Ford Motor Credit Co. v. First National Bank of Crossett

Cite as 2016 Ark. App. 408

ARKANSAS COURT OF APPEALS

DIVISION I

No. CV-16-124

FORD MOTOR CREDIT COMPANY, Opinion Delivered September 14, 2016

LLC, f/k/a FORD MOTOR CREDIT

COMPANY APPEAL FROM THE ASHLEY

APPELLANT COUNTY CIRCUIT COURT

[NO. CV-2015-138-4]

V.

HONORABLE DON GLOVER,

FIRST NATIONAL BANK OF JUDGE

CROSSETT

APPELLEE

AFFIRMED IN PART; REVERSED

AND REMANDED IN PART

CLIFF HOOFMAN, Judge

Appellant Ford Motor Credit Company, LLC, f/k/a Ford Motor Credit Company

(FMCC) appeals from the circuit court’s order granting summary judgment in favor of

appellee First National Bank of Crossett (FNBC) in FNBC’s suit for declaratory judgment.

On appeal, FMCC argues that the circuit court erred by (1) granting summary judgment to

FNBC and (2) denying its cross-motion for summary judgment. We reverse and remand the

order granting summary judgment in favor of FNBC and affirm the denial of FMCC’s

countermotion for summary judgment. On July 16, 2015, FNBC filed a declaratory-

judgment action against FMCC, seeking to have the circuit court declare that it (FNBC) held

prior, perfected liens on two vehicles that were owned by Crossett Ford Lincoln, LLC

(Crossett Ford). According to the facts alleged in the complaint, FNBC had a history of

providing new and used motor-vehicle-inventory financing for Crossett Ford. Floor-plan

Cite as 2016 Ark. App. 408

agreements signed on August 5, 2010, and on January 28, 2011, gave FNBC a security

interest in Crossett Ford’s new and used vehicle inventory during the time period relevant

to this case. The agreements were signed by James (Jimmy) Murphy, the owner of the

dealership, as well as by several other joint obligors.

In July 2012, Crossett Ford purchased a new 2012 Ford F-150 truck (F-150) from

Ford Motor Company. FNBC financed the purchase price of the F-150 by advancing

$34,072.98 to Crossett Ford on August 2, 2012. In accordance with the terms of the floor-

plan agreement, FNBC retained the certificate of origin (COO) for the vehicle, which was

issued in the name of Crossett Ford and identified FNBC as the source of financing. The

agreement provided that when Crossett Ford sold a vehicle from its inventory and FNBC

was repaid the amount it had advanced for the vehicle, FNBC would then release the COO

or certificate of title to the dealer. FNBC alleged that it had perfected its interest in the new

and used vehicle inventory, including the F-150, by filing financing statements with the

Arkansas Secretary of State’s office on August 6, 2010, and March 11, 2011.

On August 20, 2012, Murphy executed a Tennessee vehicle retail installment contract

to purchase the F-150 from Crossett Ford. The contract was then assigned to FMCC, with

Murphy signing his name as the buyer and signing on behalf of Crossett Ford as the seller and

assignor. That same day, on August 20, 2012, FMCC filed a direct lien on the F-150 with

the Arkansas Department of Finance and Administration (DFA) that listed Murphy as the

owner of the vehicle. Crossett Ford did not remit the funds received for the F-150 to

FNBC, and FNBC remained in possession of the COO. FNBC thus alleged that it had a

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prior, perfected security interest in the F-150 and that FMCC’s direct lien was invalid due

to the “fraudulent conduct” of Murphy in attempting to sell the vehicle to himself and

granting FMCC a lien without paying off FNBC. FNBC further alleged that FMCC was

on notice of its prior lien based on the financing statements it had filed with the secretary of

state.

The second vehicle for which FNBC requested declaratory judgment was a 2012 Ford

Expedition (Expedition). This vehicle was traded to Crossett Ford on August 28, 2014, by

Bobby and Stephanie Knight. FNBC advanced the funds to Crossett Ford to pay off the

Knight’s remaining vehicle loan with State Farm Bank in the amount of $38,747.85, and a

cashier’s check dated September 24, 2014, was sent by Crossett Ford to State Farm Bank.

