United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-3254
___________
Phillip Kunkel, Trustee of the *
Bankruptcy Estate of John D. *
Morken and Dorothy M. Morken, *
*
Plaintiff - Appellee, *
*
*
v. *
*
Sprague National Bank, *
*
Defendant - Appellant, *
Appeal from the United States
* District Court for the
* District of Minnesota.
First National Bank of Hoxie, *
Kansas, *
*
Defendant - Appellee, *
*
Hoxie Feeders, Inc., *
*
Defendant - Appellee, *
*
Charles W. Ries, Trustee of *
the Bankruptcy Estate of *
S p r i n g Grove Livestock Exchange, *
Inc., *
*
Defendant, *
*
Firstar Bank Milwaukee, N.A., *
*
Defendant, and *
*
Firstar Bank Sioux City, N.A., *
*
Defendant. *
___________
Submitted: March 10, 1997
Filed: October 20, 1997
___________
Before MURPHY, JOHN R.GIBSON, and MAGILL, Circuit Judges.
___________
JOHN R. GIBSON, Circuit Judge.
In this appeal two creditors, Hoxie Feeders, Inc. and
Sprague National Bank, both claim first priority security
interests in the same cattle. The district court
affirmed the bankruptcy court's summary judgment for
Hoxie holding that Hoxie's purchase money security
interest had priority over Sprague's earlier security
interest in the cattle. Kunkel v. Sprague Nat'l Bank,
198 B.R. 734, 735 (D. Minn. 1996). As an alternative
holding for Hoxie, the district court held that Sprague
did not have a security interest in the cattle because
the debtor lacked "rights in the collateral," as required
by the Uniform Commercial Code. Id. at 739. On appeal,
Sprague alleges that the district court erred in
interpreting and applying various provisions of the UCC
governing sales and secured transactions. We reverse
the district court's holding that Sprague did not
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have a security interest in the cattle but affirm its
judgment for Hoxie because Hoxie's security interest is
senior to Sprague's security interest.1
Beginning in 1990, Sprague made a number of loans to
John and Dorothy Morken pursuant to certain loan
agreements and promissory notes. The Morkens executed a
security agreement in favor of Sprague covering their
inventory, farm products, equipment, and accounts
receivable presently owned or thereafter acquired.
Sprague filed with the Kansas Secretary of State a UCC-1
financing statement regarding the collateral located in
Kansas.2 Sprague contends that the Morkens' debt to
Sprague currently exceeds $1.9 million.
Hoxie is in the business of financing and selling
cattle and operating a feedlot near Hoxie, Kansas. In
five transactions between February and April 1994, John
Morken purchased interests in approximately 1900 head of
cattle from Hoxie. Hoxie financed Morken's cattle
purchases. For each transaction, Morken executed a loan
1
Both the Morkens' bankruptcy trustee and First National Bank of Hoxie,
Kansas submitted briefs requesting that the bankruptcy court be given the
opportunity to rule on certain issues in the event that we do not affirm the district
court. Because we affirm, we need not address these requests.
2
Although Morken may have had cattle operations in other states, only the
cattle located in Kansas are at issue here. The parties agree that the Kansas UCC
governs this dispute. All citations to the Kansas UCC are to the 1996 volume,
Chapter 84, of the Kansas Statutes Annotated.
The parties also agree that the cattle are "inventory" under the UCC. See
Kan. Stat. Ann. § 84-9-109(4) (defining "inventory").
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agreement and promissory note in favor of Hoxie and a
security agreement granting Hoxie a purchase money
security interest3 (PMSI) in the cattle, which were
identified
3
Article 9 of the UCC defines a "purchase money security interest" to include
a security interest to the extent it is "taken or retained by the seller of the collateral
to secure all or part of its price." Kan. Stat. Ann. § 84-9-107.
-4-
by lot number when the documents were executed. In
addition, Hoxie was paid $100 per head by either Morken
or a company in which he owned an interest. The invoices
for the cattle transactions recited that the cattle were
shipped to Morken, Hoxie, or both.
