P.T. Bank Central Asia v. Chinese American Bank

229 A.D.2d 224, 654 N.Y.S.2d 117, 31 U.C.C. Rep. Serv. 2d (West) 611, 1997 N.Y. App. Div. LEXIS 1135
CourtAppellate Division of the Supreme Court of the State of New York
DecidedFebruary 11, 1997
StatusPublished
Cited by6 cases

This text of 229 A.D.2d 224 (P.T. Bank Central Asia v. Chinese American Bank) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
P.T. Bank Central Asia v. Chinese American Bank, 229 A.D.2d 224, 654 N.Y.S.2d 117, 31 U.C.C. Rep. Serv. 2d (West) 611, 1997 N.Y. App. Div. LEXIS 1135 (N.Y. Ct. App. 1997).

Opinion

OPINION OF THE COURT

Rubin, J.

This dispute involves the procedures for filing and maintaining a recorded security interest under article 9 of the Uniform Commercial Code and presents a case of first impression in this jurisdiction. Central to its resolution is the interplay between UCC 9-401 (2) and 9-403 (2) governing, respectively, the effect of actual knowledge of a competing creditor’s financing statement and the effect of lapse on a security interest. Reduced to its essentials, the issue is whether knowledge is a material consideration following a lapse with respect to one out of two required filings. Disposition of this matter therefore requires a determination of the scope to be accorded to UCC 9-401 (2), which relieves the creditor from an error in filing "made in good faith in an improper place or not in all of the places required by this section”. Based upon an analysis of the applicable provisions and the intent expressed in the Comment to [226]*226UCC 9-401, it is the conclusion of this Court that, irrespective of the lapse of the first filing, a second filing in full compliance with the requirements of article 9 remains effective against a creditor with actual knowledge of the contents of the financing statement. Therefore, a question of fact is presented concerning plaintiffs knowledge of the contents of the financing statement filed in this case, and the award of summary judgment in its favor cannot stand.

In conformance with the general New York requirement that a financing statement be filed in two places—with the Department of State in Albany and the county in which the debtor maintains a single place of business or in which it resides (UCC 9-401 [1] [c])—defendant-appellant Chinese American Bank filed a UCC-1 financing statement with both the Department of State and with the City Register in New York City. While subsequent filings with the Department of State were in all respects proper, the bank allowed its filing with the City Register to lapse.

King Cheong Hong Co., Inc. became indebted to Chinese American Bank in 1970, conveying an interest in personal property to the bank as security. In October 1970, Chinese American filed a financing statement with the Department of State in Albany. In 1976, it filed a second original financing statement and thereafter filed timely continuation statements with the Department of State. No defects or lapses are asserted in these filings, and their propriety is therefore not at issue on this appeal.

Also in October 1970, Chinese American Bank filed an original financing statement with the City Register. In May 1976, rather than the second original financing statement it filed in Albany, Chinese American filed a continuation statement (UCC-3) with the City Register in New York. This statement was signed by both the debtor and Chinese American Bank and referred to the file number of the original financing statement. In June 1981 (three weeks after the deadline), Chinese American filed another continuation statement with the City Register. In 1986 and 1991, continuation statements were again filed.

On this appeal, defendant-appellant Chinese American Bank contends that the untimely filing of the continuation statement with the City Register in 1976 was nevertheless sufficient to revive the effectiveness of the original financing statement, filed six years earlier, and therefore to restore the perfected status of its security interest. This argument is hardly convine[227]*227ing in view of the plain meaning of UCC 9-403. However, Chinese American Bank further contends that the good-faith filing of its financing statement is effective because an officer of plaintiff bank had knowledge of its contents (UCC 9-401 [2]). In opposition, plaintiff-respondent P.T. Bank Central Asia maintains that the security interest irrevocably lapsed upon expiration of the five-year period of effectiveness of the original financing statement (UCC 9-403 [2], [3]). Bank Central Asia therefore asserts the priority of its own security interest, arising out of a security agreement executed by King Cheong Hong Co. in 1986, the validity of which is not in dispute.

The record discloses that a Mr. C. C. Lee began work for Chinese American Bank in March 1978 as an assistant vice-president. In September 1978, Mr. Lee signed a loan offering sheet making reference to the bank’s first priority security interest in the debtor’s property. He executed similar documents in January 1979, March 1980, April 1981, May 1982 and January 1984 and, in the capacity of vice-president, periodically reviewed Chinese American Bank’s loan to King Cheong Hong Co. Within two years of leaving Chinese American Bank’s employ in 1984, Mr. Lee began work for P.T. Bank Central Asia. It is alleged that Mr. Lee’s signature appears on two financing statements filed in October 1986 relating to a loan extended by Bank Central Asia to the debtor.

On or about January 12,1995, King Cheong Hong Co.’s creditors agreed that the law firm of Selig, Laufer & Selig, P. C., representing Chinese American Bank, would collect the debtor’s assets and place the proceeds into escrow until such time as the respective lienholders’ positions were clarified. Bank Central Asia commenced this action following defendant Chinese American Bank’s refusal to accede to plaintiff’s demand for the escrowed funds. The complaint against Chinese American Bank and Selig, Laufer & Selig, P. C. seeks a judgment directing defendants to account for and turn over the funds, asserting causes of action for breach of the lienholders’ agreement, conversion of the escrow funds and, as against Selig, Laufer & Selig, breach of its fiduciary duty under the escrow agreement.

Defendant Chinese American Bank moved for summary judgment dismissing the complaint of Bank Central Asia against it (CPLR 3211). Supreme Court’s memorandum decision notes the absence of any factual dispute in the initial submissions of the parties and their agreement that summary judgment would be appropriate pursuant to CPLR 3211 (c). The nature of [228]*228plaintiffs opposition to the motion is unknown as it did not file an opposing affidavit, instead confining its submissions to a memorandum of law and a letter to the court, both dehors the record. It is clear from the moving papers submitted by defendant Chinese American Bank, however, that it considered plaintiffs knowledge of the financing statement central to the determination of the priority of the creditors.

Supreme Court granted summary judgment to plaintiff (CPLR 3212 [b]), holding that Chinese American’s security interest lapsed upon its failure to file a timely continuation statement with the City Register by October 1975. The court further held that any knowledge Bank Central Asia might have possessed regarding the security interest previously recorded by Chinese American Bank is legally irrelevant to the determination of priority.

On appeal, Chinese American Bank contends, as it did below, that the continuation statement it filed with the City Register in May 1976 served to revive its lapsed financing statement and reperfected its security interest. This contention is both contrary to the plain language of the statute and the interpretation of similar enactments by the courts (e.g., Matter of Levine, 10 AD2d 877 [no provision for revitalization following noncompliance with filing or refiling requirements]). As a recent decision of this Court makes plain, filing requirements are normally subject to strict construction (Da Silva v Suozzi, English, Cianciulli & Peirez, 233 AD2d 172).

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Bluebook (online)
229 A.D.2d 224, 654 N.Y.S.2d 117, 31 U.C.C. Rep. Serv. 2d (West) 611, 1997 N.Y. App. Div. LEXIS 1135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pt-bank-central-asia-v-chinese-american-bank-nyappdiv-1997.