The Expedition’s title was then sent to FNBC. On September 23, 2014, Murphy executed

a Tennessee vehicle retail installment contract with Crossett Ford to purchase the Expedition,

and the contract was again assigned to FMCC. FMCC filed a direct lien on the Expedition

with the DFA on September 23, 2014.

In March 2015, Crossett Ford defaulted on its inventory loan with FNBC, and FNBC

repossessed all of the vehicles at the dealership, including the F-150 and the Expedition.

FNBC applied for and received a repossession title on the Expedition from the DFA on May

13, 2015. There were no other liens or encumbrances reflected on this title. FNBC alleged

that its certificate of title on the Expedition should be declared free and clear of any lien

claimed by FMCC.

In its answer, FMCC denied the allegations and asserted that FNBC’s security interest

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in the F-150 and the Expedition had been released following the disposition of the collateral

pursuant to the floor-plan agreements and the Uniform Commercial Code. FMCC claimed

that the repossession title on the Expedition was issued in error and that the DFA should be

made a party to the suit. FMCC prayed that the circuit court enter an order confirming that

it held a first-priority purchase-money security interest in the F-150 and in the proceeds of

the Expedition, which FNBC had sold following its repossession.

On September 4, 2015, FNBC filed a motion for summary judgment, claiming that

there were no material facts in dispute and that it was entitled to its request for a declaratory

judgment. In support of its motion, FNBC attached an affidavit by Gary Brannon, its chief

lending officer, who stated that FNBC had held a perfected, first security interest in the F-

150 since August 2, 2012, when it had advanced the funds to Crossett Ford to purchase the

vehicle and received the COO reflecting it as the source of financing. Brannon asserted that

Crossett Ford currently owed FNBC $366,397.57 on its new-vehicle floor-plan debt and

that it had a first lien on the F-150 as security for that debt. Brannon further stated that

FNBC had clear title to the Expedition when it was sold to a third party on May 30, 2015,

based on the repossession title that was issued to FNBC on May 13, 2015. According to

Brannon, Crossett Ford owed FNBC a balance of $701,442.94 at the time of the sale, which

was secured by its perfected, first lien on the Expedition. Attached as exhibits to Brannon’s

affidavit were the floor-plan agreements, the financing statements filed with the secretary of

state, the COO for the F-150, the original title and the repossession title on the Expedition,

and the loan transaction history and cashier’s check showing the money it had advanced for

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Crossett Ford to purchase both vehicles.

FNBC claimed that Murphy never had title to either the F-150 or the Expedition

when he attempted to “fraudulently grant [FMCC] a lien on those vehicles” and that FMCC

did not acquire any better title than Murphy had. In addition, FNBC asserted that FMCC

could not stand in the shoes of Murphy as a “buyer in the ordinary course of business”

because Murphy, from whom FMCC had obtained its lien, was not a person in the business

of selling goods of that kind; because FMCC never had possession of either vehicle; and

because FMCC could not establish that it took the lien without knowledge that the sale

violated the rights of another person in the vehicles.

On September 24, 2015, FMCC filed a response to the summary-judgment motion

and a countermotion for summary judgment. FMCC claimed that FNBC’s inventory liens

in the F-150 and Expedition had been released when the vehicles were sold to Murphy.

FMCC attached the August 20, 2012 retail installment contract for the sale of the F-150 that

was subsequently assigned to FMCC by Crossett Ford. This contract reflected that Murphy

had traded in a 2008 Lincoln to Crossett Ford and had financed the remaining purchase price

of $34,072.98, plus interest, over sixty months. The contract and dealer documents indicated

that the F-150 had been purchased for Murphy’s personal use. FMCC also attached a copy

of the electronic funds detail report showing that it had deposited the balance of the contract

into Crossett Ford’s bank account at FNBC in exchange for the assignment of the contract.

