In re Lexington Hospitality Group, LLC

(Bankr. E.D. Ky. Nov. 1, 2011)

The bankruptcy court grants the debtor’s motion regarding cash collateral use, because the property to be used (hotel revenue and post-petition restaurant revenue) was not subject to a perfected security interest. The court determines that the hotel revenue paid in cash was not subject to the creditor’s mortgage because it was not rent. A hotel customer does not obtain a real property interest in a hotel room, but instead has a license. The cash paid for the room is thus personal property. The creditor was not in possession of the cash or deposit accounts, and thus the lien was not perfected as to that cash. Hotel revenue paid from credit cards constituted an obligation that would be a “payment intangible” under Article 9. The creditor’s financing statement failed to identify payment intangibles as collateral. While it referenced an “all asset” security agreement, that was insufficient to perfect a security interest in payment intangibles. The creditor does not have a lien on post-petition restaurant revenue pursuant to 11 U.S.C. § 552. Opinion below

Judge: Schaaf

Attorneys for Debtor: DelCotto Law Group PLLC, Laura Day DelCotto, Jamie L. Harris, Sara A. Johnston

Attorneys for Creditors: Dinsmore & Shohl LLP, Martin B. Tucker, Sarah S. Mattingly

2017-11-01 – in re lexington hospitality group

Author: Matt Lindblom

 

Sunshine Heifers, LLC v. Citizens First Bank (In re Purdy)

(6th Cir. Aug. 31, 2017)

The Sixth Circuit affirms the bankruptcy court’s decision finding the bank had a superior interest in the proceeds of an auction of the debtor’s cattle. The appellant contended its interest as lessor was superior and that the Sixth Circuit had already determined it was entitled to the proceeds. The bankruptcy did not err in determining ownership of the cattle at the time of the auction after the prior remand. Opinion below.

Judge: Moore

Attorneys for Appellant: Keller & Almassian, Michael D. Almassian, Nicholas S. Laue

Attorneys for Bank: Kerrick Bachert PSC, Scott A. Bachert, Ashley D. Gerughty

2017-08-31 – in re purdy

Author: Matt Lindblom

Community Financial Services Bank v. Edwards (In re Edwards)

(Bankr. W.D. Ky. July 17, 2017)

The bankruptcy court enters judgment in favor of the lender, holding the debt owed by one of the debtors would not be discharged, pursuant to 11 U.S.C. § 523(a)(6). The debtor disregarded the lender’s security interest in his business’s inventory, using the proceeds of the inventory for personal expenses in violation of the security agreement. The court holds that the lender failed to present sufficient evidence to except the other debtor’s (the first debtor’s spouse) debt from discharge. Opinion below.

Judge: Stout

Attorney for Plaintiff: Martin W. Johnson

Attorney for Debtors: Steve Vidmer

2017-07-17 – in re edwards

Author: Matt Lindblom

State Bank of Toulon v. Covey (In re Duckworth)

(7th Cir. Nov. 21, 2014)

The Seventh Circuit reverses the bankruptcy court’s orders finding the lender’s security interests enforceable despite a mistaken reference to the promissory note purportedly secured. The security agreement recited that it secured a promissory note dated December 13, but the promissory note was dated December 15. The court holds that parol evidence cannot be used to save the security agreement, due to the trustee’s strong-arm powers. Opinion below.

2014-11-21 – state bank of toulon v covey