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THE FACT PATTERN Shаrоn Undermynd is аn individuаl whо resides and оwns a granite quarry in the town of Rockville, state of Ferst. She is an unincorporated, sole proprietor with six employees. Her principal economic activity is quarrying, preparing, and wholesaling partially finished slabs of granite to middleman entities. The latter then refines the stone and sells it to contractors for installation. In early October 2021, Sharon applied to the Century Federal Bank and Trust Co. for a general-purpose, commercial loan in the amount of $250,000. Century is also located in Rockville. The bank took three weeks to process the loan request, during which it thoroughly examined Sharon's financial data. Its credit review revealed three key facts. For much of the past five years Sharon's business had struggled. As of October 6, 2021, she owed $185,000 to a variety of unsecured, trade and non-trade creditors. A few of these debts were past due, but most were not. On the other hand, in the last nine months, Sharon's situation had improved noticeably due to a series of long-term supply contracts with certain middlemen. Finally, Sharon could offer several pieces of lien-free personalty as collateral for the proposed loan. Century agreed to lend her the $250,000, which was to be repaid with 4% annual interest in 36 monthly installments. On November 1, 2021, the bank placed this amount in the commercial checking account that Sharon maintained with it. The same day the two parties signed a complete set of transactional documents, which Century had prepared. One of them was a security agreement, stating, among others, the following paragraphs: (4) Debtor grants Bank a security interest in the below-described property: (A) Debtor's right as a landlord to receive rental payments totaling $30,000 under a four-year lease, which was renewed on October 15, 2021, (hereinafter "Lease Payment Right"). The tenant, Paul Hardscrabble, possesses and uses a portion of the Debtor's quarry land to operate a business that processes and sells Debtor's waste rock. (B) Thirty slabs of granite, now owned by Debtor (hereinafter "Now Owned Slabs"). Debtor has given Bank data specifically identifying each slab. The current appreciated value of each is $4,000 and of all thirty, a total of $120,000. (C) One 2016 and a second 2019 Haverlock Rock cutting machines, now owned by Debtor ("Now Owned Rock Cutters"). Debtor has given Bank their respective manufacturer's identification numbers. Their respective, current depreciated values are $45,000 and $55,000. (D) Any like slabs of granite that Debtor produces and any like Rock Cutter that Debtor acquires hereafter during the continuation of this secured transaction, in replacement of or in addition to the Now Owned Slabs and Rock Cutters (hereinafter "Later Acquired Slabs" or "Rock Cutter"). Debtor shall give Bank, within fifteen days of possessing any Later Acquired Slab or Rock Cutter, a document stating the current value or actual price and precise identity of each. (E) All proceeds of every item of property in Parts (A) through (D) of this paragraph acquired by Debtor during the continuation of this secured transaction (hereinafter "Proceeds"). (5) Taken together, the items of property in Paragraph (4) are the "Collateral" that secures all of Debtor's performance obligations under this secured transaction. These obligations include without limit: (A) Timely and fully paying the debt of $250,000 plus 4% annual interest, evidenced by the November 1, 2021 promissory note as signed by Debtor. (B) Timely and fully paying any future loan advances Bank, in its sole discretion, may make to Debtor hereafter and evidenced by future promissory notes. (C) Strictly and fully performing all of the warranties and other representations stated in the documents and instruments memorializing this secured transaction as signed by Debtor, now or in the future. … (8) Debtor further warrants that she: (A) has the legal right to enter into this secured transaction. (B) Is now or when produced or acquired shall be, the sole owner of the Collateral. (C) Shall maintain ownership of the Collateral during the continuation of this secured transaction except to the extent she is allowed to dispose of the Collateral under paragraph (9) hereof. (9) Debtor further warrants that during the continuation of this secured transaction she shall: (A) Use the Collateral solely for her ordinary business purposes. (B) Not dispose of the Lease Payment Right or Rock Cutters without prior written consent of Bank. (C) Sell each slab, Now Owned or Later Acquired, in the ordinary