LMS Holding Co. v. Core-Mark Mid-Continent, Inc., CORE-MARK

• Decision Date: 16 March 1995
• Docket Number: MID-CONTINEN,No. 94-5130,INC,CORE-MARK,94-5130
• Citation: 50 F.3d 1520
• Parties: , 26 UCC Rep.Serv.2d 563 LMS HOLDING COMPANY, an Oklahoma corporation; Petroleum Marketing Company, an Oklahoma corporation; Retail Marketing Company, an Oklahoma corporation, Appellees, v., formerly known as Mid-Continent Distributors, Inc., also known as Core-Mark Distributors; Amcon Distributing Company, Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1520

50 F.3d 1520

26 Bankr.Ct.Dec. 1099, 26 UCC Rep.Serv.2d 563

LMS HOLDING COMPANY, an Oklahoma corporation; Petroleum Marketing Company, an Oklahoma corporation Retail Marketing Company, an Oklahoma corporation, Appellees, v. CORE-MARK MID-CONTINENT, INC., formerly known as Mid-Continent Distributors, Inc., also known as Core-Mark Distributors; Amcon Distributing Company, Appellants.

No. 94-5130.

United States Court of Appeals Tenth Circuit.

March 16, 1995.

Todd Maxwell Henshaw, Tulsa, OK, for appellants.

Steven W. Soule (Thomas A. Creekmore and Pamela H. Goldberg, on the brief), of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Tulsa, OK, for appellees.

Before BALDOCK and BRORBY, Circuit Judges, and BROWN, District Judge. ^*

BALDOCK, Circuit Judge.

Coremark and Amcon ("Coremark") appeal the district court's grant of summary judgment in favor of Retail Marketing Company ("RMC"). The district court held that Coremark did not have a perfected security interest in RMC's after-acquired inventory. We exercise jurisdiction pursuant to 28 U.S.C. Sec. 1291 and affirm.

In 1988, MAKO, Inc. ("MAKO"), a chain of convenience stores, granted Coremark a security interest in its inventory, after-acquired inventory, and inventory proceeds. Coremark perfected its security interest by filing a financing statement naming MAKO as the debtor. MAKO subsequently filed a Chapter 11 bankruptcy petition.

As part of MAKO's reorganization plan, RMC, an unrelated third party entity, agreed to acquire certain assets in MAKO's convenience stores and take over store operations. The acquired assets included specific inventory subject to Coremark's perfected security interest. The plan provided that Coremark would retain its lien in the "assets ... acquired by RMC pursuant to [the] Plan" and that this lien would "continue in full force and effect in accordance with [its] terms." The bankruptcy court confirmed the MAKO plan in August 1989.

Following confirmation of the MAKO plan, RMC executed a new promissory note and security agreement in order to assume the indebtedness of MAKO. The security agreement granted Coremark a security interest in RMC's inventory, after-acquired inventory, and inventory proceeds. Coremark, however, did not file a new financing statement naming RMC as the debtor to perfect its security interest in RMC's inventory. Thereafter, RMC sold the MAKO inventory in the regular course of business and commingled the proceeds from the sale with other RMC assets. These proceeds are no longer identifiable. RMC replaced the MAKO inventory with after-acquired inventory. On September 21, 1991, RMC filed a Chapter 11 bankruptcy petition.

On November 20, 1991, Coremark filed a proof of claim in the bankruptcy proceeding. Thereafter, on July 29, 1992, RMC commenced this adversary proceeding seeking inter alia to avoid Coremark's asserted security interest in its after-acquired inventory pursuant to 11 U.S.C. Sec. 544(a)(1). On December 10, 1992, RMC filed a motion for summary judgment arguing that Coremark's security interest in its after-acquired inventory was unperfected because Coremark did not file a financing statement naming RMC as the debtor after RMC acquired the MAKO assets and took over store operations under the MAKO plan.

The bankruptcy court rejected this argument and denied the motion. In so holding, the bankruptcy court relied on Okla.Stat.Ann. tit. 12A, Sec. 9-402(7), which provides in pertinent part that "[a] filed financing statement remains effective with respect to collateral transferred by the debtor even though the secured party knows of or consents to the transfer." Under this provision, the bankruptcy court concluded that the term "collateral" encompassed after-acquired property. Thus, the court held that Coremark's financing statement covering the MAKO collateral remained effective and served to perfect its security interest in RMC's after-acquired inventory "without the necessity of refiling a financing statement in [RMC's] name."

RMC appealed to the district court which reversed the bankruptcy court's holding. Specifically, the district court held that under Sec. 9-402(7), Coremark's financing statement remained effective only as to the collateral actually transferred by MAKO under the bankruptcy plan. Thus, the district court concluded that Coremark's security interest in RMC's after-acquired inventory was unperfected because Coremark failed to file a new financing statement naming RMC as the debtor. Consequently, the district court granted summary judgment in favor of RMC. This appeal followed.

