Staff Mortg. & Inv. Corp., In re

• Decision Date: 11 August 1980
• Docket Number: No. 78-2755,78-2755
• Citation: 625 F.2d 281
• Parties: , 29 UCC Rep.Serv. 639 In re STAFF MORTGAGE & INVESTMENT CORPORATION, dba Sondo Diagnostic Corporation, and dba Century Seventy-Two Corporation. Robert E. GREINER et al., Plaintiffs, and Port Arthur, Annette Shoemake, Sigurd M. Jensen, Stinne T. Jensen, Johnny Jensen, Doroth Veverka, Ray Healey and Ella A. Healey, Plaintiffs/Appellants, v. C. Douglas WILKE, etc., Defendants/Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 281

625 F.2d 281

6 Bankr.Ct.Dec. 1385, 29 UCC Rep.Serv. 639

In re STAFF MORTGAGE & INVESTMENT CORPORATION, dba Sondo

Diagnostic Corporation, and dba Century

Seventy-Two Corporation.

Robert E. GREINER et al., Plaintiffs,

and

Port Arthur, Annette Shoemake, Sigurd M. Jensen, Stinne T.

Jensen, Johnny Jensen, Doroth Veverka, Ray Healey and Ella A. Healey, Plaintiffs/Appellants, v. C. Douglas WILKE, etc., Defendants/Appellees.

No. 78-2755.

United States Court of Appeals, Ninth Circuit.

Submitted March 4, 1980.

Decided Aug. 11, 1980.

Isaac M. Pachulski, Stutman, Treister & Glatt, Los Angeles, Cal., for plaintiffs/appellants.

John J. Wilson, Hill, Farrer & Burrill, Los Angeles, Cal., for defendants/appellees.

Appeal from the United States District Court for the Central District of California.

Before PECK, ^* ANDERSON and FERGUSON, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

Appellants appeal the district court's affirmance of the judgment entered by the bankruptcy court. We affirm.

FACTS

The factual circumstances of this appeal are nearly the same as an earlier case, In re Staff Mortgage & Investment Corp., 550 F.2d 1228 (9th Cir. 1977) (Huffman v. Wikle ), involving the same bankrupt. Therefore, the facts will not be set forth in detail.

As a part of its business activity, the bankrupt, Staff Mortgage & Investment Corporation (Staff), would borrow money and execute its note to evidence the loan. To secure its loan, Staff would pledge one or more promissory notes secured by trust deeds which it had in its inventory. The promissory notes and trust deeds were assigned to the lenders. To effectuate the assignments, documents entitled "Collateral Assignment of Note" and "Corporation Assignment of Deed of Trust" were attached to the respective instruments. The "Corporation Assignment of Deed of Trust" was then recorded in the county wherein the real property covered by trust deed was located. The documents, except Staff's note to evidence the loan, remained in the possession and control of Staff.

Appellants are persons who had loaned money to Staff under the above-described procedures. When Staff went into bankruptcy, appellants sought to have the promissory notes and trust deeds turned over to them. The trustee in bankruptcy refused, and the appellants filed a "Complaint for Declaratory Relief" in bankruptcy court. They sought a declaration that (1) they held security interests in the promissory notes and trust deeds; (2) their security interests were superior to the trustee's interests in the notes and trust deeds; and (3) the trustee was required to assign the interest in the notes and trust deeds to the appellants.

The bankruptcy court determined that notes secured by the deeds of trust were unperfected security interests under the California Uniform Commercial Code § 9304(1). Thus the appellants' security interests in the notes secured by the deeds of trust were subordinate to the rights of the appellee trustee in bankruptcy. The bankruptcy court essentially relied upon the previously-decided case of Huffman v. Wikle.

On appeal, the district court affirmed, stating that Huffman v. Wikle constituted the law of the case. The district court also stated that were it free to make a de novo ruling, it would not change the result.

DISCUSSION

Law of the Case

The district court stated that this court's prior decision in Huffman v. Wikle constituted the "law of the case" and that it was bound by that decision. The district court was correct that Huffman was a relevant The law of the case concerns the continued application of a rule of law previously determined in that same case. Fidelity & Deposit Co. v. Port of Seattle, 106 F.2d 777, 781 (9th Cir. 1939). If a court determines, in litigation between P and D, that the applicable rule of law is that certain security interests are instruments, and they were not perfected, then this ruling is the "law of the case" for the P and D litigation. See, 1B Moore's Federal Practice P .401 (2d Ed. 1974).

prior precedent; however, Huffman should have been followed under the doctrine of stare decisis and not the law of the case.

In litigation involving a bankrupt, a decision in one proceeding does not necessarily prevent the institution of a new proceeding involving the same issues. As stated by the court in In re Peer Manor Bldg. Corporation, 143 F.2d 769 (7th Cir. 1944):

"An involved debtor may successfully resist an attempt by its creditors to reorganize it under (Chapter X of the Bankruptcy Act). The next day it may be subject to another petition seeking the same purpose. The petitioners, as here, may not be the same creditors. The debtor's situation may have changed. The evidence may not be the same. The relief sought in the new petition may be appropriate in the second application and yet the denial of relief in the first proceeding may also have been proper upon the showing made."

The present situation is similar. Both proceedings involved the same bankrupt and trustee in bankruptcy. The issues raised regarding security interests in notes secured by trust deeds were nearly identical. However, the proceedings were commenced by different plaintiffs, and the notes and trust deeds, while similar, were not the same. The separate proceedings did not constitute the same case; thus, the doctrine of the law of the case was not applicable. We, nevertheless, affirm as the district court stated it would have reached the same decision upon a de novo review, and the decision in Huffman controls the disposition of this case.

Nature of the Security Interest

In Huffman, this court determined that (1) the collaterals, notes secured by deeds of trust, used to secure Staff's promissory notes to the plaintiff were "instruments" under the California Commercial Code; (2) the failure of the plaintiffs to take possession of the collaterals caused the security interests to be unperfected under California Commercial Code § 9304(1); and (3) thus the trustee in bankruptcy took the collaterals free and clear of the plaintiffs' claims.

Appellants do not contend that the facts in this case are different in any relevant sense. Rather, they argue that Huffman was erroneously decided and should not be applied here. Appellants argue that the collateral packages of notes secured by trust deeds were general intangibles and not instruments as concluded in Huffman. They also contend that they should have been deemed to have constructively possessed the collaterals because (1) the recordation of the assignments of the trust deeds provided constructive notice of the assignment to all persons; and (2) the assignments executed by Staff were firmly stapled to the collateral notes and trust deeds.

In Huffman, we reversed the district court's determination that the plaintiff had constructive possession of the collaterals. The district court "placed reliance on the fact that the . . . collateral notes and trust deeds had been recorded in the county where the land was located. The court felt that this 'served as notice to all interested parties.' " Id. at 1230. However, we rejected that reasoning, stating that such notice was not the type of notice intended or provided by the California Commercial Code. Even the additional fact raised by appellants that the assignments were stapled to the collaterals does not change the result. Perfection of a security interest in an instrument can only occur with the actual possession of the instrument by the secured party or by an agent or bailee on his behalf. Id. at 1230; In re Bruce Farley By holding in Huffman that the collateral packages of notes secured by trust deeds were instruments, we implicitly decided that the collaterals were not general intangibles. ¹ The district court's discussion ² (unpublished) of the issue provides ample bases for rejecting the appellant's characterization of the...