Walker v. Ford Motor Credit Co. (In re Clark)

112 B.R. 226, 1990 Bankr. LEXIS 652
CourtUnited States Bankruptcy Court, E.D. Tennessee
DecidedFebruary 21, 1990
DocketBankruptcy No. 3-89-00960; Adv. No. 3-89-0115
StatusPublished
Cited by3 cases

This text of 112 B.R. 226 (Walker v. Ford Motor Credit Co. (In re Clark)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walker v. Ford Motor Credit Co. (In re Clark), 112 B.R. 226, 1990 Bankr. LEXIS 652 (Tenn. 1990).

Opinion

MEMORANDUM

JOHN C. COOK, Bankruptcy Judge.

This case is before the court upon the trustee’s complaint to avoid an alleged preferential transfer of a security interest in a 1987 Dodge Charger. The defendant disputes the trustee’s contention that the transfer was preferential. Having considered the evidence introduced at the trial of this matter and having considered the arguments of the parties, the court now submits its findings of fact and conclusions of law pursuant to Bankr.R. 7052. This is a core proceeding. 28 U.S.C.A. § 157(b)(2)(F) (West Supp.1989).

I.

On February 4, 1989, the debtors, David Clark and his wife Tanya Renee Clark, traded in their 1980 Ford Escort and purchased a 1987 Dodge Charger from Gary Yeomans Ford (Gary Yeomans). The debtors executed a “Tennessee Vehicle Retail Instalment Contract” and granted Gary Yeomans a security interest in the Dodge to secure payments under the installment contract. The contract and the security agreement were later assigned by Gary Yeomans to Ford Motor Credit Company (Ford Motor).

On February 8,1989, Gary Yeomans sent paperwork to the Blount County clerk’s office to have the debtors’ Dodge titled and registered. The Blount County clerk’s office received the paperwork on February 9, 1989. The paperwork indicated the debtors wished to transfer the license plate from their trade-in vehicle to the Dodge. When the clerk’s office began processing the application, the clerk discovered a problem [228]*228with the license plate transfer because the name on the trade-in vehicle registration (Renee Clark) was different than the name appearing on the paperwork submitted by Gary Yeomans (Tanya R. Clark). At that point, the clerk’s office ceased processing the application for certificate of title and registration on the debtors’ vehicle.

On February 14, 1989, the clerk’s office notified Gary Yeomans’ office by telephone that the paperwork for various title applications could be picked up, including the paperwork on the debtors’ Dodge. A note was made on the debtors’ paperwork that before processing could be completed on the application, an affidavit, known as a “one in the same” form would have to be executed by the debtor.1 Gary Yeomans retrieved the paperwork submitted on the debtors’ vehicle from the clerk’s office on February 17, 1989. As a result, the Blount County clerk’s office did not process or submit a completed application for certificate of title and registration on the debtors’ vehicle.

On or shortly after February 24, 1989, Gary Yeomans submitted similar paperwork on the debtors’ new vehicle to the Knox County clerk. This paperwork did include a “one in the same” form. The Knox County clerk’s office processed and submitted a completed application for certificate of title and registration to the Tennessee Motor Vehicle Division. The application was dated February 28, 1989. A certificate of title was issued for the debtors’ vehicle on April 4, 1989. It noted February 4, 1989, as the date of the security interest.

On April 6, 1989, the debtors filed their petition for relief under chapter 7 of the Bankruptcy Code. On the same date, the plaintiff was appointed chapter 7 trustee in the debtors’ bankruptcy case. Subsequently, the plaintiff filed this action to avoid the lien held by Ford Motor on the debtors’ vehicle, arguing the transfer of the security interest was preferential and avoidable under 11 U.S.C.A. § 547(b) (West 1979 & Supp.1989).

II.

A transfer of a debtor’s interest in property is preferential and avoidable by the trustee if the transfer was made within ninety days of the filing date of the bankruptcy petition and was for the benefit of a creditor on account of an antecedent debt owed by a debtor before such transfer was made and while the debtor was insolvent and which enabled the creditor to receive more than it would receive if the case were in chapter 7 of title 11, the transfer had not been made, and the creditor received payment of its debt to the extent provided by the provisions of title 11. 11 U.S.C.A. § 547(b) (West 1979 & Supp.1989). In this case, the transfer is the security interest granted to Gary Yeomans within ninety days of the debtors’ bankruptcy petition. Because of the presumption of insolvency afforded by § 547(f) of the Code, the debtors were insolvent both at the time of the transfer and on the bankruptcy petition date.2 The insolvency of the debtors on the petition date results in the conclusion that the prepetition transfer of the security interest enabled the creditor to receive more than it would have received if the transfer had not been made and the creditor received payment pursuant to the distribution scheme under chapter 7. See Palmer Clay Products Co. v. Brown, 297 U.S. 227, 56 S.Ct. 450, 80 L.Ed. 655 (1936); Elliott v. Frontier Properties (In re Lewis W. Shurtleff, Inc.), 778 F.2d 1416 (9th Cir. 1985). The disputed issue in this case is whether there was a transfer on account of an antecedent debt. If there was, all of the elements of § 547(b) are satisfied and the trustee would be entitled to avoid the transfer. If not, the trustee loses.

[229]*229The debtors granted a security interest in their new automobile at the time they bought the car on February 4, 1989. Without more, one might conclude the transfer of the security interest was for a contemporaneous debt and not an antecedent debt. Section 547(e)(2), however, changes the ordinary meaning of the word “transfer.” It provides in relevant part:

(2) For the purposes of this section ... a transfer is made—
(A) at the time such transfer takes effect between the transferor and the transferee, if such transfer is perfected at, or within 10 days after, such time;
(B) at the time such transfer is perfected, if such transfer is perfected after such 10 days.

11 U.S.C.A. § 547(e)(2) (West 1979).

Hence, under § 547(e)(2)(B), if perfection of the security interest in the vehicle took place more than ten days after the granting of the security interest, the transfer is deemed to have occurred at the time of perfection and not at the time the security interest was granted. In the instant case, if the perfection of the defendant’s security interest occurred more than ten days from February 4, 1989, the date the debtors incurred the debt on the vehicle and granted the security interest, the date of the transfer of- the security interest would be deemed to be the date of perfection and the transfer would have been for an antecedent debt. Consequently, the court must determine the date the security interest in the automobile was perfected.

Under Tennessee law, perfection of a security interest in a motor vehicle is accomplished by notation of the lien on the vehicle’s certificate of title in accordance with Tennessee certificate of title laws. Tenn.Code Ann. § 47-9-302(3)(b) (Supp. 1988); id. §§ 55-3-125 to 55-3-26 (1988); Apex Oil Co. v. Tims (In re Armstrong), 56 B.R. 781, 786 (W.D.Tenn.1986); In re Wallace, 251 F.Supp. 581 (E.D.Tenn.1966); In re Crosson, 226 F.Supp. 944 (E.D.Tenn. 1963).3 Specifically, Tenn.Code Ann.

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Cite This Page — Counsel Stack

Bluebook (online)
112 B.R. 226, 1990 Bankr. LEXIS 652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-ford-motor-credit-co-in-re-clark-tneb-1990.