Hoxie did not file a UCC-1 financing statement with
the Kansas Secretary of State but instead perfected its
security interest by taking possession of the cattle
pursuant to feedlot agreements between Morken and Hoxie.4
The feedlot agreements stated that the cattle belonged
to "the Party of the First Part," meaning Morken, and
acknowledged that Morken had delivered the cattle to
Hoxie, although Morken never had physical possession of
the cattle. Under the feedlot agreements, the cattle
were to remain on Hoxie's feedlot for purposes of care
and feeding. The feedlot and loan agreements authorized
Hoxie to sell the cattle in its own name for slaughter,
to receive direct payment from the packing house, and to
deduct the feeding and purchase expenses from the sale
proceeds and then remit the balance to Morken. Hoxie's
general manager acknowledged, however, that he needed
Morken's authority to sell the cattle, and that Morken
determined at what price the cattle would be sold. The
loan agreements recited that Morken bore all risk as to
the profit or loss generated by feeding and selling the
cattle.
On June 10, 1994, Morken and his wife filed a Chapter
11 bankruptcy case under Title 11 of the United States
4
See Kan. Stat. Ann. § 84-9-305 (permitting perfection of a security interest in
goods by possession).
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Bankruptcy Code. After the bankruptcy case was
commenced, Hoxie sold the cattle to Iowa Beef Processors
for slaughter. After deducting amounts owed to Hoxie for
the care and feeding of the cattle, approximately
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$550,000 in sale proceeds remained.5 It is these funds
which are the subject of competing claims by Sprague and
Hoxie.
After the cattle sales, the Morkens' bankruptcy
trustee commenced an adversary proceeding in the
bankruptcy court to determine which party -- Sprague or
Hoxie -- was entitled to the net sale proceeds. Hoxie
and the trustee subsequently reached a settlement.
Hoxie and Sprague filed cross-motions for summary
judgment regarding entitlement to the funds.
The bankruptcy court granted Hoxie's motion for
summary judgment and denied Sprague's motion. It held
that both Sprague and Hoxie had perfected security
interests in the cattle but Hoxie's interest had first
priority under the Kansas UCC, Kan. Stat. Ann. § 84-9-
312(3). This UCC provision gives "superpriority" to a
creditor with a PMSI in inventory if certain conditions
are met, including the requirement that the creditor must
send a specified notification to any competing secured
party. The competing secured party must receive the
notification within five years before the debtor receives
possession of the inventory. Although Sprague did not
send its statutory notification to Hoxie until March
1995, long after the cattle had been sold and slaughtered
and the adversary proceeding commenced, the bankruptcy
court held that the timing of the notification was
5
The parties do not dispute that Hoxie was entitled to deduct its care and
feeding costs from the sale proceeds. It is the balance remaining -- which Sprague
contends is "just short of $577,000" and Hoxie contends is "about $550,000" -- to
which the parties lay competing claims.
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nevertheless sufficient because "the Debtor never
obtained possession and never will."
Sprague appealed to the district court, which
affirmed the bankruptcy court's summary judgment in favor
of Hoxie. The district court held that a creditor that
has perfected its security interest in inventory through
possession, rather than by filing, is
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not required to provide notification of its PMSI to
competing secured creditors to attain "superpriority."
According to the district court, the "superpriority"
provision presumes that the creditor perfected by filing
and that the debtor has possession of the inventory. The
court concluded that this presumption was strong evidence
that the notification requirement did not apply to a PMSI
creditor that perfects by possession. 198 B.R. at 737-
38.
As an alternative holding, the district court ruled
that Sprague did not even have a security interest in the
cattle because delivery of the cattle to Morken had not
been completed and, therefore, no "present sale" had
occurred. The court explained:
Under Kansas law, a delivery may be completed
although the goods remain in the possession of
the seller if the seller's possession "is as an
agent or at the request of the buyer under an
agreement to store or care for the property, and
nothing further remains to be done by either
party to complete the sale." Lakeview Gardens,
Inc. v. Kansas, 221 Kan. 211, 557 P.2d 1286,
1290-91 (1976) (emphasis added). Here,
something further was required, payment to Hoxie
under the loan agreement.
Id. at 739. Because the transactions were not a
"present sale," the court reasoned that Morken did not
have "rights in the collateral," as required by the
Kansas UCC, Kan. Stat. Ann. § 84-9-203(1)(c), to convey
a security interest in the cattle to Sprague. Morken's
interest in the cattle was only a "remedial" interest
against Hoxie; such an interest was inadequate to support
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Morken's alleged grant of a security interest to Sprague.
