In re Simmons, Bankruptcy No. 90-21027

• Court: United States Bankruptcy Courts. Fourth Circuit. U.S. Bankruptcy Court — Northern District of West Virginia
• Writing for the Court: L. EDWARD FRIEND, II
• Citation: 129 BR 84
• Parties: In re Eugene M. SIMMONS d/b/a Lakeview Angus Farm, Debtor. Robert G. DURNAL, Trustee, Plaintiff, v. ROANOKE PRODUCTION CREDIT ASSOCIATION, Greenbrier Valley National Bank, Pendleton County Bank, and Jesse O. Guills, as Special Commissioner, Defendants.
• Decision Date: 03 July 1991
• Docket Number: Bankruptcy No. 90-21027,Adv. No. 91-2030.

129 B.R. 84 (1991)

In re Eugene M. SIMMONS d/b/a Lakeview Angus Farm, Debtor.
Robert G. DURNAL, Trustee, Plaintiff,
v.
ROANOKE PRODUCTION CREDIT ASSOCIATION, Greenbrier Valley National Bank, Pendleton County Bank, and Jesse O. Guills, as Special Commissioner, Defendants.

Bankruptcy No. 90-21027, Adv. No. 91-2030.

United States Bankruptcy Court, N.D. West Virginia, Elkins Division.

July 3, 1991.

129 BR 85

Robert G. Durnal, Buckhannon, W.Va., Trustee.

James Martin Jr., Clarksburg, W.Va., for Roanoke Prod.

James Matish, Bridgeport, W.Va., for Pendleton County Bank.

Martin Saffer, Marlington, W.Va., for Greenbriar Valley Nat. Bank.

Michael Bray, Clarksburg, W.Va., for Eugene Simmons.

MEMORANDUM OPINION AND ORDER

L. EDWARD FRIEND, II, Bankruptcy Judge.

This adversary proceeding was initiated by the Debtor, seeking to avoid certain security interests in the Debtor's property held by Roanoke Production Credit Association ("Roanoke"), Greenbrier Valley National Bank ("Greenbrier") and Pendleton County Bank ("Pendleton") (collectively referred to as "Defendants"), and seeking to direct Jesse O. Guills, as Special Commissioner, to pay over to the Debtor, the proceeds of certain of the Debtor's cattle which were sold pre-petition. Mr. Guills deposited the proceeds into an escrow account because there were competing claims to the funds. This case was initiated as a Chapter 11 proceeding on November 27, 1990, and was converted to a case under Chapter 7 of the Code after the filing of the Complaint in this adversary proceeding. On May 17, 1991, this Court entered an order substituting the Trustee as party-plaintiff in place of the Debtor.

Plaintiff alleges that Defendants' security interest in certain property of the estate is voidable under Section 544 of the Code because they failed to file financing statements to perfect said interests in the Office of the Secretary of State. The disputed

129 BR 86

collateral consists of cattle and farming equipment. While it is undisputed that none of the Defendants filed financing statements with the Secretary of State, when the relevant security interests were granted to Defendants by the Debtor, the West Virginia Code required a creditor acquiring an interest in farm equipment and cattle to file financing statements only in the county of the debtor's residence in order to properly perfect its security interest in the collateral. The Debtor resides in Pocahontas County. The financing statements of Greenbrier and Roanoke and Pendleton were respectively filed with the Clerk of the County Commission of Pocahontas County, West Virginia, on February 18, 1986, February 13, 1987, and December 11, 1987. W.Va.Code § 46-9-403(2) provides that a filed financing statement is effective for a period of five years from the date of its filing. In July of 1989, W.Va. Code § 46-9-401 was amended to require financing...