The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0193p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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In re: MICHAEL W. JOHNSON,
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Debtor.
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No. 08-5088
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ROBIN BROWNING BROCK,
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Plaintiff-Appellee,
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v.
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BRANCH BANKING AND TRUST COMPANY,
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Defendant-Appellant.
On Appeal from the Bankruptcy Appellate
Panel for the Sixth Circuit.
No. 05-70411—William S. Howard, Bankruptcy Judge.
Argued: January 15, 2009
Decided and Filed: July 2, 2010
Before: BATCHELDER, Chief Judge; SUHRHEINRICH and SUTTON, Circuit Judges.
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COUNSEL
ARGUED: Christopher A. Conley, CAMPBELL WOODS, PLLC, Ashland, Kentucky, for
Appellant. Carole M. Friend, FRIEND & ASSOCIATES, Georgetown, Kentucky, for
Appellee. ON BRIEF: Christopher A. Conley, CAMPBELL WOODS, PLLC, Ashland,
Kentucky, for Appellant. Carole M. Friend, FRIEND & ASSOCIATES, Georgetown,
Kentucky, for Appellee.
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OPINION
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SUHRHEINRICH, Circuit Judge. Defendant Branch Banking and Trust Company
(“BB&T”) appeals the order of the Bankruptcy Appellate Panel (“BAP”) ruling in favor of
Plaintiff Robin Browning Brock, Trustee. The BAP held that because perfection of BB&T’s
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No. 08-5088 In re Johnson Page 2
security interest did not occur within 20 days of the Debtor’s receiving a new pick up truck
secured by BB&T, the enabling loan exception of 11 U.S.C. § 547(c)(3) was not available
to protect BB&T’s interest from avoidance as a preferential transfer. Having received the
Kentucky Supreme Court’s response to a question we certified regarding when a vehicle lien
becomes perfected under Kentucky law, we now AFFIRM.
I.
The parties stipulated to the relevant facts before the United States Bankruptcy Court
(“BC”). The Bankruptcy Appellate Panel of the Sixth Circuit (“BAP”) summarized them as
follows:
The relevant facts were stipulated before the bankruptcy court. On February
8, 2005, Michael W. Johnson (“Debtor”) purchased a 2005 Dodge Ram
pickup truck from Jeep & Suzuki Auto World of Big Stone Gap, Virginia
and executed an installment sales contract and security agreement with
Branch Banking & Trust Co. (“BB & T”) to finance the purchase. That same
day, the Debtor took possession of the truck. On February 17, 2005, Jeep &
Suzuki Auto World mailed a title lien statement, application for certificate
of title, and required fees to the Letcher County, Kentucky clerk’s office by
certified mail, return receipt requested. The Letcher County clerk received
the mailed documents and fees on February 22, 2005, as indicated by the
signed return receipt. However, the clerk did not stamp the documents as
received and upload BB & T’s lien for recordation until March 7, 2005,
almost two weeks later. On March 25, 2005, the Commonwealth of
Kentucky Transportation Cabinet issued the appropriate certificate of title,
reflecting notation of BB & T’s lien on March 7, 2005.
Less than 90 days later, on May 11, 2005, the Debtor filed a voluntary
petition for relief under Chapter 7 of the Bankruptcy Code. Thereafter,
Robin Browning Brock, the chapter 7 trustee (“Trustee”), filed a complaint
to avoid the lien of BB & T as a preferential transfer. Upon cross motions for
summary judgment, the bankruptcy court granted summary judgment in
favor of BB & T and dismissed the complaint with prejudice. The Trustee
subsequently moved to alter or amend the judgment, but the court denied the
motion. The Trustee then timely appealed.
Brock v. Branch Banking & Trust (In re Johnson), 380 B.R. 455, 458-59 (B.A.P. 6th Cir.
2007) (footnote omitted).
The BC judge concluded that the perfection occurred on February 22, 2005, when
the county clerk received the required paperwork and fee. The BAP majority disagreed,
No. 08-5088 In re Johnson Page 3
holding that perfection did not occur until March 7, 2005, when the security interest was
actually noted on the certificate of title. See In re Johnson, 380 B.R. at 465, 467. One BAP
judge dissented.
BB&T then filed this appeal.
II.
The Bankruptcy Code provides that a bankruptcy trustee may avoid certain transfers
of interest in property that occur on or within the 90 days preceding the filing date of the
bankruptcy petition, subject to certain exceptions. 11 U.S.C. § 547(b), (c). One such
exception, the “enabling loan exception,” protects a purchase money security interest if the
security interest is perfected within a certain number of days after the debtor receives
possession of the collateral. 11 U.S.C. § 547(c)(3). For purposes of the Bankruptcy Code,
the acts necessary to perfect the security interest are determined by state law.
At issue in this case is whether a security interest in a motor vehicle is perfected
under Title XVI, Chapter 186A of the Kentucky Revised Statutes (“KRS”) during the time
between an applicant’s submission of the required paperwork and fee to the county clerk and
the actual notation of the security interest on the certificate of title. Two provisions of the
KRS - - one providing for perfection once the county clerk receives the required paperwork
and fee, see KRS § 186A.195(5), and the other providing that perfection occurs only upon
actual notation upon the certificate of title, see KRS § 186A.190 - - appear inconsistent.
The question matters in this case because the county clerk received BB&T’s
application materials on February 22, 2005, which was within 20 days after the security
interest attached. However, the county clerk did not process the application and note the
security interest on the certificate of title until March 7, 2005, outside the 20-day window
for enabling loan protection.
Thus, we certified the following question to the Kentucky Supreme Court:
In order to perfect a security interest on a motor vehicle in Kentucky, does
the KRS require physical notation on the actual certificate of title as
ultimately issued by the county clerk, or is perfection accomplished as and
when the required paperwork and fee are submitted to the county clerk? In
other words, does KRS 186.A195(5), like § 186A.190, define the acts
necessary for perfecting a security interest in a motor vehicle, or is
No. 08-5088 In re Johnson Page 4
§ 186A.195(5) designed to operate only as a timing provision for purposes
of determining priority among creditors?
The Kentucky Supreme Court restated the issue as follows: “[T]he question we are
asked to address is: ‘when does a vehicle lien become perfected under the provisions of KRS
Chapter 186A?’” Construing the two provisions to give effect to the intent of the Kentucky
Legislature, the Kentucky Supreme Court concluded that
under Kentucky law, final perfection of a vehicle lien does not occur until
physical notation is made on the title pursuant to KRS 186A.190, and,
accordingly, perfection is not accomplished as and when the required
paperwork and fee are submitted to the county clerk. KRS 186A.195(5), on
the other hand, while it does address initiation of the perfection process, is
designed primarily as a timing mechanism for establishing priority among
creditors. Compliance alone with the acts set forth therein does not
accomplish perfection.
Johnson v. Branch Banking & Trust Co., – S.W.3d –, 2010 WL 2470849, at *1 (Ky. June
17, 2010).
The Kentucky Supreme Court’s reasoning is detailed in its opinion, which we
incorporate by reference here. See id.
With this answer in mind, we uphold the BAP’s conclusion that perfection of
BB&T’s lien did not occur until March 7, 2005, when the security interest was actually noted
on the certificate of title.
We therefore AFFIRM the BAP’s holding that, because perfection did not occur
within 20 days after Debtor received possession of the truck, the enabling loan exception of
11 U.S.C. § 547(c)(3) did not protect BB&T’s interest from avoidance as a preferential
transfer.