FMCC claimed that it had obtained a purchase-money security interest in the F-150 and had

perfected its interest by filing a direct lien with the DFA on August 20, 2012. A copy of this

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lien was attached to the response.

FMCC also attached a copy of the September 23, 2014 retail-installment contract for

the Expedition. This contract reflected that the purchase price of $37,000, plus interest, was

to be paid over a period of forty-eight months and that the vehicle had been purchased for

Murphy’s personal use. Crossett Ford assigned the contract to FMCC, which deposited the

contract balance into Crossett Ford’s account at FNBC via an electronic funds transfer.

FMCC attached a copy of this electronic-funds-transfer report. FMCC claimed that it took

a purchase-money security interest in the Expedition at the time of the assignment and that

it perfected this interest by filing a lien with the DFA on September 23, 2014. A copy of this

lien was attached to the countermotion.

In addition, FMCC attached the affidavit of Murphy, who stated that he had

purchased the F-150 to use as a “shop truck” and that it was not marketed for sale on the lot

of Crossett Ford. Murphy indicated that he had made approximately thirty of the sixty

monthly installment payments on this vehicle to FMCC at the time he declared bankruptcy

in 2015. With regard to the Expedition, Murphy stated that it had been purchased for his

wife’s personal use, although she did not drive it, and it remained on the lot. He indicated

that he had made approximately five monthly payments on this vehicle prior to his

bankruptcy filing. Murphy further attested that he had purchased a 2014 Ford Explorer in

April 2014 for his daughter and that the floor-plan lien on this vehicle was paid in full. He

stated that FNBC was aware of this transaction and had not offered any objection.

According to Murphy, the floor-plan agreements, as well as the course of his dealing with

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FNBC, authorized him to sell vehicles free and clear of FNBC’s security interest in the

regular course of his business, without prior approval by FNBC. He stated that the

transactions at issue were the same as any other transaction between Crossett Ford and a retail

customer. Murphy further indicated that FMCC had no knowledge that FNBC’s floor-plan

liens on the F-150 and Expedition were not paid in full. He stated that FNBC performed

monthly floor-plan audits, that each time there were multiple vehicles missing, and that this

was considered to be the “norm.” Finally, Murphy asserted that in March 2015, when

FNBC seized Crossett Ford’s inventory and equipment, it also seized its bank account at

FNBC where the proceeds of the sales of the F-150 and Expedition had been deposited.

FMCC claimed that it was entitled to summary judgment because its lien on the F-

150 and the proceeds of the Expedition were superior and prior to the rights of FNBC.

FMCC alleged that it was authorized, pursuant to the floor-plan agreements and the

established course of dealing between Crossett Ford and FNBC, to sell the vehicles free and

clear of FNBC’s security interest pursuant to Ark. Code Ann. § 4-9-315 (Repl. 2001).

Furthermore, FMCC claimed that it was not necessary that Murphy be a “buyer in the

ordinary course” to come within the protection of this code section. Once the vehicles were

sold to Murphy, FMCC claimed that they no longer qualified as “inventory” but were

instead “goods” and that it properly perfected its liens by filing with the Arkansas

Department of Motor Vehicles (DMV). Even if Murphy’s purchase of the vehicles was not

“authorized” under section 4-9-315, FMCC alternatively claimed that Murphy was a buyer

in the ordinary course and that he took the vehicles free of FNBC’s security interest under

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Ark. Code Ann. § 4-9-320(a).

In its response to FMCC’s countermotion for summary judgment, FNBC asserted that

Murphy did not purchase the vehicles in question because he did not have the COO or

certificate of title to either vehicle and therefore could not register the vehicle with the office

of motor vehicles as required under Arkansas law. Because FNBC claimed that Murphy

never had legal title to the F-150 or Expedition, it argued that he could not grant FMCC a

valid lien on the vehicles.

