1. In Re Bollinger Corporation
1. Fact
ICC loaned $150,000 to Bollinger Corp, who repaid $85,000 by Dec 4, 1974. Bollinger then borrowed another $150,000 from Z&J, securing it with ICC's original agreement. No formal security agreement was signed with Z&J, but they filed a new statement listing collateral. Bollinger filed for bankruptcy, with Z&J claiming $150,000, but trustee recognized only $55,000. Equipment was sold in bankruptcy, with Z&J receiving a $10,000 credit on its secured claim. The loan to Bollinger was secured by both ICC's original agreement and a future one with Z&J.
2. Issue
Can Z&J assert a secured claim against Bollinger for $150,000 without a formal security agreement, based on the documents and transactions involved?
3. Rule
*Under Article Nine of the U.C.C., a valid security interest generally requires two documents: a signed security agreement by the debtor describing the collateral, and a financing statement filed for public record. Section 9-203(1)(b) sets out the minimal requirements for a security agreement.
* Numeric Corp. ruled that a financing statement, with intent evidence, could meet security agreement requirements under section 9-203(1)(b).
* Casco Bank & Trust Co. allowed combining a financing statement with a promissory note for a security agreement.
4. Application
The promissory note alone did not constitute the security agreement, as it indicated a separate agreement would be delivered. The financing statement, however, listed detailed collateral and was signed by Bollinger. Correspondence between Z&J and Bollinger indicated an intent to secure the loan. Pennsylvania courts would likely reject the American Card rule, focusing on the intent of the parties. In this case, the promissory note alone was not sufficient, but when combined with the filed financing statement and the course of dealing between the parties, a valid security agreement existed.
5. Conclusion
The district court's decision recognizing Z&J's secured claim of $150,000 is affirmed.
* Feedback
담보물은 무엇인가? collateral 종류에 대해서 잘 알아야함.
UCC article 9 -동산담보.
부동산 담보는 real property~ 에서 다룸.
equipment 회사가 사용하는 비품(팔지 않는것). inventory 팔 재고 품목
팔아버린것 - consumer goods
채무자의 담보물이 어떤게 있나 왜 알아야하나 법적으로 알아야하는 이유.
collateral종류에 따라 perfect시키는 방법이 다름.
perfect시킨다는건 무슨의미? secured claim에 대한 법적 권리를 갖게된것.
formal security agreement
ICC와는 perfect되었으나 Z&J와는 perfect안됨. 이유는 formal security agreement없어서.
security agreement.
싸인한 이후 담보에도 권리 있음.
no formal security 일경우 무엇이 문제되나.
secured claim 인정안한다.
security interest -
Promissor note역할은?
채권을 입증하는 서류인데 담보를 잡았다는것을 입증해주나?
담보를 15만불치를 잡았느냐. perfect를 시켰느냐.
security agreement없어도 양당사자의 intent(15만불 담보설정했다는)만 입증하면 된다는것인가?
UCC article 9(강행법규)과 충돌하는가. 담보물을 잡아서 perfect시킬 수 있는 요건.
security agreement없으면 UCC 9의 요건 충족 안된거 아닌가.
dimiss시켜야하는데 인정한 과정, 가능하게 만든 논리가 무엇인가.
UCC article 9의 perfect하기 위한 요건은?
financing statement. 필요함 security agreement 필요함
이 사건에서는 security agreement가 없어도 perfect인정함.
왜?
security agreement요구할 때에도 intent가 인정될 다른 요소들이 되면 가능 O
security agreement formal한게 있으면 good. 보충설명에 의해서 유연하게 함-다른 서류들로 입증되면 .
intent나타나는 서류인가?
Promissory note - O
Financing statement - O
collateral 아주 자세히 적어야하나? --에 있는 가구, 보석 이렇게 적어도 되나? 다른 것과 구별못하게 적으면 효력없음. 자세히 적어야함.
Chapter7과 11의 차이는?
Chapter7은 법정가치없다고 봐서 처분해버림. Chater11은 법정관리(비지니스 유지)
Apply ?
15불 빌렸는데 담보물이 5만불이라면 이때 security agreement는 5만불임.
법원판결받아도 담보물이 없으면 집행못함.
creditor가 financing statement제출함.
finacing statement만으로 security agreement알수 없는 이유?
- agree한다라는 내용이 없으면 intent알 수 없음.
security agreement 를 보려는 이유는 intent를 보기 위함임.
2. WORLD WIDE TRACERS, INC., petitioner, Appellant,
v.
METROPOLITAN PROTECTION, INC., formerly Protection Technologies, Inc., Defendant,
Metropolitan State Bank, John Hole, et al., Respondents.
384 N.W.2d 442 (1986)
1. Fact
Appellant(World Wide Tracers, Inc.) sued to enforce its rights under a security agreement with debtor. Appellant sold assets to debtor in July 1980, including equipment, furniture, and accounts receivable. Debtor executed a security agreement and financing statement in favor of appellant. Bank loaned money to debtor in February 1982, with debtor executing new security agreements and financing statements. Debtor defaulted in fall 1982, leading to a lawsuit.
2. Issue
Is the description of collateral in the security agreement sufficient to perfect appellant's security interest in debtor's accounts receivable acquired after July 15, 1980?
3. Rule
Article 9 of chapter 336 Minn.Stat. §§ 336.9-203(1)(a), 336.9-402(1) - Both the financing statement and the security agreement to contain an identification of the property to be secured.
Talcott, 292 Minn. at 287, 194 N.W.2d at 782.- Security agreements where such a broad description of the collateral is misleading or ambiguous is not enforceable.
Financing statements require less specificity as they serve to provide notice to creditors. Security agreements embody the actual agreement between parties and require clearer descriptions.
