International Home Products, Inc. v. First Bank of Puerto Rico, Inc.

495 B.R. 152, 2013 WL 3291808, 2013 U.S. Dist. LEXIS 93264
CourtUnited States Bankruptcy Court, D. Puerto Rico
DecidedJuly 1, 2013
DocketCivil Nos. 12-1515 (FAB), 12-2026 (FAB)
StatusPublished
Cited by3 cases

This text of 495 B.R. 152 (International Home Products, Inc. v. First Bank of Puerto Rico, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
International Home Products, Inc. v. First Bank of Puerto Rico, Inc., 495 B.R. 152, 2013 WL 3291808, 2013 U.S. Dist. LEXIS 93264 (prb 2013).

Opinion

MEMORANDUM AND ORDER

FRANCISCO A. BESOSA, District Judge.

Before the Court are the bankruptcy appeals of Civil Cases Nos. 12-1515 and 12-2026.1

I. BACKGROUND

A. Factual History

The Court draws the following relevant facts from the bankruptcy court’s order dated May 15, 2012, (Docket No. 1-4 at pp. 58-62):

On January 16, 2001, First Bank of Puerto Rico, Inc. (“First Bank”), Health Distillers International, Inc. (“HDI”), and International Home Products, Inc. (“IHP”) entered into a Credit Agreement. The Credit Agreement granted IHP and HDI (collectively, “the debtors”)2 certain credit facilities in the aggregate principal amount of $22.5 million, comprised of: a revolving credit facility to IHP and HDI in the principal amount of $15 million (“Operating Line”); and a five (5) year Senior Secured Term Loan credit facility to IHP up to the principal amount of $7.5 million (“Term Loan”) (collectively, the “Loans”).

After various amendments, on December S, 2009, First Bank, IHP, and HDI subscribed an “Amended and Restated Credit Agreement” where First Bank granted the Debtors credit facilities in the aggregate amount of $88,289,099.64 (consisting of $26 million of the Operating Line and $12,289,099.64 of the Term Loan of IHP). The Amended and Restated Credit Agreement was authenticated pursuant to affidavit number 26,301 of Notary Public Heberto de Vizcarrondo-Armstrong (the “Credit Agreement”).

On January 16, 2001, First Bank and IHP executed a Security Agreement, authenticated before Notary Public F. Vazquez-Santoni, affidavit number 34,911, whereby IHP pledged and granted to First Bank, as collateral to secure all of the obligations under the Credit Agreement, a lien upon all:

[O]f its right, title and interest in, to and under the following property whether now owned by or owing to, or hereafter acquired by or arising in favor of Grant- or ... (all of which being hereinafter collectively referred to as the “Collateral”):
all equipment;
all goods;
all inventory;
all investment property;
all money, cash or cash equivalents; [155]*155to the extent not otherwise included, all proceeds and products of the foregoing and all accessions to, substitutions and replacements for, rents and profits of, each of the foregoing.

The Security Agreement further provided: Grantor also hereby authorizes Lender to file any such financing or continuation statements without the signature of Grantor to the extent permitted by applicable law. If any amount payable under or in connection with any of the Collateral is or shall become evidenced by any Instrument, such Instrument, other than checks and notes received in the ordinary course of business, shall be duly endorsed in a manner satisfactory to Lender immediately upon Grantor’s receipt thereof.

On the same date that they executed the Security Agreement, First Bank and IHP also executed an Assignment of Rents agreement (the “Assignment of Rents”), authenticated before Notary Public F. Vazquez-Santoni, affidavit number 34,913, whereby IHP assigned and granted to First Bank, as collateral to secure all of the obligations under the Credit Agreement, its interest in all the rents receivable as described in the Agreement.

First Bank perfected its security interests by filing corresponding UCC-1 Financing Statements (the “2001 Financing Statements”). The original Financing Statements cover IHP’s inventory, merchandise, goods, other personal property, and their proceeds, which are held by or on behalf of IHP, as well as the rents assigned. The 2001 Financing Statements were initially filed before the Puerto Rico Commercial Transactions Registry (the “Registry”) on January 26, 2001. They lapsed ten (10) years after their filing — on January 26, 2011.

To perfect its security interest over the collateral covered by the 2001 Financing Statements, which had lapsed, First Bank filed another set of financing statements on July 19, 2011 (the “2011 Financing Statements”). The 2011 Financing Statements covered the same collateral as the original 2001 Financing Statements, but they lacked IHP’s signature. With the intention of terminating the 2011 Financing Statements, IHP filed two UCC-3 termination statements (the “Termination Statements”) with the Puerto Rico Commercial Transactions Registry on February 16, 2012. The Termination Statements do not have the signature of First Bank and were not authorized by it. On April 4, 2012, First Bank sent IHP, HDI, and the Guarantors a formal Notice of Default (the “Notice of Default”).

On April 10, 2012, six days after First Bank sent IHP the Notice of Default, IHP filed an “Urgent Motion for Order under 11 U.S.C. 105, 507(a)(4) and (5) Authorizing the Payment of Debtor’s Pre-Petition Employee Benefits and Priority Wages.” The bankruptcy court granted IHP’s motion for wages on April 26, 2012. Later that day, First Bank filed its Motion for Reconsideration, requesting the following remedies:

i. That the bankruptcy court prohibit IHP from using any of the cash that it has or receives, since it is the collateral of First Bank (the “Cash Collateral”);
ii. That the bankruptcy court order IHP to turn over to First Bank any present or future Cash Collateral in the possession, custody or control of IHP or any of its Insiders (as such term is defined in 11 U.S.C. § 101);
iii. That the bankruptcy court order IHP to segregate and account for all Cash Collateral received by or for the benefit of IHP since the filing of the petition;
[156]*156iv. That the bankruptcy court grant First Bank immediate access to the books and records of IHP, including all electronic records on any company computers, to make electronic copies, photocopies or abstracts of the business records of the debtor; and
v. Any other relief that the bankruptcy court deems necessary and just.

In response, IHP filed its petition on April 27, 2012; First Bank filed its reply on May 1, 2012; and the bankruptcy court issued an order on May 15, 2012 which “prospectively [granted] the Bank’s Motion for Reconsideration and determine[d] that the Bank has a valid security interest over [IHP’s] cash, assets and rents.” (Docket No. 1-4 at p. 1.)

During May and June 2012, the bankruptcy court held four hearings to consider IHP and HDI’s use of cash collateral. (See Docket No. 5-3 at p. 17.) At a June 18, 2012 hearing, the bankruptcy court continued allowing the use of cash collateral, and on June 22, 2012, IHP and First Bank filed a Joint Motion Informing Settlement with First Bank as to the Use of Cash Collateral.3 (Docket No. 5-3 at pp. 1-6.)

On August 3, 2012, First Bank filed a request for the immediate turnover of funds allegedly withheld by the Debtors. (See Docket No. 5-3 at pp.

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495 B.R. 152, 2013 WL 3291808, 2013 U.S. Dist. LEXIS 93264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/international-home-products-inc-v-first-bank-of-puerto-rico-inc-prb-2013.