course of her business and for a price not less than the reasonable current market value thereof. (D) Replace as soon as reasonably possible any item of Collateral whose disposition is authorized under this paragraph. (E) Keep all slabs, Now Owned or Later Acquired, in wholesale marketable condition. Keep the Rock Cutters, Now Owned or Later Acquired, in reasonable operating condition and repair. (F) Not allow the value of the Collateral to decrease below that set on November 1, 2021, or on whatever future date it is produced or acquired, except for reasonable depreciation where applicable. (G) Allow Bank to inspect the Collateral at any reasonable time and place, with or without further notice to Debtor. … (12) Debtor further warrants that during the continuation of this secured transaction she shall not allow: (A) Any security interest or other consensual lien, except that granted to Bank herein, to attach to the Collateral. (B) The imposition of any judicial, statutory or other nonconsensual lien against the Collateral. (C) The commencement of any insolvency proceeding under federal or state law against Debtor or the Collateral. (D) Any other action that impairs the enforceability of this secured transaction. … (16) Debtor shall be in default of this secured transaction if any of the following events occur: (A) Failing to perform in any respect each of her performance obligations, warranties, or other representations stated in the documents as instruments memorializing said transaction as signed by Debtor. … (17) Upon occurrence of any event of default stated in paragraph (16) hereof, Bank may, in its sole discretion and with or without further notice to Debtor, take the following actions: (A) Exercise the remedial rights stated hereafter in this paragraph or otherwise permitted under all applicable federal or state law, including without limit the Uniform Commercial Code. On November 9, 2021, Century Bank submitted a standard financing statement with the proper fee to the Ferst UCC index office. The statement contained the requisite legal names and mailing addresses of Sharon and the bank. It also identified the collateral as "Lease payment rights, granite slabs, and rock cutters". The form was not signed by Sharon. Nevertheless, the UCC office accepted and accurately indexed it. The office later sent them both copies via the United States Postal Service. By the third week of November, Sharon had paid most of her trade and non-trade debts with $168,000 of the Century funds. In so doing, she left unsettled various unsecured obligations, which at that point exceeded $17,000. This figure continued to grow weekly. Sharon then returned to the task of increasing her income via the strategy of expanding her long-term supply customers. Her tactics were aggressive advertising and sharply reduced pricing. These worked so well that by late January 2022, the quarrier had sold almost all of her existing granite stock, including the 30 slabs of Century's loan collateral. Needing to replenish that depleted stock and desiring to increase its overall size given the heightened demand, Sharon made another decision. She elected to buy a third, even larger rock cutting machine. At that point, Sharon did not have enough capital for this expenditure. Only $60,000 of the Century loan remained and it was a little more than half of the new machine's price. Moreover, she had reserved the $60,000 for other business purposes. So, again, she required financial assistance. Believing the time was not right to seek a second advance from Century, Sharon pursued an alternative arrangement. She concluded a conditional sale for a 2022 Case Rock Cutter with a Rockville-based equipment dealer, Pizzamenti Industrial Machinery Supply, Inc., on January 25, 2022. Their transaction was memorialized in a complete set of mutually signed documents. According to the stated terms, Pizzamenti agreed to sell and Sharon agreed to buy the specifically identified Case Unit, subject to a security interest in favor of the seller-creditor. The buyer-debtor was to pay the sale price of $95,000 plus 3% annual interest in 18 monthly installments. The quarrier took delivery of the new cutter on February 7. Three days later Pizzamenti tendered a standard financing statement plus the appropriate fee to the Ferst UCC index office. The form included all the mandated statutory information and designated the collateral as "Quarry Equipment". The office accepted and correctly filed the statement. It later emailed copies to Sharon and Pizzamenti. Neither of the two notified Century Bank of the conditional sale. Over the next several weeks Sharon used the 3 