Id. at 739-40.
I.
On appeal, the district court's grant of summary
judgment is reviewed under a de novo standard. See
Miller v. Citizens Sec. Group, Inc., 116 F.3d 343, 345
(8th Cir. 1997). Summary judgment is proper if there are
no genuine issues of material fact and
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Hoxie is entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56(c). We view the evidence in the light
most favorable to Sprague and give it the benefit of all
reasonable inferences. See Miller, 116 F.3d at 345. If
Sprague can present evidence that would permit a
reasonable fact finder to find in its favor, summary
judgment is inappropriate. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
We also apply a de novo standard of review to the
questions of law raised by the parties, including the
interpretation and application of the UCC. See Affeldt
v. Westbrooke Condominium Ass'n (In re Affeldt), 60 F.3d
1292, 1294 (8th Cir. 1995).
The issues on appeal are: (a) did Sprague have a
perfected security interest in the cattle?; (b) did Hoxie
have a "superpriority" purchase money security interest
which had priority over Sprague's interest in the
cattle?; and (c) was Hoxie entitled to the proceeds from
the sale of the cattle to IBP?
II.
The district court held that Sprague did not have a
security interest in the cattle because Morken did not
have "rights in the collateral" sufficient for a security
interest to attach. We reverse on this issue.
Under the UCC, a security interest is not enforceable
against the debtor or third parties, and does not attach,
unless and until the following three requirements are
met: (a) either the secured party has possession of the
collateral by agreement with the debtor (as is the case
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here) or the debtor has signed a security agreement; (b)
value has been given; and (c) "the debtor has rights in
the collateral." Kan. Stat. Ann. § 84-9-203(1). Only
the last requirement is at issue in this case.
The phrase "rights in the collateral" is not defined
in the UCC. "If the debtor owns the collateral outright,
it is obvious that the security interest may attach . .
. ." B.
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Clark, The Law of Secured Transactions Under the Uniform
Commercial Code ¶ 2.04[1], at 2-43 (Rev. ed. 1993). It
is also well-settled, however, that "rights in the
collateral" may be an interest less than outright
ownership, but must be more than the mere right of
possession. See id.; see also 4 J. White & R. Summers,
Uniform Commercial Code 126 (4th ed. 1995) ("It follows
that almost any 'rights in the collateral' will suffice
under 9-203."). The concept of "title" is not
determinative. See Kan. Stat. Ann. § 84-9-202. "An
agreement to purchase can give rise to sufficient rights
in the debtor to allow a security interest to attach,
regardless of whether the debtor has technically obtained
title to the property." United States v. Ables, 739 F.
Supp. 1439, 1444 (D. Kan. 1990). Courts consider factors
such as the extent of the debtor's control over the
property and whether the debtor bears the risk of
ownership. See, e.g., Kinetics Tech. Int'l Corp. v.
Fourth Nat'l Bank, 705 F.2d 396, 399 (10th Cir. 1983)
(debtor's control); Chambersburg Trust Co. v.
Eichelberger, 588 A.2d 549, 552-53 (Pa. Super. Ct. 1991)
(debtor had risk of ownership). The debtor need not have
possession in order to pledge the property; the UCC
expressly contemplates that the secured party may retain
possession of the collateral. See Kan. Stat. Ann. § 84-
9-305.
The district court looked to Article 2 of the UCC,
which governs sales, to determine whether Morken had
"rights in the collateral." It was appropriate to
consider Article 2 principles. "In many cases the
secured creditor may turn to Article 2 of the UCC to
measure the debtor's 'rights' with respect to
collateral." Kan. Stat. Ann. § 84-9-203 Kan. cmt.
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(1996). The district court erred, however, in its
interpretation of Article 2 and its conclusion that the
cattle transactions did not bestow Morken with "rights in
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the collateral."6 As will be seen, the cattle were sold
and delivered by Hoxie to Morken and Morken thus acquired
"rights in the collateral."
A "sale" is the passing of title from buyer to seller
for a price. Kan. Stat. Ann. § 84-2-106(1). Where
delivery of the goods is made without moving the goods,
title passes from buyer to seller at the time parties
contracted if the goods are identified at that time. Id.
