In re Cunningham
In re Cunningham
Opinion of the Court
MEMORANDUM OPINION AND ORDER DENYING IN PART AND GRANTING IN PART DEBTORS’ MOTION TO DETERMINE SECURITY INTEREST OR, IN THE ALTERNATIVE, TO REDEEM (Doc. No. 15)
Comes on for hearing the Debtors’ Motion for Order Determining that Certain Personal Property Owned by the Debtor Is Not Subject to Any Security Interest, or, in the Alternative, Granting Debtors’ Request to Redeem Property
This matter constitutes a core proceeding
Upon review of the pleadings, the Court’s file, and the arguments of counsel, the Court is prepared to rule.
Background
Debtors filed a joint Chapter 7 petition under the United States Bankruptcy
Exhibit C [credit application] is the application signed by Debtor, which states, “you grant the Bank a purchase money security interest in the goods purchased on your Account.” Furthermore, the application states in that same section that the cardholder, here the Debtors, agree to the terms and conditions of the Cardholder Agreement (attached as Exhibit D is the Cardholder Agreement). It states in paragraph 17 of the Cardholder Agreement entitled “Security,” “you grant us a purchase money security interest in the goods purchased with your Card.”, [sic] Therefore, clearly the requisite language for Debtors to grant Secured Creditor [Capital One] a purchase money security interest exists.10
Exhibit C, the “Application,” is coincidental to Debtors’ first purchase and is dated January 16, 2010. It appears that it was signed by both Debtors. The Application provided to the Court is a single-sided page. The Application contains the language recited above by Capital One; it is buried in a 16-line paragraph in a small font. This Court found it necessary to use a magnifying glass to find and read the language. The language appears in the ninth and tenth lines of the paragraph. With the assistance of a magnifying glass, the Court also was able to find buried in the sixth line of this Application paragraph that the Debtors agreed to the terms and conditions of the Cardholder Agreement. The Application indicates that the Cardholder Agreement would be sent to the Debtors after the Application and initial purchase of consumer products on January 16, 2010. The Cardholder Agreement is not signed. Buried in 41 numbered paragraphs in small print in the Cardholder Agreement is language that refers to Debtors granting to Capital One “a purchase money security interest in the goods purchased with your Card.”
KEEP YOUR RECEIPT! I HAVE READ AND AGREE TO ALL RETURN AND REFUND POLICIES PRINTED ON THE BACK OF THIS RECEIPT AND POSTED IN THE
*605 STORE. I HAVE RECEIVED GOODS AND/OR SERVICES IN THE AMOUNT SHOWN ABOVE.
BESTBUY.COM RETURN AND EXCHANGE INFORMATION AND PRICE MATCH POLICY MAY VARY SLIGHTLY FROM IN-STORE POLICY.
PLEASE LOG ONTO WWW. BESTBUY.COM FOR COMPLETE DETAILS
Only the front of the Receipts were provided to the Court. Whatever is contained on the reverse side of the Receipts was not provided. Regardless, it appears that the reverse side of the Receipts only contain language pertinent to the return and refund policies of Best Buy. There is no reference on the Receipts to security interests, purchase money or otherwise, retained by anyone. The Receipts also do not contain a reference to the Application or the Cardholder Agreement.
Analysis
Debtors request a determination by this Court that Capital One does not hold a security interest, purchase money or otherwise, in the Consumer Goods purchased by Debtors at Best Buy. If the Court does find that such a security interest exists, then the Debtors plead in the alternative that this Court grant the Debtors’ redemption of the Consumer Goods and approve a redemption value in the amount of $130.00. Capital One argues that it does hold a purchase money security interest in the Consumer Goods and that if the Debtors were to redeem the Consumer Goods under Code § 722, the Consumer Goods have a value of $2,100. The Debtors assert that the balance on the Capital One account is $1,556.49.
Capital One does not dispute that the transactions in question are “consumer transactions” or that the products purchased by the Debtors are “consumer goods.”
84-9-108. (a) Sufficiency of description. Except as otherwise provided in subsections (c), (d), and (e), a description of personal or real property is sufficient, whether or not it is specific, if it reasonably identifies what is described.
(e) When description by type insufficient. A description only by type of collateral defined in the uniform commercial code is an insufficient description of: ...
(2) in a consumer transaction, consumer goods, a security entitlement, a securities account, or a commodity account.
With respect to the sufficiency of the collateral description for consumer transactions contained in a security agreement, it has been observed:
Revised Article 9 continues the requirement that a security agreement or financing statement contain a description of the collateral that reasonably identifies the collateral. The use of categories or types of collateral defined under the*606 UCC (i.e., inventory) is still permitted. However, in consumer transactions and a limited number of other situations, a description by type or class of collateral is ineffective as to after-acquired property. Note that Revised Article 9 permits “supergeneric” descriptions in the financing statement such as “all assets” or “all personal property” but not in the security agreement.15
Property “type” descriptions of collateral are not sufficient for consumer goods.
