Wheels, Inc. v. Otasco, Inc. (In Re Otasco, Inc.) , 30 U.C.C. Rep. Serv. 2d (West) 735 ( 1991 )

196 B.R. 554 (1991)

In re OTASCO, INC., Debtor.
WHEELS, INC., Plaintiff/Appellant,
v.
OTASCO, INC., Defendant/Appellee.

No. 90-C-300-E. Bankruptcy No. 88-03410-W. Adv. No. 89-0204-W.

United States District Court, N.D. Oklahoma.

August 7, 1991.

E. Mark Barcus, James R. Gotwals & Associates, Frederic Dorwart, Fred Dorwart, Lawyers, Tulsa, OK, for Mohawk Rubber Company.

Leonard I'Pataki, John J. Carwile, Gary M. McDonald, Doerner Saunders Daniel & Anderson, Tulsa, OK, for appellee Otasco, Inc.

Gary H. Baker, Dana L. Rasure, Baker & Hoster, Tulsa, OK, Jonathan Feiger, Kenneth S. Goodsmith, Latham & Watkins, Chicago, IL, Ronald W. Hanson, Latham & Watkins, Chicago, IL, for appellee Ameritrust Co. National Ass'n.

ORDER

ELLISON, District Judge.

The court now considers the appeal of plaintiff Wheels, Inc. ("Wheels") of the final order of the Bankruptcy Court for the Northern District of Oklahoma dated March 27, 1990, which found in favor of Otasco, Inc. ("Otasco") in a declaratory judgment action to determine the rights of Wheels and Otasco under a motor vehicle lease entered into by the parties.

This appeal concerns the findings of fact of the bankruptcy judge concerning the lease. Bankruptcy Rule 8013 sets forth a "clearly erroneous" standard for appellate review of bankruptcy rulings with respect to findings of fact. In re Morrissey, 717 F.2d 100, 104 (3rd Cir.1983). However, this "clearly erroneous" standard does not apply to review of mixed questions of law and fact, which are subject to the de novo standard of review. In re Ruti-Sweetwater, Inc., 836 F.2d 1263, 1266 (10th Cir.1988); In re Mullet, 817 F.2d 677, 679 (10th Cir.1987). This appeal challenges the legal conclusions drawn from the facts presented at trial, so de novo review is proper.

FACTS

On February 2, 1984, Wheels entered into an agreement with Otasco (the "Lease"), which governed the terms under which Otasco, from time to time, would obtain motor vehicles from Wheels. A copy of this Lease is attached as Exhibit "A". The Agreement was designated as a "Lease" and identified Wheels as "Lessor" and Otasco as "Lessee". Paragraph 14 of the Lease was entitled "Ownership" and recited in pertinent part: "It is expressly agreed that the Lessee by virtue of this lease acquires no ownership, title, property, right, interest, (or any option therefor) in any leased motor vehicle save as herein provided. . . ."

The first paragraph of the Lease provided that "Lessee hereby leases one motor vehicle for delivery as specified by Lessee and other motor vehicles as may hereafter be ordered by Lessee . . . with the Lessee to have possession and right to use said motor vehicles. . . ." The Lease imposed all burdens and expenses of licensing, registration, taxes, fees, fines and penalties, maintenance and replacement, insurance, and liability for use in connection with the operation of leased vehicles on the Lessee in paragraphs 4, 5, 7, 8, and 11. The Lessee could mark the vehicles with its own insignia, according to paragraph 9. The Lease imposed no duty on the Lessor except delivery of each vehicle at the inception of the Lease and acceptance, disposition, and accounting of and for each vehicle at the termination of the Lease.

