Kelley v. United American Bank in Knoxville (In Re Kelley)

17 B.R. 770, 33 U.C.C. Rep. Serv. (West) 716, 1982 Bankr. LEXIS 4781, 8 Bankr. Ct. Dec. (CRR) 1010
CourtUnited States Bankruptcy Court, E.D. Tennessee
DecidedFebruary 19, 1982
DocketBankruptcy No. 3-81-01377, Adv. No. 3-81-1043
StatusPublished
Cited by13 cases

This text of 17 B.R. 770 (Kelley v. United American Bank in Knoxville (In Re Kelley)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelley v. United American Bank in Knoxville (In Re Kelley), 17 B.R. 770, 33 U.C.C. Rep. Serv. (West) 716, 1982 Bankr. LEXIS 4781, 8 Bankr. Ct. Dec. (CRR) 1010 (Tenn. 1982).

Opinion

MEMORANDUM

CLIVE W. BARE, Bankruptcy Judge.

I

This is an action by the debtor to avoid a nonpossessory, nonpurchase-money security interest in household goods. 11 U.S.C. § 522(f). 1

*771 FINDINGS OF FACT

1. John G. Kelley, Sr., debtor and plaintiff in this action (Kelley), filed a voluntary petition for relief under Chapter 7 of Title 11 of the United States Code on September 2, 1981.

2. Kelley filed the present adversary proceeding on December 1, 1981, pursuant to U.S.C. § 522(f)(2) to avoid a nonpossesso-ry, nonpurchase-money security interest in household and personal goods.

3. On March 29, 1978, Kelley entered into an agreement entitled “Installment Promissory Note, Security Agreement, and Disclosure Statement” with the United American Bank, Knoxville, Tennessee (UAB), whereby UAB loaned Kelley a gross amount of Six Thousand Two Hundred Thirteen Dollars and Sixty Cents ($6,213.60).

4. The March 29, 1978, loan was to be repaid in thirty-six (36) monthly installments beginning April 30, 1978, in the amount of One Hundred Seventy-two Dollars and Sixty Cents ($172.60) each. The March 1978 loan was given account number 010-95868-0 by UAB.

5. With the proceeds of the March 1978 loan, Kelley purchased a 1976 Mercury Cougar and granted a security interest in the vehicle to UAB.

6. UAB perfected its interest in the vehicle by noting its lien on the Certificate of Title.

7. On October 20, 1978, Kelley entered into an agreement entitled “Installment Promissory Note, Security Agreement and Disclosure Statement,” whereby UAB loaned Kelley the gross amount of Four Thousand Nine Hundred Ninety-nine Dollars and Sixty-eight Cents ($4,999.68).

8. The October 1978 loan was given account number 030-01348-5 by UAB.

9. The October 1978 loan called for repayment in thirty-six (36) monthly installments beginning December 5, 1978, in the amount of One Hundred Thirty-eight Dollars and Eighty-eight Cents ($138.88) each.

10. With the proceeds of the October 1978 loan, Kelley purchased the following household goods and granted a security interest in the goods to UAB:

a. One Thomasville bedroom suite (including pecan and brass bed and Ar-moire stand-up chest);
b. One 6-piece Henredon Venture sectional couch;
c. Three stainless steel shelves;
d. One lamp; and
e. Two Lane tables.

11. UAB filed a financing statement with the Knox County Register of Deeds and with the Secretary of State for the State of Tennessee.

12. On January 11, 1980, Kelley entered into an agreement entitled “Installment Promissory Note, Security Agreement and Disclosure Statement” with UAB in the gross amount of Ten Thousand Eight Hundred Four Dollars and Ninety-two Cents ($10,804.92).

13. The January 1980 loan was given account number 1153108662 by UAB.

14. The January 1980 loan was to be repaid in forty-two (42) monthly installments beginning February 20, 1980, in the amount- of Two Hundred Fifty-seven Dollars and Twenty-six Cents ($257.26) each.

15. The proceeds of the January 1980 loan paid off the March 1978 loan, the October 1978 loan, and a Master Charge account which Kelley owed to UAB.

16. The March 1978 and the October 1978 loans were marked “paid in full.”

17. UAB took as security for the January 1980 loan the 1976 Mercury Cougar and the previously mentioned household goods.

18. Kelley paid approximately One Thousand Nine Hundred Dollars ($1,900) on the January 1980 loan.

19. There is no formula in the January 1980 loan agreement for application of payments to the Mercury Cougar loan, the household goods loan, or the Master Charge debt.

Summarizing the above findings, Kelley in March 1978 obtained a loan from UAB to finance the purchase of an automobile. In *772 October 1978 he obtained a loan to finance the purchase of household goods. In January 1980 he was behind in his payments on the loans and was also indebted to the Bank for purchases on a Master Charge credit card. The balances on the two loans and the amount owing on the Master Charge account were consolidated into a new note and security agreement which included both the automobile and the household goods. A new payment schedule was set up, a new account number assigned, and a new rate of interest specified.

II

There is no dispute but that initially UAB held a purchase money security interest in the household goods, T.C.A. 47-9-107(b), nonavoidable under 11 U.S.C. § 522(f)(2). The present question is whether UAB lost its purchase money security interest by consolidating the three accounts into a new account, note, and security agreement. 2

“When a purchase money interest is claimed by a secured party who is not a seller, he must of course have given present consideration. This Section therefore provides that the purchase money party must be one who gives value ‘by making advances or incurring an obligation’: The quoted language excludes from the purchase money category any security interest taken as security for or in satisfaction of a pre-existing claim or antecedent debt.” Comments to Official Text, T.C.A. § 47-9-107.

A number of recent bankruptcy decisions have held that lenders who consolidate prior or subsequent purchase money loans secured by household goods with other non-purchase-money loans lose their purchase money status to the challenge of 11 U.S.C. § 522(f)(2)(A). See In re Mulcahy, 3 B.R. 454 (Bkrtcy.S.D.Ind.1980); Matter of Jones, 5 B.R. 655 (Bkrtcy.M.D.N.C.1980); In re Coomer, 8 B.R. 351 (Bkrtcy.E.D.Tenn.1980); In re Slay, 8 B.R. 355 (Bkrtcy.E.D.Tenn.1980); In re Alston, 11 B.R. 184 (Bkrtcy.W.D.Tenn.1981).

In re Manuel, 507 F.2d 990 (5th Cir. 1975), the issue was whether certain transactions should be recognized as purchase money security transactions. More than one sale was involved and the last security agreement included the unpaid balance from a prior purchase. The Court held there was no purchase money security interest in the goods formerly purchased:

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17 B.R. 770, 33 U.C.C. Rep. Serv. (West) 716, 1982 Bankr. LEXIS 4781, 8 Bankr. Ct. Dec. (CRR) 1010, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelley-v-united-american-bank-in-knoxville-in-re-kelley-tneb-1982.