Mercury Marine Acceptance Corp. v. Cheslock (In re Cheslock)

148 B.R. 431, 1992 Bankr. LEXIS 1945
CourtDistrict Court, W.D. Pennsylvania
DecidedDecember 4, 1992
DocketBankruptcy No. 92-0056-BM; Adv. No. 92-0181-BM
StatusPublished
Cited by1 cases

This text of 148 B.R. 431 (Mercury Marine Acceptance Corp. v. Cheslock (In re Cheslock)) is published on Counsel Stack Legal Research, covering District Court, W.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mercury Marine Acceptance Corp. v. Cheslock (In re Cheslock), 148 B.R. 431, 1992 Bankr. LEXIS 1945 (W.D. Pa. 1992).

Opinion

MEMORANDUM OPINION

BERNARD MARKOVITZ, Bankruptcy Judge.

Before the court is an action brought pursuant to 11 U.S.C. § 523(a)(2), (4), and (6) to determine the dischargeability of a debt owed by debtors to Mercury Marine Acceptance Corporation (“Mercury”).

Mercury asserts that the debt is not dis-chargeable because debtors intentionally and deliberately concealed the sale of eighteen (18) outboard marine engines “out of trust” in order to avoid having to pay Mercury for them, as was required by a security agreement.

Debtors maintain that the debt is dis-chargeable because Mercury was aware of and had ratified their actions.

The debt of $34,580.10 owed by debtors to Mercury is not dischargeable for reasons set forth below.

-I-

FACTS

On September 24, 1983, 422 Marine, Inc. entered into a security agreement with Finance America Private Brands, Inc., predecessor-in-interest to Mercury. The security agreement was executed on behalf of 422 Marine, Inc. by debtor William Cheslock in his capacity as President. Debtor Marlene Cheslock, the wife of William Cheslock, affixed her signature to the agreement as Secretary of 422 Marine, Inc. certifying that the agreement had been duly authorized by its board of directors.

422 Marine, Inc., which is in the business of selling marine engines, parts, and accessories, was never incorporated. Rather, it [433]*433operated as a partnership of which both debtors were the only principals.

The security agreement granted Finance America a security interest in certain inventory, including Mariner, Mercruiser, and Quicksilver marine engines, and in parts and accessories acquired from Mariner Outboards. The security interest was duly perfected in accordance with Pennsylvania law.

The security agreement provided that payments were to be made in accordance with statements submitted by Mercury and “in any event upon the sale or other disposition by the Dealer of any items of inventory (unless otherwise agreed to by Secured Party)”. It further provided that the secured party could enter the dealer’s premises to conduct reasonable inventory inspections.

The agreement between Mercury and 422 Marine amounted to a floor plan financing arrangement. Mercury financed the purchase of marine engines for which 422 Marine was obligated to pay as it sold them.

Not all of the engines subject to the security agreement were kept in the showroom of 422 Marine. A few were on display in the showroom. The majority were stored in their original cartons several miles from the showroom in a garage adjacent to debtors’ private residence.

Pursuant to the terms of the security agreement, Mercury conducted monthly inspections to determine whether any engines which were subject to its security interest had been sold during the preceding month.

The person conducting the inspection on behalf of Mercury utilized a pre-printed checklist. Each engine subject to the security interest was identified by manufacturer’s name, unit name, model number, serial number, and the amount due. The person conducting the inspection indicated on the checklist whether a given engine had been sold, was on display in the showroom, or was still in its original carton.

The person conducting the inspection would not look inside cartons to determine whether they were empty if the plastic bands on the outside of the carton looked to be intact and the carton did not appear to have been opened.

The cartons kept in debtors’ garage were stored in a corner behind a pile of debris. The checker was never permitted to enter the garage unless accompanied by one of the debtors, who discouraged the checker from climbing over the debris in front of the boxes. They instead “volunteered” to climb over it themselves and to read out the information on the cartons which was required for the inspection.

The checklist was signed and dated by the checker upon completion of the inspection. One of the debtors, depending on which of them had accompanied the checker to the garage, also signed the checklist.

An inspection was conducted by Mercury on April 9, 1990. The checklist indicated that six (6) units were on display in the showroom, and that twenty-one (21) units were still in their cartons. Debtor Marlene Cheslock signed the checklist.

The information on the checklist was incorrect. Eighteen (18) of the twenty-one (21) cartons in fact were empty. Starting in February of 1986, debtors had surreptitiously removed engines from their cartons and had sold them to customers. The cartons nonetheless were stacked in debtor’s garage to convey the impression that they still contained the engines. Debtors never remitted payment to Mercury for any of these engines, as was required under the security agreement.

Another inspection was conducted on May 9, 1990. The checklist, which debtor Marlene Cheslock signed, indicated that two (2) of the six (6) engines listed on the previous month’s checklist as being on display in the showroom had been sold. The checklist further indicated that four (4) engines still were on display in the showroom and that the remaining twenty-one (21) engines still were in their cartons in debtors’ garage.

The checklist compiled on June 7, 1990, which debtor William Cheslock signed, indicated no change in the status of the inventory subject to Mercury’s security interest.

[434]*434The checklist compiled on July 31, 1990, indicated that another unit on display in the showroom had been sold. It indicated that three (3) engines had been sold, that three (3) engines were on display in the showroom, and that twenty-one (21) engines still were in their original cartons in debtors’ garage. Debtor Marlene Cheslock signed the checklist.

Despite their repeated promises to do so, debtors failed to remit payment for the three (3) engines which the above checklists indicated they had sold. On August 21, 1990, Mercury brought a replevin action in state court against 422 Marine and both debtors. Mercury sought to replevin twenty-one (21) engines in accordance with the information contained on the above checklists.

Additional monthly checklists were compiled between August of 1990 and January of 1991. They indicated no change in the status of the inventory subject to Mercury’s security interest.

On December 5, 1990, 422 Marine and debtors executed a stipulation of settlement of Mercury’s replevin action. Debtors acknowledged that they were indebted to Mercury in the amount of $40,626.86 plus interest; that $25,609.73 of said amount was “owed on account of in stock units”; that $5,244.31 was “owed on account of items sold out of trust”; that $591.11 was owed on account of an NSF check; and that the remainder was for other amounts due under the security agreement.

The settlement agreement recited that debtors were “desirous of remaining in possession of the subject collateral pending payment to Plaintiff [i.e., Mercury] of the above monies".

A schedule of payments whereby debtors were to pay the entire amount due by February 1, 1991 was set forth in the agreement.

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148 B.R. 431, 1992 Bankr. LEXIS 1945, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mercury-marine-acceptance-corp-v-cheslock-in-re-cheslock-pawd-1992.