In re B&M Hospitality LLC
In re B&M Hospitality LLC
Opinion of the Court
I. INTRODUCTION
In the instant matter, the Chapter 7 Trustee ("Trustee") and M & T Bank ("M & T") seek to have this Court determine the validity of M & T's lien on the liquor license ("Liquor License") owned by B & M Hospitality ("Debtor"). Because Pennsylvania law permits the creation of security interests in liquor licenses and M & T created and properly perfected its security interest in the Liquor License, M & T has a valid, perfected lien on the Liquor License.
II. FACTUAL BACKGROUND
The Trustee and M & T stipulated to the following facts. Prior to the Debtor's bankruptcy filing, M & T made a commercial loan ("Loan") to the Debtor in the principal amount of $85,000. Joint Stip. at ¶ 2. On September 10, 2014, M & T and the Debtor executed a term note and a security agreement ("Security Agreement") to secure repayment of the Loan. Id. at ¶¶ 2, 3, Ex. A, Ex. B. Pursuant to the Security Agreement, the Debtor specifically granted M & T a security interest in "Collateral" which was defined as "general intangibles limited to that certain restaurant *90liquor license number R-1140 issued by the Pennsylvania Liquor Control Board" and "all proceeds of collateral of every kind and nature in whatever form, including, without limitation, both cash and noncash proceeds resulting or arising from the sale or other disposition by the Borrower of the collateral." Id. at ¶ 3 and Ex. B. at ¶ 1.2(c)(I)-(II). As a result, the Loan was secured by the Liquor License pursuant to the terms of the Security Agreement. Id. at ¶ 3.
On September 25, 2014, M & T filed a UCC-1 Financing Statement, File No. 2014093002347 ("UCC-1"), in the Office of the Secretary of the Commonwealth. Id. at ¶ 4. The UCC-1 describes M & T's collateral as "all assets of the debtor, whether now existing or hereafter acquired or arising, wherever located" but does not specifically mention the Liquor License. Id., Ex. C.
On July 28, 2017, the Debtor filed for relief under Chapter 7 of the Bankruptcy Code and the Trustee subsequently was appointed to administer the Debtor's bankruptcy estate. Id. at ¶ 1. On October 19, 2017, the Trustee filed a Motion of Trustee to Sell Debtor's Asset Pursuant to
On November 1, 2017, M & T filed its Response in Opposition to the Sale Motion, contending that it had a valid, perfected security interest in the Liquor License by virtue of the Security Agreement and the UCC-1.
The Trustee and M & T subsequently agreed to the terms of an order ("Sale Order") which provided that: (1) the Liquor License would be sold free and clear of all interests for $175,000 with any such interests to attach to the proceeds of the sale; and (2) the Trustee would escrow proceeds from the sale in an amount sufficient to protect M & T's security interest in the Liquor License pending the Court's determination of the validity of M & T's lien on the Liquor License.
III. DISCUSSION
The Trustee and M & T primarily dispute whether a security interest can be created in a liquor license under Pennsylvania law. Trustee's Brief at 1; M & T's Brief at 3. The Trustee argues that, because the Pennsylvania Supreme Court held in 1984 that third parties cannot hold security interests in liquor licenses, M & T's purported security interest in the Liquor License cannot be valid. Trustee's Brief at 6. According to the Trustee, the Pennsylvania Supreme Court relied on a Pennsylvania Liquor Code ("Liquor Code") provision, 47 P.S. § 4-468(b.1), providing that liquor licenses constitute a privilege and not property.
The Trustee argues that, despite the enactment of a 1987 amendment to the Liquor Code, 47 P.S. § 4-468(d) ("the 1987 amendment") which defined a liquor license as property between third parties and the licensee, third parties cannot create security interests in liquor licenses because: (1) the 1987 amendment directly conflicts with 47 P.S. § 4-468(b.1), which the Pennsylvania Legislature did not repeal; (2) certain cases decided after 1987 *91still cite to the Pennsylvania Supreme Court's holding as good law; and (3) the Pennsylvania Supreme Court's holding has not been overturned.
In response, M & T relies upon numerous cases issued after 1987 which confirm that it is well established under Pennsylvania law that a third party can hold a security interest in a liquor license based upon the 1987 amendment. M & T's Brief at 3-4.
In the alternative, the Trustee argues that M & T failed to properly perfect its security interest in the Liquor License because the UCC-1 failed to specifically identify the Liquor License as collateral. Trustee's Brief at 6. M & T maintains that the UCC-1 sufficiently describes the subject collateral because it indicates that the UCC-1 covers all assets of the Debtor as the Pennsylvania Uniform Commercial Code ("UCC") permits. M & T's Brief at 5.
The Court ultimately concludes that, in light of the 1987 amendment characterizing a liquor license as property between a licensee and third parties, it is clear that a security interest can be created in a liquor license and that the 1987 amendment does not contradict 47 P.S. § 4-468(b.1). The Court is not persuaded by the cases the Trustee cites in support of his position because they were either issued prior to the 1987 amendment or fail to consider the 1987 amendment. The Court also holds that, because the Security Agreement specifically identified the Liquor License as collateral and the UCC-1 described the collateral as "all assets of the debtor," which complies with Pennsylvania UCC § 9-504, M & T has a valid, perfected security interest in the Liquor License.
