Matter of Conklin's, Inc.

14 B.R. 318, 32 U.C.C. Rep. Serv. (West) 1002, 1981 Bankr. LEXIS 2963

• Court: United States Bankruptcy Court, D. South Carolina
• Decided: September 16, 1981
• Docket: 19-01182
• Status: Published

Opinions

ORDER

J. BRATTON DAVIS, Bankruptcy Judge.

This matter is before the court on the objections of the trustee to the proofs of claim filed by Consolidated Accessories Corporation and its wholly owned subsidiary, LeNar Jewelry Co., Inc., (the creditors) in the amount of $10,622.35 and $10,205.78, respectively.

On December 14, 1979 Conklin’s, Inc. (the debtor) filed a petition for relief under Chapter 11 of the Bankruptcy Code (11 U.S.C. § 1101 et seq.), and on April 1, 1980, the case was converted to Chapter 7 (11 U.S.C. § 1112(a)).

The creditors hold perfected security agreements in the debtor’s collateral, the proceeds from the sale of which were allegedly commingled and deposited in a bank account of the debtor.

Because of the sale and alleged commingling, the creditors now claim, under § 36-9-3Q6(4)(d) of the Code of Laws of South Carolina (1976), perfected security interests in “all cash and bank accounts of the debt- or” as of December 14,1979, the date of the filing of the Chapter 11 petition, because that date marks “the institution of [this] insolvency proceeding.” § 36-9-308(4)(d)(ii).

The trustee, agreeing that the creditors held perfected security interests in the collateral, objects to their claiming “all cash and bank accounts of the debtor” and contends that these creditors’ claims to perfected security interests in the proceeds are limited (under § 36-9-306(4)(d)) to those proceeds which were derived from the sale of collateral in which the creditors had security interests and that the extent of their security interests in proceeds should be calculated from the ten day period preceding April 1, 1980, the date on which the case was converted to Chapter 7, during which the trustee agrees that proceeds were commingled. He has not admitted that proceeds were previously commingled.

DISCUSSION

The creditors have the initial burden of proof on their claims as set forth in Bankruptcy Rule 301(b) and 11 U.S.C. § 502(a).

“Inasmuch as Rule 301(b) and section 502(a) provide that a claim or interest as to which proof is filed is ‘deemed allowed’, the burden of initially going forward with the evidence as to the validity and the amount of the claim is that of the objector to that claim. In short, the allegations of the proof of claim are taken as true. If those allegations set forth all the necessary facts to establish a claim and are not self-contradictory, they prima facie establish the claim. Should objection be taken, the objector is then called upon to produce evidence and show facts tending to defeat the claim of probative force equal to that of the allegations of the proofs of claim themselves. But the ultimate burden of persuasion is always on the claimant. Thus, it may be said that the proof of claim is some evidence as to its validity and amount. It is strong enough to carry over a mere formal objection without more. The objector is obliged to go forward and adduce sufficient evidence to rebut the claimant’s prima facie case. Once this is achieved however, it remains for the claimant to prove the claim as to its validity and as to its amount and not for the objector to disprove it. In short, once the prima facie effect given the claim is overcome, the burden of ultimate persuasion rests on the claimant to prove that his claim is appropriate for purposes of sharing in the distribution of the debtor’s assets. That proof must be by a preponderance of the evidence and it is for the bankruptcy judge to determine whether or not that has been achieved, with due regard being given to the probative value of the proof of claim itself.” 3 Collier on Bankruptcy ¶ 502.02 at 502-23, 24 (15th ed. 1980).

The creditors have based their claims upon § 36-9-306(4)¹ which provides:

“(4) In the event of insolvency proceedings instituted by or against a debtor, a secured party with perfected security interest in proceeds has a perfected security interest

(a) in identifiable noncash proceeds;

(b) in identifiable cash proceeds in the form of money which is not commingled with other money or deposited in a bank account prior to the insolvency proceedings;

(e) in identifiable cash proceeds in the form of checks and the like which are not deposited in a bank account prior to the insolvency proceedings; and

(d) in all cash and bank accounts of the debtor, if other cash proceeds have been commingled or deposited in a bank account, but the perfected security interest under this paragraph (d) is

(i) subject to any right of setoff; and

(ii) limited to an amount not greater than the amount of any cash proceeds received by the debtor within ten days before the institution of the insolvency proceedings and commingled or deposited in a bank account prior to the insolvency proceedings less the amount of cash proceeds received by the debtor and paid over to the secured party during the ten day period.”

In order to recover proceeds under § 36-9-306(4)(d), the creditors must establish:

(1) that “an insolvency proceeding [was] instituted by or against a debtor”;

(2) that the secured party has a “perfected security interest in proceeds”;

(3) that “other cash proceeds have been commingled or deposited in a bank account” of the debtor; and

(4) “the amount of any cash proceeds received by the debtor within ten days before the institution of the insolvency proceedings and commingled or deposited in a bank account of the debt- or prior to the insolvency proceeding

The ten day period referred to in § 36-9-306(4)(d)(ii) is calculated from the date of the institution of the insolvency proceeding. An insolvency proceeding is defined, in pertinent part, by § 36-1 — 201(22) as a “proceeding intended to liquidate or rehabilitate the estate of the person involved.”

Thus, by this definition, the debtor’s Chapter 11 proceedings are insolvency proceedings. In Cooper v. First International Bank in Houston, 2 B.R. 188 (S.D.Tex.1980), the court, discussing the interrelationship between U.C.C. §§ 1-201(22) and 9-306(4)(d), noted, at page 195:

“[U.C.C. § 9-306(4)(d)] specifically sets out rules governing a secured party’s continuing right to trace proceeds in the event of insolvency proceedings by or against the debtor. Insolvency proceedings are defined to include ‘proceedings intended to liquidate or rehabilitate the estate of the person involved.’ * * * Therefore, § 9.306(d) is applicable even in the event a Chapter XI petition is filed and the debtor is seeking merely to reorganize his estate, not liquidate it.”

Since the debtor instituted an insolvency proceeding by filing its petition under Chapter 11 on December 14, 1979, the ten day period established by § 36-9-306(4)(d)(ii) commenced on December 4, 1979.

The creditors have established that they are secured parties with perfected security interests in proceeds and that there has been an insolvency proceeding instituted by the debtor. No other evidence has been introduced by the creditors.

Although the trustee has provided the court with a copy of the bank statement covering the ten days preceding the conversion of the case to Chapter 7, during which $4,501.20 of commingled funds were deposited in the debtor’s bank account, no evidence has been introduced to establish that any cash proceeds were received by the debtor and commingled or deposited in a bank account during the ten days before the institution of the Chapter 11 insolvency proceedings.2

The creditors have not met their burden of proof. They have shown no right to proceeds under § 36-9-306(4)(d).

Therefore, the creditors’ proofs of claim (numbered 76 and 77) are denied, and

IT IS SO ORDERED.

1 . South Carolina has adopted the 1982 version of 9-306(4) of the Uniform Commercial Code rather than the 1972 version of that section.

2 . Counsel for the creditors stated that: “I have discussed the $22,000 claim with both Mr. Conklin and Mr. Lucas Padgett. They have both confirmed our figures, and in fact, when they backed through their figures, they came to the same figures that we did, and in my telephone conversation with Mr. Padgett on January 25, 1980, he advised me that there were $14,000 in proceeds that were co-mingled [sic] in the general account of Mr. Conklin.” However, statements by counsel, in argument, are not evidence. Rubin v. United States, 414 F.2d 473 (5th Cir. 1969).