The Lease in paragraph 12 provided that "[e]ach motor vehicle shall be leased for an initial term of 12 months from the date of the delivery of such vehicle to Lessee, and thereafter for successive 12 month renewal terms; provided that Lessee shall have the right to cancel any vehicle at any time after the end of the first 12 months of the initial lease term for such vehicle by giving written notice of such cancellation to the Lessor. . . ." No provision in the Lease permitted the Lessor to cancel once a vehicle had been leased, but paragraph 12 stated that "[e]ither Lessee or Lessor may terminate the obligation to lease additional or replacement vehicles at any time upon written notice to the other party". The parties admitted orally that they expected continuation beyond the initial 12-month term, and there was no express limit to the possible number of successive 12-month renewal terms, nor any express option to purchase at any particular time. The rental schedule showed that the parties contemplated renewals of up to fifty (50) months.

The Lease in paragraph 2 provided that "The monthly rental for each motor vehicle shall be computed on the basis of the rider hereto attached marked ``Rental Schedule' and made a part hereof, and is intended to include the Reserve accrued for the estimated depreciation of the leased vehicle." The rentals were computed on the stipulated cost of each vehicle, and 2% of the stipulated cost of each vehicle each month was to be put into the amortization account until 100% of the stipulated cost was paid or for the duration of the contract for each vehicle.

The rental schedule stated that "It is anticipated that at the end of the maximum term herein prescribed, the vehicle will have only scrap value and if for any reason the Lessee desires to continue to operate the vehicle the Lessee agrees to pay to the Lessor a monthly rental of $3.00 during such extended period."

Paragraph 3 of the Lease provided that:

The Lessor, upon receipt of a leased motor vehicle from the Lessee after the termination of the lease of said motor vehicle, will proceed to sell said motor vehicle at wholesale on the best terms available for cash, in the discretion of the Lessor (the net amount received from the sale of the motor vehicle after deducting any expenses and charges incurred from the time of delivery of the motor vehicle to the Lessor to the final completion of the sale thereof being called the ``Net Proceeds'). If the Net Proceeds plus the amount accrued for the Reserve for said motor vehicle (the ``Total Recovery') is in excess of the ``stipulated cost' of the motor vehicle, then the amount of such excess shall be promptly credited to the Lessee by the Lessor. If the Total Recovery is less than the ``stipulated cost' of the motor vehicle, then the Lessee shall promptly pay such deficiency to the Lessor; provided that in the event of any such sale the Lessor shall guaranty to Lessee that the Net Proceeds shall at least equal (a) the following percentages of the fair value of the vehicle as of the beginning of the 12 month period during which the date of termination occurs:

Period                    Percentage
Initial 12 month period of lease .............. 20%
Each subsequent 12 month period ............... 30%

less, in any case, (b) the amount of any loss or damage to be insured or borne by Lessee under Section 5 or 11 hereof. As an alternate to sale of the vehicle by the Lessor, the Lessee may, at its option, on 30 days written notice to the Lessor, arrange for the sale of the vehicle for the account of the Lessee (but not to the Lessee), without the services of the Lessor, providing payment is first made to the Lessor by or on behalf of the Lessee of the remaining book balance for said vehicle, and any charges accrued to the Lessor on said vehicle to said date.

Under this provision, lessee could arrange to sell the vehicle at its option, but was expressly prohibited from purchasing it.

The parties agreed that the "amount accrued for the Reserve of said motor vehicle" referred to in Paragraph 3 of the Agreement was calculated on the Rental Schedule under the heading "Amortization Account". The "stipulated cost" referred to was not expressly defined in the agreement, but it provided that "[a]t the beginning of each month, the Lessor shall render a monthly invoice to the Lessee for all payments due to the Lessor for all motor vehicles theretofore delivered to the Lessee, and the Lessee agrees to make prompt payment thereof. The Lessor will also render to the Lessee details of the ``stipulated cost' together with the term of the lease thereof, the rental rate and charges of all motor vehicles delivered to the Lessee."

On November 6, 1988, Otasco filed its petition for relief under 11 U.S.C. Chapter 11. Otasco continued to operate its business and remained in possession of its property as debtor and debtor-in-possession. On July 11, 1989, Wheels filed its complaint seeking declaratory judgment that the Lease was a true lease which Otasco had to assume or reject and the vehicles were therefore owned by Wheels as Lessor and not part of the bankruptcy estate. In the alternative, Wheels claimed it had a perfected security interest in the vehicles. Otasco argued that the Lease was not a true lease, the vehicles were owned by Otasco and thus property of the bankruptcy estate, the Lease was intended as security, and the security interest was not perfected.

