In re 8760 Serv. Grp., LLC
In re 8760 Serv. Grp., LLC
Opinion of the Court
This matter is before the Court on the Order Granting Joint Motion to Establish Administrative Procedures for Determination of Validity, Priority and Extent of Liens in Sales Proceeds. For all the reasons set forth below, the Court finds that Bancorpsouth Bank ("BCS") holds a first priority security interest in the non-office equipment and inventory of 8760 Service Group, LLC and a first priority security interest in the blast booth installed on the real property at 5105 Pelham Drive
I. FACTUAL AND PROCEDURAL BACKGROUND
Debtor 8760 Service Group, LLC ("8760"), operated a custom industrial construction and fabrication business with a business office located at 1803 W. Main Street, Sedalia, Missouri. Buck Barnes is the only member of 8760. Debtor Pelham Property, LLC ("Pelham") was formed to own the real estate located at 5105 Pelham Drive, Sedalia, Missouri, from which debtor 8760 operated a fabrication facility. Debtor 8760 is the only member of Pelham.
BCS was the Debtors' primary lender. Pelham was the primary obligor on the loan from BCS to purchase the land and build the structure on Pelham Drive. 8760 was a guarantor on the loans and made all of the loan payments. BCS holds a deed of trust on the real estate at 5105 Pelham Drive (the "Real Property"). 8760 also entered into loans with BCS to fund its operations and entered into security agreements pledging as collateral its inventory, equipment and accounts receivable. In 2014, BCS filed a UCC-1 financing statement to perfect its lien which identifies the collateral as all of 8760's accounts receivable, inventory, and equipment located at 1534 Redwood Drive, Sedalia, Missouri, which was the home of Buck Barnes. In 2015, BCS filed a UCC-3 amending the description of collateral to include "all accounts receivable, inventory, equipment, and all business assets located at 1803 W. Main Street, Sedalia, Missouri." That address was the business office of 8760 and very little of its property was ever located there.
A blast booth was installed in the building located at 5105 Pelham Drive. It was *48paid for and installed with funds drawn on Pelham's construction loan with BCS. However, the contract to build the blast booth and the invoices for its construction were in the name of 8760.
In 2016, Hudson Insurance Company ("Hudson") provided payment and performance bonds to debtor 8760. To secure the bond, 8760 transferred an interest in and granted liens to Hudson in substantially all of its property. In 2017, Hudson filed a UCC-1 with respect to 8760's inventory, equipment and accounts.
II. LEGAL ANALYSIS
A. Collateral Description Issue
The parties are in dispute as to the validity, priority and extent of the liens on 8760's equipment and inventory. The principal dispute is whether BCS or Hudson holds the first-priority lien position on certain of 8760's equipment and inventory. Debtors and Hudson contend that the collateral description in BCS's financing statement referenced a specific address location which restricted the collateral to that location. While BCS filed prior to Hudson, Debtors and Hudson contend that BCS is unperfected and thus unsecured due to the limitations contained in the financing statement
BCS contends that the collateral description contained in the financing statement was sufficient to perfect its interest in all assets regardless of location because the collateral description was an unambiguous, blanket description with no location restriction and, that if there was any ambiguity in the collateral description it was sufficient to serve as a notice filing and trigger a duty to investigate further into the covered collateral.
BCS and debtor 8760 entered into certain promissory notes and security agreements in which 8760 granted BCS a security interest in all of its accounts and other rights to payments, inventory and equipment. In November 2014, BCS filed its initial UCC-1 financing statement listing 8760 as debtor and describing the collateral covered on page 1 as "All Accounts Receivable, Inventory and equipment, located at 1534 Redwood Drive, Sedalia, MO 65301."
In December 2015, BCS filed an amended financing statement in which the collateral was described as "All Accounts Receivable, Inventory, equipment and all business assets, located at 1803 W. Main Street, Sedalia, MO 65301." Page 2, section 14 further describes the collateral as "the above collateral, whether now owned or hereafter acquired, together with all supporting obligations, proceeds, products, software, accessories and accessions, including, but not limited to the items listed...."
BCS claims that its financing statements were not seriously misleading and triggered a duty to further investigate the extent of BCS's security interest. BCS relies on ProGrowth Bank, Inc. v. Wells Fargo Bank, N.A. ,
Thereafter, the debtor obtained a loan from ProGrowth and assigned his interest in the same annuity contracts. ProGrowth filed two financing statements accurately describing the annuity contract numbers and issuer. ProGrowth then filed a lawsuit seeking a declaratory judgment that its perfected security interests in the annuity contracts were prior to and superior to any perfected security interests claimed by the defendants because the prior financing statements were seriously misleading in transposing the contract numbers and misidentifying the issuer. The district court granted summary judgment in favor of ProGrowth and the defendants appealed.
