Federal Deposit Insurance v. Hastie
Federal Deposit Insurance v. Hastie
Opinion of the Court
The issue in this case is whether’a perfected security interest in registered and certificated common stock continues in cash dividends paid on that stock under the Uniform Commercial Code as enacted in the state of Oklahoma.
I
Acquisition Management, Inc., a successor in interest of the Federal Deposit Insurance Corporation, acquired a security interest in shares of stock owned by a debtor, Mr. John Hastie. FDIC/Acquisition Management [hereinafter “FDIC”] and Mr. Hastie also entered into a security agreement in favor of FDIC covering dividends paid on the stock.
II
We review the granting of Mr. Hastie’s motion for summary judgment de novo, applying the same standard as the district court. Abercrombie v. City of Catoosa, 896 F.2d 1228, 1230 (10th Cir. 1990). Summary judgment is appropriate where there are no genuine issues of fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
The threshold issue in this case is whether after-acquired property is subject to a pre-petition security interest under bankruptcy law. Mr. Hastie acquired the cash dividends after the date of the bankruptcy petition. Property acquired after the commencement of a bankruptcy proceeding is not subject to the lien of any security agreement entered prior to the bankruptcy petition, 11 U.S.C.A. § 552(a) (West 1993), except that a security agreement covering proceeds of property acquired before commencement covers proceeds acquired after commencement. 11 U.S.C.A. § 552(b) (West 1993).
Mr. Hastie was a debtor-in-possession having the powers and duties of a trustee, 11 U.S.C.A. § 1107(a) (West 1993); Zilkha Energy Co. v. Leighton, 920 F.2d 1520, 1523 (10th Cir. 1990), including the rights and powers of a hypothetical lien creditor with a judicial lien over property in the estate as of the commencement of bankruptcy proceedings. 11 U.S.C.A. § 544(a)(1) (West 1993); In re Waldvogel, 125 B.R. 13, 14 (Bankr.E.D.Wis. 1991). Under Oklahoma law, a lien creditor has priority over an unperfected se-
Was FDIC’s security interest perfected? Whether the cash dividends are proceeds and whether the FDIC has a perfected interest in such proceeds is determined by state law. In re Bumper Sales, Inc., 907 F.2d 1430, 1437 (4th Cir. 1990); cf. Butner v. United States, 440 U.S. 48, 55-57, 99 S.Ct. 914, 918-19, 59 L.Ed.2d 136 (1979). Under Oklahoma law, “a security interest ... continues in any identifiable proceeds,” Okla. Stat.Ann. tit. 12A, § 9-306(2) (West Supp. 1993), and “proceeds” are defined as “whatever is received upon the sale, exchange, collection or other disposition of the collateral or proceeds.” Okla.Stat.Ann. tit. 12A, § 9-306(1) (West Supp. 1993). With respect to this definition, the term “sale” may be defined generally as “[a] revenue transaction where goods or services are delivered to a customer in return for cash or a contractual obligation to pay. [The] [t]erm comprehends [a] transfer of property from one party to another for valuable recompense.” Blacks Law Dictionary, 5th ed. at 1200 (1979). Similarly, the term “exchange” may be defined as “[the] [a]et of giving or taking one thing for another,” id. at 505, and the term “collect” in the context of a debt or claim may be defined as “payment or liquidation of it,” id. at 238. Lastly, the phrase “other disposition” may be defined generally as the “[a]et of disposing; [or] transferring to the care or possession of another; [or] [t]he parting with, alienation of, or giving up [of] property.” Id. at 423. Accordingly, each of the foregoing events describes an event whereby one asset is disposed of and another is acquired as its substitute.