4. Application
Some courts allow broad descriptions if they reasonably identify the collateral. A security interest should not be invalidated unless the description is so ambiguous that its meaning cannot reasonably be construed. The security agreement here uses the term "property" ambiguously. It includes a clause for after-acquired property, possibly limiting it to the same class. Debtor had previously stated its accounts receivable were unencumbered. While notice is important for financing statements, it's not the issue for security agreements. Ambiguities in contracts are typically construed against the drafter. The description of "any property" along with the attached list of tangible assets creates ambiguity.
5. Conclusion
The description of collateral in the security agreement, along with the ambiguity surrounding the term "property" and the after-acquired property clause, is too unclear to create a security interest in debtor's accounts receivable. Affirmed.
* Feedback
creditor 미수금 채권에 대해 무엇을 주장했는가?
피고가 어떤 주장을 하는가?
미수금 채권 포함되는냐가 문제가 됨.
issue
- 1. How strictly should the Uniform Commercial Code(UCC) requirements regarding the sufficiency of descriptions of collateral in security agreements and financing statements be applied?
원고는 account receivable 빠져도 된다.
피고는 빠지면 안된다.
2. Is the descrition of collateral as “ all of the property listed on Exhibit ‘A’ and made a part hereof, together with any property the debtor acquied after July 15, 1980,” a sufficient description of the collateral to perfect appellant’s security intest in debtor’s accounts receivable acquied after July 15, 1980?
1번째 이슈를 이슈로 안쓰고 룰로 써주면 됨.
2번째 이슈에 대해서 IRAC으로 쓰면 됨.
1번째 이슈- 실질적으로는 Rule 싸움.
항소심과 대법원에서는 Rule 싸움만 함 (fact싸움은 안함)
1번째 이슈는 일반적인 rule을 이야기하는 것 같음.
1심법원의 결정은?? account receivable 빠진경우 모호해 오해하기 쉽다고 함.
대법원에서 유지함.
3. C.O. FUNK & SONS, INC., et al., Appellants,
v.
SULLIVAN EQUIPMENT, INC., et al. (First National Bank and Trust Co., Appellee).
431 N.E.2d 370
1. Fact
C.O. Funk & Sons, Inc. (Funk) sold its farm implement business to Sullivan Equipment, Inc. (Sullivan) in March 1978. The unpaid balance of the purchase price was secured by a security agreement covering specified inventory, equipment, and proceeds. Sullivan was required to deposit 90% of the sale price in an escrow account for Funk's installment payments. Sullivan financed its inventory purchases with a loan from First National Bank and Trust Company of Tuscola (bank), secured by a security agreement covering inventory, equipment, after-acquired property, and accounts receivable. Both security agreements were perfected by filing financing statements, with Funk's filed first. Sullivan fell behind on payments to the escrow account, depositing $29,673.73 in its general business account instead. The auction of Sullivan's inventory in December 1979 produced $115,000, some of which was acknowledged to belong to Funk.
2. Issue
Whether the proceeds of the collateral sold by Sullivan were sufficiently identified to subject them to Funk's security interest when proof consists of the account into which they were deposited being used for purchasing new inventory.
3. Rule
Section 9-306 of the Uniform Commercial Code (UCC) states that a security interest continues in identifiable proceeds unless disposed of in a manner authorized by the secured party. The "lowest intermediate balance" rule presumes that proceeds remain in an account as long as the balance equals or exceeds the deposited amount. The burden of identifying proceeds falls on the party claiming the security interest.
4. Application
Funk claims a prior security interest under UCC sections 9-306 and 9-312. However, to establish this interest, Funk must identify the proceeds. The "lowest intermediate balance" rule suggests that the proceeds remain in the account, but Funk provided no evidence of the account balance during the relevant period. Funk argues it established a prima facie case by showing the sale of secured property and subsequent inventory purchases from the account. The burden of proof to identify the proceeds rests on Funk, not the bank.
Funk failed to provide evidence to identify the claimed proceeds. Without such proof, Funk cannot assert a superior security interest in the proceeds.
5. Conclusion
The judgment of the appellate court is affirmed.
* Feedback
Proceeds?
colletral 처분 후 수익금. 판매대금.
Account receivable : 매출채권. 외상대금.
담보잡지 않고 팔았는데 덜 받은 금액임.
SULLIVAN DEPOSIT 90% of the sale price.
돈이 없으면 Loan해야하는데 왜 예금하나요?
depoit한게 escrow account(맡아주는 제3자)로 들어간다.
확실히 물건 warranty보장하는 안전성, 확실성 위해서 escrow account사용함.
In ARREARS(연체) $29,673.73
Other account SULLIBAN PUCHASED -문제발생.
다른 account에 돈을 넣음. 사건발생 - 은행은 creditor, Funk credito 2명이 싸우게됨.
Auction
Temporary Restraining Order.
법원을 통해 강제집행하는 것이 있지만
우리나라의 가압류와 가처분 조치와 비슷한것.
재판전에 hearing , notice없다.
after actuired property
auction $115000
Funk claims in addtional only the $29,673.73 arrearage, and the circuit court of Piatt County held it was entitled to the funds.
29,673.73불에 대해서 funk에게 권리있음. 그 account에 있는 그 금액에 대해 권리있니?
The controlling issue before us is whether the proceeds of the collateral sold by Sulliban were sufficiently identified to subject them to Funk’s security interested was also used for the purchase of new inventory.
escow account에는 29,673... 없고, 다른 account에 있는 금액을 bank가 받으려고 하는데
왜 문제가 생겼는가?‘Proceeds’의 규정을 이 사건의 rule로 언급한 이유가 무엇인가?
(1) ‘Proceeds’ includes whaever is received upon the sale, exchange, collection or other diposition of collateral or proceeds.
