Rouse v. Chase Manhattan Bank, U.S.A., N.A. (In re Brown)
Rouse v. Chase Manhattan Bank, U.S.A., N.A. (In re Brown)
Opinion of the Court
MEMORANDUM OPINION
Chapter 7 trustee Norman Rouse filed a Complaint to avoid the lien of Chase Manhattan Bank (Chase) on a 1995 Stern Manufactured Home, VIN SSLAL28077, (the Mobile Home) on the grounds that the lien was perfected within the 90-day preference period. Following a response by Chase, both parties submitted briefs on the legal issues. The parties agree that there is no factual dispute. They both, therefore, waived a hearing and consented to this Court ruling on the legal issues presented. This is a core proceeding under 28 U.S.C. § 157(b)(2)(F) and (K) over which the Court has jurisdiction pursuant to 28 U.S.C. § 1334(b), 157(a), and 157(b)(1). The following constitutes my Findings of Fact and Conclusions of Law in accordance with Rule 52 of the Federal Rules of Civil Procedure as made applicable to this proceeding by Rule 7052 of the Federal Rules of Bankruptcy Procedure. For the reasons set forth below, I find the lien of Chase was perfected during the preference period. I, therefore, will enter judgment in favor of the trustee.
Factual Background
The basic facts are not in dispute. The debtors Rodney and Debra Brown purchased the Mobile Home on January 30, 1995. Greentree Credit Corporation (Greentree) financed the original transaction and held a perfected purchase money security interest in the Mobile Home. On May 30, 1997, Mr. and Mrs. Brown entered into a refinancing agreement with Chase. The Browns execut
The trustee filed this Complaint on June 4, 1998, claiming the lien was perfected during the preference period, therefore, it is subject to avoidance pursuant to section 547(b).
Chase makes three arguments in its defense. First, it claims the trustee failed to prove the debtors were insolvent at the time of the transfer. Second, Chase claims its lien is equitably subrogated to the properly perfected lien of Greentree. And third, Chase claims that Greentree was unjustly enriched by its own negligence, therefore, Chase should be entitled to implead Greentree as a third-party defendant. I will first address the trustee’s avoidance power, then I will address each of Chase’s arguments in turn.
DISCUSSION
A. Tnistee’s Avoidance Power
Section 547(b) of the Bankruptcy Code (the Code) allows the bankruptcy trustee to avoid certain transfers that are deemed preferential.
(B) Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property—
(1)to or for the benefit of a creditor;
(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
(3) made while the debtor was insolvent;
(4) made—
(A) on or within 90 days before the date of the filing of the petition;
(5) than enables such creditor to receive more than such creditor would receive if—
(A) the case were a case under chapter 7 of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of such debt to the extent provided by the provisions of this title.2
There is really no dispute that the lien was perfected within 90 days of the bankruptcy petition, that the perfection benefitted Chase, and that Chase receives more if its lien is perfected, than if not. Therefore, the first issue is whether the debtors were insolvent at the time of the transfer.
B. Solvency
Chase claims that Mr. and Mrs. Brown were solvent at the time of the refinancing and at the time of the transfer. Chase states that the Browns were living together with shared expenses on August 7, 1997, the date of the transfer the trustee is seeking to avoid. They separated prior to filing then-bankruptcy petition, and Chase argues that the increased expenses of living separately precipitated both the bankruptcy and their insolvency.
There is a presumption of insolvency within 90 days of filing a bankruptcy petition.
Debtor’^ secured liabilities consist of the claim of Chase in the amount of $29,114.44, the claim of NationsBank in the amount of $6,400.00, incurred on March 15, 1996, and another claim of NationsBank in the amount of $15,100.00, incurred on October 15, 1996. The schedules also indicate a secured claim of American Express in the amount of $950.00 incurred on August 31, 1997. That claim was incurred after the transfer at issue and will not be considered, however, the other secured claims total $50,614.44.
Debtors’ schedules also list unsecured claims in the amount of $20,631.25. Of these claims, two were possibly incurred after the transfer. The claim of Capital One Visa, in the amount of $2,420.00, is for charges through approximately September 1, 1997. The claim of Lowes, in the amount of $291.63, is for charge purchases through approximately August 21, 1997. No one has challenged the accuracy of the bankruptcy schedules, and Chase has submitted no other evidence of solvency as of August 7,1997. I, therefore, find that Mr. and Mrs. Brown’s liabilities exceeded their assets at the time of the transfer, and that they were insolvent for purposes of section 547(b)(3) on the date of the transfer.
