Kinzalow v. Clayton Bank & Trust (In re Value Investment Properties, LLC)

481 B.R. 403
CourtUnited States Bankruptcy Court, E.D. Tennessee
DecidedOctober 2, 2012
DocketBankruptcy No. 11-16395; Adversary No. 11-1174
StatusPublished

This text of 481 B.R. 403 (Kinzalow v. Clayton Bank & Trust (In re Value Investment Properties, LLC)) 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
Kinzalow v. Clayton Bank & Trust (In re Value Investment Properties, LLC), 481 B.R. 403 (Tenn. 2012).

Opinion

MEMORANDUM

JOHN C. COOK, Bankruptcy Judge.

This adversary proceeding was initiated by plaintiff Richard L. Kinzalow, as trustee of the Richard L. Kinzalow Declaration of Trust, to determine whether his liens in the manufactured homes at issue in this proceeding take priority over the liens held by Clayton Bank and Trust. Having considered the evidence presented at trial, together with the arguments and briefs of the parties, the court now makes its findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure, as made applicable in bankruptcy adversary proceedings by Rule 7052 of the Federal Rules of Bankruptcy Procedure. This adversary proceeding is a core proceeding. 28 U.S.C. § 157(b)(2)(E).

I.

Value Investment Properties, LLC, and Riverglen Homes, LLC, are debtors in consolidated chapter 11 cases pending in this court.1 Value Investment Properties owns a manufactured home park located in Hamilton County, Tennessee, known as Riverglen Community & Home Center. The park is composed of sixty-nine lots or spaces, one of which is occupied by a mini-storage warehouse unit. This debtor offers vacant lots for rent to tenants who own their own mobile or manufactured homes, and also owns manufactured homes in the park that are available for lease or purchase, either for cash or on credit via installment sales contracts. On June 5, 2007, the principals of Value Investment Properties, James E. Vincent, Sr., and James Tague, sold their interests in the company to Michael Krumm. To secure this purchase, Value Investment Properties executed and delivered to Messrs. Vincent and Tague a deed of trust, which granted a security interest in its real property, fixtures, and personal property. The deed of trust was recorded, both as a deed of trust and as a fixture filing under the Uniform Commercial Code as enacted in Tennessee. A financing statement was not filed with the Tennessee Secretary of State, nor was the lien noted on any certificates of title to the manufactured homes owned by the company. Subsequently, Messrs. Vincent and Tague assigned the deed of trust to the plaintiff.2

On October 6, 2008, Riverglen Homes was formed, and Value Investment Properties conveyed all of its interests in the manufactured homes to Riverglen, which thereafter continued in the same business as Value Investment Properties, namely holding manufactured homes located in Riverglen Community & Home Center for sale or lease. Also in October 2008, River-glen granted the defendant bank a security interest in both certain manufactured homes owned by Riverglen and contractual rights owned by Riverglen in manufactured homes that had been sold to third-party purchasers. The bank filed a financing statement with the Tennessee Secretary of State to perfect its security interests in the manufactured homes and contractual rights arising from the sale of the homes, and the bank also noted its [405]*405liens on certificates of title to the manufactured homes.

At trial, evidence was introduced regarding the business operations of Value Investment Properties (and subsequently Riverglen) and the manner of attachment of the manufactured homes to the land in the manufactured home center. Mr. Vincent testified that, at the time Value Investment Properties purchased the home center in 2002, approximately thirty-two homes were located on the real property: nine were owned by Value Investment Properties and available for purchase or rent; and the others were owned by their occupants who paid lot rent to the company. Mr. Vincent testified that he “hoped” that all of the manufactured homes would sell because occupants who had an ownership interest in their manufactured homes took better care of the homes, and the installment contracts were very lucrative for Value Investment Properties. In fact, payments on the installment contracts were necessary for the company’s cash flow.

In addition to buying a manufactured home, a purchaser also had the option of purchasing other items, including decks/porches, underpinning, and external central air compressors. A purchaser under an installment contract did not, however, purchase the land upon which the home was located, but rented the lot on which the home was installed. The installment contract provided that a purchaser would be given title to the manufactured home free of encumbrances within thirty days of the final installment payment. The contract also restricted movement of the manufactured home until the contract had been fully performed. A purchaser could seek outside refinancing for a manufactured home and, once the buyer paid for the home from the refinancing proceeds, the seller would deliver clear title. Although not controlling, Mr. Vincent testified that he considered the purchaser under an installment contract to be the owner of the manufactured home at the time of signing, with the debtor retaining merely a security interest. According to the installment contracts introduced into evidence, a used, single-wide manufactured home had a sales price of approximately $30,000.00.

During the ownership of Value Investment Properties by Mr. Vincent and Mr. Tague, approximately fifteen manufactured homes were purchased and placed in the home center. The company purchased those homes via floorplan financing. By 2007, when Mr. Krumm purchased Value Investment Properties, approximately fourteen of the company-owned homes had been sold or were under an installment contract. Mr. Vincent testified that he assumed Mr. Krumm would continue the business of Value Investment Properties as usual, which included the sale of manufactured homes under installment sales contracts. Since the sale of ownership of the company to Mr. Krumm, Value Investment Properties and Riverglen have acquired and sold approximately fifty manufactured homes under installment contracts. Presently, all thirty-seven of the homes located in the home center in which the debtors claim interests are occupied and under contract. Ten lots in the home center are currently vacant, and the remaining twenty-two lots are occupied by tenants renting lots.

According to the testimony of Mr. Vincent, the manufactured homes were required by state law to be installed in a certain manner, and all homes — whether owned by one of the debtors or by the residents — were attached to the realty in essentially the same way to comply with state law. Michael Jenkins, a manufactured home installer, testified that the [406]*406homes could be moved with three to five hours of labor, depending on the home size. The cost of removing a manufactured home and reinstalling it at a new location would be between $2,700.00-$3,000.00 for a single-wide home and $5,000.00-$7,000.00 for a double-wide home. Mr. Jenkins also testified that, assuming the lot met state code standards, once a manufactured home was removed from the home center, another home could be installed on that lot. Sherry Presley, on-site manager of the home center and partial owner of Value Investment Properties, testified that at least two manufactured homes have been removed from the home center.

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Cite This Page — Counsel Stack

Bluebook (online)
481 B.R. 403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kinzalow-v-clayton-bank-trust-in-re-value-investment-properties-llc-tneb-2012.