(2) Excet where this Article otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof
That security interest, however, continues only in “identifiable proceeds” 추적확인가능한 수익에 대해서 계속된다.
다른 account에 판매대금 넣었는데, 인출안하고 계속 입금되면, identifiable (O)
이사건은 추적이 어려움. 11만 5천불 입금함. but 8만불 인출. 35000불 남음. 다음날 5만불 입금. 잔액은 85000불. 렌트 등 다른 금액 들어왔다 나갔다하면 섞임.입금과 인출이 들락달락하면 안됨.
이법원이 35000불만 인정. 이 금액만 안섞였다고 봄.
Although the Code provies no guidance as to how proceeds might be identified,
and this provision has been construed to permit application of a tracing theory known in the law of trustees as the “lowest intermediate balance” rule. What’s more, some of these tracing principles are already employed by a few jurisdictions in some secured transactions contexts.
As Professor Skilton notes(1977 So,III. U.L.J. 120.133n.21) the argument that a proceeds security interest terminates. (교수님의 개인의견을 강행규정으로 인용)
provides a presumption that proceeds remain in the account as long as the account balance is equal to or greater than the amount of the proceeds deposited.
The proceeds are “identified” by presuming that they remain in the account even if other funds are paid out of the account.
If Sullivan(채무자) is likened to the trustee of a constructive trust imposed because he commingled funds, then the lowest- intermediate-balance rule directs
that Funk’s proceeds in Sullivan’s account are preserved to the greatest extent possible as the account is depleted.
Under the rule, however, if the balance of the account dips below the amount of deposited proceeds . Funk’s security interest in the identifiable proceeds abates accordingly.
The lower balance is not increased if, later, other funds of the debtor are deposited in the account.
Thus the claimant has no priority over other creditors to any amount in excess of the lowest intermediate balance. In this case, Funk cannot assert a security interest in proceeds superior to that asserted by the bank.
은행도 idenrify못하면 못갖는거 아닌가? 은행도 identify해야한다.
4. In the Matter of GIBSON PRODUCTS OF ARIZONA, a limited partnership, Debtor.
ARIZONA WHOLESALE SUPPLY CO., Petitioner-Appellee,
v.
George J. ITULE, Respondent-Appellant.
543 F.2d 652 (1976)
1. Fact
Arizona Wholesale Supply Co. sold appliances to Gibson Products of Arizona and has a perfected security inerest in these appliances. Gibson initiated Chapter 11 proceedings, and within ten days of insolvency, deposited $19,505.27 in its bank account, including $10 from the sale of a Proctor-silex dryer in which Wholesale had a perfected security interest. Gibson owed Wholesale $28,000 for the appliances.
2. Issue
Does Wholesale, the secured creditor, have a valid claim to the entire $19,505.27 deposited by Gibson within ten days of insolvency, even though it exceeded the amount of Wholesale’s proceeds, and does this claim conflict with the bankruptcy trustee’s power to avoid preferences under Section 60 fo the Bankrupcy Act?
3. Rule
U.C.C Section 9-306(4)(d) gives a secured creditor an interest in nonproceeds when (1) insolvency proceedings are initiated, and (2) the debtor’s proceeds are commingled with other funds in the debtor’s aoount. The creditor’s interest is limited to the “amount not greater than the amount of any cash proceeds received by the debtor within ten days before institution of the insolvency proceedings” Section 60 of the Bankrupcy Act defines a preference as a transfer of property to creditor on account of an antecedent debt, made while the debtor is insolvent and within four months before bankrupcy.
4. Application
Wholesale asserts its security interest in the entire $19,505.27 deposited by Gibson. However, U.C.C. Section 9-306(4) limits the creditor’s interest to the amount of its proceeds. The Code intended to avoid widfalls for secured creditors by limiting their interest to the last ten days’ worth of proceeds. In a similar case, the Seventh Circuit limited the secured creditor’s interest to proceeds traceable to the sale of collateral. But this court rejects this interpretation, as it alters the intent and structure of the U.C.C. Under section 60 of the Bankruptcy Act, the transfer of excess funds above Wholesale’s preceeds constitutes a preference, as it is on account of an antecedent debt. The trustee can avoid this excess transfer. Wholesale's security interest is valid only to the extent of its proceeds. The trustee can avoid any excess as a preference. The burden is on the creditor to identify its proceeds to defeat the trustee's preference claim
5. Conclusion
Revered and remanded for further proceeding consistent with the views herein expressed. (The court reverses the decision, holding that Wholesale cannot claim the entire $19,505.27)
* Feedback
We reverse because we concluse that the operation of U.C.C Section 9~
Gibson deposited $19,505.27 in its bank account.
파산법원과 일반 채권자가 bank account에 대해서 싸우는 것.
(채무에 시달리다가 파산한 경우)
파산법원은 국가기관이기때문에 강제성이 있어서 강함.
이 은행잔고는 동결되었나? 동겸됨.
파산신청한 이후에 인출할 수 있나? 할수 없다. 입금은 가능한가?
bankrupcy code에서 찾아보기.
Gibson deposited 언제했나? 파산신청 진행되기 전 10일동안.
입금된것의 출처는? 헤어 드라이어.
persuant to which the bank temporarily sequestered
$21,843.31 (동결시킨 금액) - Wholesale claimed / 청구에 따라 압류함.
다른 receiver에게 주었는데 금액 남았다.
The proceeds section of the Code generally follows the pre-Code law (common law)
that a security interest continues in any identifiable preceeds by the debtor from the sale or other disposition of the collateral.
The problem arises in the U.C.C Section 9-306(4)(d) situation because~
His interest in these arises upon the occurence of two events.