A. Ability to Create Security Interests in Liquor Licenses Under Pennsylvania Law
1. Security Interests in Liquor Licenses Under Pennsylvania Law
State law determines property interests in bankruptcy and whether security interests exist in a debtor's assets. In re Submicron Systems ,
*92In 1984, relying on 47 P.S. § 4-468(b.1), the Pennsylvania Supreme Court held that, because a liquor license constitutes a personal privilege rather than property, it cannot be subject to attachment. 1412 Spruce Inc.,
On July 1, 1987, however, the Pennsylvania Legislature amended 47 P.S. § 4-468 to add a new section specifying that "[t]he license shall constitute a privilege between the board and the licensee. As between the licensee and third parties, the license shall constitute property." 47 P.S. § 4-468(d). Section 4-468(b.1) has not been repealed.
2. The Plain Language of the 1987 Amendment Makes Liquor Licenses Property Between Third Parties and Licensees And Does Not Conflict with 47 P.S. § 4-468(b.1).
Statutory construction begins with the plain language of the statute. Artis v. District of Columbia, --- U.S. ----,
The plainness or ambiguity of statutory language is determined by reference to "the language itself, the specific context in which that language is issued, and the broader context of the statute as a whole." Robinson v. Shell Oil Co.,
The plain language of the 1987 amendment characterizes a liquor license as property between a licensee and a third party and as a privilege between a licensee and the Board. 47 P.S. § 4-468(d). Although no legislative history conclusively establishes the intentions of the Pennsylvania Legislature in enacting the 1987 amendment, it is not necessary to consider legislative history when the language of the text is so clear. See Barnhart ,
With regard to the Trustee's argument that the 1987 amendment conflicts with 47 P.S. § 4-468(b.1), the Court recognizes that it should attempt to "reconcile two seemingly conflicting statutory provisions whenever possible, instead of allowing one provision to effectively nullify the other." U.S. v. Gordon,
The majority of cases considering the creation of security interests in liquor licenses after the enactment of the 1987 amendment found that, by characterizing liquor licenses as property between licensees and third parties, the 1987 amendment made it possible to create security interests in liquor licenses. In re Tam of Allegheny ,
The few post-1987 cases cited by the Trustee which still rely on 1412 Spruce Inc. either fail to consider the 1987 amendment at all in their analyses
The Pennsylvania Legislature, by enacting the 1987 amendment, redefined the nature of a liquor license under state law. In re Jackson,
B. M & T's Creation and Perfection of a Security Interest in the Liquor License
1. Creating Security Interests in Collateral
Under Pennsylvania law, a security interest attaches to collateral when it becomes enforceable against a debtor with respect to the collateral. 13 Pa. C.S.A. § 9-203(a). A security interest is enforceable against a debtor and third parties with respect to 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) the debtor has authenticated a security agreement which provides a description of the collateral.
The Trustee and M & T do not dispute that value was given and that the Debtor has rights in the Liquor License. M & T's Brief at 4 (only addressing sufficiency of the collateral description in the Security Agreement); Trustee's Brief at 6 (not mentioning any issues with value exchange or the Debtor's rights in the Liquor License). They also do not dispute the sufficiency of the collateral description in the Security Agreement because it describes the Liquor License by specific listing, as well as by collateral category. See Security Agreement, Ex. B ¶ 1.2(c)(i); M & T's Brief at 4-5; Trustee's Brief at 6 ("The Security Agreement describes the collateral as general intangibles limited to Liquor License R-1140...more importantly, M & T failed to include that language in its UCC-1 Financing Statement."). Therefore, M & T's security interest did attach to the Liquor License because the Security Agreement met all three requirements to make it enforceable against the Debtor and third parties.
2. Perfecting Security Interests in Collateral
Related to attachment is the "perfection" of a security interest. Interbusiness Bank, N.A. v. First National Bank of Mifflintown,
In order to perfect a security interest, a secured party must file a financing statement
Here, the parties only dispute the sufficiency of the description of the collateral in the UCC-1. They do not dispute that M & T properly filed the UCC-1 in the Office of the Secretary of the Commonwealth and appropriately identified all parties. Joint Stip. at ¶ 4; M & T's Brief at 5 (focusing exclusively on sufficiency of collateral description); Trustee's Brief at 6 (never takes issue with identification of the parties nor with the filing office).
M & T's UCC-1 indicates that "the financing statement covers the following collateral: All assets of the debtor, whether now existing or hereafter acquired or arising, wherever located." Joint Stip. Ex. C. Section 9-504(2) specifically provides that supergeneric phrases like "all assets" sufficiently describe collateral in a financing statement. M & T's UCC-1 clearly identifies the collateral as "all assets of the debtor." Joint Stip. Ex. C. According to 13 Pa. C.S.A. § 9-504(2), this language gives M & T a perfected security interest in the Liquor License.