§ 84-2-401(3)(b). When identification occurs, the buyer
acquires a "special property" and, importantly, any title
interest retained by the seller is limited to the
reservation of a security interest. Id. § 84-2-401(1).
Physical receipt of the goods by the debtor is not
necessary; rather, a sale may take place if the goods are
constructively delivered to the buyer through delivery to
the buyer's agent or bailee. "Delivery is not required
for a 'sale' to take place, and the buyer does not even
need any right to possession of the goods in question."
B. Clark, The Law of Secured Transactions ¶ 3.04[2], at
3-48.7
6
The court also erred in concluding that Morken had "rights in the collateral"
sufficient for Hoxie's security interest to attach but not Sprague's security interest.
The "rights in the collateral" inquiry focuses on the debtor's relation to the collateral,
and does not vary from one secured party to another. Thus, Morken either had
"rights in the collateral" and both security interests attached, or he had no rights and
neither security interest attached.
7
The district court quoted Lakeview Gardens, Inc. v. State ex rel. Schneider,
557 P.2d 1286 (Kan. 1976), for the proposition that a completed delivery can occur,
even though the goods remain in the seller's possession, if "nothing further remains
to be done by either party to complete the sale." 198 B.R. at 739 (quoting 557 P.2d
at 1291). Because Morken still had the duty to pay Hoxie, the court reasoned that
neither delivery nor a completed sale had occurred. The Lakeview Gardens case,
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In this case, the cattle were identified in the
invoices and other transaction documents, and the parties
agreed that delivery would be made to Morken by
delivering the cattle to Hoxie at its feedlot. The
feedlot agreements recited that the cattle belonged to
Morken. Morken solely bore the risk that the venture
would not generate a profit. Hoxie became a bailee of
the cattle because it took "delivery of property for some
particular purpose on an express or implied contract that
after the purpose has been fulfilled the property will be
returned to the bailor, or dealt with as he directs." M.
Bruenger & Co., Inc. v. Dodge City Truck Stop, Inc., 675
P.2d 864, 868 (Kan. 1984) (quoting 8 C.J.S. Bailments §
1). Even though Hoxie had the right to deduct the costs
of purchasing and caring for the cattle from the sale
however, reaches the opposite conclusion. The case involved the plaintiff's
"preneed" sale of caskets to individuals who would purchase by paying cash or
making installment payments. 557 P.2d at 1290. The casket would then be
identified by number and stored in the seller's warehouse until requested by the
buyer. The Supreme Court of Kansas held that constructive delivery of the caskets
had occurred, even though the buyers might still have owed for their casket under an
installment contract, and even though the seller retained possession of the caskets on
behalf of the buyers. Id. at 1291.
By analogy here, delivery of the cattle to Morken occurred, even though he
was still obligated to pay Hoxie for the cattle, and even though Hoxie retained
possession of the cattle on Morken's behalf. Thus, the sales were complete. The
district court erred in holding that the sale arrangements were executory contracts
just because Morken had not paid Hoxie. "An executory contract is one the
obligation of which relates to the future." Wagstaff v. Peters, 453 P.2d 120, 124
(Kan. 1969). "However, a contract is not executory merely because it has not been
fully performed by payment, if all the acts necessary to give rise to the obligation to
pay have been performed." Id. Thus, the fact that Morken had not fulfilled his
payment obligations did not make the agreements executory.
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proceeds, the parties viewed Morken as owner of the
cattle,8 and Morken determined when cattle would be sold
and at what price. In sum, Morken became the owner of an
interest in
8
In addition to the evidence recited above, the record contains other evidence
that the parties viewed Morken as owner. Hoxie stated in its interrogatory
responses that the cattle were owned and placed in the feedlot by Morken, and
letters from Hoxie's counsel prior to this litigation also stated that Morken owned
the cattle.
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the cattle, and Hoxie's interest in the cattle was
therefore limited to that of a bailee and secured party.9
In similar circumstances, other courts have held that
the debtor acquired "rights in the collateral" even
though the debtor received only constructive delivery of
the cattle to a feedlot. See, e.g., The Cooperative Fin.
