Wiersma v. O.H. Kruse Grain & Milling (In Re Wiersma)

324 B.R. 92, 56 U.C.C. Rep. Serv. 2d (West) 452, 2005 Bankr. LEXIS 239, 2005 WL 464889
CourtUnited States Bankruptcy Appellate Panel for the Ninth Circuit
DecidedFebruary 1, 2005
DocketBAP No. ID-02-1523-MAPB, BAP No. ID-02-1541-MAPB, BAP No. ID-03-1215-MAPB, BAP No. ID-03-1224-MAPB, Bankruptcy No. 01-41874
StatusPublished
Cited by26 cases

This text of 324 B.R. 92 (Wiersma v. O.H. Kruse Grain & Milling (In Re Wiersma)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wiersma v. O.H. Kruse Grain & Milling (In Re Wiersma), 324 B.R. 92, 56 U.C.C. Rep. Serv. 2d (West) 452, 2005 Bankr. LEXIS 239, 2005 WL 464889 (bap9 2005).

Opinions

OPINION

MARLAR, Bankruptcy Judge.

INTRODUCTION

Idaho dairy farmers Jim and Patricia Wiersma (“Debtors”) filed a chapter 111 petition and proposed a plan to relocate their failed dairy business to Georgia. Debtors’ cows had been subjected to electrical shocks from faulty wiring and had been culled until the herd was completely liquidated. Debtors sued the electrical contractor and, upon settlement of the state court lawsuit for $2.5 million cash (“Settlement Proceeds”), Debtors proposed to use the Settlement Proceeds to purchase cows and begin anew in Georgia. They proposed to give their major secured creditor, United California Bank, nka Bank of the West (“Bank”), a replacement lien in the new cows, but Bank objected. The bankruptcy court had already determined that Bank and another creditor, O.H. Kruse Grain and Milling, nka Fern-dale Grain (“Ferndale”) had secured interests in the Settlement Proceeds.

At plan confirmation, the bankruptcy court held that new cows were not the “indubitable equivalent” of cash, and further found that Debtors’ plan was not feasible. It denied confirmation and, after giving Debtors the chance to file a Third Amended Plan, dismissed the bankruptcy case.

These appeals and cross-appeals concern three orders: (1) a September 24, 2002, order determining the secured interests of the Bank and Ferndale in the Settlement Proceeds (“Order Re Secured Status”) (BAP Nos. 02-1523 and 02-1541); (2) a February 11, 2003, order denying confirmation of Debtors’ Second Amended Plan and approving Debtors’ motion to settle;2 [99]*99and (3) an April 4, 2003, dismissal order (BAP Nos. 08-1215 and 03-1224).

In these appeals, we construe Idaho’s revised Article 9 of the Uniform Commercial Code (“UCC”),3 and decide whether a cash settlement of a lawsuit for damage to collateral constitutes either proceeds of Bank’s livestock collateral or an after-acquired “payment intangible” collateral.

We AFFIRM the bankruptcy court’s orders with two exceptions. Ferndale’s appeal of the Order Re Secured Status granting its secured interest in the Settlement Proceeds and the appeal of the order approving the settlement are both DISMISSED as moot.

FACTS4

Debtors owned and operated an Idaho dairy consisting of two facilities with 2,000 cows. They filed a chapter 11 petition on October 1, 2001.

Debtors’ financial problems stemmed from faulty electrical work performed in an expansion of their dairy by Geitzen Electric, Inc. (“Geitzen”). As a result, Debtors’ dairy cows were subjected to varying degrees of electrical shocks which caused the cows to produce less milk, become sick or die. The entire herd was eventually lost.

Debtors initiated a lawsuit against Geit-zen (“Geitzen Lawsuit”) in which they sought $6 million in damages. The Geit-zen Lawsuit was brought under both tort and breach of contract theories.