As of December 11, 1989, there were twenty-one (21) vehicles in Otasco's possession which it obtained from Wheels. Ten were titled in Oklahoma, three in Georgia, two in Tennessee, two in Louisiana, two in Kansas, one in Arkansas, and one in Texas. All of the vehicle titles listed Wheels as the owner, but not as a lienholder. No lien entry forms pursuant to 47 O.S. § 1110 were ever delivered to the Oklahoma Tax Commission as to any of the vehicles. Fourteen of the vehicles had been sold and the proceeds escrowed, and Otasco was making scheduled payments on the rest.

CHOICE OF LAW

As a first step in deciding whether Otasco had ownership rights to the vehicles, making Wheels a mere creditor, the court examined the Lease, which said it would be interpreted according to the laws of the State of Illinois. See Exhibit "A", paragraph 15. Wheels is an Illinois corporation, but Otasco is an Oklahoma corporation, most of the vehicles are titled in Oklahoma, and suit was brought in Oklahoma. Wheels asserted that the federal court sitting in Oklahoma must apply the choice of law rules of Oklahoma, that Oklahoma courts use the Restatement 2nd rules for choice of law, and that, under those rules, the parties' choice of law governs, unless there is no reasonable connection between their choice and the forum state or some fundamental policy of the forum state would be infringed. While noting that this assumption was not well founded, since this was not a diversity case, the Bankruptcy Court determined there was no reason why the parties' choice of law should not govern. Thus the applicable substantive law was the Uniform Commercial Code ("UCC") §§ 1-201(37)^[1] and 9-102(1)(a)^[2], enacted in identical form in Illinois and Oklahoma (until a recent "clarifying" amendment of § 1-201(37) in Oklahoma), concerning "leases" intended as security.

The Bankruptcy Court recognized that the State of Oklahoma amended its version of UCC § 1-201(37) November 1, 1988, and that Bankruptcy Judge Stephen Covey had found that the amendments were to "clarify" prior law and to that extent were read back into prior transactions. In re Cole; Woodson v. Ford Motor Credit Co., 100 B.R. 561 (Bkrtcy.N.D.Okla.1989). However, Judge Wilson disagreed with this analysis and concluded that the amendments altered case law interpreting and applying the prior text. This analysis was similar to that previously adopted by Judge Wilson in In re Thompson, 101 B.R. 658 (Bkrtcy.N.D.Okla.1989), which was also directly contrary to Judge Covey's holding in the factually identical case of In re Cole.

Both In re Cole and In re Thompson were appealed to the District Court, and were consolidated for consideration before Chief Judge H. Dale Cook, in In re Cole, 114 B.R. 278 (N.D.Okl.1990). Judge Cook retroactively applied Oklahoma's 1988 version of UCC § 1-201(37)^[3], holding that it merely clarified, and did not substantively change the earlier version. He proceeded to reject Judge Wilson's imperfected security interest theory in favor of Judge Covey's true lease analysis, in affirming In re Cole and reversing In re Thompson. This court agrees with and adopts Judge Cook's analysis.

In all fairness, however, it should be noted that when Judge Wilson decided the present case on March 27, 1990, he did not have the benefit of Judge Cook's decision in In re Cole, which was decided on April 18, 1990. It is therefore understandable that Judge Wilson would decide this case in a manner that was consistent with his prior ruling in In re Thompson.

Judge Wilson examined the case of In re Loop Hospital Partnership, 35 B.R. 929 (Bkrtcy.N.D.Ill.1983), and found he was not bound by that decision, because it was distinguishable on its facts. In re Loop cited the Tenth Circuit cases of In re Tulsa Port Warehouse Co., Inc., 4 B.R. 801 (N.D.Okla. 1980), aff'd., 690 F.2d 809 (10th Cir.1982), and U.S. for Eddies Sales and Leasing, Inc. v. Federal Insurance Co., 634 F.2d 1050 (10th Cir.1980). In In re Loop the court held that a lease of hospital equipment was a true lease because there was no option to purchase, the lease term apparently ended after only five years, there was no evidence to indicate that the property's useful life was exhausted or that the parties intended any continuation of the lease, the lessee was required to return the property to lessor, and there was no evidence to indicate that the property or its value would in any manner be retained by the lessee.