Ass'n, Inc. v. B & J Cattle Co., 937 P.2d 915, 917, 920-
21 (Colo. Ct. App. 1997) (debtor acquired rights when
cattle were delivered to a third party feedlot; secured
creditor prevailed over unpaid cattle seller); O'Brien v.
Chandler, 765 P.2d 1165, 1168-69 (N.M. 1988) (same); see
also The Hong Kong & Shanghai Banking Corp. v. HFH USA
Corp., 805 F. Supp. 133, 142-43 (W.D.N.Y. 1992) (physical
possession of the collateral is not necessary for the
debtor to have rights).
Hoxie contends that the sale transactions were not
completed because it had the right to stop delivery of
the cattle upon discovering Morken's insolvency. See
Kan. Stat. Ann. § 84-2-702. Hoxie lost its Article 2
right to stop delivery, however, when the cattle were
constructively delivered to Morken and Hoxie acknowledged
to Morken in the feedlot agreements and other transaction
9
Crocker National Bank v. Ideco Division of Dresser Industries, Inc., 839
F.2d 1104 (5th Cir. 1988), cited by the district court and relied upon by Hoxie, is
factually distinguishable. The buyer and seller had agreed that the drilling rigs at
issue would be delivered to a common carrier, which never occurred. Id. at 1107.
Therefore, delivery did not take place, the sale was not consummated, and the buyer
never acquired "rights in the collateral." Id. at 1107-09.
Here, in contrast, the parties had agreed that the cattle would be
constructively delivered to the Hoxie feedlot, and this happened. Thus, the sales
were consummated, and Morken acquired "rights in the collateral."
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documents that Morken had purchased the cattle and Hoxie
was holding them for Morken for feeding and sale
purposes. See id. § 84-2-705(2)(b); see also Abilene
Nat'l Bank v. Fina Supply, Inc. (In re Brio Petroleum,
Inc.), 800 F.2d 469, 472 (5th Cir. 1986) ("the Code makes
clear that a
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seller's right to stop goods in transit may continue
after delivery and until the buyer is in actual, physical
or constructive possession of them"); Ramco Steel, Inc.
v. Kesler (In re Murdock Mach. & Eng'r Co.), 620 F.2d
767, 773 (10th Cir. 1980) (same).
Moreover, in some circumstances, the debtor can
transfer greater rights in the collateral to a third
party than the debtor himself holds. Thus, "[a] person
with voidable title has power to transfer a good title to
a good faith purchaser for value." Kan. Stat. Ann. § 84-
2-403(1). "Purchase" includes taking an interest in
property by mortgage, pledge, or lien. Id. § 84-1-
201(32). Therefore, a secured party such as Sprague can
be a "good faith purchaser"10 which can acquire an
interest in the collateral greater than the interest of
the debtor, Morken, and superior to the interest of an
unpaid seller such as Hoxie. The leading case on this
point is Stowers v. Mahon (In re Samuels & Co., Inc.),
526 F.2d 1238 (5th Cir.) (en banc) (per curiam), cert.
denied, 429 U.S. 834 (1976), pitting a creditor with a
security interest in the debtor's cattle against the
unpaid seller of the cattle. The court held that the
secured creditor's interest was superior to the unpaid
seller's interest under UCC § 2-403 which "gives good
faith purchasers of even fraudulent buyers-transferors
10
To receive good title under Kan. Stat. Ann. § 84-2-403(1), Sprague would
have to be a "purchaser," act in "good faith," and provide "value." Sprague was a
purchaser because it took a security interest in the cattle and provided value through
extending credit, but we do not reach the good faith issue because of our holding in
Part III. Even assuming that Sprague was a "good faith purchaser for value," Hoxie
nevertheless prevails because Hoxie has a "superpriority" purchase money security
interest. See Kan. Stat. Ann. § 84-9-312(3).
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greater rights than the defrauded seller can assert."
Id. at 1242. As to whether the debtor had "rights in the
collateral," the court reasoned that the UCC's priority
scheme of elevating a "good faith purchaser" over an
unpaid seller necessarily requires that the debtor had
"rights in the collateral" even though it had not paid
for the cattle:
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The existence of an Article Nine interest
presupposes the debtor's having rights in the
collateral sufficient to permit attachment, § 9-
204(a). Therefore, since a defaulting cash
buyer has the power to transfer a security
interest to a lien creditor, including an
Article Nine secured party, the buyer's rights
in the property, however marginal, must be
sufficient to allow attachment of a lien.