84-9-203. (a) Attachment. A security interest attaches to collateral when it becomes enforceable against the debtor with respect to the collateral, unless an agreement expressly postpones the time of attachment.
(b) Enforceability. Except as otherwise provided in subsections (c) through (i), a security interest is enforceable against the debtor and third parties with respect to the collateral only if:
(1) Value has been given;
(2) the debtor has rights in the collateral or the power to transfer rights in the collateral to a secured party; and
(3) one of the following conditions is met:
(A) The debtor has authenticated a security agreement that provides a description of the collateral and, if the security interest covers timber to be cut, a description of the land concerned;....17
Capital One directs this Court to Baldwin v. Hays Asphalt Constr., Inc.,
A ease not cited by the parties that is somewhat instructive is In re McLeod.
The difference between McLeod, the cases cited by Clark,
Is it enough to string together a signed Application that has buried within it purchase money security interest language; a Cardholder Agreement that was not signed by the Debtors that was mailed to them after the Application and buried within which is also purchase money security interest language; and 12 Receipts which, except for one, were signed but did not contain a reference to a security interest, the Application or the Cardholder Agreement? The answer is no: An enforceable security agreement has never existed between these parties as to the Consumer Goods. If Baldwin is followed, and it is the intent of the parties that must be discerned, then it is difficult to imagine that under these facts the Debtors intended to grant a security interest in the Consumer Goods purchased by the Debtors. However, this Court need not address the intent of the parties since the documentation is facially insufficient to have created a security interest in the Consumer Goods. Capital One may not rely upon the description of the Consumer Goods purchased on the Receipts because the Receipts are not a component of a security agreement between the parties. The type of collateral referenced in the “goods purchased on your Account” contained in the original Application is not sufficiently descriptive to allow attachment and enforceability under K.S.A. 84 — 9—108(e) and K.S.A. 84-9-203(b)(3)(A). For the same reason, the language in the Cardholder Agreement is insufficient in that it only grants a purchase money security interest “in the goods purchased with your Card.” Although the Court need not reach this issue, one might ponder whether an account agreement that is referred to in a credit application but that is later mailed to the debtors should be considered to establish a security agreement. The U.C.C. requires that a security agreement be authenticated, which in the Capital One situation means signed by the Debtors, and the Agreement was never signed by the Debtors. It appears that in Baldwin, all of the documents were signed by the debtor.
Conclusion
Although Capital One argues that a security agreement may be established with reference to more than one form or document, in the case sub judice, the Receipts are the only documents that contain a sufficient description of the Consumer Goods, and the Receipts are not a component of the security agreement. The security agreement is not enforceable under Kansas law as to consumer goods and Capital One’s security interest never attached to the Consumer Goods purchased by the Debtors. The security agreement is not enforceable in a consumer transaction because, excluding the Receipts, the collateral is only described by type or class.
IT IS SO ORDERED.
. Doc. No. 15.
. Doc. No. 21.
. Doc. No. 28.
.Doc. No. 30.
. 28 U.S.C. § 157(b).
. 28 U.S.C. § 1334.
. 11 U.S.C. § 101 et seq., hereinafter the “Code.”
. Doc. No. 28, at 1.
.Doc. No. 30.
. Doc. No. 30, at 2 n.l.
. See Doc. No. 30, Exhibit D ¶ 17.
. See K.S.A. 84-9-102(a)(23) and (a)(26) defining the terms.
. See K.S.A. 84-9-102(a)(72).
. See K.S.A. 84-9-102(a)(7)(A).
. John K. Pearson and J. Scott Pohl, A Brief Overview of Revised Article 9 in Kansas, J. Kansas Bar Ass'n, Sept. 2003, at 24 (footnotes omitted) (emphasis added).
. Id. at 29, citing K.S.A. 84-9-108(e) in n.110.
. Emphasis added.
. 20 Kan.App.2d 853, 855, 893 P.2d 275 (1995).
. Baldwin, 20 Kan.App.2d at 856, 893 P.2d 275.
. Id. at 857, 893 P.2d 275. However, under the revised U.C.C., intent may no longer be controlling. See Hitchin Post Steak Co. v. Gen. Elec. Capital Corp. (In re HP Distrib., LLP), 436 B.R. 679, 695 (Bankr.D.Kan. 2010) (discussing leases, disguised security agreements, and the economic realities test under K.S.A. 84-1-203(c)).
. 245 B.R. 518 (Bankr.E.D.Mich. 2000).
. McLeod, 245 B.R. at 522 (internal quotations and statutory citation omitted).
. Id. (internal quotations omitted).
. Id.
. Id. at 523.
. 2 Barkley Clark & Barbara Clark, The Law of Secured Transactions Under the Uniform Commercial Code ¶ 12.2[2] at 12-8 to 12-11 (3d ed. 2013).
. Id. at 12-9.
. Id. at ¶12.2[2] at 12-8 to 12-11 (3d ed. 2012).
Reference
- Full Case Name
- In re Charles David CUNNINGHAM and Charity Lynn Cunningham, Debtors
- Cited By
- 2 cases
- Status
- Published