ProGrowth Bank v. Wells Fargo Bank, etc. ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3948
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ProGrowth Bank, Inc., *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the District
* of Minnesota.
Wells Fargo Bank, N.A.; and *
Global One Financial, Inc., *
*
Defendants-Appellants. *
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Submitted: December 10, 2008
Filed: February 20, 2009
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Before WOLLMAN, BYE, and RILEY, Circuit Judges.
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BYE, Circuit Judge.
Wells Fargo Bank, N.A. (“Wells Fargo”) and Global One Financial, Inc.
(“Global One”) (collectively, the “Defendants”) appeal from the district court’s grant
of summary judgment in favor of ProGrowth Bank, Inc. (“ProGrowth”) on its claim
for a declaratory judgment. We reverse.
I
This case concerns separate and unrelated loans made by Global One and
ProGrowth to Christopher Hanson (“Hanson”) and/or the Christopher Hanson
Insurance Agency (the “Agency”). On September 8, 2005, Global One and the
Agency entered into a Promissory Note and a Security Agreement, pursuant to which
Global One loaned the Agency one million dollars. As security for the loan, Hanson
assigned his interests in two separate annuity contracts, both issued by Fidelity &
Guaranty Life Insurance Company (“Fidelity & Guaranty”). The two annuity
contracts were valued at one million dollars, and they were identified as “L9E00015"
and “L9E00016,” respectively.
That same day, Wells Fargo, acting as a collateral agent for Global One, filed
a financing statement with the Secretary of State of Missouri. The financing statement
identifies the “Debtor” as “Christopher J. Hanson,” and it describes the collateral as
follows:
All of Debtor’s right, title, and interest in and to, assets and rights of
Debtor, wherever located and whether now owned or hereafter acquired
or arising, and all proceeds and products in that certain Annuity Contract
No.: LE900015 issued by Lincoln Benefit Life in the name of Debtor
....
Of importance in the instant appeal, the financing statement identifies the contract
number as “LE900015" instead of “L9E00015,” and it identifies the issuer as “Lincoln
Benefit Life” instead of Fidelity & Guaranty. On September 16, 2005, Wells Fargo,
again acting as a collateral agent for Global One, filed an additional financing
statement. This statement identifies the “Debtor” as “Christopher J. Hanson” and
provides the following description of collateral:
All of Debtor’s right, title, and interest in and to, assets and rights of
Debtor, wherever located and whether now owned or hereafter acquired
or arising, and all proceeds and products in that certain Annuity Contract
No.: L9E00016 issued by Lincoln Benefit Life in the name of Debtor
....
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Although this financing statement correctly identifies the contract number, it once
again mistakenly refers to the issuer of this contract as “Lincoln Benefit Life” instead
of Fidelity & Guaranty. During this same time period, Wells Fargo filed financing
statements regarding at least two other annuity contracts, which are not involved in
this lawsuit, owned by Hanson and issued by Lincoln Benefit Life.
On February 9, 2006, Hanson obtained a loan from ProGrowth. As security for
the loan, Hanson assigned his interests in the Fidelity & Guaranty annuity contracts
to ProGrowth. On February 14, 2006, ProGrowth filed two financing statements with
the Secretary of State of Missouri. They identify Hanson and the Agency as the
debtor, and they accurately describe the collateral as: “Fidelity and Guaranty Life
Insurance Annuity Contracts Number L9E00015 and Number L9E00016[.]”
ProGrowth then filed this lawsuit against Global One and Wells Fargo asserting
a claim for a declaratory judgment decreeing that its perfected security interests in the
Fidelity & Guaranty annuity contracts are prior to and superior to any perfected
security interests claimed by the Defendants. ProGrowth also asserted a claim for
conversion. ProGrowth argued that the Defendants’ security interests are not
perfected because the financing statements filed with respect to those interests are
seriously misleading. The district court granted ProGrowth’s motion for summary
judgment. The Defendants then filed a motion to alter or amend the judgment,
arguing the district court erred in granting summary judgment in favor of ProGrowth
without requiring ProGrowth to satisfy its burden of showing its own perfected
security interests in the annuity contracts. The district court denied the Defendants'
motion because they never asserted that in opposition to the motion for summary
judgment that ProGrowth’s security interests in the annuity contracts are not
perfected. This appeal followed.
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II
We review de novo the district court’s grant of summary judgment in favor of
ProGrowth. Fitzgerald v. Action, Inc., 521 F.3d 867, 871 (8th Cir. 2008). “When the
evidence, viewed in the light most favorable to the nonmoving party, presents no
genuine issue of material fact and the moving party is entitled to judgment as a matter
of law, summary judgment is appropriate.” Id. The parties agree Missouri law
governs this diversity action.
