Gray v. Giant Wholesale Corp.
Opinion of the Court
This is a case brought by David G. Gray, trustee in bankruptcy for the estate of William Jerry Page d/b/a Hendersonville Food Center, against Giant Wholesale Corp., a Tennessee corporation, to recover for allegedly ineffective, voidable and preferential transfers made to Giant before Page filed his voluntary Chapter 7 bankruptcy petition.
I
Page began working in Wayne Ingle’s Stoney Knob Superette (a grocery store) in 1979. Shortly thereafter, Ingle apparently made Page a part-owner of the store. Ingle and Page then contemplated opening a new store, the Hendersonville Pood Center (Food Center), and they contacted Giant, the primary inventory supplier of the Stoney Knob store. Giant agreed to supply groceries to Food Center, provided Ingle and Page agreed to guarantee all indebtedness incurred by Food Center. Subsequently, on April 23, 1980, Ingle and Page, purportedly representing Ingle-Page Enterprises, Inc.,
Shortly after Giant agreed to supply Food Center, Ingle and Page had a “falling out.” Ingle agreed to retain ownership of the Stoney Knob store, and Page succeeded to sole ownership of Food Center. Page, however, was unable to revive the solvency of Food Center. On October 17, 1980, Page agreed to relinquish control of Food Center’s checking account to Giant. Giant controlled the dispensation of all checks, but Page determined the amount of money to be placed into the checking account and Page continued to manage Food Center. Between October 17, 1980, and February 12,1981, Giant issued over 300 checks from Food Center’s account; only 23 checks were issued to Giant and the amount of Food Center’s indebtedness to Giant increased while Giant controlled its checking account.
On February 12, 1981, Giant notified Page that it intended to repossess all of Food Center’s inventory because of the mounting indebtedness and Page’s default under the security agreement. In fact, Giant repossessed Food Center’s inventory and equipment on the evening of February 12, transported it to Tennessee, returned the non-perishable inventory to its stock, and sold the equipment and perishable inventory at private sales. Giant informed Page of the manner of disposition. One day after repossessing the inventory, Giant induced Page to sign a security agreement and a financing statement covering the inventory and equipment that Giant had already repossessed. Giant filed such financing statement. Thereafter, on September 30, 1981, over seven months after the inventory was repossessed, Page filed a voluntary Chapter 7 bankruptcy petition. Gray was appointed as trustee, and he brought this action against Giant.
II.
Initially, Gray contends that Giant failed to perfect its security agreement in Food Center’s inventory by notice filing, therefore, Gray contends that Giant’s interest in the inventory is subordinate to the rights of the trustee as a hypothetical lien creditor pursuant to Bankruptcy Reform
Gray next argues that Giant, by dispensing itself cheeks from Food Center’s account and by repossessing the inventory, received voidable preferential transfers.
Gray further contends that Giant, by repossessing all of Food Center’s inventory, received an ineffective bulk transfer pursuant to N.C.Gen.Stat. § 25-6-104. Gray, however, overlooks a recognized exception to the bulk transfer provisions for transfers “in settlement or realization of a lien or other security interest.” N.C.Gen. Stat. § 25-6-103(3). Since Giant, as a secured creditor repossessing its collateral, was merely enforcing its security interest, it is excepted from the bulk transfer provisions.
Lastly, Gray contends that the district court improperly instructed the jury concerning the commercial reasonableness
Accordingly, the judgment of the district court is
AFFIRMED.
. Jurisdiction was based upon 28 U.S.C. § 1471(b) (1983).
. See N.C.Gen.Stat. § 25-6-101 et seq.
. Pursuant to N.C.Gen.Stat. § 25-9-504(3).
. Ingle and Page represented in the promissory notes, the security agreement, and the guaranty agreement that Ingle-Page Enterprises, Inc. was the debtor, but no such corporation ever legally existed. Since both Ingle and Page signed such documents, they are bound by them.
. 11 U.S.C. § 544(a)(1) (1983).
. N.C.Gen.Stat. § 25-9-301(l)(b).
. See N.C.Gen.Stat. § 25-9-302(l)(a).
. Pursuant to N.C.Gen.Stat. § 25-9-503.
. Pursuant to 11 U.S.C. § 547(b).
. See 11 U.S.C. § 101(25)(B)(iii).
. Every aspect of the disposition of repossessed collateral must be commercially reasonable, pursuant to N.C.Gen.Stat. § 25-9-504(3).
. As required by North Carolina law. See Wachovia Bank & Trust Co. v. Murphy, 36 N.C.App. 760, 245 S.E.2d 101, appeal denied, 295 N.C. 557, 248 S.E.2d 734 (1978); ITT — Industrial Credit Co. v. Milo Concrete Co., 31 N.C.App. 450, 229 S.E.2d 814 (1976).
Reference
- Full Case Name
- David G. GRAY, Trustee, and A. Wayne Ingle and William Jerry Page t/d/b/a Ingle-Page Enterprises, Inc. v. GIANT WHOLESALE CORP., a Tennessee Corporation v. Joyce P. INGLE and Joanna W. Page, Third-Party
- Cited By
- 11 cases
- Status
- Published