Ozark Financial Services v. Turner

ON MOTION FOR REHEARING

PER CURIAM

By its motion the appellant seeks rehearing or transfer upon two bases. First it contends the effect of the opinion “is to state that if a vehicle (a truck in particular) does not have a Missouri title, then garage-mens’ liens will take priority over duly perfected security interests pursuant to the statutory garagemens’ lien.” Because of the false premise of “duly perfected security interests” that statement is patently without merit.

Second, it contends the opinion is in conflict with In Re Brown,, 55 B.R. 172 (Bkrtcy.W.D.Mo.1985). It is not necessary to consider or approve the construction of § 301.600 expressed in that decision. It is sufficient to observe the decision assumes the existence of a security interest when the application for a certificate of title was prepared and filed.

In its suggestions the appellant says “[i]t appears to the Appellant that this Court may be of the opinion that since the title was issued prior to the date of that security agreement, that the perfection is not proper.” That is the opinion of the court.

The appellant argues that under the Uniform Commercial Code, Secured Transactions, §§ 400.9-101 to 400.9-507, this conclusion is erroneous. It relies upon the fact a financing statement can serve to perfect a security interest created after that financing statement was filed. See In Re Kielhafner, 69 B.R. 51 (Bkrtcy.E.D.Mo. 1986). That result is in accord with the provisions of the Code. Section 400.9-302 in general provides that a financing statement must be filed to perfect a security interest. Section 400.9-402 provides: “A financing statement may be filed before a security agreement is made or a security interest otherwise attaches.” Section 400.-9-303 provides: “A financing statement *379must be filed to perfect all security interests except the following:”

However, the perfection of a security interest in a motor vehicle is not governed by those provisions. “When the Uniform Commercial Code was adopted by Missouri the legislature also passed § 301.600, which controls the method of perfecting liens and encumbrances on motor vehicles.” Ford Motor Credit Co. v. Pedersen, 575 S.W.2d 916, 918 (Mo.App.1978). Sections 301.600 to 301.660 are drawn from the Uniform Motor Vehicle Certificate of Title Act.

The appellant has not shown where the motor vehicle was in 1984. However, assuming it was in Illinois, it is appropriate to observe Illinois has also enacted the Uniform Motor Vehicle Act. Ill.Rev.Stat. ch. 95½ par. 3-201 to 3-210 (1975). Those statutes are couched in substantially the same language as §§ 301.600 to 301.660. “Section 3-207 of the Illinois Vehicle Code (Ill.Rev.Stat.1975, ch. 95½, par. 3-207) provides the exclusive means for perfecting and giving notice of security interests in motor vehicles.” Huber Pontiac, Inc. v. Wells, 59 Ill.App.3d 14, 16 Ill.Dec. 518, 375 N.E.2d 149 (1978).

The language of §§ 301.600 to 301.660 is premised upon the existence of a lien when it is perfected by complying with those sections. For example, a lien cannot attach until there is an effective security agreement. Shelton v. Erwin, 472 F.2d 1118 (8th Cir.1973). The subsection relied upon by appellant provides: “If the lien or encumbrance was perfected under the law of the jurisdiction where the motor vehicle or trailer was when the lien or encumbrance attached, the following rules apply:” That language obviously has reference to an existing lien, or a security agreement which has attached.

In the face of the explicit statutory commands, essential for the creation and perfecting of a security interest in a previously registered motor vehicle, reliance on statutory construction of concepts of the Uniform Commercial Code is misplaced. In the absence of a validly created security interest in the motor vehicle, the appellant’s argument that its security interest in the truck ‘relates back’ to the time of its creation ... is not persuasive.

In Re Covey, 470 F.Supp. 1048, 1050 (D.C. Vt.1979).

Unlike the filed financing statement, the notice of lien filed with the Director of Revenue relating to a motor vehicle or trailer applies to a specific security agreement, the date of which must appear in the notice. Thus, if a security agreement has been satisfied and subsequent financing is effected with a separate security agreement, a new notice must be filed.

Mo. Creditors’-Debtors’ Remedies, § 9.17 (Mo.Bar 4th ed. 1985).

In this case the security interest which is the basis of the action was not in existence in 1984. There is no evidence any lien on the motor vehicle could have attached in that year. The motion for rehearing or transfer is denied.

All concur.