Both ProGrowth and the Defendants have security interests in the Fidelity &
Guaranty annuity contracts. The parties agree the priority of the Defendants’ security
interests is dependent upon whether their interests are perfected in accordance with
Article 9 of the Missouri Uniform Commercial Code (“Missouri UCC”), Missouri
Revised Statute § 400.9-101-400.9-710. Under the circumstances involved in this
case, Defendants’ security interests in the annuity contracts are perfected only if the
financing statements they filed with respect to those interests are sufficient under
Missouri law. See id. § 400.9-310. “[A] financing statement is sufficient only if it:
(1) [p]rovides the name of the debtor; (2) [p]rovides the name of the secured party or
a representative of the secured party; and (3) [i]ndicates the collateral covered by the
financing statement.” Id. § 400.9-502(a). The parties dispute whether the
Defendants’ financing statements satisfy the third requirement.
A financing statement “sufficiently indicates the collateral that it covers if the
financing statement provides: (1) [a] description of the collateral pursuant to section
400.9-108; or (2) [a]n indication that the financing statement covers all assets or all
personal property.” Id. § 400.9-504. Under section 400.9-108, a “description of
personal or real property is sufficient, whether or not it is specific, if it reasonably
identifies what is described.” Finally, “[a] financing statement substantially satisfying
the requirements of this part is effective, even if it has minor errors or omissions,
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unless the errors or omissions make the financing statement seriously misleading.”
Id. § 400.9-506(a).
“The requirements of the UCC concerning filing, notice and perfection all are
intended to provide to those dealing with commercial activities knowledge of the
status of the commodity with which they are dealing so that they may protect their
interests and act in a commercially prudent manner.” First Nat. Bank of Steeleville,
N.A. v. ERB Equip. Co., 921 S.W.2d 57, 62 (Mo. Ct. App. 1996). To that end, the
financing statement “serves the purpose of putting subsequent creditors on notice that
the debtor’s property is encumbered.” Thorp Commercial Corp. v. Northgate Indus.,
Inc., 654 F.2d 1245, 1248 (8th Cir. 1981). Its function is not to “identify the collateral
and define property which the creditor may claim, but rather to warn other subsequent
creditors of the prior interest.” Id. Thus, we view the validity of the financing
statement in terms of whether “it provides notice that a person may have a security
interest in the collateral claimed.” Mo. Rev. Stat. § 400.9-504 (UCC cmt. 2)
(emphasis added). The UCC allows for imperfect financing statements, and it
recognizes that sometimes “[f]urther inquiry from the parties concerned will be
necessary to disclose the complete state of affairs.” Id. Therefore, errors or omissions
in the description of collateral do not render financing statements ineffective unless
they are seriously misleading, which “is designed to discourage the fanatical and
impossibly refined reading of statutory requirements in which courts have
occasionally indulged themselves.” Id. § 400.9-506 (UCC cmt. 2).
ProGrowth argues the Defendants’ financing statements are seriously
misleading because they identify the annuity contracts as issued by Lincoln Benefit
Life instead of Fidelity & Guaranty, and because contract no. L9E00015 is identified
as no. LE900015. Were this the only language contained in the Defendants’ financing
statements, we may be inclined to agree. These provisions of the financing
statements, however, cannot be read in isolation. The financing statements describe
the collateral as:
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All of Debtor’s right, title, and interest in and to, assets and rights of
Debtor, wherever located and whether now owned or hereafter acquired
or arising, and all proceeds and products in that certain Annuity Contract
No.: LE900015 [or L9E00016] issued by Lincoln Benefit Life in the
name of Debtor . . . .
(Emphasis added).
It is necessary to analyze the financing statements in their entirety because,
under the Missouri UCC, a financing statement sufficiently identifies the collateral it
covers if it provides an “indication that the financing statement covers all assets or all
personal property.” Mo. Rev. Stat. § 400.9-504. By identifying the collateral as all
assets or all personal property, the filer ensures that if “the property in question
belongs to the debtor and is personal property, any searcher will know that the
property is covered by the financing statement.” Id. § 400.9-504 (UCC cmt. 2).
While such a broad, generic description is insufficient to describe collateral in a
security agreement, it is sufficient to describe collateral in a financing statement
because it puts subsequent searchers on notice that any item of collateral owned by the
debtor may be encumbered, which is the purpose of the filing system. When faced
with a financing statement purporting to cover “all assets” of a debtor, it is then
incumbent upon the subsequent creditor to investigate whether the collateral at issue
is in fact covered by a security agreement. See id. § 400.9-502 (UCC cmt. 2)
(“Further inquiry from the parties concerned will be necessary to disclose the
complete state of affairs.”).
We conclude the Defendants’ financing statements satisfy the filing provisions
of the Missouri UCC because they indicate coverage over all of Hanson’s assets. The
first clause of the financing statements identify the collateral as “[a]ll of Debtor’s
right, title, and interest in and to, assets and rights of Debtor, wherever located and
whether now owned or hereafter acquired or arising . . . .” This language sufficiently
describes the collateral under section 400.9-504(2) because it gives an indication that
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all of Hanson’s assets may be covered. Thus, any inaccuracies in describing the
specific annuity contracts at issue are immaterial and do not render the statements
seriously misleading.