Professor Gilmore observes~
On that assumption, awarding a perfedcted security interest to the secured creditor, good for a short time on the entire balace, gives the secured creditor no windfall to the detriment of general creditors. On our facts, the contrary is true.
Although we reach a similar result, we reject the Seventh Circuit’s reasoning because..
Transfer’ for the purpose of section 60a(2) is thus equated with the act by which proority over later creditors is achieved and not with the event which attaches the security interest to a specific account.
U.C.C 306 4(d) 와 60a(2) 차이점.
Ucc주법에 따르면 10일에 걸쳐 10달러 입금한 것은 bankruptcy code 60(a)와 충돌.
bankruptcy 60a(2)
transfer가 이것과 동일하다는 것은 무슨의미?
Wholesale had no interest in cash other than its own proceeds, and hence no priority over later creditors in such cash, until~
Transfer cannot occur earlier than ten days before the institution of bankruptcy.
the antecedent debt : 기존 빚.
5. Chemlease Worldwide Inc. v. Brace, Inc.
1. Fact
Chaemlease Worldwide,Inc.(Chemlease) sought a deficiency judgment against Brace, Inc. and guarantors Charles and Clayton Brace for unpaid lease anounts. Brace, Inc. leased computer equipment for 62 months, with monthly payments of $500, 48 and an option to purchase for $1. Brace,Inc. went out of business in June 1977, but Brace company continued operations. Cemlease was informed in Nobember 1978 by Gamet Manufacturing about the equipment’s statue. The equipment was sold to Chicago Cash Register Company of Fabruary 2, 1979. Chemease sent final demand and sale notice to appelants on Fabruary 1 and 2, 1979, respectively.
2. Issue
Was the notice of sale timely and reasonable and were the quarantors entitled to proper notice? Furthermore, was the private sale of the equipment conducted in a commercially reasonable manner, unlimately affecting the validity of Chemlease’s deficiency claim?
3. Rule
U.C.C. section 9-504(3)- A secured party must give reasonable notice of sale. Guarantors are entitled to notice of sale under U.C.C. principles. The commercial reasonableness of a sale considers timing, location, notification methoud, and sale price.
U.C.C section 2-401 - Title passes in a sale.
4. Application
Chemlease’s notice fell short, denying appelants a fair chance to respond. Guarantors( Chares and Clayton Brace) deserve timely notificaion. Commercial reasonableness involves timing, notificaion adequacy, and sale price. Chemlease’s inadequate notice hampered appelants’ lass mitigation effors. Burden rests on Chemlease to prove sale was commercially sound and price fair. Sale must comply with U.C.C section 2-401 for title transfer. From appelant’s view, Chemlease’s sale notice lacked adequacy and timeliness. Appellee asserts Chemlease followed U.C.C.guidelines and achieved a fair sale. However, appellant argures Chemlease’s actions hindered their loss mitigation. The trial must reassess Chemlease’s dificiency claim, considering notice sufficiency and sale fairness.
5. Conclusion
Reversed and remanded.
* Feedback
buyer 와 seller모두에게 의무가 있어 1달러 consideration 해야.
그동안 리스비용이 물건값을 넘어섰기 때문에.
default의 법적 정의? contract 에서는 bridge of contract.
계약을 cancel 하거나 안하는 방법(렌트했을때 차 손상시키면 원상회복하는 방법).
약속을 유지시키는 것이 사회에 도움이 됨.
cancel 언제하나
main(major) duty 어길때.
cancel + damage. 계약파기.
Considered and decided by the court en banc without oral argument.
Trial Court.
-On appeal, appellant들이 주장한것은
(1) that the lessor failed to give the lessee and personal guarantors reasonable notice of private sale, as required by the Uniform Commercial code.
(2) that a directed verdict was inappropriate because there existed factual questions as to whether the private sale was commercially reasonable.
summary judgement는 trial이 열리기전에 issue없다고 혹은 한쪽으로 완전히 기울이면 판결.
trial 이후 입증할 수 없으면, 입증할 수 없는 쪽을 실패했다고 해라. -directed verdict
1번째 issue 적용
- Brace. Inc. had an option to buy the equipment for $1 at the end of lease. The price of the equipment was $20.477.83.
Chemlease was not informed of the change in lessee and did not consent to any assignment of the lease. : 이 fact로 유리한 점이 있나 ?
lessee들이 바뀌었고 바뀐지 알지도 못했는데 notice 하지 못한 이유 있음.
The Brace Company, in turn, went out of business in the fall of 1977. However, the lease payment were made through October of 1978.
In November of 1978, Chemlease was informed by Gamet Manufacturing (Gamet)
the new tenant(임차인) of the premises where the computer equipment was located.
that the equipment had been left on the premises and requested disposition instructions.
After receiving this imformation from Gamet and because Brace. Inc. was in default on the lease, Chemlease’s collection agent undertook, steps to repossess the equipment.
2월 2일 1979년
The notice of private safe sated Chemlease would sell the equipment “on or after the 12th day of February, 1979.”
어떤 룰을 찾아야하나?
제대로 된 notification 했으면, sale 막을 수 있다.
sale의 법적의미 알아야.
delivery말고 sign하고 있을때 어느때 기준. 시점이 중요.
physical delivery 시점기준.
appellant에게 유리함.
6. Pearson v. Salina Coffee House, Inc.
1. Fact
Salina Coffee House(SCH) sold furnishings and equipment on credit to Beacon Realty Investment Company of Salina, operaring as Hilton Inn(Beacon). SCH filed UCC-1 financing statements in the trade name “ Hilton Inn” instead of Beacon’s legal name. Beacon never operated under its legal name, and all contracts with SCH were signed as “Hilton Inn.”
