco, Inc., an Ohio Corporation, merged with Right Way Chemicals of Georgia, Inc. (hereinafter referred to as Right Way), and the surviving entity was named Right Way. In anticipation of this merger, in February, 1984, Heller filed new financing statements against Right Way covering the same collateral.

Within four months of the merger, on June 12,1984, Right Way changed its name back to Seco, Inc., now a Georgia corporation. On June 26, 1984, Seco, Inc. and the Union National Bank of Streator (hereinafter referred to as Union Bank) entered a security agreement, the collateral being Seco, Inc.’s accounts receivable and inventory. In July, 1984, the Union Bank filed financing statements against Seco, Inc. with the Illinois and Ohio Secretary of State and with the Franklin County Recorder. In August, 1984, Heller amended all three of its Right Way financing statements to reflect the name change back to Seco, Inc. In October, 1984, Heller again amended its Right Way financing statements to change the debtor’s address, with this second set of amendments showing the debtor as Seco, Inc.

The issue before the Court is whether the financing statements filed by Heller were sufficient to give it a perfected security interest in Seco, Inc.’s accounts receivable senior to the security interest of Union Bank in those same accounts. The controlling section of the Uniform Commercial Code is § 9-402(7) which states:

(7) A financing statement sufficiently shows the name of the debtor if it gives the individual, partnership or corporate name of the debtor, whether or not it adds other trade names or names of partners. Where the debtor so changes his name or in the case of an organization its name, identity or corporate structure that a filed financing statement becomes seriously misleading, the filing is not effective to perfect a security interest in collateral acquired by the debtor more than 4 months after the change, unless a new appropriate financing statement is filed before the expiration of that time. A filed financing statement remains effective with respect to collateral transferred by the debtor even though the secured party knows of or consents to the transfer.

Ill.Rev.Stat., Ch. 26, § 9-402(7) (1985). Union Bank concedes that through the original filings Heller properly perfected its security interest in the accounts of “Seco, Inc.” when it was an Ohio corporation. Union Bank also acknowledges that Heller’s financing statements filed against Right Way complied with the requires of U.C.C. § 9-402(7). However, when Right Way changed its name back to Seco, Inc., now a Georgia corporation, Union Bank argues that Heller was again required under § 9-402(7) to file a “new appropriate financing statement” within four months after the name change. Union Bank argues that the amendments to Heller’s previously filed Right Way financing statements which state that “Debtor has changed its name to Seco, Inc.” were “seriously misleading” and therefore ineffective to perfect a security interest in collateral acquired by the debtor more than four [370]*370months after the name change. Finally, Union Bank argues that by virtue of its July, 1984, financing statements it holds a prior and senior perfected security interest in the inventory and accounts of the debtor acquired more than four months after its name change from Right Way back to Seco, Inc.

The Court finds that Heller has at all times since the original filings had a perfected security interest in Seco’s accounts receivable and that Heller’s security interest is prior to that of Union Bank. In In re A-1 Imperial Moving & Storage Co., Inc., 350 F.Supp. 1188, 11 UCC Rep.Serv. 1243 (S.D.Fla.1972), a financing statement was filed on April 9, 1971, under the debt- or’s trade name A-l Imperial Moving and Storage Company, Inc. The debtor was incorporated on April 23, 1971, as 6105 Corporation, but changed its corporate name back to A-l Imperial Moving and Storage Company, Inc. on January 24, 1972. The debtor filed bankruptcy on May 22, 1972. The Court held that the April 9, 1971, financing statement perfected the creditor’s security interest as against the trustee in bankruptcy. The Court found that the financing statement was not valid during the period that the debtor’s name was 6105 Corporation. But, when the debt- or changed its name back to A-l Imperial Moving and Storage Company, Inc., the financing statement once again became valid because it served its purpose of putting interested parties on notice of another’s interest in the debtor’s property. Id. at 1189. Similarly, Heller’s original filings, while not valid during the three month period that the debtor’s name was Right Way, once again became valid when the debtor’s name was changed back to Seco, Inc. Any party searching the records under the name Seco, Inc. would find Heller’s financing statements and would be put on notice of Heller’s security interest. Indeed, Union Bank admits that a search done at the time it filed its July, 1984, financing statements revealed Heller’s 1983 filings against Seco, Inc. However, Union Bank argues that the 1983 filings were against Seco, Inc. (an Ohio corporation), while after the name change back from Right Way the debtor became Seco, Inc. (a Georgia corporation).

This argument is captious, since both before and after the three month period the debtor was named Right Way, its name was “Seco, Inc.”. Nowhere in its name did “an Ohio corporation” or “a Georgia corporation” appear. Union Bank’s own financing statements, like Heller’s, were filed against “Seco, Inc.”. Further, Union Bank had actual knowledge of Heller’s prior security interest in Seco, Inc.’s inventory and accounts receivable. Union Bank’s own security agreement with Seco, Inc.

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Bluebook (online)
64 B.R. 368, 2 U.C.C. Rep. Serv. 2d (West) 349, 1986 Bankr. LEXIS 5427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-seco-inc-ilcd-1986.