On appeal, the 8th Circuit applied Missouri U.C.C. law to determine whether the defendants' security interests in the annuity contracts were perfected. Missouri Revised Statute § 400.9-502(a) provides, "a financing statement is sufficient only if it: (1) [p]rovides the name of the debtor; (2) [p]rovides the name of the secured party or a representative of the secured party; and (3) [i]ndicates the collateral covered by the financing statement." The relevant question there, as here, was whether the financing statement sufficiently indicated the collateral that it covered. A financing statement "sufficiently indicates the collateral that it covers if the financing statement provides: (1) a description of the collateral pursuant to section 400.9-108; or (2) an indication that the financing statement covers all assets or all personal property."
The 8th Circuit noted that the U.C.C. requirements are intended to provide those dealing with commercial activities knowledge of the status of the commodity with which they are dealing and, to that end, the financing statement serves the purpose of putting subsequent creditors on notice the property is encumbered. ProGrowth ,
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So, what renders a financing statement's collateral description seriously misleading? In our case, Debtors and Hudson both urge the Court to find that BCS's description, because it includes an address, is seriously misleading. In ProGrowth , the court instructed that "when faced with a financing statement purporting to cover 'all assets' of a debtor, it is then incumbent upon the subsequent creditor to investigate whether the collateral at issue is in fact covered by a security agreement."
Additionally, the U.C.C. does not require a perfect collateral description, only an "indication" of such coverage.
As noted, in December 2015, BCS filed an amended financing statement in which the collateral was described as "All Accounts Receivable, Inventory, equipment and all business assets, located at 1803 W. Main Street, Sedalia, MO 65301." BCS contends that its collateral description could reasonably be interpreted two ways: (1) that the address restricts all described collateral OR (2) that the commas and addition of the second "all" limits the address restrictor only to the business assets.
BCS also cites the Court to several cases that deal specifically with an address restrictor in a financing statement collateral description. In First Bank v. Eastern Livestock Co. ,
Debtors and Hudson argue that BCS's financing statement is ineffective to put a subsequent creditor on notice to inquire further because it is plain and unambiguous as to the limited scope of the covered collateral. They assert that the financing statement did not indicate "all assets or property" so BCS was required to describe the covered property. They also argue that the financing statement was seriously misleading because it failed to reasonably identify collateral covered other than that located at 1803 W. Main Street.
Hudson argues that Lankford supports its position because that court held the secured party only had priority on the property located at the address identified in the financing statement. However, that case was more focused on the fact that the debtor had relocated its business and whether there was an "after-acquired" collateral clause in the financing statement or security agreement
The Court recognizes that these courts placed an emphasis on the address restrictor contained in the financing statement collateral description. However, the Court agrees with the reasoning of the ProGrowth court and finds that the cases cited by BCS are more applicable to this case than those cited by Debtors and Hudson. The collateral description in *52BCS's financing statement could "reasonably be interpreted in one of two ways-one of which may cover the collateral at issue and one of which does not," thus alerting Hudson that its collateral may already be perfected and putting the burden on Hudson to further inquire
Thus, BCS's collateral description in the financing statement was not seriously misleading and was sufficient to put Hudson on notice that it should inquire into the extent of BCS's lien. Because BCS indisputably filed prior to Hudson, it holds a first priority security interest in 8760's non-office equipment and inventory
B. Fixture Issue
Also at issue is the validity, priority and extent of the lien on the Blast Booth. The initial question is whether the Blast Booth was owned by 8760 or Pelham. Hudson argues that the Blast Booth was owned by 8760 because its employees used the booth to fulfill its construction contracts and 8760 did not reimburse Pelham for the use of the booth or accrue any type of intercompany receivable. Hudson also asserts that Pelham claimed no benefit from use of the Blast Booth; that the vendor proposal to sell the booth was made to 8760; the vendor invoiced 8760 for the purchase and installation of the Blast Booth; and the draw request forms for funding the Blast Booth indicate the project owner was 8760.
Hudson argues in its brief, as discussed above, that it has a first priority security interest in 8760's equipment. It also asserts that the Blast Booth is not a fixture and is ordinary equipment subject to its claimed priority security interest in 8760's equipment pursuant to its financing statements. However, as the Court held above, the description contained in BCS's financing statement was sufficient and BCS
*53holds the first priority security interest in 8760's equipment. Accordingly, even if the Court agreed with Hudson that 8760 was the owner of the Blast Booth and that the Blast Booth should be characterized as equipment, it would still be BCS that holds the first priority security interest in that equipment as discussed and held above.
BCS argues in its briefs that Pelham owns the Blast Booth because the booth was purchased and installed with funds drawn on Pelham's line of credit and Debtors concede that Pelham owned the booth. It also contends that the Blast Booth is a fixture under Missouri law and BCS has a senior and first priority lien pursuant to the deed of trust it holds from Pelham. Thus, if the Court were to agree with BCS's position on ownership and characterization of the Blast Booth, BCS would still hold a first priority lien as to the Blast Booth.
As discussed, although either scenario set forth by the parties leads to Court to the conclusion that BCS holds a first priority lien on the Blast Booth, the Court makes its own findings as to the ownership and characterization of the Blast Booth.