Based on the recited definitions, FDIC’s position is contrary to the language of the statute, and therefore we believe Oklahoma courts would find FDIC’s security interest in the cash dividends not perfected. The receipt of cash dividends by a registered owner of certificated securities bears no resemblance to the events specified in the definition of proceeds or to an act of disposition generally. Common stock represents an ownership interest in the issuing corporation. See Kerrigan v. American Orthodontics Corp., 960 F.2d 43, 46 (7th Cir. 1992). Under
We also find support for our reading of the proceeds section in other sections of the Code and the Official Commentary to the Uniform Commercial Code. The relevant texts provide as follows: (1) the creation and perfection of security interests in securities is governed by Okla.Stat.Ann. tit. 12A, § 8-321 (West Supp. 1993), which provides in relevant part that “[a] security interest in a security is subject to the provisions of Article 9”; (2) Official Comment (3), U.C.C. § 8-321 (1991) explains that:
a security interest in securities [is] subject to the provisions of Article 9 except those provisions dealing with the creation and perfection of security interests_ Thus, in the absence of agreement to the contrary, the secured party ... would have the duty to remit dividends he received to the debtor or to apply them in reduction of the obligation under Section 9-207(2)(c);
and (3) U.C.C.Okla.Stat.Ann. tit. 12A, § 9-207(2)(c) (West 1963) provides:
Unless otherwise agreed, when collateral is in the secured party’s possession
(c) the secured party may hold as additional security any increase or profits (except money) received from the collateral, but money so received, unless remitted to the debtor, shall be applied in reduction of the secured obligation.
The foregoing support the decision reached in this appeal because it would be
FDIC’s other contentions similarly lack merit. FDIC claims that if a secured creditor is required to obtain possession of the cash dividends to perfect its interest, then 11 U.S.C.A. § 363(c)(2) (West 1993) would be rendered meaningless. That section requires a trustee (or debtor-in-possession) to segregate and account for, and to restrict the use or sale of, any cash collateral in his possession. This argument is without merit, however, because 11 U.S.C.A. § 363(a) (West 1993) requires reference to 11 U.S.C.A. § 552(b) (West 1993) and the proceeds rule discussed above. As we have decided that FDIC’s perfected security interest in the stock did not extend to cash dividends, either at the commencement of the proceedings in bankruptcy or thereafter, the cash dividends, when declared and paid by the issuer and received by Mr. Hastie, were not FDIC’s cash collateral.
Likewise, this decision does not deprive FDIC of an opportunity to perfect an interest in dividends. An interest in dividends may be perfected by registering a change of ownership in the stock and securing possession of the dividends.
The decision of the district court is AFFIRMED.
. The security agreement provided:
[T]he Debtor hereby sells, assigns, transfers and conveys unto the Secured Party and grants to the Secured Party a Security interest in and to all of the Debtor’s interest and property rights, ... including, without limitation, all moneys and claims for moneys due and to become due to the Debtor under all dividends, distributions, accounts, contract rights, voting rights and general intangibles relating to and/or due from [the issuers]....
*1044 ... The Secured Party will have the right to receive from [the issuers] the share of dividends, profits, return of contributions and other distributions to which the Debtor would be entitled.
. 11 U.S.C.A. § 552(b):
Except as provided in sections 363, 506(c), 522, 544, 545, 547, and 548 of this title, if the debtor and an entity entered into a security agreement before the commencement of the case and if the security interest created by such security agreement extends to property of the debtor acquired before the commencement of the case and to proceeds, product, offspring, rents, or profits of such property, then such security interest extends to such proceeds, product, offspring, rents, or profits acquired by the estate after the commencement of the case to the extent provided by such security agreement and by applicable nonbankruptcy law, except to any extent that the court, after notice and a hearing and based on the equities of the case, orders otherwise.
. The parties make no argument with respect to Okla.Stat.Ann. tit. 12A, § 9-306(4) (West Supp. 1993), so we offer no opinion on the effect of this section on this appeal. See generally, In re Bumper Sales, 907 F.2d at 1437-38. Section 9-306(4) provides that:
In the event of insolvency proceedings instituted hy or against a debtor, a secured party with a perfected security interest in proceeds has a perfected security interest only in the following proceeds:
(b) identifiable cash proceeds in the form of money which is neither commingled with other money nor deposited in a deposit account prior to the insolvency proceedings.
. We express no opinion as to other possible methods of perfecting a security interest in cash dividends of common stock.
Reference
- Full Case Name
- In re John Douglas HASTIE, Debtor. FEDERAL DEPOSIT INSURANCE CORPORATION, and Acquisition Management, Inc., successor to the claims of FDIC v. John Douglas HASTIE
- Cited By
- 11 cases
- Status
- Published