Bank was Debtors’ largest secured creditor. Following liquidation of the cows, its claim was approximately $2.2 million. Bank held a valid and perfected security interest5 in Debtors’ dairy herd and, among other things, in all of Debtors’ “Inventory ... Accounts and Contract Rights ... General Intangibles ... Livestock ... Milk Products Quota ... [and] Monies, Deposits or Accounts in Possession.” Agricultural Credit Agreement, p. 4, Section III, Exh. D to Stipulation of Facts (July 30, 2002). In addition, Bank had a security interest in after-acquired property, and in “all proceeds and products of the collateral including, but not limited to, the proceeds of any insurance thereon.” Id.

Debtors also owed about $550,000 to Ferndale for livestock feed. This debt was evidenced by a promissory note and an assignment for security (“Assignment”) of Debtors’ right, title, and interest in any proceeds from the Geitzen Lawsuit. Fern-dale perfected its security interest by filing a UCC-1 Financing Statement as to “[a]ny and all proceeds received by Debtors from the lawsuit ....”. Financial Statement, exh. J to Stipulation of Facts (July 30, 2002).

Additionally, Debtors owed approximately $125,000 in priority taxes and $1.2 million in unsecured claims. Debtors’ [100]*100dairies were eventually foreclosed and their dairy operation was terminated.

In 2002, Debtors and their Special Counsel reached a settlement with Geitzen and its insurer to pay Debtors $2.5 million. The estate stood to receive approximately $1.6 million of the Settlement Proceeds upon bankruptcy court approval of the settlement. However, Bank claimed the entire estate’s interest as its cash collateral, and Ferndale also claimed against the Settlement Proceeds pursuant to its security agreement and Assignment.

Motion to Determine Secured Interests

Debtors then filed a § 506(a) Motion to Determine Secured Status. Debtors’ position was that neither Bank nor Ferndale had a secured interest in the Settlement Proceeds because the Geitzen Lawsuit sounded in tort, and UCC Article 9 excluded tort claims from the “general intangibles” category.

Bank argued that the Settlement Proceeds were either “general intangibles” or livestock proceeds. Ferndale claimed priority over Bank and maintained that it, alone, was entitled to the Settlement Proceeds.

Following a hearing, the bankruptcy court rendered a published opinion on the matter. In re Wiersma, 283 B.R. 294 (Bankr.D.Idaho 2002). First, the bankruptcy court classified the Geitzen Lawsuit as a contract action and, therefore, held that Article 9 applied to give Bank a secured interest in the Settlement Proceeds as either “general intangibles” or “accounts.” Alternatively, the bankruptcy court held that the Settlement Proceeds constituted proceeds of Bank’s livestock collateral.

Next, the bankruptcy court examined Debtors’ transaction with Ferndale. It concluded that the note and Assignment constituted a written security agreement which gave Ferndale rights in the Settlement Proceeds.

The Order Re Secured Status was entered on September 24, 2002. Debtors timely appealed (ID-02-1523), and Fern-dale timely cross-appealed (ID-02-1541). They both challenged Bank’s secured interest in the Settlement Proceeds, and Debtors also disputed Ferndale’s secured interest, under the same tort theory.

Plan of Reorganization and Motion to Settle

While the Geitzen Lawsuit was still pending, Debtors filed their first plan of reorganization and disclosure statement, and shortly thereafter, their motion to settle.

Although Debtors stated, in their motion, that they believed their damages were at least $6 million, they agreed to accept a “total value” of $2.5 million from Geitzen, to be used for “the purchase of dairy cows for Debtors’ benefit, to be utilized by Debtors in reorganizing their dairy operation.” Motion for Order Approving Settlement (June 26, 2002), at 3. Debtors planned to use the funds to purchase about 800 cows, in Georgia, which they valued at $1.4 million.

Bank and Ferndale filed conditional objections to the settlement. They did not oppose the $2.5 million amount, but objected to use of the money to purchase new dairy cows.

Debtors filed a Second Amended Disclosure Statement and First Amended Plan, in which they discussed their “cows-for-eows” plan.6

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324 B.R. 92, 56 U.C.C. Rep. Serv. 2d (West) 452, 2005 Bankr. LEXIS 239, 2005 WL 464889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wiersma-v-oh-kruse-grain-milling-in-re-wiersma-bap9-2005.