Barney v. Robinson

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF WYOMING
fure 	)
)
HARRY VILLE TALERMO, 	) 	Case No. 	11-
) 	Chapter 7
Debtor. 	)
)
GARY A. BARNEY, Trustee ofthe 	)
Bankruptcy Estate of Harry Ville Talermo 	)
)
Plaintiff, 	)
)
v. 	) 	Adv. No. 	12-2010
)
STEVE ROBINSON, Individually, 	)
)
Defendant. 	)
OPINION ON CROSS MOTIONS FOR SUMMARY JUDGMENT
On January 17, 2013, this matter came before the court for hearing on the cross
motions for summary judgment filed by Steve Robinson ("Robinson") and Gary Barney,
Trustee for the Bankruptcy Estate of Harry Talermo ("Trustee"). At the conclusion of
the hearing the court took the matters under advisements. Upon a review of the record,
pleadings and arguments of the parties, the court is prepared to rule.
Jurisdiction
The court has jurisdiction over this adversary proceeding under 28 U.S.C. §§ 1557
and 1334. This is a core proceeding within the definition of28 U.S.C. § 157(b)(2)(E)
and (F). The motion is brought under Fed. R. Civ. P. 56, made applicable in adversary
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proceedings by Fed. R. Bankr. P. 7056. 1
A party claiming relief may move, with or without supporting affidavits, for
summary judgment on all or part of the claim. Summary judgment is appropriate when
there is no disputed issue of material fact, and the moving party is entitled to judgment as
a matter oflaw. 2
A material fact is one that could affect the outcome of the suit, and a genuine issue
is one where the evidence is such that a reasonable jury could return a verdict for the
nonmoving party. 3 The court views the evidence in light most favorable to the
nonmoving party, but that party cannot rest on the mere allegations in its pleadings and
must come forward with evidence to raise a genuine issue. 4
Findings of Facts
Harry Talermo ("Debtor") filed for chapter 7 bankruptcy protection on July 27,
2012. Gary Barney was appointed as the chapter 7 trustee to administer the case.
Prior to filing his bankruptcy case, the Debtor borrowed $2,000.00 from
Robinson. 	Subsequently, Debtor borrowed an additional $18,000.00 from Robinson in
"late June or early July [2012]" providing Robinson collateral for the loans in a 2000
Calabria Boat ("Boat"), DHM Trailer ("Trailer") and 1991 Jaguar ("Jaguar"). On July
1 Unless otherwise indicated all future statutory reference are to the United States Bankruptcy Code, 11
U.S.C. 101 et seq.
Page2
2 Hardy v. S. F. Phosphates Ltd. Co., 185 F.3d 1076, 1079 (lOth Cir. 1999).
3 Farthing v. City of Shawnee, Kan., 39 F.3d 1131, 1134 (lOth Cir. 1994).
4 /d.
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7, 2012, Robinson placed liens against the Boat and Jaguar by placing a notation
reflecting a lien on the titles filed with the Teton County Clerk. Robinson provided, as
evidence, a copy of a handwritten UCC Financing Statement which does not reflect that
the form was filed with either the Secretary of State or the Teton County Clerk's office.
The Trustee provided evidence of a Secretary of State UCC lien search reflecting that
"no active and lapsed financing statements ... are on file." During the course of discovery,
it appears that the Trustee requested Robinson to identify and attach documents
regarding this loan transaction. Robinson did not provide a copy of any financing
statement or security agreement to verify this transaction. The court's review of the
material facts reflect that there are no facts in controversy and this court may enter a
judgment as a matter oflaw.
Discussion
The Trustee seeks to avoid Robinson's liens under§§§ 544(a), 545(2) and 547(b)
and requests that the court order Robinson to tum over the property of the estate to the
Trustee for administration. Robinson argues that the new value exception under
§547(c)(l) applies to the transaction to exclude the Trustee's avoidance powers.
Avoidance of Statutory lien under §545(2)
The trustee is permitted to void statutory liens that are not perfected or enforceable
on the date of the petition against a bona fide purchaser. 5
The creation of a security interest is a transfer that protects a secured party's
5 §545(2).
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interest, when the secured party has done all acts required to perfect its interest. The acts
necessary to perfect are determined in accordance with state law. 6
Under Wyoming law perfection of a security interest in a vehicle or motor
vehicle requires two steps:
"(i) A financing statement or security agreement must be filed in the
office of the county clerk of the county in which the vehicle is located; and
(ii) A notation of the security interest must be endorsed on the
certificate of title to the vehicle or motor vehicle, the endorsement to be
made concurrently with the filing of the financing statement or security
agreement. " 7
The Wyoming Statute defines 'vehicle or motor vehicle required to be licensed" to
include 'all vehicles, motor vehicles ... required by the motor vehicle laws of the state of
Wyoming to have a certificate or title or required to be registered or licensed under the
laws of this state ... " 8 A boat is included as under Wyoming law every owner of any
vehicle that has an identifying number ... , including watercraft, shall apply for a
certificate of title at the office of a county clerk. 9 The court finds that the Boat and
Jaguar, require the two-step process for perfection of a creditor's security interest.
Based on the facts, Robinson filed the notation of his lien on the titles to the Boat
and Vehicle. However he failed to file a financing statement or security agreement in the
6 Fidelity Financial Services, Inc. v. Fink, 522 U.S. 211 (1998).
7 Wyo. Stat. § 31-2-801 (20 11 ).
8 Id at (d).
9 Emphasis added.
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office of the Teton County Clerk concurrently with having the notation of his lien
indicated on the titles. There is no indication that he did anything to perfect his security
interest in the Trailer.
Mr. Robinson failed to comply with the requirements under Wyoming law to
properly perfect his security interest in the property. The court finds that the Trustee may
void the statutory liens that are not perfected or enforceable on the date of the petition.
The court finds for the Trustee and against Robinson in this matter.
The court, finding that Robinson failed to properly perfect his security interest in
the property, does not find it necessary to analyze the preferential transfer allegation or
Robinson's defense to that allegation.
This opinion constitutes the Court's findings of fact and conclusions of law.
Separate orders shall be entered pursuant to Fed. R. Bankr. P. 9021.
DATED this A 	day of February, 2013.
Service to:
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Ken McCartney
Frank Watkins
By the Court
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