C. Exceptions to Avoidance Powers
In addition to solvency, there are other exceptions to the trustee’s avoidance powers, however. The trustee cannot avoid a transfer that creates a security interest in property acquired by the debtor if the security interest secures new value that was:
(i) given at or after the signing of a security agreement that contains a description of such property as collateral;
(ii) given by or on behalf of the secured party under such agreement;
(iii) given to enable the debtor to acquire such property; and
(iv) in fact used by the debtor to acquire such property; and
(B) that is perfected on or before 20 days after the debtor receives possession of such property.6
That exception does not fit the facts of this case. This is not a purchase money security interest, in that Chase did not originally advance the funds for the purchase of the Mobile Home. And even if it had, it failed to perfect within 20 days of the transfer.
For non-purchase money security interests, the Bankruptcy Code (the Code) provides that a transfer is to be treated as a contemporaneous exchange for value as long as perfection takes place within 10 days of the transfer:
(2) For the purposes of this section, except as provided in paragraph (3) of this subsection, a transfer is made-
(A) at the time such transfer takes effect between the transferee, if such transfer is perfected at, or within 10 days after, such time, except as provided in subsection (c)(3)(B).
(B) at the time such transfer is perfected, if such transfer is perfected after such 10 days; or
(C) immediately before the date of the filing of the petition, if such transfer is not perfected at the later of-
(i) the commencement of the case; or
*43 (ii) 10 days after such transfer takes effect between the transferor and the transferee.7
In other words, Chase had 10 days to perfect its non-purchase money security interest in debtors’ Mobile Home in order for the transfer to relate back to the time debtors completed the transaction that granted Chase the security interest in the Mobile Home on June 16, 1997. That transaction, which began on May 30, 1997, was completed when Chase transferred the sum of $28,784.15 to Greentree. Thus, Chase had until June 26, 1997 to perfect its security interest in order for the transaction to be a contemporaneous exchange, and not on account of an anteced-. ent debt.
Chase relies on Missouri law to argue that Greentree was required to release its lien within 10 days. Section 700.370 of Missouri’s Revised Statutes provides that:
1. Upon the satisfaction of a lien or encumbrance on a manufactured home for which the certificate of, title is in the possession of the lienholder, the lienholder shall, within ten days after demand, and, in any event, within thirty days, execute a release of his lien or encumbrance, and mail or deliver the certificate and release to the next lienholder named therein, or, if no other lienholder is so named, to the owner or any person who delivers to the lienholder an authorization from the owner to receive the certificate. The owner may cause the certificate of title, the release, and the required fee to be mailed or delivered to the director of revenue, who shall release the lienholder’s rights on the certificate and issue a new certificate of title.9
I note there is no remedy in section 700.370 for a lienholder who fails to release its lien upon satisfaction. I also note that section 700.360(1) provides that it is a class A misdemeanor if the owner of a manufactured home fails to take the steps necessary to have the lienholder noted on the certificate of title.
In Fidelity Financial Services, Inc. v. Fink, the Supreme Court stated that “Congress intended a trustee’s power to avoid pre-petition preferences to prevail over any state rules permitting relation back.”
D. Motion to Implead Greentree as Third-Party Defendant
Chase argues that the negligence of Greentree led to this result, therefore, it should be allowed to implead Greentree as a third-party defendant and pursue recovery from Greentree for unjust enrichment. As stated above, this result is not dictated by state law. Moreover, Chase offered no evidence that demand was made upon Green-tree. And, even in the event of demand, Chase had 10 days from its own transfer of funds to Greentree to perfect its lien, not 10 days from the date of demand, as required by Missouri law. Since there also appears to be no legal remedy for failure to execute a lien release within the statutorily proscribed period, this Court respectfully declines Chase’s suggestion that Greentree be impleaded into this adversary action. Chase is, of course, free to pursue any remedy it might have against Greentree in the Missouri Circuit Court.
E. Equitable Subrogation
Chase next argues that but for the neglect of Greentree, its lien would have been properly perfected, therefore, it is entitled to be equitably subrogated to Greentree’s previously perfected position.
