Menkel v. Sun Bank & Trust Co. (In re Freedom Rental & Leasing, Inc.)

102 B.R. 848, 1989 Bankr. LEXIS 1070
CourtUnited States Bankruptcy Court, M.D. Florida
DecidedJune 30, 1989
DocketBankruptcy No. 85-2835-8B7; Adv. No. 89-14
StatusPublished
Cited by1 cases

This text of 102 B.R. 848 (Menkel v. Sun Bank & Trust Co. (In re Freedom Rental & Leasing, Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Menkel v. Sun Bank & Trust Co. (In re Freedom Rental & Leasing, Inc.), 102 B.R. 848, 1989 Bankr. LEXIS 1070 (Fla. 1989).

Opinion

ORDER ON MOTION FOR SUMMARY JUDGMENT

THOMAS E. BAYNES, Jr., Bankruptcy Judge.

THIS CAUSE came on for consideration upon a two-count Complaint filed by the Trustee in the above-styled adversary proceeding. Count I of the Complaint seeks recovery of a prepetition setoff pursuant to Section 553(b)(1) of the Bankruptcy Code. Count II seeks invalidation of a lien pursuant to Section 544 of the Bankruptcy Code. Motions for summary judgment were filed by both parties subsequent to the pre-trial hearing. The Court considered the motions along with the record, found a genuine issue of material fact exists as to Count I, and denied both motions for summary judgment on the issue of setoff. The motions for summary judgment as to Count II were taken under advisement. The facts relevant to Count II of the Complaint are as follows.

This Chapter 7 Debtor was in the business of renting and leasing automobiles. The Debtor’s inventory of vehicles was financed by the Defendant as evidenced by a $550,000.00 note executed and delivered to the Defendant on September 20, 1983. To secure payment under the note, a security agreement entitled “Dealer’s Inventory” was executed by the parties. The agreement specifically described the scope of the collateral as “not more than 50 rental automobiles owned by Debtor.”

On January 18, 1985, the Bank filed a UCC-1 Financing Statement with the Secretary of State pursuant to Fla.Stat. § 679.302. The UCC-1 Financing Statement appears to cover the universe by generally describing the collateral as “all motor vehicles of every kind and nature.” In addition to filing the UCC-1, the Defendant also utilized other avenues to protect its investment. The Executive Vice President of the Bank attested that the Bank (1) retained in its possession either the Certificate of Origin in transferable form, the executed title in transferable form, or title with lien noted thereon in favor of Sun Bank and Trust; and (2) disbursed the funds to the Debtor on a vehicle-by-vehicle basis. When a vehicle was sold by the Debtor, the loan balance attributable to that vehicle was paid to the Bank and the Certificate of Origin or Title Certificate was released and delivered to the Debtor. The Court also notes Paragraph (l)(c) of the security agreement provides that in the event Debtor disposed of, sold or assigned any unit included in the inventory, the Debtor was required to replace the unit with one of a similar value simultaneously with the release of the unit from the security agreement.

The Debtor’s obligation to the Bank was eventually satisfied in full on September 18, 1985, when the Debtor delivered a check to the Bank. The Defendant released and delivered to the Debtor all titles and/or manufacturer’s Certificates of Origin that were in its possession.

[850]*850Several weeks later, on October 7, 1985, the Debtor filed a Chapter 11 case which was subsequently converted to Chapter 7 on April 7, 1988. The Trustee’s Complaint, filed on January 5,1989, alleges the Defendant failed to perfect its security interest in the collateral by failing to comply with Florida Statute § 319.27.1

The Trustee contends Fla.Stat. § 319.27 controls the general procedure for perfecting a security interest in Florida. That section requires (1) a sworn notice of lien be filed, see, Hardwick v. Petsch (Matter of Petsch), 82 B.R. 605 (Bankr.M.D.Fla.1988), and (2) the lien be noted on the certificate of title. See, Smith v. City of Miami Beach, 440 So.2d 611 (Fla. 3d DCA 1983). Since the Defendant failed to comply with Fla.Stat. § 319.27, the Defendant’s security interest has not been perfected. As such, the lien is voidable pursuant to Section 544 of the Bankruptcy Code.

A narrow exception exists to the general requirement of Section 319.27. This exception applies only to one who holds a security agreement covering the motor vehicle floor plan stock of a licensed dealer. The Trustee recognizes the exception but contends the Debtor does not fall within the scope of the term “motor vehicle dealer” as defined by Fla.Stat. § 320.27(l)(e).2

The Trustee contends the Debtor is not a dealer as defined by Section 320.27(l)(c) since “the Debtor is not substantially in the business of selling vehicles.” In addition, the Debtor’s business is identified on its bankruptcy schedules as a business which leases and rents vehicles. To support this position, the Trustee discounts the literal meaning of Section 320.27 which incorporates the term "lease-purchase” in the definition of “sale”.

The Trustee contends the exception to the general rule stated in Section 679.-302(3)(b) applies only to inventory held for sale, and not to inventory held for lease. Specifically, the security interest must be in motor vehicle inventory held for sale by a person in the business of selling motor vehicles if perfection is to be effectuated by the filing of a UCC-1 Financing Statement rather than pursuant to notation of the lien on the face of the certificate of title. The Trustee places significant emphasis on the distinction between inventory held for sale and inventory held for lease, arguing (1) the intention of the drafters of the U.C.C. and the Florida Statute was to distinguish between the two terms and (2) the Statute should be given its plain meaning. The Trustee’s interpretation is simple. A sale is a sale and a lease is something entirely different. The Trustee distinguishes this case from other cases cited by the Defendant which support the concept of “central filing.” See, In re Sea Island Motor Sales, Inc., 72 B.R. 170 (Bankr.S.C. 1986); McDonald v. Security Nat’l Bank and Trust Co. of Norman (In re McGetrick), 31 B.R. 294 (Bankr.W.D.Okla.1983); Central Nat’l Bank of Mattoon v. Worden-Martin, Inc., 90 Ill.App.3d 601, 46 Ill. Dec. 99, 413 N.E.2d 539, 30 U.C.C.Rep. Serv. 1140 (4th DCA 1980). Central National Bank of Mattoon and In re Sea Island Motor Sales do not involve rental and leasing companies. In re McGetrick [851]*851must also be distinguished due to statutory differences.

Conversely, the Defendant argues there is no distinction between inventory held for sale and inventory held for lease. It contends the term “lease purchase” is included in the term “selling” and “sale,” Fla.Stat. §§ 319.001(2) and 320.27(10)(c), and therefore the filing of the financing statement on January 18, 1985 was sufficient to properly perfect the security interest in the collateral.

There is a dearth of Florida case law interpreting the perfection requirements of the Florida Motor Vehicle Statute and the Florida Uniform Commercial Code. There exists no case law on this issue as it relates to an automobile renting and leasing business. The Court finds Chapters 319 and 679 are not mutually exclusive Statutes but must be read together.

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102 B.R. 848, 1989 Bankr. LEXIS 1070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/menkel-v-sun-bank-trust-co-in-re-freedom-rental-leasing-inc-flmb-1989.