Under Missouri law, there are several ways to determine title to goods not governed by certificates of title. A person or entity that has dominion or control over a thing has ownership of the thing. Olin Corp. v. Dir. of Revenue ,
Proving ownership of personal property-not covered by a certificate of title-under Missouri law requires "minimal evidence." Renaissance Leasing, LLC v. Vermeer Mfg. Co. ,
In Marsh , cabinets were installed in home by nailing them to the walls and floors. The court noted that if the cabinets were removed, there would be torn places in the walls and holes in the floors and it would have been difficult to remove them if plumbing and wiring had been installed. Thus, the court determined that it was the annexor's intent to make the cabinets a permanent accession, as shown by his acts and conduct and the cabinets were fixtures.
In a fixture analysis, to determine when an item "become[s] so related to particular real property that an interest in the item arises," the Missouri Supreme Court outlined three necessary elements: (1) annexation, (2) adaption, and (3) the intent of the annexor.
*54Marsh ,
1. Annexation
An item is annexed when it is physically attached to the real property. Herron , at 912. Even if there is only a slight physical attachment the annexation element is met.
2. Adaptation
Adaptation means that the building was "designed or built with the view of having the particular item made an integral part of the building, or if the alleged fixture was necessary for the particular use to which the premises are devoted" then the item is adapted to the building. Herron v. Barnard ,
3. Intent
The intent element is of paramount importance in a fixture analysis. Herron, at 912 ; Marsh v. Spradling ,
As Debtors' principal testified at trial, the Blast Booth was bolted into the concrete floor of the 5105 Pelham Drive building and the building was specifically designed to incorporate the Blast Booth by installing special trenches for augers in the concrete floor. He testified that if the Blast Booth was removed the trenches would have to be covered or filled with concrete and the bolts would have to be cut off flush with the floor and driven down into the concrete floor to repair the area where the Blast Booth was located. Further, he testified that when Debtors installed the Blast Booth in the building he did not intend for the Blast Booth to ever be removed. It is clear to the Court that the Blast Booth qualifies as a fixture under Missouri law. See e.g., Marsh ,
Further, even if the Blast Booth for some reason was not considered a fixture, the Court believes that evidence weighs in favor of Pelham being the owner of the Blast Booth. Most importantly in the Court's view, the booth was paid for with funds on Pelham's line of credit with BCS. Although there was testimony that some invoices and draw requests listed 8760 as the owner, those documents were not prepared by either of the Debtors and do not establish ownership. 8760 was the general contractor on the project which could have been the reason its name was used on project documentation but this does not prove ownership. No evidence was offered identifying who placed the name on the document or why. Absent such evidence, this fact has little weight in the analysis. The fact that 8760 used the Blast Booth and did not pay for its use is also not controlling because 8760 was the operating company and this type of situation is not unusual between closely held companies. Missouri law requires only "minimal evidence" to establish ownership and "any competent evidence" is sufficient. See Southwestern Bell ,
III. CONCLUSION
For all the reasons discussed above, the Court finds that BCS holds a first priority security interest in the non-office equipment and inventory of 8760 Service Group, LLC and a first priority security interest in the Blast Booth installed on the real property at 5105 Pelham Drive.
The Court notes that there is not a separate motion or objection before the Court on which it can enter an order. Additionally, the parties have advised the Court that they have resolved the remaining three issues that were originally raised (marshaling, subrogation and diminution in value) and that are not dealt with in this opinion and have memorialized that resolution in a written document.
The factual and procedural background of the case has been presented to the Court in both written joint stipulations and through testimony at trial.
The parties also dispute which party has the burden of proof on both remaining issues. The Court agrees that the burden would shift depending on the legal or factual basis on which the Court relies, but has determined that this issue is irrelevant because its analysis remains the same on each issue and it would render the same decision in any event.
Debtors and Hudson urge the Court to look only to the financing statement amendment filed by BCS in 2015 (the third UCC filing). The Court does not disagree that a later filed UCC-1 amendment is controlling over any previously filed statements, but it is not necessary for the Court to further analyze this argument because its finding would be the same under the collateral description in either financing statement in this case.
Hudson and Debtors also cite to In re Softalk Pub. Co. ,
This reference to "interpretation" of the financing statement language refers to the subsequent creditor's interpretation, not to a court's interpretation. The Court need not employ contract or statutory interpretation principles because it is not interpreting the language per se, but determining whether the creditor should have been put on inquiry notice based on such language. The Court itself is not interpreting the actual contract language but merely looking at the language contained in the financing statement to determine if such language puts the subsequent creditor on inquiry notice. Principles of statutory construction are used when a court is interpreting a statute or contract that it has determined is ambiguous. In a case such as here and ProGrowth , if the collateral description is determined to be ambiguous or open to multiple interpretations, the court does not proceed to interpret the language but instead finds that the subsequent creditor should have been on notice to inquire further into the collateral.
The parties have stipulated to the amount of BCS's claims. Doc. 189 at ¶ 28.
Reference
- Full Case Name
- IN RE: 8760 SERVICE GROUP, LLC, and Pelham Property, LLC, Debtors.
- Status
- Published