Magna Bank, N.A. v. Gilsinn (In re Gilsin)

224 B.R. 710, 40 Collier Bankr. Cas. 2d 782, 37 U.C.C. Rep. Serv. 2d (West) 187, 1997 Bankr. LEXIS 2289
CourtUnited States Bankruptcy Court, E.D. Missouri
DecidedNovember 20, 1997
DocketBankruptcy No. 97-44625-293
StatusPublished
Cited by2 cases

This text of 224 B.R. 710 (Magna Bank, N.A. v. Gilsinn (In re Gilsin)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Magna Bank, N.A. v. Gilsinn (In re Gilsin), 224 B.R. 710, 40 Collier Bankr. Cas. 2d 782, 37 U.C.C. Rep. Serv. 2d (West) 187, 1997 Bankr. LEXIS 2289 (Mo. 1997).

Opinion

MEMORANDUM OPINION

DAVID P. McDONALD, Bankruptcy Judge.

JURISDICTION

This Court has jurisdiction over the parties and subject matter of this proceeding pursuant to 28 U.S.C. §§ 1334, 151, 157 and Local Rule 29 of the United States District Court for the Eastern District of Missouri. This is a core proceeding pursuant to 28 U.S.C. §§ 157(b)(2)(L), which the Court may hear and determine.

PROCEDURAL BACKGROUND

1. On May 13, 1997, Brian K. Gilsinn and his wife, Kathryn E. Gilsinn, filed a petition seeking to relief under Chapter 13 of the Bankruptcy Code (11 U.S.C. §§ 101-1330) and a Chapter 13 plan.

2. Among their personal property, Debtors listed interests in three vehicles; a 1994 Dodge Shadow, a 1990 Mercury Cougar and a 1988 Chevrolet Blazer. Debtors did not list an interest in a 1994 Chevrolet Cavalier Convertible on their schedules.

3. Among the unsecured debts on Debtors’ schedules is listed a $19,000.00 obligation to Magna described as “5/95, car loan deficiency after repossession.”

4. Magna Bank, N.A. (Magna), filed an objection to Debtors’ plan. In its Objection Magna alleged that Debtor Brian Gilsinn and Diversified Maintenance Corp. (Diversified) owe it $16,262.46. Magna further alleges that the debt Gilsinn and Diversified owe it is secured by a perfected security interest in a 1994 Chevrolet Cavalier Convertible titled to “Diversified Maintenance Corp (sic) Gilsinn B.” Magna also states in its Objection that two individuals have advised it that Debtor possesses the 1994 Cavalier. Magna offers two grounds for its Objection. First, Magna maintains Debtor filed his plan in bad faith because he did not list Magna’s claim among his secured claims and he failed to list an interest in the 1994 Cavalier among his personal property. Second, Magna asserts that because Debtors listed interest in three vehicles other that the 1994 Cavalier, two of the four vehicles are luxuries not necessary to Debtors’ reorganization. Magna asked the Court to deny confirmation of Debtors’ plan or, in the alternative, to require Brian Gilsinn to locate the 1994 Cavalier and deliver it to Magna.

5. Magna also moved the Court for relief from the automatic stay so that it might locate and liquidate the 1994 Cavalier.

6. The Court held a hearing on Magna’s Objection and Motion for Relief on July 31, 1997. At the hearing’s conclusion, the Court granted Magna’s Motion for Relief so that it might locate and foreclose on the 1994 Cavalier. The Court took under advisement Mag-na’s Objection to Confirmation.

FACTUAL BACKGROUND

Brian Gilsinn (Debtor or Gilsinn) was the only witness to testify at the July 31 hearing. From his testimony and the record as a whole, the Court makes the following factual findings:

1. Gilsinn and two friends, David Reker and Kristin Reker, were joint, venturers in and the only shareholders of Diversified.
2. Gilsinn served as Diversified’s president and the Rekers were corporate officers. As Diversified’s president, Gilsinn was empowered to enter into contracts on the corporation’s behalf; Gilsinn estimated he employed this power on approximately twenty occasions. Of the twenty contracts he entered, five were for the purchase of vehicles to be used in Diversified’s operations.
3. In August of 1994, Gilsinn purchased a 1994 Chevrolet Cavalier for Diversified.
[712]*7124. To purchase the 1994 Cavalier, Gilsinn executed a Retail Installment Contract and Security Agreement which he signed both in his individual capacity and as Diversified’s president. Upon their execution, the contract and security agreement were assigned to Magna.
5. Gilsinn admitted that his name, “Gil-sinn B” appears on the 1994 Cavalier’s title but explained that he thought the car was titled that way because, to his understanding, he had been required to guarantee Diversified’s obligation.
6. Gilsinn testified that the sales agreements and titles for all the vehicles he purchased as president of Diversified were structured like those for the 1994 Cavalier.
7. The 1994 Cavalier was used by Diversified’s sales force to make sales calls. Diversified maintained the vehicle and, Debtor believes, procured insurance for it.
8. Debtor did not possess keys to the 1994 Cavalier. He rode in the ear only once and could not drive it because it was not modified to accommodate his physical condition. Mr. Gilsinn appeared in court seated in a wheel chair. He cannot now nor could he ever drive the 1994 Cavalier.
9. From August 1994 through November 1995, Diversified used and paid for the 1994 Cavalier.
10. During 1995, relations between Debt- or and the Rekers deteriorated and in November 1995 Debtor left Diversified’s employment. When he left Diversified, Gilsinn left the 1994 Cavalier with Diversified.
11. In January 1996, Gilsinn began receiving late payment notices indicating that Diversified was not making payments on the 1994 Cavalier. After receiving the notices, Debtor called Magna and, knowing that Diversified had dissolved by January 1996, drove past the residences of the Rekers and Curtis Schmidt, a former Diversified employee, looking for the 1994 Cavalier.

12. Between February 1996 and January or February of 1997, Gilsinn spoke with many recovery companies about the 1994 Cavalier.

13. Gilsinn did not report the car stolen because he believed that doing so could expose him to liability should the party possessing the car be entitled to do so.1 Because the car was titled to Diversified as well as to him, Gilsinn believed someone could be in rightful possession of the vehicle without his knowledge.2

14. Schmidt and the Rekers told Magna that Gilsinn either had the 1994 Cavalier or had given it to his daughter to take to California.

15. To date the 1994 Cavalier has not been located.

DISCUSSION

Two other bankruptcy courts have confronted facts similar to those in the case at bar and the Court finds their insights to be instructive and applicable to Gilsinn’s case. See In re Gabor, 155 B.R. 391 (Bankr. W.D.W.Va.1993); In re Elliott, 64 B.R. 429 (Bankr.W.D.Mo.1986). In In re Gabor, the debtor’s wife left him and took the couple’s automobile with her. 155 B.R. at 392. To purchase the vehicle, Gabor and his wife had cosigned on a loan from General Motors Acceptance Corporation (GMAC). GMAC filed a proof of claim for a secured claim against Gabor’s bankruptcy estate. Id. Gabor objected to GMAC’s claim. Id. The Bankruptcy Court for the Western District of West Virginia concluded that under Washington law,3 GMAC’s security interest in the car survived but that it could not have a secured claim in Gabor’s bankruptcy because its collateral was missing. Id. at 393.

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Bluebook (online)
224 B.R. 710, 40 Collier Bankr. Cas. 2d 782, 37 U.C.C. Rep. Serv. 2d (West) 187, 1997 Bankr. LEXIS 2289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/magna-bank-na-v-gilsinn-in-re-gilsin-moeb-1997.