2. Issue
The sole issue is whether the UCC-1 financing statements, filed by the appellant, Salina Coffee House, which listed the debtor, Beacon Realty Investment Company of Salina, d/b/a Hilton Inn, under its trade name rather than under its legal name, are effective to protect SCH’s security interest against a cahllenge by the debtor’s trustee in bankruptcy.
3. Rule
Kan.Stat.Ann. §84-9-402(8) :
Kansas law- A financing statement should generally show the debtor’s legal name. Exceptions exist for minor errors that are not seriously misleading
Kan.Stat.Ann §84-9-402 official commnet 7
: The UCC generally discourages filing in trade names due to potential confusion .
The Ucc aims for clarity and certainty in lien perfection, requiring filing in the debtor’s legal name to provide notice to subsequent creditors.
4. Application
The bankruptcy court ruled that it was sufficient to file only in the trade name since “in an equity sense it seems extremly harsh to penalize Salina Coffee for failing to file in the undisclosed and unknown name of partnershop.” The district court reversed, holding that allowing a creditor to file only in a trade name would place an impermissible burden “upon potential creditors to ascertain and search any number of trade that may be used by a single detor.” The fact that no other creditor was actually misled in this case makes the result seem harsh, we are equally mindful of the mischief that would be created by allowing the trade name filing to be sufficient for perfection. We hold that, under Kansas law, SCH’s interest is unperfected. The rights conferred by §544 of the Bankrupcy Code give the trustee the power to avoid unperfected security interests.
5. Conclusion
SCH is an unsecured creditor of the ankruptcy estate. Affirmed.
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No oral argument.
from the district court’s reversal of an order by the bankruptcy court.
1심에 관여하지 않은 지방법원판사가 고등법원에 갈 수 있나?
The sole issue is whether the UCC-1 financing statements, filed by the appellant. Salina Coffee House. (”SCH”) which listed the debtor, Beacon Reality investment Company of Salina, d/b/a(doing business as) Hilton Inn(”Beacon”), under its trade name rather than under its legal name.
The district court, reversing the bankrupcy court held that SCH’s security interest was unperfected. We affirm.
under Kan. Stat. Ann § 84-9-402, except that it filed only in the debtor’s trade name “Hilton Inn”
왜 캔자스 주법에 따르나
Federal law (연방법)가 아니라.
Security tarnsaction에 관해서는 주법에 따름.
bankruptcy는 bankruptcy관련법이지만 security intest관련해서는 주법에 따름.
diversity 주법.
주법적용되는데 왜 연방법원으로 가나?
파산하게 되면 파산 당사자의 채무 동결하면서 이전 채무의 채권자에게 우선권에 따라 분배한다.
Trustee도 채권자로 보기때문에 SCH 권리보다 앞선다.
SHC responded that even if a creditor must generally file in the debtor’s legal name.
Kan.Stat. Ann §84-9-402(8) permits “minor errors which are not seriously misleading.”
It argued that the Hilton Inn trade name filing was not “ seriously misleaing”
예외를 인정했음.
becuase Beacon had consistently and exclusively held itself out to the public under that
trade name. Bankruptcy Court. : in an equity sense it seems extremely harsh to penalize Salina Coffee for failing to file in the undisclosed and unknown name of the partnership.
실제로 제3자가 나와서 misleading 하지는 않지만 앞으로를 대비해야함.
District court: The district court reversed, holding that allowing a creditor to file only in a trade name would place an impermissible burden.
“Upon potential creditors to ascertain and search any number of trade names that may be used by a single debtor.”
이사건은 hilton Inn,으로 진행되고 있음.
시스템상 입력되지만.
이 사건 이후에는 trade name 입력안되나.?
SCH legal name 안쓴것 때문임. (손해는)
legal name인지 trade name인지 확인하지 않고 입력해줌.
Pearson v. Salina Coffee House. Inc.
- The district court further held that the fact that no creditors were actually misled was not determinative.
since the trustee in bankruptcy is treated as an ideal hypothetical lien claimant.
as of the date of the bankruptcy and has priority over any unperfected interest.
11 U.S.C §544(a), Section 544(a) allows the trustee to avoid any unperfected liens on property belonging to the bankruptcy estate.
Under this provision, SCH will be an unsecured creditor in the debtor’s bankruptcy.
Althogh the rights of the trustee as a lien creditor are governed by federal law.
Our determination of whether SCH possesses a perfected security interest which has priority over the trustee as a lien creditor is controlled by Kansas State law.
Kan.Stat. Ann §84-9-402. Subsection(7) provides:
A financing statement sufficiently shows the name of the debtor.
SCH correctly argues that this provision does not expressly answer.
whether filing solely in the debtor’s trade name may also be sufficient under some circumstances.
The official UCC Comment suggests that a trade name is not sufficient.
On the other hand if a division or trade name is quite similat to the corporate name.
use of the trade name in the financing statement might not be “seriously misleading” under 84-9-402(8) - legal name과 corporate name이 비슷하면.
“Argus Inn.”
“Argus Tapes and Records. “-trade name 인데 되나? 된다. Argus들어가서 비슷하니까.
“Argus. Inc. d/b/a Argus Tapes and Records. “
“Glasco.Inc.”- 괜찮다.
“ Elite Boats Division of Glasco, Inc.”
But emphasized that the debtor did business only in the trade name.
The court conclude that the filing was not misleading.
Becuase a reasonably prudent creditor would have searched under the trade name
as well as the legal corporate name.
The Kansas Comment cites Tapes and Records approvingly for the proposition.
The facts of Tapes&Records, however, are considerably different from the fats of G`lasco.
However, the 1983 Kansas Comment implicitly rejects the holdings of both Glasco and MacBee.
