Ward v. Bank of Granite (In re Hickory Printing Group, Inc.)

479 B.R. 388, 78 U.C.C. Rep. Serv. 2d (West) 314, 2012 Bankr. LEXIS 3354
CourtUnited States Bankruptcy Court, W.D. North Carolina
DecidedJuly 23, 2012
DocketBankruptcy No. 10-51051; Adversary No. 11-03130
StatusPublished
Cited by6 cases

This text of 479 B.R. 388 (Ward v. Bank of Granite (In re Hickory Printing Group, Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ward v. Bank of Granite (In re Hickory Printing Group, Inc.), 479 B.R. 388, 78 U.C.C. Rep. Serv. 2d (West) 314, 2012 Bankr. LEXIS 3354 (N.C. 2012).

Opinion

ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO PHASE 1 ISSUES AND DENYING DEFENDANTS’ CROSS-MOTION

J. CRAIG WHITLEY, Bankruptcy Judge.

In this action, Plaintiff James T. Ward, Sr. (“Plaintiff’), Chapter 7 Trustee for Debtor Hickory Printing Group, Inc. (the “Debtor”), seeks to avoid under a variety of theories a security interest held by Defendant Bank of Granite (the “Bank”) in the Debtor’s inventory and accounts receivable (the “Collateral”). The Trustee maintains that shortly before bankruptcy the Bank (1) re-perfected a security interest in the Debtor’s inventory and accounts receivable, and (2) its underlying loan was paid off when the Debtor’s business was sold to Defendant Hickory Printing Solu[390]*390tions, LLC (“Solutions”) shortly before bankruptcy. He seeks to recover $4,945,421 from the Defendants under Section 550, as the value of the alleged voidable transfers.

The Bank and Solutions deny these assertions. They maintain that the Bank’s security interest was re-perfected long before bankruptcy and is not avoidable. They further maintain that the sale to Solutions was the only viable option available to the Debtor, a distressed corporation.

The parties have agreed to phased discovery in the action. The first phase of discovery was limited to the factual and legal issues relating to certain UCC filings made by the Bank, as alleged in paragraphs 13, 14 and 20 of Plaintiffs Complaint (“Phase 1”). See Compl. ¶¶ 13-14, 20, ECF No. 1.1

After conducting Phase 1 discovery, the Plaintiff filed a Motion for Partial Summary Judgment pursuant to Fed. R. Bankr.P. 7056. In the Defendants’ Brief in Opposition to Trustee’s Motion,2 they also request partial summary judgment in their favor. A hearing on these filings was held on February 16, 2012. Both sides agree that the salient facts are not in dispute, and the decision is one of law. Each has extensively briefed the legal issues.

STATEMENT OF POSITIONS

I. Trustee’s Position

In the current motion, the Trustee seeks partial summary judgment on Phase 1 issues. Specifically, he asks this Court to rule that:

a. The Bank’s original security interest in the Collateral was terminated by the Bank filing a Termination Statement on December 1, 2008.

b. The Bank’s subsequent filing of a Correction Statement on November 10, 2009, did not alter the effectiveness of the prior Termination Statement, and, as a matter of law, did not revive the Bank’s perfected security interest; therefore, even after Bank of Granite filed its Correction Statement, its Lien remained unper-fected.

c. The Bank’s filing of a New Financing Statement on May 27, 2010, re-perfected a security interest in the Debtor’s property and was a transfer of the Debtor’s property under the Code.

II. The Bank’s and Solutions’ Position

The Bank and Solutions make several counter arguments. First, the Defendants maintain that the Termination Statement was filed by the Bank in error, and the record should be reformed to reflect this fact. Second, the November 2009, filing that the Trustee (and the form) deem a “Correction Statement” was not really a correction statement, but was instead a part of the Bank’s Financing Statement. According to the Defendants, the November 10, 2009, filing prevented the earlier Termination Statement from being seriously misleading. The combined effect of the Original Financing Statement, the Termination Statement, and the “Correction Statement” was to provide record notice to the world of the Bank’s security interest in the Debtor’s accounts receivable and inventory. In short, Defendants [391]*391argue the Bank’s security interest was perfected at all times after November 10, 2009, and was not avoidable. According to the Bank, the proper remedy in this case is not to invalidate the Bank’s perfected security interest, but to reform the “Correction Statement” to reflect the Bank’s and the Debtor’s intent.

III. Holding

As a matter of law, the Bank’s perfected Lien on the Collateral was terminated by its filing of a Termination Statement in December 2008. The subsequent filing of a Correction Statement by the Bank did not alter the effectiveness of the Termination Statement and was entirely ineffective in reversing the effect of the Termination Statement. Therefore, between December 1, 2008, and May 27, 2010— even after Bank of Granite filed its Correction Statement on November 10, 2009 — its Lien remained unperfected. Because the Bank’s Lien was unperfected as of May 27, 2010 (the date the Bank filed a new financing statement), that New Financing Statement constituted a transfer of an interest of the Debtor in property.

STATEMENT OF UNDISPUTED FACTS

I. Background.3

A. The Parties. The Bank is a community bank with its principal place of business in Granite Falls, North Carolina. Until its demise in 2010, the Debtor was a commercial printing business located in Conover, North Carolina, and a longstanding customer of the Bank. Compl. ¶ 9, ECF No. 1. Solutions is a North Carolina limited liability corporation with an office in Conover, Catawba County, North Carolina. Id. at ¶ 6. As described infra, Solutions purchased all of the Debtor’s assets in 2010. Four months later, an involuntary bankruptcy case was filed against the Debtor by unsecured creditors who were not repaid in the sale transaction.

B. The Line of Credit. The Bank’s lending relationship with the Debtor dates back to June 4, 1997, when the Bank provided the Debtor with a $3 million Revolving Line of Credit (the “Line of Credit”). The Line of Credit (loan number 425304) was originally secured by the Debtor’s accounts receivable and inventory (the “Collateral”). The Bank originally perfected its security interest in the Collateral (the “Lien”) with respect to the Line of Credit by filing a UCC Financing Statement on June 9, 1997, with the North Carolina Secretary of State, reference number 001470676 (the “Original Financing Statement”). Compl. ¶ 12, ECF No. 1; Answer of Bank of Granite ¶ 12, ECF No. 10.

The Bank twice filed continuation statements for the Original Financing Statement, in February 2002 and June 2007. Ward Exs. 2, 3, ECF No. 20-1.4 Until late 2009, the Line of Credit was regularly renewed by Bank of Granite, eventually reaching a maximum loan amount of $3.3 million.

II. The Bank Made a Second Loan to the Debtor Secured by the Same Collateral as the Line of Credit.

In October of 2008, the Debtor requested a short-term loan from the Bank in the amount of $600,000, also to be secured by [392]*392the Collateral. Oct. 2008 Letter, ECF No. 30-3.5 The Bank made the short-term loan, which was assigned loan number 1008555 (the “555 Loan”). Because the Bank already had a financing statement for the collateral on file with the Secretary of State’s Office, it did not file another financing statement for the short-term loan. See Compl. Ex. 2, ECF No. 1-2. The Debtor received the proceeds of the 555 Loan on October 22, 2008.

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479 B.R. 388, 78 U.C.C. Rep. Serv. 2d (West) 314, 2012 Bankr. LEXIS 3354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ward-v-bank-of-granite-in-re-hickory-printing-group-inc-ncwb-2012.