Id. at 1243.11 Thus, the debtor had "rights in the
collateral," even though it had not paid the seller for
those cattle.12
In summary, when the dust had settled after each of
the five cattle transactions: (a) a sale had occurred;
(b) Hoxie had constructively delivered the cattle to
Morken and had possession of the cattle on Morken's
behalf; (c) Morken had title to and owned the cattle; (d)
the only interest retained by Hoxie in the cattle was a
security interest and interest as bailee; (e) Hoxie's UCC
Article 2 remedy of refusing to deliver the cattle had
been cut off; and (f) Morken had "rights in the
collateral" sufficient for Sprague's security interest to
attach. Accordingly, we hold that Sprague had a
11
Although the debtor in In re Samuels & Co. had taken actual possession of
the cattle, and the debtor here took constructive possession of the cattle, this
distinction does not alter the rule that the secured party's interest in the collateral is
superior to the unpaid seller. As explained above, the debtor can acquire "rights in
the collateral" through both actual and constructive possession.
12
Kansas courts have cited In re Samuels & Co. with approval. See, e.g., Iola
State Bank v. Bolan, 679 P.2d 720, 726-27 (Kan. 1984); see also Holiday Rambler
Corp.v. Morris, 32 UCC Rep. Serv. 1222, 1225-26 (D. Kan. 1981) (debtor had
rights in goods even though it failed to pay seller).
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perfected security interest in the cattle and reverse the
district court on this issue.
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III.
Having determined that Sprague held a perfected
security interest in the cattle, we now turn to the
priority dispute between the two secured creditors,
Sprague and Hoxie. We hold that Hoxie attained purchase
money security interest "superpriority" under the Kansas
UCC, Kan. Stat. Ann. § 84-9-312(3), and has priority over
Sprague's interest.
Section 9-312 of the UCC sets forth rules for
determining priorities among conflicting security
interests in the same collateral. See Kan. Stat. Ann. §
84-9-312. The general priority scheme is that the first
creditor to perfect its security interest beats later
perfected security interests. See Kan. Stat. Ann. § 84-
9-312(5)(a). There is an important exception to this
"first-to-perfect" rule for a purchase money security
interest. A PMSI in inventory has "superpriority" over
an earlier perfected interest if: (a) the PMSI is
perfected at the time the debtor receives possession of
the inventory; (b) the PMSI creditor gives written
notification to all holders of competing security
interests which had UCC-1 financing statements on file
when the PMSI creditor filed its UCC-1; (c) the competing
secured creditor receives the notification within five
years before the debtor receives possession of the
inventory; and (d) the notification states "that the
person giving the notice has or expects to acquire a
purchase money security interest in inventory of the
debtor, describing such inventory by item or type." Id.
§ 84-9-312(3).
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Sprague contends that the Section 84-9-312(3)'s
"superpriority" status cannot be attained by a creditor
that has perfected its security interest in inventory by
possession, rather than by filing a UCC-1 financing
statement. It emphasizes language in this UCC section
and its commentary that refers to perfection by filing
and the debtor receiving possession of the inventory.
See Kan. Stat. Ann. § 84-9-312(3) & Official UCC cmt. 3.
We observe, however, that there is no language expressly
excluding a creditor that has perfected by possession
from taking advantage of this UCC section. More
importantly, there is no sound policy reason to
distinguish between perfection by filing and possession,
and to provide the former, but not the latter, the
opportunity to attain "superpriority." The common law of
pledge -- perfection by possession -- predates, and was
incorporated by, the UCC. In addition, pre-UCC law
afforded special priority to purchase money security
interests, and this has been carried over into the UCC.
See B. Clark, The Law of Secured Transactions ¶
3.09[1], at 3-100 ("the purchase money priority . . .
breaks up what would otherwise be a complete monopoly on
the debtor's collateral"). Thus, the UCC, as it stands
today, does not reflect any intent to penalize a PMSI
creditor by depriving it of the opportunity to attain
"superpriority" simply because of its means of
perfection.