The Kasas comment emphasizes that “perhaps the most important rule” in subsection (7)
7. In Re Miller
1. Fact
On July 30, 1979, Kenneth Ray Miller and Patricia Ann Miller entered into an Installment Sale Contract for a 1979 Chevrolet half-ton pickup truck. The contract required them to make 48 monthly payments of $178.05 for a total of $9,991.11 at an annual interest rate of 13.51%. The plaintiff owns the contract and has a security interest in the truck. On January 5, 1981, the debtors filed for relief under Chapter 13 of the Bankruptcy Code. The court determined the truck's value to be $4,900, and the debtors accepted this valuation as fair and accurate.
2. Issue
Does debtor’s proposed Chapter13 plan satisfy the provisions of 11 U.S.C., section 1325(a)(5), as required for confirmation of Debtor’s plan by the court over this rejecting secured creditor and is palintiff entitled to relief from automatic stay under the provisions of 11 U.S.C. §362(d) ?
3. Rule
11 U.S.C. Section 1325(a)(5)
(a) The Court shall confirm a plan if —
(5) with respect to each allowed secured claim provided for by the plan —
(A) the holder of such claim has accepted the plan;
(B)(i) the plan provides that the holder of such claim retain the lien securing such claim; and
(ii) The value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim was not less than the allowed amount of such claim;
Section 362(d) provides:
(d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under Subsection (a) of this section; such as by terminating, annulling, modifying or conditioning such stay —
(1) For cause, including the lack of adequate protection of an interest in property of such party in interest; or
(2) With respect to a stay of an act against property, if —
(A) The debtor does not have an equity in such property; and
(B) Such property is not necessary to an effective reorganization.
4. Application
To confirm the Chapter 13 Plan, debtors must meet the "cram down" provisions of Section 1325(a)(5)(B): 1) Plaintiff must retain the lien, and 2) Property value must be equal to or more than the secured claim. The proposed plan of $4,900 over 3 years is less than the $6,337.80 owed, and lacks sufficient interest to reflect the collateral's value. Thus, it doesn't meet statutory requirements for court confirmation. Relief from automatic stay under 11 U.S.C. Section 362(d)(1): The truck collateral depreciates rapidly, and debtors' plan fails to cover average depreciation or compensate for ongoing depreciation, showing inadequate protection of plaintiff's interest. Relief from automatic stay under 11 U.S.C. Section 362(d)(2): (A) Debtors lack equity in the property as the balance due is $6,337.80, exceeding the collateral's value. (B) The pickup truck isn't necessary for debtors' employment or their Chapter 13 Plan's execution, as they have other means of transportation.
5. Conclusion
That confirmation of debtors' Chapter 13 Plan is DENIED . That debtors are granted ten (10) days within which to dismiss their Chapter 13 proceedings or file an amended plan. That the automatic stay provisions of 11 U.S.C. § 362 are terminated with respect to this creditor. That plaintiff is entitled to the possession of one (1) 1979 Chevrolet half-ton pickup truck.
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Bankruptcy chapter 13 -
수입이 얼만지에 따라 조금씩 갚게함.
11 U.S.C section 1325(a)(5), provides as follows:
채무자가 못갚고 남은 기간에도 못갚으면, 분할납부해서 갚도록 하는 건 어떻게
처리하는가? 17개월 지났고 31개월 남았는데
채무자는 자신이 갚아야할 금액부터 계산해야. 8500불 못갚은것.
차량가격이 $4900
채권자가 조치를 못하게 하는 금지조치. -채무자를 보호하기 위한것.
One of the most powerful tools in your bankruptcy tool box is the automatic stay..
The automatic stay is an injuncion that goes into effect when the case is field.
Actions prohibited by the Automatic Stay.
The Bankrupcy Code prohibits most collection activity creditors and collectors, including
Forelosure 경매처분
Repossession
Eviction 쫓아내고
Wage Garnishments
Lawsuits
Utility disconnections
Certain communicaions 전화해서 괴롭히는 것.
chpater 13plan 은 어떤 법으로 confirm되나 ?
USC1325, USC 362(d)
이 사건에 적용되는 법이름? USC= Unite states code
USC는 많은 분야를 다룸. Chapter11 파산을 다루는 연방법
bankruptcy reformat? chapter?
법이 타이틀이 뭐고 어디에 등장하는지 알아야함.
bankruptcy code - USC title 11에 있다.
담보가 설정이 되어야하고 금액이 더 적으면 안된다.
즉시 담보물을 가져가버리면 경제적으로 어려울 수 있는데, ,,
채무자를 봐주는대신 채권자도 봐준다. 채무상환 유예제도.
담보물 가액보다 모자라는경우에도 해주는 경우가 있느냐?
법원에서는 요건 충족안되면 못받아준다고 함.
8. Barash v. Public Finance Corp.
1. Fact
This consolidated appeal involves eight bankruptcy cases in whch Barry M. Barash, Chapter7 Trustee for the debtors, sought recovery of alleged preferential transfers. In each case the bankruptcy court found in favor of the defendant creditor.
2. Issue
The issues are Whether the installment payments were preferences under the Bankruptcy Code and if so, whether the statutory exception removes the transactions from the operation of the preference rules.
3. Rule
Chapter 7. 11 U.S.C. § 547(b).[4] A transfer is preferential if it is (1) to a creditor, (2) on account of a pre-existing debt, (3) made while the debtor is insolvent, (4) made on or within 90 days before the date of filing the petition, or made between 90 days and one year before the date of filing the petition if the creditor was an insider who had reasonable cause to believe the debtor was insolvent, and which (5) enables the creditor to receive more than he would receive if the estate were liquidated.