The Bankruptcy Court chose to rely on pre-1988 amendment Oklahoma cases, which were more factually analogous. He cited In re Tulsa Port, In re Breece, 58 B.R. 379, 382-383 (Bkrtcy.N.D.Okla.1986), and In re Harvey, 80 B.R. 533, 537 (Bkrtcy.N.D.Okla.1987), in support of his conclusions. Those Oklahoma cases had found that secured transactions were shown by: (1) the concentration of all incidents of ownership of the vehicles, save bare legal title, in the lessee; (2) the effect of termination provisions, which established an equity in the vehicles in lessee and removed any reversionary interest from lessor; and (3) economic equivalence of the transactions with secured sales or loans.

The Bankruptcy Court held that the termination provisions of the Lease were of an "open-end" type in which the vehicle must be sold, the sale proceeds credited against lessee's monetary obligation, any excess credited to lessee, and any deficiency made up by lessee, placing on the lessee the risk of loss or the expectation of gain upon disposition of each vehicle and establishing an "equity" in the lessee. Indeed, the sale and disposition provisions of this lease are open-ended, and this is a concern, because of the Tenth Circuit's holding in In re Tulsa Port Warehouse Co., Inc., 690 F.2d 809 (10th Cir.1982).

In that case, the Tenth Circuit affirmed Judge Thomas R. Brett's ruling that the "open-end" lease agreements were intended for security, even though, as here, those "leases" did not include an option to purchase and the lessor retained title plus the right to receive the wholesale purchase price and an amount which the court there deemed to be "apparent" interest. Judge Brett's opinion is reported at 4 B.R. 801 (N.D.Okla.1980).

The Court of Appeals said, "We agree with the trial judge's conclusion that ``[t]he practical effect of this arrangement is the same as if lessee purchased the car, then sold it two or three years later and used the proceeds to pay off the note.'" 690 F.2d at 810.

Of course, in the present case, the lease term was a much shorter twelve months. In the event the lease was terminated after its primary term, the transaction would look little like a secured purchase. Nevertheless, this case demands close factual scrutiny, because "whether a particular lease is intended for security is to be determined by the facts of each case." In re Tulsa Port Warehouse Co., Inc., 4 B.R. at 805; 12A O.S. § 1-201(37)(b). To assist in such factual analysis, it is helpful to turn to the "clarified" 1988 version of 12A O.S. § 1-201(37).^[4]

One must look at whether the original term of the lease was equal to or greater than the remaining economic life of the goods. Tit. 12A O.S. § 1-201(37)(b)(i) (1988). Here we are dealing with a vehicle lease with a primary term of twelve months, much less than the fifty month economic life the parties expected.

One must look to whether the lessee was bound to renew the lease for the remaining economic life of the goods, and whether the lessee was bound to become the owner of the goods. Section 1-201(37)(b)(ii) (1988). Here, the lessee was not so bound.

Also, one must look to whether the lessee had an option to renew the lease for the remaining economic life of the goods for no additional consideration or nominal additional consideration upon compliance with the lease agreement. Section 1-201(37)(b)(iii) (1988). Here the lessee had the option to renew, but such renewal required more than nominal additional consideration.

Finally, one must look to whether the lessee had an option to become the owner of the goods for no additional consideration or nominal additional consideration upon compliance with the lease agreement. Here the lessee was expressly prohibited from purchasing it.^[5]

The Bankruptcy Court noted that, because the vehicle must be sold and the sale was essentially for the benefit of the lessee, there was no true lease-like reversion in the lessor. This court finds that the provision for the sale of vehicles, with proceeds credited toward the stipulated cost, and the obligation of the Lessee to pay a shortfall, was not designed to create an equity interest in the lessee, but rather to protect the lessor from untoward abuse of its vehicle during the lease term, and any resultant loss in its equity, upon reversion of a vehicle. Such a provision seems economically prudent in leasing property easily damaged, destroyed, overused, or abused, such as a motor vehicle. The inclusion of such a provision should not, then, cause a lease to be converted into a security agreement absent additional indicia that the parties' true intention was to so structure the transaction.

