Went v. Rhoden Nissan/Auto Finance Center

179 B.R. 889, 26 U.C.C. Rep. Serv. 2d (West) 238, 1995 Bankr. LEXIS 398
CourtUnited States Bankruptcy Court, D. Nebraska
DecidedMarch 17, 1995
DocketBankruptcy No. BK93-40127; Adv. No. A94-4044
StatusPublished
Cited by2 cases

This text of 179 B.R. 889 (Went v. Rhoden Nissan/Auto Finance Center) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Nebraska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Went v. Rhoden Nissan/Auto Finance Center, 179 B.R. 889, 26 U.C.C. Rep. Serv. 2d (West) 238, 1995 Bankr. LEXIS 398 (Neb. 1995).

Opinion

MEMORANDUM

JOHN C. MINAHAN, Jr., Bankruptcy Judge.

Rhoden Nissan/Auto Finance Center (“Rhoden Nissan”), asserts that it holds a perfected security interest in the vehicle of debtor, Dawn Went by virtue of Rhoden Nissan’s assignee noting its lien on the vehicle’s certificate of title. Debtor commenced this adversary proceeding to avoid the interest of Rhoden Nissan in the vehicle. I conclude that the security interest of Rhoden Nissan is avoided pursuant to 11 U.S.C. § 544 (1995), because Rhoden Nissan’s name is not noted on the vehicle’s certificate of title.

FINDINGS OF FACT

On September 12, 1992, debtor Dawn Went purchased a 1988 Suzuki Samurai from Rhoden Nissan. At the time of purchase, [891]*891the parties entered into an installment sales contract which provided that Ms. Went would make a $1,400.00 down payment, part in cash and part by trade-in, and the balance of the purchase price would be financed over twenty-five months. The installment sales contract granted Rhoden Nissan a security interest in the vehicle. However, Rhoden Nissan did not note its security interest on the certificate of title to the vehicle.

At the time of purchase, Ms. Went issued two checks to Rhoden Nissan, an $800.00 check for the cash portion of the down payment, and a $42.00 check for administrative expenses. Shortly after the purchase transaction, Rhoden Nissan assigned the installment sales contract to Credit Acceptance Corporation of Southfield, Michigan. Credit Acceptance, the assignee, perfected its hen in the vehicle of Ms. Went by noting its security interest on the certificate of title. Credit Acceptance holds a duly perfected security interest in the vehicle to secure the vehicle’s unpaid purchase price, however, the checks for $800.00 and $42.00 were not transferred from Rhoden Nissan to Credit Acceptance.

Subsequently, the two checks issued by Ms. Went were returned to Rhoden Nissan for insufficient funds. The debt of Dawn Went to Rhoden Nissan in the amount of $842.00 remains unpaid on the date this bankruptcy ease was commenced and Rho-den Nissan has filed a proof of elaim in this amount asserting that its claim for $842.00 is secured by debtor’s vehicle. The debtor now seeks to avoid the security interest of Rho-den Nissan as unperfected, pursuant to § 644. In response, Rhoden Nissan asserts that its security interest is perfected and unavoidable by virtue of the fact that security interest of Credit Acceptance is duly noted on the certificate of title.

DISCUSSION

I conclude that the security interest of Rhoden Nissan is unenforceable under Nebraska law against a levying creditor, that the actions taken by the assignee, Credit Acceptance to perfect its security interest did not affect the status of the Rhoden Nissan lien, and that the interest of Rhoden Nissan is avoidable under § 544 of the Bankruptcy Code.

The filing requirements of Article 9 of the Uniform Commercial Code (“UCC”) are superseded by certificate of title laws, except in limited circumstances not applicable to the present ease. See Neb.Rev.Stat. § 60-110 (Reissue 1988); Nebraska UCC § 9-302(3) (Reissue 1988). Under Nebraska Revised Statutes § 60-110, a lien which is not noted on the certificate of title to a vehicle is unenforceable against purchasers and levying creditors. Neb.Rev.Stat. § 60-110 (Reissue 1988). The exception to this rule, as to vehicles held as inventory by a dealer, is not applicable in this case. Id. It is undisputed that the lien of Rhoden Nissan was not noted on the certificate of title to the vehicle of Dawn Went. Therefore, the hen of Rhoden Nissan is not “... valid as against the creditors of the debtor, whether armed with process or not, and subsequent purchasers, secured parties, and other lienholders or claim-ants_” Neb.Rev.Stat. § 60-110 (Reissue 1992).

This result is consistent with the policy of Nebraska certificate of title laws. Nebraska certificate of title laws should be interpreted to provide a simple straightforward way to determine whether a hen exists on a motor vehicle. Such laws should not be construed to render undisclosed hens enforceable. A third party examining the certificate of title in this case would not receive notice of the interest of Rhoden Nissan. If the third party purchased the vehicle with a check made payable jointly to Credit Acceptance and the debtor, and the cheek was sufficient to pay off the unpaid balance due to Credit Acceptance, the third party would purchase the vehicle free and clear of the interests of Rhoden Nissan and Credit Acceptance. Under Nebraska law, a levying creditor would also take free and clear of the interest of Rhoden Nissan.

Under the installment sales contract, Rho-den Nissan was granted a lien in the vehicle to secure all of the debtor’s obligations under the agreement. The lien was thus granted to secure the unpaid purchase price of the vehicle as well as the $800.00 cash down payment and the $42.00 administrative expenses pay[892]*892ment. However, since the interest of Rho-den Nissan is not noted on the certificate of title, the interest of Rhoden Nissan in the vehicle is avoidable under § 544.

Debtors challenge this result by arguing that the security interest of Rhoden Nissan is enforceable and perfected as a matter of state law by virtue of the actions of the assignee, Credit Acceptance, in noting its hen on the certificate of title. I have found no Nebraska decisional law on the question of whether an assignor’s interest in a vehicle may be perfected by virtue of the actions of an assignee in noting the assignee’s name and interest on the certificate of title. However, I conclude that the Nebraska Supreme Court would find that the interest of Rhoden Nissan is unenforceable on the facts of this ease for several reasons. First, as stated above, that result follows directly from a literal interpretation of Nebraska Revised Statute § 60-110. Second, at common law, although an assignee stands in the shoes of and is subrogated to the rights of its assign- or, there is no comparable doctrine whereby an assignor would be subrogated to the rights of the assignee. Third, UCC § 9-302(2), which deals with assignment in a different context, is superseded by certificate of title laws, and, even if applicable, would not mandate a different result.

Under § 9-302(2) an assignee of a perfected security interest need take no action to remain perfected against creditors of the account debtor. Nebraska UCC § 9-302(2) (Reissue 1988). This rule is entirely consistent with the “notice”’ policy of the UCC. If an assignor perfects its interest before assignment, and a creditor of an account debtor performs a UCC search under the debtor’s name, the creditor will discover that the assignor possesses an interest in the collateral, and will be on inquiry notice of the interest held by an assignee.

However, if only the assignee perfects its security interest, we have a completely different situation from a notice standpoint. A UCC search under the account debtor’s name would disclose only the name of the assignee, but would not disclose that there had even been an assignment.

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Bluebook (online)
179 B.R. 889, 26 U.C.C. Rep. Serv. 2d (West) 238, 1995 Bankr. LEXIS 398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/went-v-rhoden-nissanauto-finance-center-nebraskab-1995.