Normal Course of Business Exceptions: § 547(c)(2)
(c) The Trustee may not avoid under this section a transfer —
(2) to the extent that such transfer was —
(A) in payment of a debt incurred in the ordinary course of business or financial affairs of the debtor and the transferee;
(B) made not later than 45 days after such debt was incurred;
(C) made in the ordinary course of business or financial affairs of the debtor and the transferee; and
(D) made according to ordinary business terms;
4. Application
Appellees argue that they have not improved their position vis-a-vis other creditors, as required by § 547(b)(5). The Trustee contends that the payments received within the 90-day period enabled the creditors to receive a greater proportion of their respective debts than they would if the estate were liquidated under Chapter 7. The debts in all of these cases are undersecured. 11 U.S.C. § 506(a)[5] separates undersecured creditors' claims into two parts: a secured component and an unsecured component. A creditor has a secured claim only to the extent of the value of his collateral. . The effect of § 506(a) is to classify claims, not creditors, as secured and unsecured. Trustee argues that the payments must be charged against the unsecured claims, and therefore the payments enabled the creditors to receive a greater proportion of their unsecured claims than other unsecured claimants. The answer to these opposing contentions will depend on which component of the debts, secured or unsecured, the payments should be charged against. The primary purpose of the § 547(c)(2) exception is to leave undisturbed normal financial relations, because it does not detract from the general policy of the preference section to discourage unusual action by either the debtor or his creditors during the debtor's slide into bankruptcy. We hold that regular installment payments on consumer debts, made within 90 days preceding the filing of a bankruptcy petition, may be avoided as preferential transfers to the extent the payments are credited to unsecured claims.
5. Conclusion
Reversed and remanded.
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preference 채무자의 우선권인지 trustee의 우선권인지.
if it is (1) to a creditor, (2) on account of a pre-existing debt,(3) made while the debtor is insolvent. (4) made on or within 90 days before the date of filing the petition, or made between 90days and one year before the date of filing the petition.
pre-existing debt는 언제 이전인가? file이전인가?
90일과 1년 - filing 기점으로 90일 전이나 1년전을 의미함
If the creditor was an insider who had reasonable cause to believe the debtor was insolvent.
and which (5) enables the creditor to receive more than he would receive if the estate were liquidated under Chapter7.11. U.S.C §547
충족되면 뺏어오고 얼마나 뺏어오는지 안나옴.
채무자가 1억밖에 없는데 채권자의 비율이 높으면 받을게 많은 채권자가 많이 받음.
경매 신청하면 경매신청한 채권자가 비용 많이 냄.
이 사건에서는 분할 할부금을 내고 있었는데 secured 된 부분인가 unsecured된 부분을 갚느냐 따지는 것이 다른 이슈.
담보의 가치를 알아야함.
unsecured 된 부분을 갚는다고 간주함. (5) 충족됨으로 간주됨.
undersecured 담보자체가 금액이 작으면 (전제)
secured claim 담보잡힌 금액
unsecured claim 담보잡힌 금액을 뺀 금액
금액이 아무리 많아도 받아야하는 금액보다 적기때문에
unsecured 부분 갚는다고 봄.
undersecured 된 담보라면 1,2,3,4 충족되면 (5) 항상 충족됨.
9. In Re Ebbler Furniture and Appliances, Inc.
1. Fact
Ebbler Furniture and Appliance, Inc. ("Ebbler"), filed a voluntary petition for relief pursuant to the Chapter 7 liquidation provisions of the Bankruptcy Code. The appellant, Alton Bank & Trust Co. ("the Bank"), was the inventory financier for Ebbler. Although the security agreement is not in the record, it appears that the security agreement granted the Bank a security interest in Ebbler's inventory, and accounts receivable. the creditor Bank received a preference as described in 11 U.S.C. § 547(c)(5) of approximately $75,000.00, i.e., the difference between what the Bank received on account of the debt it was owed ($204,571.61), less the debtor's beginning inventory ($110,000.00) and its accounts receivable ($19,000). The bankruptcy court noted that a discrepancy existed in the amount of $15,000 as to the value of the ending inventory. Consequently, the bankruptcy court reduced the preference by $15,000.00, and found a preference of $60,000.00.
2. Issue
The issue presented is the interpretation of "value" as used in § 547(c)(5) of the Bankruptcy Code.
3. Rule
11 U.S.C. §§ 547(c)(5)
(c) The trustee may not avoid under this section a transfer 5) that creates a perfected security interest in inventory or a receivable or the proceeds of either, except to the extent that the aggregate of all such transfers to the transferee caused a reduction, as of the date of the filing of the petition and to the prejudice of other creditors holding unsecured claims, of any amount by which the debt secured by such security interest exceeded the value of all security interests for such debt on the later of (A)(i) with respect to a transfer to which subsection (b)(4)(A) of this section applies, 90 days before the date of the filing of the petition; or(ii) with respect to a transfer to which subsection (b)(4)(B) of this section applies, one year before the date of the filing of the petition; or (B) the date on which new value was first given under the security agreement creating such security interest
4. Application
The Bank urges that we adopt an "ongoing concern"[2] value standard, which, in this case, would be cost plus a 60% mark-up.The only evidence in the record of value for the ninetieth day prior to the filing of the bankruptcy is the ongoing concern value; therefore, this is the only standard of valuation that can be applied to determine if Creditor's position improved..Another view as to how value should be defined is proposed by Professor Cohen. He proposes an after-the-fact determination of value. Cohen argues that the courts should look at the actual manner in which the collateral was liquidated, i.e. cost or ongoing concern.The court noted, however, that merely remanding for factual findings may not be sufficient in light of the ambiguous meaning of "value" in section 547(c)(5). The Fifth Circuit quoted with approval Cohen's admonition of an individualized approach in defining value and his hindsight solution of the problem. Circuit's lead and hold that under Section 547(c)(5) value should be defined on a case by case basis, with the factual determinations of the bankruptcy court controlling.