The Bankruptcy Court also noted that, under the Lease, the lessor gave up any expectation of recovering the vehicles themselves and their value beyond a set amount and ceased to hold even bare legal title to the vehicle upon sale. However, this court differs with the conclusion of the Bankruptcy Court that these termination provisions indicated a lease intended as security rather than a true lease. Rather, these provisions more likely reflect the market realities in the vehicle leasing business. Who is going to initially "lease" a depreciated used vehicle?

The Bankruptcy Court found that, despite lack of actual sale prices and dollar amounts in evidence and the apparently calculated obscurity of lease terms such as "reserve" and "stipulated cost", the economic effect of the Lease could be inferred from the contractual provisions themselves. However, the Bankruptcy Court's analysis of the "economic effect" of the lease was inherently flawed in that it presumed renewals of the twelve-month term would be made when there was clearly no obligation to do so.

In In re Cole 114 B.R. 278, 285 (N.D.Okl. 1990), Judge Cook recognized that:

A court may not rewrite the parties' contract, nor read terms or provisions into the contract. See Houston Oilers, Inc. v. Neely, 361 F.2d 36, 42 (10th Cir.1966); Sloan v. Mud Products, 114 F. Supp. 916, 923 n. 20 (N.D.Okla.1953); King-Stevenson Gas & Oil Co. v. Texam Oil Corp., 466 P.2d 950, 954 (Okla.1970).

The Bankruptcy Court's analysis in this case judicially rewrites express contractual terms establishing exclusive ownership in the lessor and a twelve-month primary lease term.

The Bankruptcy Court found that it should apply Illinois law and the Illinois enactment of UCC §§ 1-201(37) and 9-102(1)(a). The Bankruptcy Court then concluded it was not bound by the Illinois court's leading decision in In re Loop Hospital Partnership, due to factual distinctions. This court agrees that the facts in In re Loop are distinguishable and that reference to Oklahoma caselaw involving closely analogous factual patterns is appropriate due to the similarity in the Illinois and Oklahoma statutory enactments of § 1-201(37) of the UCC. However, in light of this court's adoption of Judge Cook's analysis in In re Cole, the Bankruptcy Court's reliance on cases decided prior to the 1988 "clarifying" amendment to Oklahoma's enactment of UCC § 1-201(37) was in error.

This court concludes that the Lease was a true lease. This conclusion is compelled once the lease is properly analyzed pursuant to 12A O.S. § 1-201(37), as clarified by the 1988 Amendment. The decision of the Bankruptcy Court is reversed, and the case is remanded for further proceedings consistent with this opinion.

NOTES

[1] Title 12A O.S. § 1-201(37) read as follows prior to 1988:

``Security interest' means an interest in personal property or fixtures which secures payment or performance of an obligation. The retention or reservation of title by a seller of goods notwithstanding shipment or delivery to the buyer (Section 2-401) is limited in effect to a reservation of a ``security interest'. The term also includes any interest of a buyer of accounts, chattel paper, or contract rights which is subject to Article 9. The special property interest of a buyer of goods on identification of such goods to a contract for sale under Section 2-401 is not a ``security interest', but a buyer may also acquire a ``security interest', by complying with Article 9. Unless a lease or consignment is intended as security, reservation of title thereunder is not a ``security interest' but a consignment is in any event subject to the provisions on consignments sales (Section 2-326). Whether a lease is intended as security is to be determined by the facts of each case; however, (a) the inclusion of an option to purchase does not of itself make the lease one intended for security, and (b) an agreement that upon compliance with the terms of the lease the lessee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does make the lease one intended for security.

