Adams v. Lierka Corp.
Adams v. Lierka Corp.
Opinion of the Court
OPINION OF THE COURT
The appellant, Lauretta Adams, filed a complaint in equity against two corporate defendants, appellees here. The complaint alleged that the appellant was a creditor of one of the corporate defendants, 800-Lincoln Bar Corporation (Lincoln), at the time when, without consideration, Lincoln transferred all of its assets to the second defendant, Lierka Corporation (Lierka). The amount
In 1968 the appellant owned a hotel and restaurant business licensed to sell liquor and malt beverages. The business was located on real estate also owned by the appellant. In January of 1968, appellant sold both the business and the real estate to Lincoln for a total consideration of $33,000. Appellant received the sum of $10,000 and was to be paid the balance in installment payments over a period of years. The balance due was secured by a second mortgage given by Lincoln in favor of the appellant. The first mortgage on the real estate was held by Henrietta Silverstein and Libby Baumholtz who had made a loan to Lincoln in the amount of $9,700. The appellant, as well as Silverstein and Baumholtz, also received a bond and warrant evidencing the respective debts due from Lincoln. Lincoln soon experienced difficulty in making payments on both the first and second
At some point in 1969 (the exact date is not clear from the stipulation of facts) the appellant relinquished her positions with Lincoln. Subsequently, in April of 1970, Silverstein and Baumholtz took control of Lincoln and began serving as its officers and directors. On November 5, 1970, about six months after Silverstein and Baumholtz took control, Lincoln transferred all of its assets to Lierka. At this time Lierka was a corporation controlled by Baumholtz as the sole shareholder, presi
Appellant's legal arguments, are based on the claim that the appellant, as well as Silverstein and Baumholtz were on a par as general creditors of Lincoln corporation on November 5, 1970, the time when Lincoln transferred all of its assets to Lierka. Appellant contends here, as she did in the trial court (1) that the transfer was a fraudulent conveyance because the transfer rendered Lincoln insolvent and was made without a fair consideration. See Section 4 of the Uniform Fraudulent Conveyance Act, Act of May 21, 1921, P.L. 1045, No. 379 (39 P. S. § 354); (2) that the transfer was a fraudulent conveyance because the transfer was made without consideration between two corporations controlled by creditors with the intent to defraud other creditors of Lincoln, namely the appellant. See Section 7 of the Uniform Fraudulent Conveyance Act, Id. (39 P.S. § 357); and (3) that the transfer was a fraudulent conveyance because it did not comply with the law concerning bulk transfers. See Article 6 of the Uniform Commercial Code — Bulk Transfers, Act of April 6, 1953, P.L. 3, § 6-101, as amended, 12A P.S. § 6-101 et seq.
Appellant contends that if both appellant and Silver-stein and Baumholtz were general creditors of Lincoln after the foreclosure and the sale of Lincoln’s real estate, then Lincoln was required to comply with Article 6 of the Uniform Commercial Code (covering bulk transfers) and was also prohibited from making transfers in violation of the Uniform Fraudulent Conveyance Act. Neither the trial court nor appellees take issue with this argument. The appellees argue, and the trial court concluded, that Lincoln did not have to comply with the Uniform Fraudulent Conveyance Act or Article 6, when it transferred all of its assets to Lierka because Silverstein and Baumholtz were secured creditors of Lincoln.
“. . . the fact is, however, that Mrs. Baumholtz and Mrs. Silverstein as holders of a first mortgage possessed a security interest for which they paid $9,700 and which interest had priority over the claim of the plaintiff. . . . ”
There is no basis in the stipulation of facts for the trial court’s conclusion that the first mortgage which Silverstein and Baumholtz had on the Lincoln real estate also gave Silverstein and Baumholtz a perfected security interest in the other assets of Lincoln. That mortgage interest terminated at the time the real estate was sold at sheriff’s sale, September, 1969. The agreed statement of facts is also silent as to the existence of any other perfected security agreement covering the assets transferred between the two corporations.