The doctrine of equitable subrogation involves “the substitution of another person in the place of a creditor, so that the person in whose favor it is exercised succeeds to the rights of the creditor in relation to the debt.”
Chase, in essence, is asking this Court to use its equitable power to override the fact that Chase perfected its lien within the preference period. Apparently, Chase is relying on section 105(a) of the Code, which authorizes bankruptcy courts to “issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title.”
(A) The trustee shall have, as of the commencement of the case, and without regard to any knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debt- or or any obligation incurred by the debtor that is voidable by-
(1) a creditor that extends credit to the debtor at the time of the commencement of the ease, and that obtains, at such time and with respect to such credit, a judicial lien on all property on which a creditor on a simple contract could have obtained such a judicial lien, whether or not such a creditor exists.23
Thus, the trustee is deemed to have a lien on all lienable property of the debtor. The hypothetical hen is inferior to any existing perfected lien at the time the petition is filed, and the hypothetical lien is superior to any unperfeeted lien. Moreover, the Code authorizes the trustee to avoid any transfer within the preference period as discussed above.
An Order in accordance with this Memorandum Opinion will be entered this date.
. 11 U.S.C. § 547(b).
. Id.
. 11 U.S.C. § 547(f); Jones Truck Lines, Inc. v. Full Serv. Leasing Corp. (In re Jones Truck Lines, Inc.), 83 F.3d 253, 258 (8th Cir. 1996).
. Jones Truck Lines, 83 F.3d at 258.
. 11 U.S.C. § 101(32)(A); Carlson v. Rose (In re Rose), 86 B.R. 193, 194 (Bankr.W.D.Mo. 1988).
. Id. at § 547(c)(3).
. 11 U.S.C. § 547((e)(2).
. Id. at § 547(b)(2) and (c)(1).
. Mo. Stat. Ann. § 700.370(1) (1988).
. See Id. at § 700.360(1).
. Id. at § 700.390.
. -U.S.-, 118 S.Ct. 651, 654, 139 L.Ed.2d 571 (1998).
. 11 U.S.C. § 547(e)(2).
. Kansas City Downtown Minority Dev. Corp. v. Corrigan Assoc. Ltd. Partnership, 868 S.W.2d 210, 223 (Mo.Ct.App. 1994).
. Kansas City Downtown Minority Dev. Corp. v. Corrigan Assoc. Ltd. Partnership, 868 S.W.2d 210, 223 (Mo.Ct.App. 1994); Landmark Bank v. Ciaravino, 752 S.W.2d 923, 928 (Mo.Ct.App. 1988).
. Aetna Casualty and Surety Co. v. Clerk, U.S. Bankruptcy Court, New York, New York (In re Chateaugay Corp.), 89 F.3d 942, 947 (2nd Cir. 1996) (quoting American Surety Co. v. Bethlehem Nat’l Bank, 314 U.S. 314, 317, 62 S.Ct. 226, 228, 86 L.Ed. 241 (1941)).
. Landmark Bank v. Ciaravino, 752 S.W.2d at 928.
. 11 U.S.C. § 105(a); Viking Assoc., L.L.C. v. Drewes (In re Olson), 120 F.3d 98, 102 (8th Cir. 1997).
. Olson, 120 F.3d at 102; Bird v. Carl's Grocery Co. (In re NWFX, Inc.), 864 F.2d 593, 595 (8th Cir. 1989); Mixon v. Anderson (In re Ozark Restaurant Equip. Co., Inc.), 816 F.2d 1222, 1230 (8th Cir. 1987) cert. denied Jacoway v. Anderson, 484 U.S. 848, 108 S.Ct. 147, 98 L.Ed.2d 102 (1987).
. 95 B.R. 647, 649-50 (Bankr.E.D.Mo. 1989).
. Id. at 650.
. In re Gateway Center Bldg. Investors, Ltd., 95 B.R. 647, 651-54 (Bankr.E.D.Mo. 1989).
. 11 U.S.C. § 544(a)(1).
.11 U.S.C. § 547(b).
Reference
- Full Case Name
- In re Rodney Dewayne BROWN and Debra Elizabeth Brown, Debtors. Norman ROUSE, Chapter 7 Trustee v. CHASE MANHATTAN BANK, U.S.A., N.A.
- Cited By
- 4 cases
- Status
- Published