FMCC filed a reply in which it alleged that Murphy’s failure to obtain certificates of

title to the vehicles in his name did not affect the sale of the vehicles from Crossett Ford to

Murphy. With respect to the repossession title obtained by FNBC for the Expedition, which

failed to reflect FMCC’s lien on the vehicle, FMCC contended that the issuance of this title

by the DMV was in clear error. In support of its argument, FMCC attached an “Arkansas

Interactive Title Registration and Lien Report Summary,” which reflected that FMCC’s lien

on the Expedition was created on September 23, 2014, and that Murphy was the debtor.

FMCC asserted that FNBC’s repossession lien was not created until May 11, 2015,

subsequent to its prior lien. FMCC further argued that FNBC had failed to meet proof with

proof by failing to address the claims in its countermotion for summary judgment, including

the claim that Crossett Ford was authorized to sell the vehicles free and clear of FNBC’s

inventory lien.

After a hearing held on December 8, 2015, the circuit court entered an order granting

FNBC’s motion for summary judgment and denying FMCC’s countermotion. The court

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found that the “undisputed facts establish that James N. Murphy was not a buyer in the

ordinary course of business” and that FNBC’s liens on the F-150 and Expedition were prior

to FMCC’s liens. FMCC filed a timely notice of appeal from the circuit court’s order.

On appeal, FMCC argues that the circuit court erred when it granted summary

judgment to FNBC because material issues of fact remain on the issue of whether Murphy

was a buyer in the ordinary course of business. FMCC further contends that the circuit court

erred in denying its countermotion for summary judgment.1

Summary judgment is to be granted by the trial court only when there are no genuine

issues of material fact to be litigated, and the moving party is entitled to judgment as a matter

of law. McGhee v. Ark. State Bd. Of Collection Agencies, 368 Ark. 60, 243 S.W.3d 278 (2006).

In reviewing a grant of summary judgment, the appellate court determines if summary

judgment was appropriate based on whether the evidentiary items presented by the moving

party in support of the motion left a material question of fact unanswered. Id. We view the

evidence in the light most favorable to the party against whom the motion for summary

judgment was filed and resolve all doubts and inferences against the moving party. Id. The

purpose of summary judgment is not to try the issues but instead to determine whether there

are any issues to be tried. Po-Boy Land Co., Inc. v. Mullins, 2011 Ark. App. 381, 384 S.W.3d

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While the denial of a motion for summary judgment is not ordinarily appealable,

such an order is appealable when it is combined with a dismissal on the merits that effectively

terminates the proceeding below. Gammill v. Provident Life & Acc. Ins. Co., 346 Ark. 161,

55 S.W.3d 763 (2001) (addressing appeal from denial of motion for summary judgment

where same order also granted summary judgment to appellee and dismissed appellant’s

claims with prejudice).

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555. Even where there are cross-motions for summary judgment, the proceeding is not

converted into a bench trial; if material issues of fact remain to be decided or it is impossible

to determine on appeal whether either party is entitled to judgment as a matter of law,

summary judgment should be reversed. Id.

We first address FMCC’s argument that the circuit court erred in granting summary

judgment to FNBC because material issues of fact remain regarding whether Murphy was a

buyer in the ordinary course of business. FNBC acknowledges that a buyer in the ordinary

course of business takes free of any underlying security interest created by the seller, even if

the security interest is perfected and the buyer knows of its existence. Ark. Code Ann. § 4-9-

320 (Repl. 2001); Duke Wholesale, Inc. v. Pitchford , 75 Ark. App. 223, 56 S.W.3d 399 ( 2001);

Merchs. & Planters Bank & Trust Co. v. Phoenix Housing Sys., Inc., 21 Ark. App. 153, 729

S.W.2d 433 (1987). FNBC further agrees that FMCC stands in Murphy’s shoes, so that if

Murphy was a buyer in the ordinary course of business, then FMCC also takes free of FNBC’s

security interest. Duke, supra. Arkansas Code Annotated section 4-1-201(9) (Supp. 2015)

defines a “buyer in the ordinary course of business” as follows:

“Buyer in ordinary course of business” means a person that buys goods in good faith,

without knowledge that the sale violates the rights of another person in the goods, and

in the ordinary course from a person, other than a pawnbroker, in the business of

selling goods of that kind. A person buys goods in the ordinary course if the sale to the

person comports with the usual or customary practices in the kind of business in which

the seller is engaged or with the seller’s own usual or customary practices. A person

that sells oil, gas, or other minerals at the wellhead or minehead is a person in the

business of selling goods of that kind. A buyer in ordinary course of business may buy

for cash, by exchange of other property, or on secured or unsecured credit, and may

acquire goods or documents of title under a preexisting contract for sale. Only a buyer

that takes possession of the goods or has a right to recover the goods from the seller

under chapter 2 may be a buyer in ordinary course of business. “Buyer in ordinary

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course of business” does not include a person that acquires goods in a transfer in bulk

or as security for or in total or partial satisfaction of a money debt.

Based on this definition, the court in Merchants, supra, stated that there are five requirements

for a buyer to qualify as a buyer in the ordinary course of business: (1) he must be a buyer in

the ordinary course; (2) he must not take the goods in total or partial satisfaction of a

preexisting debt; (3) he must have bought the goods from one who was in the business of

selling goods of that kind; (4) he must buy in good faith and without knowledge that the

purchase was in violation of another’s security interest; and (5) the competing security interest

must be one created by his seller. “Good faith” is defined as “honesty in fact and the

observance of reasonable commercial standards of fair dealing.” Ark. Code Ann. § 4-1-

201(20).

FNBC argued in its summary-judgment motion that Murphy was not a buyer in the

ordinary course of business because he was the principal owner of Crossett Ford, he was

personally obligated on the floor-plan loans, he left both vehicles on the lot after he had

financed them with FMCC, and he could not title the vehicles in his name because he did not

have possession of the COO or the certificate of title. FNBC thus alleged that Murphy did

not buy the vehicles in good faith and without knowledge that the purchase was in violation

of its security interest.

As FMCC asserts, however, whether a party has acted in good faith in a commercial

transaction is generally a question of fact. Midway Auto Sales, Inc. v. Clarkson, 71 Ark. App.

316, 29 S.W.3d 788 (2000). The mere fact that Murphy was the principal owner of Crossett

Ford does not automatically mean that his purchase of the vehicles was not in good faith or

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in the ordinary course of business. Merchants, supra; Crystal State Bank v. Columbia Heights State

Bank, 203 N.W.2d 389 (Minn. 1973). We held in Merchants that the buyer, who was the

chief executive officer of the modular-home manufacturer, was not a buyer in the ordinary

course under the facts in that case because he was personally liable on the note with the bank,

he admitted that his unusually large down payment on the unit was an attempt to infuse

capital into the business, and he also admitted that he knew the bank would receive none of

the down payment. Merchants, 21 Ark. App. at 159, 729 S.W.2d at 436.

Here, while Murphy was obviously aware of FNBC’s inventory lien due to his

position with Crossett Ford, there is no evidence that the price he paid for either the F-150

or the Expedition was out of the ordinary or that he intended to defeat FNBC’s security

interest by his purchases. Murphy stated in his affidavit that his purchases from the dealership

were the same as any other retail customer. He explained that he purchased the F-150 as a

“shop truck” and that he purchased the Expedition for his wife. Although Murphy did not

have possession of the COO or the certificate of title for the vehicles and did not title them

in his name, we have held that such documents are merely evidence of title, not title itself;

thus, the failure to obtain a new certificate of title does not affect a transfer between parties.

Commercial Credit Corp. v. Assocs. Discount Corp., 246 Ark. 118, 436 S.W.2d 809 (1969). See

also Midway Auto Sales, Inc., supra (holding that the failure of a buyer to obtain a certificate of

title from the seller or to register the vehicle does not necessarily prevent the buyer from

obtaining bona-fide purchaser status).

FNBC also seems to argue that FMCC could not be a buyer in the ordinary course of

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business because it obtained its security interest from Murphy, not Crossett Ford, and because

Murphy was not engaged in the business of selling Ford vehicles as required under Ark. Code

Ann. § 4-1-201(9). However, the retail installment contracts clearly reflect that the contracts

were between Murphy as the buyer and Crossett Ford as the seller of the vehicles. Crossett

Ford then assigned the contract to FMCC, with Murphy signing in his position as a

principal/salesman on behalf of Crossett Ford. Thus, FNBC is incorrect that Murphy and/or

FMCC would be prevented from qualifying as a buyer in the ordinary course of business for

that reason.