We believe that there is a more logical explanation
for UCC § 9-312(3)'s contemplation that a creditor with
a security interest in inventory would likely perfect by
filing rather than possession. Inventory are goods "held
for immediate or ultimate sale." Kan. Stat. Ann. § 84-9-
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109 Official UCC cmt. 3. The debtor typically needs its
inventory to run its business and is not in a position to
allow a third party, such as its lender, to possess the
inventory. Therefore, the situation here -- in which the
creditor has possession of the inventory -- will arise
only rarely. The fact that the "superpriority"
provision of Section 84-9-312(3) does not expressly refer
to perfection by possession does not establish that its
scope is limited to perfection by filing. The UCC was
not drafted to address every possible factual situation,
but, rather, was "intentionally designed to allow room to
grow," Kan. Stat. Ann. § 84-1-102 Kan. cmt. 1 (1996), and
to accommodate the "expansion of commercial practices."
Id. Official UCC cmt. 1.
Having concluded that it was possible for Hoxie to
use Section 84-9-312(3) to attain "superpriority," we
must now decide whether it did so by fulfilling the
statutory requirements. The only requirement at issue
here is the timing of Hoxie's PMSI notice, which was
received after the cattle were sold and slaughtered and
this litigation was commenced. We believe that this
issue turns on the meaning of "possession" in the
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context of Section 84-9-312(3). As explained above, the
UCC treats constructive possession as analogous to actual
possession in certain circumstances. If Morken's
constructive possession triggered the notification
requirement, then Hoxie's notification was untimely
because Sprague received the notification after Morken
received constructive possession of the cattle. On the
other hand, if "possession" is limited to actual
possession, Hoxie's notice was timely because Sprague
received it before Morken could ever receive actual
possession.
Professor Grant Gilmore, the primary drafter of UCC
Article 9, provides guidance on the meaning of "receives
possession" in Section 84-9-312(3). Professor Gilmore's
treatise Security Interests in Personal Property has been
described as "an invaluable source of legislative intent
because he is the fountainhead in this area." B. Clark,
The Law of Secured Transactions ¶ 1.01[2][c], at 1-8. In
that treatise, Professor Gilmore states that
"'[r]eceives possession' is evidently meant to refer to
the moment when the goods are physically delivered at the
debtor's place of business -- not to the possibility of
the debtor's acquiring rights in the goods at an earlier
point by identification or appropriation to the contract
or by shipment under a term under which the debtor bears
the risk." II G. Gilmore, Security Interests in Personal
Property § 29.3, at 787 (1965). In light of Professor
Gilmore's comments, we interpret UCC § 9-312(3)'s
notification requirement to be triggered by actual
possession of the inventory by the debtor. Because
Sprague received Hoxie's notification within five years
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before Morken could have received actual possession, that
notification was timely.
Sprague complains that the purpose of Section 84-9-
312(3) is frustrated by granting "superpriority" to a
PMSI without requiring pre-perfection notification to
prior filed secured creditors. It contends that debtors
on the brink of insolvency will now have the motive to
create "secret liens" to the detriment of prior-perfected
secured creditors. The notification requirement,
however, was not intended to allow other secured
creditors veto power over the extension of new credit
because the notification does not have to be given before
the PMSI is acquired. The notification is required to
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state "that the person giving the notice has or expects
to acquire a purchase money security interest in
inventory of the debtor, describing such inventory by
item or type." Kan. Stat. Ann. § 84-9-312(3)(d)
(emphasis added). Thus, the PMSI creditor can wait to
notify competing secured creditors after it has acquired
and perfected its security interest. The Official UCC
Comment explains that the notification protects the
inventory financier from making additional advances to
the debtor in the mistaken belief that it is secured by
inventory which, in fact, has been financed by a third
party with a PMSI in that inventory. If the inventory
financier "has received notification, he will presumably
not make an advance; if he has not received notification
(or if the other interest does not qualify as a purchase
money interest), any advance he may make will have
priority." Kan. Stat. Ann. § 84-9-312 Official UCC cmt.
3.
