Spellman v. Independent Bankers' Bank of Florida

161 So. 3d 505, 84 U.C.C. Rep. Serv. 2d (West) 333, 2014 WL 3871264, 2014 Fla. App. LEXIS 12143
District Court of Appeal of Florida·Decided August 8, 2014·No. No. 5D11-4358·Published·Cited by 3 cases

Opinion

ORFINGER, J.

Michael P. Spellman, as Trustee for the Shuaney Irrevocable Trust (“SIT”), appeals from a final summary judgment in favor of Independent Bankers’ Bank of Florida (“IBBF”). SIT argues that IBBF was not entitled to summary judgment because IBBF sold or otherwise disposed of the collateral for several loans, and was therefore limited to seeking a deficiency judgment. We disagree and affirm.

Between September 2004 and August 2007, IBBF made a series of five loans to SIT and others.1 As security for the loans, SIT pledged 365,151 shares of stock (“Shares”) that it owned in Beach Community Bancshares, Inc. (“BCB”) as collateral, and delivered the pledged Shares to IBBF. In 2008, SIT defaulted on the loans by failing to make timely interest and principal payments. Subsequently, IBBF and SIT entered into a forbearance agreement, under which IBBF agreed not to exercise its default remedies in exchange for periodic payments by SIT. SIT further agreed that the Shares would secure each of the five loans. SIT defaulted on the forbearance agreement and refused IBBF’s demand for payment. As a result, at IBBF’s direction, BCB cancelled the certificates for the Shares and issued new certificates in the name of a wholly-owned subsidiary of IBBF. Thereafter, IBBF offered to sell the Shares to the public, providing the minimum price that IBBF set was satisfied. Apparently, there were no takers.

IBBF filed suit against SIT, seeking damages, injunctive and other relief. SIT responded, seeking, among other things, a declaration that the delivery of the Shares to IBBF satisfied its debt. IBBF filed a motion for summary final judgment, asserting that there was no dispute as to the amounts owed on each of the loans, that each of the loans were in default, and that the Shares were pledged as collateral and cross-collateralized under the forbearance agreement. IBBF further argued that it was permitted to hold the Shares and to simultaneously seek judgment on the notes and guarantees. SIT opposed IBBF’s summary judgment motion, arguing that IBBF was not entitled to a final summary judgment because (1) there were material facts in dispute regarding the value of the Shares transferred to IBBF’s subsidiary, and (2) IBBF had elected its remedy by taking ownership of the Shares, and thus, could not pursue a money judgment upon the notes; instead, IBBF could only pursue a deficiency judgment. The trial court granted summary judgment in favor of IBBF.2

[507] In its rehearing motion, SIT argued that summary judgment was not proper because IBBF “otherwise disposed” of the Shares under section 679.610, Florida Statutes (2009), when it transferred the Shares to its subsidiary, and IBBF was thus required to prove there was a deficiency in order to obtain a money judgment. SIT further contended that IBBF had unreasonably retained possession of the Shares in violation of section 679.620(6), Florida Statutes (2009), and was deemed to have accepted the collateral in full satisfaction of the debt. After the trial court denied SIT’s rehearing motion, this appeal followed.

Whether summary judgment was properly granted is a question of law that we review de novo. See The Fla. Bar v. Greene, 926 So.2d 1195, 1200 (Fla.2006). In doing so, we consider whether any genuine issues of material fact exist and whether the trial court erred in its application of the law. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). On appeal, SIT again contends that by having new certificates for the Shares issued to one of its subsidiaries, IBBF “otherwise disposed” of the collateral for the loans under section 679.610, Florida Statutes (2009),3 and cannot also obtain a money judgment against SIT. Rather, IBBF can only obtain a deficiency judgment if it can demonstrate to the trial court that the fair market value of the Shares was less than the amount of the debt as of the dates of dispositions. We disagree.

Under Article 9 of the Uniform Commercial Code (U.C.C.), as codified in section 679.609(1), Florida Statutes (2009), a secured party, such as IBBF, may take possession of collateral after a debtor’s default. The secured party then “may sell, lease, license, or otherwise dispose of any or all of the collateral in its present condition or following any commercially reasonable preparation or processing.” § 679.610(1), Fla. Stat. (2009) (emphasis added). While the U.C.C. does not define the phrase “otherwise dispose,” it is generally agreed that a secured creditor’s transfer of collateral, such as stock, to the creditor itself, does not constitute a disposition under the U.C.C. See, e.g., Fletcher v. Cobuzzi, 499 F.Supp. 694, 698-99 (WD.Pa.1980); Sports Courts of Omaha, Ltd. v. Brower, 248 Neb. 272, 534 N.W.2d 317, 322 (1995); see also IFG Leasing Co. v. Gordon, 776 P.2d 607, 613 (Utah 1989); 10 Anderson U.C.C. § 9-504:191 (3d ed.) (“The surrender of the collateral stock and reissuance of the shares in the name of the creditor is not an ‘other disposition’ within UCC § 9-504 ....”). These authorities hold that the U.C.C. reference to “disposition” connotes a transfer for value of the creditor’s rights to the collateral and does not contemplate a creditor’s transfer of title to itself.4 See, e.g., Fletcher, 499 [508] F.Supp. at 698-99. In fact, section 679.619(3), Florida Statutes (2009), specifically provides that “[a] transfer of the record or legal title to collateral to a secured party ... is not of itself a disposition of collateral under this chapter and does not of itself relieve the secured party of its duties under this chapter.”

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Spellman v. Independent Bankers' Bank of Florida, 161 So. 3d 505, 84 U.C.C. Rep. Serv. 2d (West) 333, 2014 WL 3871264, 2014 Fla. App. LEXIS 12143 (Fla. Ct. App. 2014).

161 So. 3d 505 (Spellman v. Independent Bankers' Bank of Florida) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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