Pongetti v. Lackey (In re Elvis Presley Heights Supermarket, Inc.)

13 B.R. 956, 32 U.C.C. Rep. Serv. (West) 616, 1981 Bankr. LEXIS 2991
CourtUnited States Bankruptcy Court, N.D. Mississippi
DecidedSeptember 10, 1981
DocketBankruptcy No. S80-10431; Adv. No. 80-1113
StatusPublished

This text of 13 B.R. 956 (Pongetti v. Lackey (In re Elvis Presley Heights Supermarket, Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pongetti v. Lackey (In re Elvis Presley Heights Supermarket, Inc.), 13 B.R. 956, 32 U.C.C. Rep. Serv. (West) 616, 1981 Bankr. LEXIS 2991 (Miss. 1981).

Opinion

MEMORANDUM OPINION

EUGENE J. RAPHAEL, Bankruptcy Judge.

At the time the petition herein was filed, the debtor operated a retail store in Lee County, Mississippi under the trade name of Pearson’s Supermarket. This adversary proceeding was commenced by a complaint filed by the trustee, seeking to establish that all of the equipment located in or about debtor’s store premises was the property of the trustee, free and clear of any security interest or any claim of title in and to any of said equipment on the part of any of the defendants. All of the defendants were served with process and all have contested the trustee’s claims except the defendant, Al-Com Systems, Inc., which has defaulted. The claims of the individual defendants, though not identical, are related and will be dealt with in one section of this opinion. The claim of Tupelo Coca-Cola Bottling Company and of R. L. Estes Typewriter Company, Inc., will each be considered in separate portions of the opinion.

The Lackeys, The Pearsons and The Ac-tons — On or about August 27th, 1977 Dalton Lackey and Fannie Lackey (hereinafter referred to as the Lackeys) sold to Hoyle Pearson and Joyce Pearson (hereinafter re[958]*958ferred to as the Pearsons) and to Roy Acton and Martha Acton (hereinafter referred to as the Actons) certain store equipment located in a supermarket which was subsequently operated by the debtor. The Pear-sons and the Actons executed a promissory note, dated August 27th, 1977, to the order of the Lackeys, in the amount of $26,000.00 with interest after date until paid at the rate of 714% per annum “payable Three Hundred Five and 24/100 ($305.24) per month including principal and interest for 120 months”.

Simultaneously, the Pearsons and the Ac-tons executed a deed of trust securing payment of said note. This deed of trust was on a printed form intended for use in connection with real property rather than personal property. The printed word “property” is stricken and the word “equipment” is substituted, so that the deed of trust conveys to the trustee “the following described equipment in Lee County, State of Mississippi, to-wit:”. Then follows a long list of the equipment covered by the deed of trust, approximately fifty items. Some of the items are meticulously described by kind, manufacturer’s name and serial number, such as “12' frozen vegetable box-Warren Serial # GA-157-1374”. Others are less completely described, such as “Ice Maker Frigidaire”. Still others (and they are fairly numerous) are described by generic words only, such as

“Produce Table
Calculater Machine
1 Office Desk
1 Office Chair
Stocking Cart”

No location is stated for these items of equipment other than “in Lee County, State of Mississippi”. The use of a real property deed of trust form for this security arrangement resulted, of course, in the omission of a number of provisions, usual in personal property security agreements, which might have given the Lackeys better protection than they have been afforded by this instrument. The document does contain a provision that “Hereinafter whenever property appears, it is to be deemed to be the described equipment”. There is no provision in the deed of trust, however, with regard to after-acquired property, or with regard to substitution of one item for another, nor is there any coverall provision, such for example, as “all other equipment used by the debtors in their business”.

A U. C. C. financing statement, or the equivalent, a copy of the deed of trust, was filed in the office of the Chancery Clerk of the appropriate county. However, there was no U. C. C. filing in the office of the Secretary of State.

The equipment described in the deed of trust was located in retail store premises and was used in a business conducted in said premises under the trade name of Pearson’s Supermarket. It was not entirely clear from the evidence whether the Pear-sons and the Actons operated this business jointly, or whether only the Pearsons were involved in that operation.

On November 28th, 1977, a charter of incorporation was issued to Elvis Presley Heights Supermarket, Inc., and thereafter the business was conducted by that corporation (debtor herein). However, the business was carried on, as before, under the trade name of Pearson’s Supermarket and the business sign on the outside of the store premises continued to read “Pearson’s Supermarket”. It was the testimony of both the Pearsons and the Actons that title to the equipment in the store (the same equipment described in the Lackeys’ deed of trust) was never transferred to the corporation, but remained in the Pearsons and the Actons.

Subsequently, there was a fire which destroyed some of the items of equipment. Insurance on this equipment was carried in the names of the Pearsons and the Actons, and they were the ones who received the insurance proceeds. Although there was a loss payable clause in favor of the Lackeys, they did not receive any of the insurance proceeds. The Pearsons and the Actons [959]*959used the insurance proceeds, or part of said proceeds, to purchase additional equipment to substitute for the items which had been burned up. The Lackeys claim in this proceeding that these replacements are covered by their deed of trust.

I find that both the original items listed in the deed of trust, and the replacement items were the property of the Pearsons and the Actons and that, as between them and the debtor corporation, the corporation has no interest in the equipment. Whether the replacement items are covered by the Lackeys’ chattel deed of trust need not be decided, for reasons which will hereafter appear.

There is no doubt, however, and I so find, that both the items listed in the chattel deed of trust and the replacement items purchased after the fire were, at the time the petition was filed, located in the store premises where the business known as Pearson’s Supermarket was conducted and were used by the debtor in the operation of that business and that the Lackeys, the Pearsons and the Actons all knew it. There is also no doubt, and I so find, that there was no sign in or on debtor’s premises indicating that the equipment located there was the property of anyone other than the debtor. Based on that factual situation, the trustee claims that all of the equipment used in the debtor’s business is covered by the Mississippi Business Sign Statute (Miss. Code of 1972, Section 15-3-7); that under that statute, all property used in the debt- or’s business is, as to creditors of the debtor, to be treated as property of the debtor, unless there was a sign at the premises indicating that it was the property of someone else, or, in the alternative, recording or perfection of a security interest under the provisions of the Uniform Commercial Code; and that, in his status as an ideal judgment creditor, 11 U.S. Code Section 544(a), he is entitled to all the benefits conferred on creditors of the debtor by the Mississippi Business Sign Statute.

The effect of the Mississippi Business Sign Statute on the factual situation stated above is most plainly stated, perhaps, in the case of Paine v. Hall’s Safe & Lock Co., 64 Miss. 175, 1 So. 56.

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Related

In Re Waynesboro Motor Co.
60 F.2d 668 (S.D. Mississippi, 1932)
Paine v. Hall Safe & Lock Co.
64 Miss. 175 (Mississippi Supreme Court, 1886)

Cite This Page — Counsel Stack

Bluebook (online)
13 B.R. 956, 32 U.C.C. Rep. Serv. (West) 616, 1981 Bankr. LEXIS 2991, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pongetti-v-lackey-in-re-elvis-presley-heights-supermarket-inc-msnb-1981.