Because material questions of fact remain as to whether Murphy acted in good faith

and whether he and FMCC would qualify as buyers in the ordinary course under the

circumstances in this case, we agree with FMCC that the circuit court erred in granting

summary judgment to FNBC on this basis. Thus, we reverse the grant of summary judgment

in favor of FNBC. That does not end our inquiry, however, as FMCC further argues that

the circuit court erred in denying its countermotion for summary judgment.

Relying on Ark. Code Ann. § 4-9-315, which codifies former Uniform Commercial

Code (“UCC”) section 9-306, FMCC first argues that its lien on both vehicles takes priority

over FNBC’s inventory lien because the floor-plan agreements between Crossett Ford and

FNBC authorized the sale of the vehicles free and clear of FNBC’s security interest. Section

4-9-315(a) provides as follows:

(a) Except as otherwise provided in this chapter and in § 4-2-403(2):

(1) a security interest or agricultural lien continues in collateral notwithstanding sale,

lease, license, exchange, or other disposition thereof unless the secured party

authorized the disposition free of the security interest or agricultural lien; and

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(2) a security interest attaches to any identifiable proceeds of collateral.

As FMCC contends, where the secured party has authorized the disposition free of its

security interest, section 4-9-315 does not require that the buyer be a “buyer in the ordinary

course” in order to come within its protection. Gen. Motors Acceptance Corp. v. Frank Meador

Leasing, Inc., 6 B.R. 910, 913 (W.D. Va. 1980) (quoting 4 Anderson 311 § 9-306:18 (2d ed.

1971)). “A sale under this section destroys the interest of the secured party not because of the

meritorious character of the buyer but because the secured party has agreed that a buyer may

acquire rights by resale.” Id. Thus, it must be determined whether the terms of the floor-

plan agreements between FNBC and Crossett Ford authorized the dealer to sell the vehicles

covered under those agreements free and clear of FNBC’s security interest.

The agreements at issue here provided that as collateral for the line-of-credit loans,

Crossett Ford agreed to grant FNBC “a first security interest in all new, program, and used

motor vehicles in its inventory, all proceeds therefrom, all replacements, increases, additions,

and substitutions to such inventory and on all tools and equipment located at the Dealer’s

place of business, 301 E. 1st. Ave., Crossett, Arkansas[.]” The agreements stated that the

exclusive purpose of the loans was “to enable the Dealer to purchase new, program, and used

vehicles or to finance used trade-in vehicles” and that “[e]ach time the Dealer requests an

advancement, the Dealer shall be required to execute a separate promissory note in favor of

the Bank and deliver to the Bank the manufacturer’s certificate of origin for all new, and

program vehicles, and certificates of title for all used vehicles.” The agreements further

provided that “[e]ach time the Dealer sells a motor vehicle from inventory, the Dealer shall

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pay to the Bank the full amount due on the promissory note which was advanced by the Bank

at the time the Dealer purchased that vehicle, at which time the Bank will release the

certificate of origin or title to the Dealer.”

Murphy further stated in his affidavit that the floor-plan agreements and his course of

dealing with FNBC authorized him to sell vehicles free and clear of FNBC’s security

agreement in the regular course of his business. He indicated that he was never required to

obtain prior approval before selling any vehicle.

Based on this evidence, FMCC contends that Crossett Ford was both implicitly and

explicitly authorized by FNBC to sell the F-150 and the Expedition and that FMCC was

therefore entitled to summary judgment pursuant to Ark. Code Ann. § 4-9-315. FNBC

responds by first arguing that section 4-9-315 does not apply to the facts of this case because

it does not involve the “entrustment doctrine” and cites to Commercial Credit Corp., supra, in

support of its argument. However, that case discussed the applicability of Ark. Code Ann.