In the present case we affirm the bankruptcy court's use of cost as the method for valuing the collateral for 547(c)(5) purposes.The only evidence in the record is Mr. Ebbler's testimony that all the proceeds from sales of inventory were deposited into an account at the Bank. $43,000. Depending on the court's findings on these issues an adjustment downward in the amount of the preference might be appropriate.
5. Conclusion
We remand for a determination as to how the debtor's cash on hand affected the preference amount.
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unsecured 75000이면.
채권자 1인이 파산법원에 의해 가져야할 금액 ?
unsecured된 금액에서 90일이내 간 금액은 얼마인가?
inventory계산은 어떻게 하는가?
Cost of goods sold 팔린 물건의 원가
+ ending inventory
-purchases
___________________
beginning inventory : 90일전 시작할때 inventory재산
filing 했을때에는 $67,000 남음.
계산하면 8만 6천불인데 7만 5천불은 secured금액은 어디에서 나옴?
$75000불 상관없음.
현재 총재산은 67000+19000+43000 : 12만 9000불
7만5000-19000빼나?
채무자가 보낸금액에서 secured된 금액 뺌, 6만불( 90일동안 transfer된 금액)나옴.-초과지급된 금액은 아님.
125000불은 비기닝 inventory 금액.
ending inventory 금액은 82000불.
cost basis
improvement of position test.-preference의 기본 논리에 관한 글.
preference이해필요.
10. In Re Marhoeffer Packing Co., Inc
1. Fact
Marhoefer acquired two sausage stuffers from Reiser, one through a conditional sale contract with a security interest retained by Reiser, and the other through a written lease agreement. The lease required monthly payments of $665 over 48 months, with the last nine months’ payments due upfront. At the end of the lease, Marhoefer had the option to purchase the stuffer for $9,9779 or renew the lease for four more years. Marhoefer never exercised these optoins and stopped payments after a year, filing for bankrupcy shortly after. The bankruptcy court initially ruled the agreement was a true lease, but the district court reversed finding it was not.
2. Issue
The issue presented is whether the written agreement between Marhoefer and Reiser covering the equipment is a true lease under which Reiser is entitled to reclaim its property from the bankrupt estate, or whether it is actually a lease intended as security in which case Reiser's failure to file a financing statement to perfect its interest renders it subordinate to the trustee.
3. Rule
[1] Section 1-201(37) of the Uniform Commercial Code states: `Security interest' means an interest in personal property or fixtures which secures payment or performance of an obligation.... Unless a lease or consignment is intended as security, reservation of title thereunder is not a `security interest' but a consignment is in any event subject to the provisions on consignment sales. Whether a lease is intended as security is to be determined by the facts of each case; however, (a) the inclusion of an option, to purchase does not of itself make the lease one intended for security, and (b) an agreement that upon compliance with the terms of the lease the lessee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does make the lease one intended for security.
4. Application
The district court held that the presence of an option to purchase the suffer for one dollar gave rise to a conclusive presumption under clause (b) of section 1-201(37) that the lease was intended as security. However, the district court’s error lies not in its reading of clause(b) of section 1-201(37) as giving rise to such a presumption, but rather in its conclusion that clause(b) applies under the facts of this case. Marhoefer was given a right to terminate the agreement after the first four years and cease making payments without that option ever becoming operative. The conclusive presumption provided under clause (b) applies only where the option to purchase for niminal consideration necessarily aires upon compliance with the leas. For the lessee ahs the right to terminate the transaction, it is not a conditional sale. From all of the facts surrounding the transaction, we conclude that the agreement between Marhoefer and Reiser is a true lease.
5. Conclusion
The judgement of the district court is therefore reversed.
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section 1-210(37) of the Uniform Commercial Code States:
리스 후 반납하느냐, 아니면 Sale하느냐.
Security interest 정의 . ---가 아니면 security interest아니다.
순수한 리스인지 아닌지를 구별하는 기준으로 이법을 적용하기에는 내용이 아쉬움.
왜 이조항이 이사건에 왜 중요한 룰인가?
security interest 인정되면 trustee이김.
파산신청한 회사에게 소유권이 있는경우?
unsecured된 경우 security interest 없는데 trustee가 장비 어떻게 가져가나
파산했으니까
소시지 판매사가 가져가나?
파산하면 perfect를 못한 unsecured된 채무 부분에 대해 채권자들이 preference로 나눠갖는다.
consideration
Sale : lease intened
Lease option for purchase
Lease intended for security
Conditional Sale로 안봄. (계약서로 보면 그렇게 보이나)
왜죠? fact때문
계약서만 보고하는건 적용이 다름.
1-201(37)
case의 fact에 따라 달라진다.
Section 9-506 of the Code states
왜 이 조항이 등장하나?
secured 된 lease agreement된 경우 trustee가 가져갈 수 있게 한 이유는?
금융리스는 소유권이 넘어감.
운용리스는 소유권을 리스사가 가지고 있음.
security intended된견 금융리스다.
금융리스인경우 리스사가 담보물을 어떻게 담보할거냐
법원은 37(b)에 해당되지 않는다고 보아 taking 안된다.
자신이 소유권자가 되겠다라는 옵션.
소유권이 buyer에게 있는 경우 perfect시긴경우 trustee 가져갈 수 없다.
unperfect시킨경우 trustee가 가져갈 수 있다.
소유권이 Seller에게 있는경우 물건이 buyer에게 있다.
이경우 security interest시킬 수 있나.
자동차 lease계약할경우 근저당 security..
security intestes 설정하려고 한경우 seller가 소유권자면 trustee가 taking 가능.