[2] Title 12A O.S. § 9-102(1)(a) reads: "Except as otherwise provided in Section 9-104 on excluded transactions, this article applies: to any transaction, regardless of its form, which is intended to create a security interest in personal property or fixtures including goods, documents, instruments, general intangibles, chattel paper or accounts. . . ."

[3] 12A O.S. § 1-201(37), as amended in 1988, reads:

(37)(a) "Security interest" means an interest in personal property or fixtures which secures payment or performance of an obligation. The retention or reservation of title by a seller of goods regardless of shipment or delivery to the buyer (Section 2-401) is limited in effect to a reservation of a "security interest". The term also includes any interest of a buyer of accounts or chattel paper which is subject to Article 9 of this title. The special property interest of a buyer of goods on identification of such goods to a contract for sale under Section 2-401 of this title is not a "security interest", but a buyer may also acquire a "security interest" by complying with the provisions of Article 9 of this title. Unless a consignment is intended as security, reservation of title thereunder is not a "security interest" but a consignment is in any event subject to the provisions on consignment sales (Section 2-326). (b) Whether a transaction creates a lease or security interest is determined by the facts of each case; however, a transaction creates a security interest if the consideration the lessee is to pay the lessor for the right to possession and use of the goods is an obligation for the term of the lease not subject to termination by the lessee, and:

(i) the original term of the lease is equal to or greater than the remaining economic life of the goods,

(ii) the lessee is bound to renew the lease for the remaining economic life of the goods or is bound to become the owner of the goods,

(iii) the lessee has an option to renew the lease for the remaining economic life of the goods for no additional consideration or nominal additional consideration upon compliance with the lease agreement, or

(iv) the lessee has an option to become the owner of the goods for no additional consideration or nominal additional consideration upon compliance with the lease agreement.

(c) A transaction does not create a security interest merely because it provides that:

(i) the present value of the consideration the lessee is obligated to pay the lessor for the right to possession and use of the goods is substantially equal to or is greater than the fair market value of the goods at the time the lease is entered into,

(ii) the lessee assumes risk of loss of the goods, or agrees to pay taxes, insurance, filing, recording, or registration fees, or service or maintenance costs with respect to the goods,

(iii) the lessee has an option to renew the lease or to become the owner of the goods,

(iv) the lessee has an option to renew the lease for a fixed rent that is equal to or greater than the reasonably predictable fair market rent for the use of the goods for the term of the renewal at the time the option is to be performed, or

(v) the lessee has an option to become the owner of the goods for a fixed price that is equal to or greater than the reasonably predictable fair market value of the goods at the time the option is to be performed.

(d) For purposes of this subsection:

(i) additional consideration is not nominal if:

(A) when the option to renew the lease is granted to the lessee the rent is stated to be the fair market rent for the use of the goods for the term of the renewal determined at the time the option is to be performed, or

(B) when the option to become the owner of the goods is granted to the lessee the price is stated to be the fair market value of the goods determined at the time the option is to be performed. Additional consideration is nominal if it is less than the lessee's reasonably predictable cost of performing under the lease agreement if the option is not exercised;

(ii) "reasonably predictable" and "remaining economic life of the goods" are to be determined with reference to the facts and circumstances at the time the transaction is entered into; and

(iii) "present value" means the amount as of a date certain of one or more sums payable in the future, discounted to the date certain. The discount is determined by the interest rate specified by the parties if the rate is not manifestly unreasonable at the time the transaction is entered into; otherwise, the discount is determined by a commercially reasonable rate that takes into account the facts and circumstances of each case at the time the transaction was entered into.

[4] It should be noted that the Tenth Circuit's decision in In re Tulsa Port Warehouse Co., Inc., was handed down in 1982, well before the "clarifying" 1988 amendment to 12A O.S. § 1-201(37).

[5] See also, 12A O.S. § 1-201(37)(c)(i-iv) (1988), which in effect provides that a transaction does not create a security interest merely because it provides for market value consideration, the Lessee to bear the risk of loss and operational expenses, and/or an option to renew the lease.