- In re Harry Ville Talermo, 10th Cir. BAP., WY-13-021 (September 23, 2013) [NOT FOR PUBLICATION]
- In an unpublished opinion, the bankruptcy appellate panel for the 10th Circuit, reversed and remanded the bankruptcy court's order granting the trustee's motion for summary judgment, which permitted the trustee to avoid statutory liens that are not perfected or enforceable on the date of the bankruptcy petition. The bankruptcy court held that appellant Steve Robinson had failed to properly perfect his security interest in the properties when he failed to file a financing statement or security agreement in the office of the County Clerk concurrently with having the notation of his lien indicated on the titles. The BAP for the 10th Circuit reversed citing the fact that the record contained several genuine issues of material fact and that the bankruptcy court's judgement contained legal errors.
- Procedural context:
- On February 20, 2013, Robinson sought reconsideration of the Summary Judgment Order based on what he claimed was newly discovered evidence – a document bearing a Teton County file stamp indicating a security instrument between Talermo and Robinson had been filed on July 7, 2011 with the Teton County Clerk’s Office. The bankruptcy court denied Robinson’s motion to reconsider. Robinson appeals both the Order Denying Reconsideration and the Summary Judgment Order.
- Robinson lent $20,000 to Harry Talermo before he filed this case. Talermo secured his promise to repay the debt by granting Robinson a security interest in Talermo’s car, a 1991 Jaguar, boat, and trailer as collateral. On July 7, 2011, Talermo and Robinson went to the Teton County Clerk’s office to record the liens as Wyoming law requires. The Teton County Recorder noted a $20,000 lien in favor of Robinson on the certificates of title to the car and boat. Talermo filed his Chapter 7 petition eighteen days later on July 25, 2011. The Trustee sued Robinson for turnover of the car, boat, and trailer under 11 U.S.C. § 542 and to avoid Robinson’s purported liens on them either as statutory liens under § 545 or as preferential transfers under § 547. In his Answer, Robinson pleaded that the liens he received were for “current consideration” (his words), citing §§ 547(c)(1)(A) and (B). That subsection excepts from avoidance an otherwise preferential transfer that is given as a “contemporaneous exchange for new value given to the debtor” and which is “in fact a substantially contemporaneous exchange.” Beyond general denials, Robinson posted no defenses to the statutory lien claim. Robinson eventually abandoned his lien on the trailer. The bankruptcy court granted the Trustee’s motion for summary judgment, concluding that the Trustee could “avoid statutory liens that are not perfected or enforceable on the date of the petition against a bona fide purchaser.” The court concluded that Robinson had failed to properly perfect his security interest in the properties because “he failed to file a financing statement or security agreement in the office of the Teton County Clerk concurrently with having the notation of his lien indicated on the titles.
- Bankruptcy Judges: Nugent, Karlin and Somers
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