Thrun v. Blackhawk Community Credit Union (In re Thrun)

495 B.R. 861, 2013 WL 2585636, 2013 Bankr. LEXIS 2395
CourtUnited States Bankruptcy Court, W.D. Wisconsin
DecidedJune 11, 2013
DocketBankruptcy No. 12-14405; Adversary No. 12-231
StatusPublished

This text of 495 B.R. 861 (Thrun v. Blackhawk Community Credit Union (In re Thrun)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thrun v. Blackhawk Community Credit Union (In re Thrun), 495 B.R. 861, 2013 WL 2585636, 2013 Bankr. LEXIS 2395 (Wis. 2013).

Opinion

MEMORANDUM DECISION

ROBERT D. MARTIN, Bankruptcy Judge.

Cross motions for summary judgment ask whether the credit union has a valid security interest in the debtor’s vehicle. In February 2012, the plaintiff debtor signed a Consumer Lending Plan with Blackhawk Community Credit Union (“Blackhawk”). The plan created subac-counts under which the debtor was able to take out loans or “advances,” and provided that Blackhawk would have a security interest in “all goods, property, or other items purchased under this Plan ... either now or in the future.”

In May 2012, the debtor requested an advance under the plan to finance the purchase of a 2008 Saturn Vue. With the advance, Blackhawk issued an Advance Receipt to the debtor which stated that “[t]his advance is governed by the terms of your Consumer Lending Plan.” It also provided that “[y]ou are giving a security interest in your shares and deposits in the credit union, as well as the collateral described on page 2.” The second page identified the vehicle by year, make, model, and VIN number.

The debtor argues that no security interest in the vehicle ever attached, because the Consumer Lending Plan does not contain a sufficient description of the collateral. The debtor further argues that the Advance Receipt cannot serve as the security agreement because it was not signed. Blackhawk responds that the specific description of the vehicle in the Advance Receipt satisfies the description requirement.

Under Federal Rule of Civil Procedure 56, “the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Fed. R. Bankr.P. 7056(a). For purposes of Rule 56, a material fact is one related to a disputed matter that might affect the outcome of the action. Anderson v. Liberty Lobby, Inc., 477 U.S. [863]*863242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also In re Rieck, 439 B.R. 698, 702 (Bankr.W.D.Wis.2010).

State law generally determines the nature and extent of property rights in a debtor’s assets in bankruptcy. Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979). Wisconsin Statutes § 409.203 provides that a security interest is enforceable against a debtor and third parties with respect to the collateral where: (1) value has been given; (2) the debtor has rights in the collateral; and (3) the debtor has authenticated a security agreement that provides a description of the collateral. Wis. Stat. § 409.203(2).

Under Wisconsin Statutes § 409.108, “a description of personal or real property is sufficient, whether or not it is specific, if it reasonably identifies what is described.” Wis. Stat. § 409.108(1). Section 409.108 goes on to provide examples of reasonable identification:

Except as otherwise provided in sub. (4), a description of collateral reasonably identifies the collateral if it identifies the collateral by:
(a) Specific listing;
(b) Category;
(c) Except as otherwise provided in sub. (5), a type of collateral defined in chs. 401 to 411;
(d) Quantity;
(e) Computational or alloeational formula or procedure; or
(f) Except as otherwise provided in sub. (3), any other method, if the identity of the collateral is objectively determinable.

Wis. Stat. § 409.108(2). However, a “su-pergeneric” description is not sufficient: “A description of collateral as ‘all the debt- or’s assets’ or ‘all the debtor’s personal property’ or using words of similar import does not reasonably identify the collateral.” Wis. Stat. § 409.108(3).

With regard to after-acquired collateral, Wisconsin Statutes § 409.204 states:

(1) After-acquired collateral. Except as otherwise provided in sub. (2), a security agreement may create or provide for a security interest in after-acquired collateral.
(2) When after-acquired property clause not effective. A security interest does not attach under a term constituting an after-acquired property clause to:
(a) Consumer goods, other than an accession when given as additional security, unless the debtor acquires rights in them within 10 days after the secured party gives value; or
(b) A commercial tort claim.

Wis. Stat. § 409.204. In this case, there is no dispute that value was given, that the debtor acquired rights in the collateral, and those rights were acquired within 10 days of value being given. The only issue in contention is the sufficiency of the description of collateral.

In Milwaukee Mack Sales v. First Wisconsin Nat’l Bank of Milwaukee, the Wisconsin Supreme Court held that a broad description of after-acquired property satisfied the description requirement. Milwaukee Mack Sales v. First Wisconsin Nat’l Bank of Milwaukee, 93 Wis.2d 589, 287 N.W.2d 708 (1980). The court held that the word “equipment” used in a security agreement granting the bank a “security interest in all Debtor’s Equipment ... whether now owned or hereafter acquired” was sufficient to give the bank a security [864]*864interest in the debtor’s after-acquired truck. Id. at 592, 287 N.W.2d 708. The court explained that,

“if we are to carry out the draftsmen’s intention and permit the secured creditor to claim a perfected security interest in after acquired property, comparatively general descriptions of the collateral must suffice for it would be impossible in most such cases for the secured creditor to describe the collateral with any greater precision at the beginning of the agreement.”

Id. (quoting White and Summers, Unif. Commercial Code § 23-3 (Hornbook Series 1972)).

In its analysis, the court did not distinguish the standard for a sufficient description based on the fact that it was in a security agreement as opposed to a financing statement.

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Related

Butner v. United States
440 U.S. 48 (Supreme Court, 1979)
Anderson v. Liberty Lobby, Inc.
477 U.S. 242 (Supreme Court, 1986)
In Re Niles
72 B.R. 84 (N.D. Illinois, 1987)
Security Peoples Trust Co. v. Elia (In Re Elia)
18 B.R. 89 (W.D. Pennsylvania, 1982)
Tandy Credit Corp. v. Martinez (In Re Martinez)
179 B.R. 90 (N.D. Illinois, 1995)
In Re Legal Data Systems, Inc.
135 B.R. 199 (D. Massachusetts, 1991)
In Re Keneco Financial Group, Inc.
131 B.R. 90 (N.D. Illinois, 1991)
Barth Brothers v. Billings
227 N.W.2d 673 (Wisconsin Supreme Court, 1975)
Wadzinski v. Rieck (In Re Rieck)
439 B.R. 698 (W.D. Wisconsin, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
495 B.R. 861, 2013 WL 2585636, 2013 Bankr. LEXIS 2395, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thrun-v-blackhawk-community-credit-union-in-re-thrun-wiwb-2013.