Our holding is consistent with this purpose in the
context of this case. Sprague did not extend further
credit in reliance on the cattle serving as its
collateral; in fact, Sprague had not made any loans to
Morken since at least a year before Morken acquired an
interest in these particular cattle. We stop short,
however, of holding, as did the district court, that a
PMSI creditor that perfects by possession of inventory
does not ever have to send a statutory notification. It
is not necessary to reach that issue because Hoxie
timely sent its statutory notification. A different fact
pattern in another case might justify a different
conclusion. See Scallop Petroleum Co. v. Banque Trad-
Credit Lyonnais, 690 F. Supp. 184, 192 (S.D.N.Y. 1988)
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(PMSI creditor was required to send notification even
though debtor never had possession of the inventory).
IV.
The "superpriority" of the purchase money security
interest extends to inventory and "identifiable cash
proceeds received on or before the delivery of the
inventory to a buyer." Kan. Stat. Ann. § 84-9-312(3).
Sprague argues that Hoxie does not have "superpriority"
as to the proceeds from the cattle sales to IBP because
Hoxie received
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payment "two or three days" after delivering the cattle
to IBP. We hold that Hoxie has priority over Sprague as
to the proceeds from the cattle sales.
The "on or before delivery" language in this UCC
provision was discussed by the Fourth Circuit in Sony
Corp. of America v. Bank One, West Virginia, Huntington
NA, 85 F.3d 131 (4th Cir. 1996). The court explained
that this language "was meant to distinguish between cash
proceeds and accounts proceeds." Id. at 136 (citing UCC
§ 9-312 Official UCC cmt. 3). The court concluded that
"[t]he drafters of the U.C.C. decided to protect accounts
financers over inventory financers, and they limited the
priority of purchase money secured creditors to the cash
proceeds of inventory collateral." Id. at 137 (citing
UCC § 9-312 Official UCC cmt. 8); see also B. Clark, The
Law of Secured Transactions ¶ 3.09[3][c], at 3-121
(describing the drafters' favorable treatment of the
account lender over the PMSI creditor). Thus, the issue
here turns on whether cattle sales generated an account
receivable or cash proceeds.
The answer is found in the Packers and Stockyards
Act, 1921, 7 U.S.C. §§ 181-229. The Act provides that
for purposes of livestock sales to packers, "a cash sale
means a sale in which the seller does not expressly
extend credit to the buyer." 7 U.S.C. § 196(c) (1976).
Even if there is a delay in payment, the transaction is
a "cash sale" unless there is an express agreement
extending credit from the seller to the buyer. See The
First State Bank v. Gotham Provision Co., Inc. (In re
Gotham Provision Co., Inc.), 669 F.2d 1000, 1004-05 (5th
Cir. Unit B), cert. denied, 459 U.S. 858 (1982). There
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was no written credit agreement here; therefore, the
cattle transactions between Hoxie and IBP were cash sales
and not accounts receivable.
Even if these were cash sales, Sprague argues that
PMSI "superpriority" does not extend to the sale proceeds
because Hoxie did not receive them "on or before the
delivery of the inventory to the buyer." The Fourth
Circuit faced a similar issue in Sony Corp., in which
payment was received one day after delivery. 85 F.3d
at 136. The court refused to construe UCC § 9-312(3) to
limit the PMSI creditor's "superpriority"
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in inventory proceeds to only those proceeds received on
the same day as delivery because such a construction
would lead to arbitrary results. Id. at 137. Instead,
the court adopted a "reasonably contemporaneous" standard
and held that the creditor had priority in the sale
proceeds received one day after delivery. Id.
When cattle are sold on a "weigh and grade" basis,
the purchase price is determined after the cattle are
slaughtered and the meat is graded and weighed. This
explains the delay between delivery and payment. See In
re Gotham Provision Co., 669 F.2d at 1005 n.3 (discussing
the difference between "grade and yield" and "live
weight" purchases). We follow the reasoning of the
Fourth Circuit in Sony Corp. and hold that, in the
circumstances of the sales here, Hoxie's receipt of the
cash proceeds was reasonably contemporaneous with
delivery. Accordingly, Hoxie's "superpriority" extends
to those proceeds.
In conclusion, we reverse the district court's
holding that Sprague did not have a security interest in
the cattle, but affirm its judgment that Hoxie's security
interest has priority over Sprague's security interest.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH
CIRCUIT.
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