ProGrowth argues – and the district court agreed – the financing agreements
should be interpreted to cover only “assets and rights of Debtor” “acquired or arising”
in the “certain Annuity Contract[s].” The district court construed the “all assets”
clause as simply referring to rights contained in, or derived from, the annuity
contracts. We think this interpretation, however, is unduly restrictive and ignores the
plain language of the statements. The statements contain two distinct phrases
separated by the word “and,” which indicates the descriptive clauses are independent
from each other. See United States v. Ron Pair Enters, 489 U.S. 235, 241 (1989)
(“The phrase ‘interest on such a claim’ is set aside by commas, and separated from the
reference to fees, costs, and charges by the conjunctive words ‘and any.’ As a result,
the phrase ‘interest on such a claim’ stands independent of the language that
follows.”). The first part covers all “assets and rights of Debtor,” while the second
part covers “proceeds and products in that certain Annuity Contract[s].” Because the
two phrases are separated by a comma and the word “and,” the most natural reading
of the financing statements is that the statements' identification of the collateral as
“[a]ll of Debtor’s right, title, and interest in and to, assets and rights of Debtor” is in
addition to the identification of the collateral as “all proceeds and products in the
Annuity Contract[s].” See id.
Moreover, even if it is reasonable to construe the “all assets” language as
simply referring to rights contained in the annuity contracts, it is equally reasonable
to construe it as a separate, independent phrase covering all of Hanson’s assets.
Where a description can reasonably be interpreted in one of two ways – one of which
may cover the collateral at issue and one of which does not – notice filing has served
its purpose of alerting subsequent creditors to the possibility that a piece of collateral
may be covered; the burden is then on the subsequent creditor to inquire further. See
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Thorp, 654 F.2d at 1252-53 (“Even assuming the words ‘assignment accounts
receivable’ could be interpreted narrowly . . . the words also have an obvious broader
meaning; in the present case notice filing has served its purpose of alerting subsequent
creditors to the need for further inquiry. The UCC puts the burden on the subsequent
creditor to seek clarification.”). Additionally, the UCC does not require a perfect
description that the financing statement covers all of a debtor’s assets, but simply an
“indication” of such coverage.
ProGrowth makes two final arguments in support of its contention that the
financing statements do not sufficiently indicate coverage over all of Hanson’s assets.
First, it argues Defendants must not have intended the financing statements to cover
all of Hanson’s assets because doing so would render the subsequent descriptions of
the annuity contracts superfluous. Additionally, ProGrowth argues, it would have
been redundant for Defendants to have filed multiple other financing statements
asserting security interests in other property owned by Hanson. This is immaterial,
however, because nothing in the UCC prevents a creditor from filing redundant or
precautionary financing statements, nor does the UCC prevent financing statements
from setting forth alternative means of describing collateral. Further, we have
previously rejected an attempt to impugn a filer’s intent in filing one financing
statement based on the fact that subsequently filed statements would have been
redundant, holding the “standard for evaluating intent is the notice given to
subsequent creditors . . . .” Id. at 1248 n.5.
Second, ProGrowth argues – and the district court again agreed – that even if
the financing statements do sufficiently identify the collateral as all of Hanson’s
assets, such a broad statement cannot cure the seriously misleading descriptions given
for the specific annuity contracts at issue.1 We think this fails to comprehend the
1
The district court noted that it was unable to find a single case in which a
seriously misleading description of a specific item of collateral was “cured” by a
generic reference in a financing statement to all of a debtor’s assets. While true,
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structure of the UCC. The UCC gives two methods for identifying collateral in a
financing statement: a description of the collateral, or an indication that the financing
statement covers all of the debtor’s assets. It then provides that errors or omissions
do not render the statements ineffective unless they are seriously misleading. The
relevant question is whether the statements – judged in their entirety – are seriously
misleading, not whether one alternative, and ultimately unnecessary, means of
describing the collateral contained therein is seriously misleading. While Defendants’
specific descriptions of the annuity contracts contain errors, the statements themselves
are not seriously misleading because a subsequent creditor should reasonably
understand that the financing statements may cover all of Hanson’s assets. It was then
incumbent upon subsequent creditors to inquire whether specific collateral owned by
Hanson is the subject of a prior security agreement. Therefore, we hold the
Defendants’ financing statements are not seriously misleading, and, as such, they are
sufficient to perfect Defendants’ security interests. The district court erred in granting
summary judgment in favor of ProGrowth on its claim for a declaratory judgment.
III
Accordingly, the decision of the district court granting summary judgment in
favor of ProGrowth is reversed, and the case is remanded to the district court for
further proceedings consistent with this opinion.
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neither is there a case holding that a valid identification of collateral under the “all
assets” provision is rendered invalid because a financing statement subsequently
provides a description of a specific item that is deemed seriously misleading.
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