rock cutters to rebuild her granite inventory to the increased level of 103 slabs. During that period, she timely emailed Century information identifying its portion of the newly produced slabs. Thereafter well into March, Sharon's granite sales continued to increase impressively. Unhappily, this trend did not signal genuine economic growth. Eventually, by late March 2022, the quarrier was forced to admit that she had persisted with the deeply discounted pricing tactic for too long. Once more, she had fallen deeply into arrears with numerous unsecured creditors. Some of them were mercilessly insistent. That arrearage totaled $58,000 and was still rising. This was so notwithstanding that Sharon had used the remainder of the Century Loan to appease part of those creditors. Panicked by this most recent wave of debt, Sharon resorted to a desperate measure. She arranged to have the 2016 and 2019 Haverlock Rock Cutters transported to the city of Compton, state of Secondo, and sold for $91,000 on April 1, 2022. The buyer was the Nievve Artistic Stone Cooperative, a group of individuals who live and do business exclusively in that city, manufacturing and selling exotic stone sculptures. The Cooperative promptly integrated the two units into its commercial operation. At the time of the sale, neither the Cooperative nor Century Bank was aware of each other's relation with Sharon and the latter's misbehavior. With the cash received for the two machines, Sharon settled accounts with all of her creditors. She used other portions of this cash to pay the April installments for both the Century (6th) and Pizzamenti (4th) loans. Sharon had timely made all of the earlier monthly payments under both secured transactions. In so doing, the quarrier had hoped to gain some breathing space to straighten out her precarious cash flow situation. But a further event intervened to dash this hope. An April 5 spot check by Century Bank of Sharon's quarry and business records discovered violations of two terms in their security agreement. The violations related to the conditional sale with Pizzamenti and the separate sale to the Nievve Cooperative. Century promptly declared Sharon in default of their secured transaction. The date is now May 4, 2022, and the circumstances of all parties and pieces of property discussed in the Fact Pattern remain unchanged except as stated otherwise in the following Exercises. THE EXERCISES EXERCISE 2: In this exercise only, assume the added facts that on April 25, 2022, Sharon Undermynd voluntarily commenced a proceeding under Chapter 7 of the United States Bankruptcy Code in the appropriate court in the state of Ferst and a trustee was appointed to administer the bankruptcy estate. Label it "Exercise 2" and divide it into subparts (A) and (B) with apt subparts labels. The two subparts call for analyses that address the interplay between certain concepts in UCC Article 9 and the trustee's "Strong-Arm" avoidance power in Section 544 (a) of the Bankruptcy Code. In subpart (A) your analyses are to be based only on the pertinent provisions of state law in the current uniform version of UCC Articles 9 and 1. They are also to be confined to only these two items of Sharon Undermynd property: (i) the Lease Payment Right and (ii) the six loan payments by Sharon to Century Bank for the months of November 2021 through April 2022. Your analyses must statutorily classify each item and define Century's legal relation with Sharon that created the bank's property interest in each. In subpart (B) your analyses are to be based only on the pertinent portions of the following U.S. Bankruptcy Code provisions: 544(a) (primarily) with 101, 506(a), and 550(a) (secondarily). These analyses, too, are to be confined to only the same two items of Sharon's property that you addressed in subpart (A). Your subpart (B) analyses must address these two points regarding each item of property: (i) conclude whether or not the trustee can avoid Century's property rights in each item under section 544(a). (ii) Justify your point (i) conclusions for each item with full analyses that present arguments for both Century and the trustee under the above-cited four BC provisions. Restrict your Exercise 2 analyses to matters bearing directly on the contest between Century and the trustee for the two specified items of property. Do not address any other parties or any other property. DISCUSS FULLY ALL PERTINENT, MATERIAL ISSUES RAISED BY THE 2 EXERCISES ACCORDING TO THE STATED INSTRUCTIONS. NO CREDIT WILL BE GIVEN FOR THE DISCUSSION OF MATTERS BEYOND THE SCOPE OF THE INSTRUCTED EXERCISES.
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