On appeal, Coremark argues the district court erred in granting summary judgment in favor of RMC. Specifically, Coremark contends that under Sec. 9-402(7), the financing statement it filed naming MAKO as the debtor served to perfect its security interest in RMC's after-acquired inventory. We review the district court's grant of summary judgment de novo. Eaton v. Jarvis Products Corp., 965 F.2d 922, 925 (10th Cir.1992). Summary judgment is appropriate when there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law. Id.

Pursuant to 11 U.S.C. Sec. 544(a)(1), a debtor-in-possession (RMC in this case) may assert the rights of a hypothetical lien creditor once it files a bankruptcy petition. The rights of a lien creditor are determined by state law. Woodson v. Utica Square Nat'l Bank of Tulsa (In re McClain), 447 F.2d 241, 243-44 (10th Cir.1971). Under Oklahoma law, ¹ a lien creditor has priority over an unperfected, secured creditor. Okla.Stat.Ann. tit. 12A, Sec. 9-301(1)(b), (3). Thus, in a bankruptcy proceeding, if the creditor's security interest is not perfected, the creditor " 'stands as [a] general unsecured creditor who must defer to the trustee.' " Jones v. Small Business Admin. (In re Cohutta Mills, Inc.), 108 B.R. 815, 817 (N.D.Ga.1989) (quoting In re Merts Equipment Co., 438 F.Supp. 295, 298 (M.D.Ga.1977)).

Under Oklahoma law, a secured creditor perfects a security interest in part by preparing and filing a financing statement describing the collateral subject to the security interest and naming the debtor. Okla.Stat.Ann. tit. 12A, Sec. 9-302(1). Once a financing statement is filed, the security interest becomes perfected, id. Sec. 9-303, protecting the secured party against conflicting interests in the same collateral. Id. Sec. 9-312.

Section 9-402 covers the formal requisites of the initial filing and subsequent amendment of a financing statement. Subsection (7) addresses a secured party's duty to refile a financing statement in certain enumerated instances:

A financing statement sufficiently shows the name of the debtor if it gives the individual, partnership or corporate name of the debtor, whether or not it adds other trade names or the names of partners. Where the debtor so changes his name, or in the case of an organization, its name, identity, or corporate structure that a filed financing statement becomes seriously misleading, the filing is not effective to perfect a security interest in collateral acquired by the debtor more than four (4) months after the change, unless a new appropriate financing statement is filed before the expiration of that time. A filed financing statement remains effective with respect to collateral transferred by the debtor even though the secured party knows of or consents to the transfer.

Okla.Stat.Ann. tit. 12A, Sec. 9-402(7) (emphasis added). Under this section, the second sentence addresses a secured creditor's obligation to refile a financing statement in instances where there has been a "change[ ] in the identity or structure of the debtor in which the 'new' debtor is a successor enterprise of the original debtor." Bluegrass Ford-Mercury, Inc. v. Farmers Nat'l Bank of Cynthiana (In re Bluegrass Ford-Mercury, Inc.), 942 F.2d 381, 388 (6th Cir.1991) (citing Bank of the West v. Commercial Credit Fin. Serv., 852 F.2d 1162, 1169 (9th Cir.1988)). In contrast, the third sentence applies only to those instances where there has been a "bona fide transfer[ ] [of collateral] to third parties unrelated to the transferor." Bank of the West, 852 F.2d at 1169-70 n. 6.

Applying these principles to the instant case, the parties agree that the only provision applicable to the facts before us is the third sentence of Sec. 9-402(7). Under this provision, the parties agree that Coremark's security interest remained perfected in the collateral actually transferred to RMC under the MAKO plan. The parties disagree, however, as to whether the financing statement naming MAKO as the debtor operated to perfect Coremark's security interest in collateral acquired by RMC after the MAKO transfer. Thus, the central issue we must resolve in this appeal is whether under the last sentence of Sec. 9-402(7), Coremark's financing statement perfected its security interest in collateral acquired by RMC after the MAKO transfer.

Courts which have addressed the scope of Sec. 9-402(7) have reached differing conclusions. For example, in In re Taylorville Eisner Agency, 445 F.Supp. 665 (S.D.Ill.1977), a bank made a loan to individual debtors secured by fixtures, equipment, inventory, and after-acquired property. In order to perfect its security interest, the bank filed a financing statement naming the individuals as debtors. On the same day as the note and security agreement were signed, the individual debtors transferred the collateral to a corporation they had previously formed and the corporation assumed the bank loan. The bank did not file a new financing statement naming the corporation as the new debtor. After selling the inventory which had been transferred and replacing it with after-acquired inventory, the corporation declared...