The Trustee also argues that the Pennsylvania Supreme Court's holding in Heights v. Citizens National Bank, regarding the sufficiency of the description of collateral in financing statements, should control the disposition of this case. Trustee's Brief at 6. In Heights v. Citizens National Bank, the Pennsylvania Supreme Court, citing to former Pennsylvania UCC § 9-110 and § 9-402(1), stated that "the description of collateral in a financing statement need not be specific or exact as long as it reasonably identifies the type of property in which a security interest has attached" and that a description is sufficient "if it provides enough information to put a person on notice of the existence of a security interest in a particular type of property..." Heights v. Citizens Nat. Bank,
However, effective July 1, 2001, Article 9 of the Pennsylvania UCC underwent major revisions, including revised section 9-504(2) which clearly allows supergeneric terms to sufficiently describe collateral in *97financing statements.
IV. CONCLUSION
Ultimately, Pennsylvania law clearly allows third parties to create security interests in Liquor Licenses. M & T followed all the requirements to create and perfect a lien on the Liquor License and is entitled to proceeds from its sale in the amount of its secured claim. An appropriate order follows.
ORDER
AND NOW, this 3rd day of April 2018, upon consideration of the parties' Joint Stipulation of Facts, the Trustee's Brief, M & T's Brief, and the parties' arguments at a hearing, the Court finds that for the reasons given in the accompanying opinion, M & T has a valid, perfected security interest in the Liquor License, entitling M & T to proceeds from the sale of the Liquor License in the amount of its claim secured by the Liquor License.
Therefore, it is hereby ORDERED that the Trustee shall release to M & T proceeds from the sale of the Liquor License in the amount of M & T's claim secured by the Liquor License.
47 P.S. § 4-468(b.1) specifically states that "In the event that any person to whom a license shall have been issued under the provisions of this article shall become insolvent, make an assignment for the benefit of creditors, become bankrupt by either voluntary or involuntary action, the license of such person shall be immediately placed in safekeeping with the board for the balance of the term of the license and for an additional period of one year upon application to the board by the trustee, receiver, or assignee. The trustee, receiver, or assignee shall have, during said period of safekeeping, the same rights, benefits and obligations as to the license as the person to whom the license had been issued, including the right to transfer the license subject to the approval of the board. The license shall continue as a personal privilege granted by the board and nothing herein shall constitute the license as property."
Arguing that the phrase "nothing herein shall constitute the license as property" in 47 P.S. § 4-468(b.1) conflicts with the 1987 amendment characterizing the license as property between third parties and the licensee. Trustee's Brief at 2.
In one such post-1987 case, the creditor sought proceeds from the sale of the debtor's liquor license by virtue of a purported security interest in that liquor license. In re Ultimate Restaurant Group, Inc.,
The Third Circuit in In re Nejberger considered only whether a liquor license constitutes property of the bankruptcy estate, not the validity of security interests in liquor licenses, and briefly stated in dicta, without mentioning the 1987 amendment, that 1412 Spruce Inc. determined that a liquor license was not property. In re Nejberger ,
13 Pa. C.S.A. § 9-203(b)(3) requires that at least one of four possible conditions be met: (i) The debtor has authenticated a security agreement which provides a description of the collateral, (ii) the collateral is not a certificated security and is in the possession of the secured party under section 9-313 pursuant to the debtor's security agreement, (iii) the collateral is a certificated security in registered form, and the security certificate has been delivered to the secured party under section 8-301 pursuant to the debtor's security agreement, or (iv) the collateral is deposit accounts, electronic chattel paper, investment property, letter-of-credit rights or electronic documents, and the secured party has control under section 7-106, 9-104, 9-105, 9-106, or 9-107 pursuant to the debtor's security agreement. Subparts (ii)-(iv) are not applicable to the instant case.
13 Pa. C.S.A. § 9-102(a) of the Pennsylvania UCC also includes a trustee in bankruptcy under the definition of a "lien creditor."
Exceptions to this requirement include security interests perfected under (i) 9-308(d) (relating to supporting obligation); (ii) 9-308(e) (relating to lien securing right to payment); (iii) 9-308(f) (relating to security entitlement carried in securities account); or (iv) 9-308(g) (relating to commodity contract carried in commodity account). 13 Pa. C.S.A. § 9-310(b). None of these exceptions applies in the instant case.
However, financing statements must be filed in the office designated for the filing or recording of a record of a mortgage on the related real property if (i) the collateral is as-extracted collateral or timber to be cut or (ii) the financing statement is filed as a fixture filing and the collateral is goods which are or are to become fixtures. 13 Pa. C.S.A. § 9-501(a)(1)(i)-(ii). Neither situation applies in the instant case.
Prior to the revisions, former Pennsylvania UCC § 9-402(1) governed indication of collateral in financing statements and required a financing statement to reasonably identify the type of property to which a security interest had attached and provide notice of a security interest in a particular type of property. 13 Pa. C.S.A. § 9-504 comment 1; Heights,
Reference
- Full Case Name
- IN RE B & M HOSPITALITY LLC, Debtor
- Cited By
- 4 cases
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- Published