Appellants do not dispute that the mortgage of Silverstein and Baumholtz was prior in time and recording to appellant’s mortgage. Item 27, in the agreed statement of facts, reads:
“Libby Baumholtz and Henrietta Silverstein had a claim as creditors of 800-Lincoln Bar which was prior in time and in recording to the claim of the plaintiff, Lauretta Adams.”
Item 27, however, makes no mention of any security agreement or any perfected security interest held by Silverstein and Baumholtz in the other assets of Lincoln. The recording of a debt alone does not establish a perfected security interest in any assets of the debtor. Additional facts, which do not appear in the record before us, are necessary to establish the existence of a perfected security interest in such assets. See Article 9 of the Uniform Commercial Code. Act of April 6, 1953, P.
Appellant does not contend, and did not contend in the trial court, that there was any impropriety in the mortgage foreclosure and the sale of the real estate which divested appellant’s second mortgage on the real estate. The rationale behind almost all of appellant’s exceptions before the court en banc was the assertion that, after the sheriff’s sale of the real estate, Silverstein and Baumholtz were no more than general creditors of Lincoln, as was the appellant, and that no one had a perfected security interest in the other assets of Lincoln. The appellees have argued that they obtained a security interest in the assets of Lincoln when they loaned to Lincoln $9,700 and received their first mortgage. A first mortgage on real estate is a secured interest in real estate but it does not constitute any security interest in other assets of the debtor. As we said in Rabe Estate, 452 Pa. 212, 214, 304 A.2d 485, 487 (1973):
“It is elementary law that a mortgagee has a lien on the realty which secures the mortgage debt . Beyond the mortgaged property, however, the mortgage does not constitute a lien and hence, as against other property, the mortgagee’s status is that of a general creditor . . . Should the mortgagee choose to seek satisfaction of the obligation secured by the mortgage [against property other than the mortgaged property], he is regarded as asserting the rights of an unsecured, general contractor only. . . . ”
For the resolution of this controversy it is essential to determine whether Silverstein and Baumholtz had a perfected security interest in those of Lincoln’s assets which were transferred to Lierka in 1970, and whether the sale of Lincoln’s assets was made pursuant to any such perfected security agreement.
The stipulation stated that the matter was to be adjudicated by the trial court “upon the following agreed statement of facts, subject to additional testimony which may be requested by either party, or the court, as to matters not covered.” In view of the above agreement, it is necessary and proper for the trial court to request either an agreement as to additional essential facts or, if such an agreement is not possible, to make findings of fact based on evidence. The matter must therefore be remanded to the trial court.
The trial court also concluded that the appellant was guilty of laches because she made no attempt to protect herself after the mortgage foreclosure on the real estate in 1969. Appellant however has never complained about the foreclosure on the real estate. Appellant had no reason for her present complaint until Lincoln transferred all of its assets to Lierka on November 5, 1970. Appellant initiated this action on April 6, 1971, five months later. Moreover, the record is silent as to when the appellant first learned of the transfer of assets from Lincoln to Lierka. Under these circumstances there was no basis for the trial court’s conclusion that the appellant was guilty of laches.
Lastly, appellees argue that the appellant’s rights were affected, in some way not clearly specified in appellees’ brief, because appellant served as president and operated Lincoln for a period in 1969. The appellant, however, as an individual is a legal person separate from Lincoln Corporation. Appellant ran Lincoln for awhile in an attempt to make it profitable. Although some pay
The decree of the lower court is vacated and the matter remanded for further proceedings consistent with this opinion. Each party to pay own costs.
Dissenting Opinion
(dissenting).
I dissent. I would reverse and remand to the hearing court with directions to enter an appropriate decree setting aside the transfer of the assets from the 800-Lincoln Bar Corporation to the Lierka Corporation.
Reference
- Full Case Name
- Lauretta ADAMS v. LIERKA CORPORATION, and 800-Lincoln Bar Corporation
- Cited By
- 1 case
- Status
- Published