§ 4-2-403, which is often referred to as the “entrustment doctrine”; it did not involve the

statute at issue here, section 4-9-315. FNBC also argues that, even if section 4-9-315 does

apply to this case, its introductory sentence qualifies it by reference to section 4-2-403(2),

which requires that the buyer purchase the goods in the ordinary course of business. There

is no merit to this argument because the comments to section 4-9-315 make it clear that the

reference to 4-2-403(2) is intended to add another exception to the general rule set forth in

section 4-9-315 that a security interest survives disposition of the goods. As discussed above,

there is no buyer-in-the-ordinary-course requirement under section 4-9-315 if the security

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agreement authorizes the disposition free and clear of the security interest.

FNBC does not necessarily refute that Crossett Ford had general authorization to sell

vehicles out of its inventory but instead argues that the sale of the specific vehicles in question

was not authorized because Crossett Ford did not pay off the loans on the vehicles as the

floor-plan agreements required. FNBC also asserts that the agreements specifically prohibited

Crossett Ford from having any motor vehicles on the premises except those financed by

FNBC.

Contrary to FMCC’s argument that it is entitled to judgment as a matter of law

pursuant to section 4-9-315, we conclude that material questions of fact also remain on the

issue of whether Crossett Ford was authorized to sell the vehicles at issue in this case. The

floor-plan agreements did not contain a general provision authorizing Crossett Ford to sell

vehicles from its inventory free of FNBC’s security interest; instead, the agreements

specifically stated that each time the dealer sold a vehicle from inventory, it was required to

pay FNBC the full amount that had been advanced for the vehicle, at which time FNBC

would release the certificate of origin or title. In addition, although Murphy stated that he

never had to seek approval from FNBC prior to selling a vehicle, he also stated in his affidavit

that he was authorized to sell vehicles free and clear of FNBC’s security interest “in the

regular course of his business,” an issue as to which we have already determined that there

remain material issues of fact. Given the unique circumstances of the sale of the vehicles in

this case, further factual development is needed as to whether the exception in section 4-9-

315 applies here, and FMCC was not entitled to summary judgment on this basis.

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FMCC also argues with respect to the F-150 that its security interest takes priority over

FNBC’s floor-plan lien because the vehicle was no longer “inventory” when FMCC filed and

perfected its direct lien on August 20, 2012. “Inventory” is defined as “goods, other than

farm products, which . . . are held by a person for sale or lease or to be furnished under a

contract of service.” Ark. Code Ann. § 4-9-102(48)(B) (Repl. 2001). FMCC cites to Ark.

Code Ann. § 4-9-324(a) (Repl 2001), which states that a perfected security interest in goods

other than inventory or livestock has priority over a conflicting security interest in the same

goods, if the purchase-money security interest is perfected at the time the debtor receives

possession of the collateral or within twenty days thereafter.

FNBC argues, however, that the F-150 was not removed from its inventory because

it was never paid by Crossett Ford for the vehicle, because it retained the COO for the

vehicle, and because the vehicle remained on the premises of Crossett Ford in violation of the

floor-plan agreements. Based on the unresolved questions discussed above, there are also

questions remaining as to whether section 4-9-324(a) would apply to the facts in this case, and

FMCC was not entitled to summary judgment as to the F-150 on this ground.

Finally, FMCC contends, as an alternative to its other arguments, that it was entitled

to judgment as a matter of law on the basis that Murphy was a buyer in the ordinary course

of business. While FMCC argues that its proof on this issue was unrebutted, we have

previously concluded that material issues of fact remain regarding this issue. Thus, the circuit

court did not err by denying FMCC summary judgment on this basis. Accordingly, we

reverse and remand the circuit court’s order granting summary judgment to FNBC, and we

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affirm the denial of FMCC’s countermotion for summary judgment.

Affirmed in part; reversed and remanded in part.

GLADWIN, C.J., and BROWN, J., agree.

Nixon & Light, by: John B. Buzbee, for appellant.

Streetman, Meeks & Gibson, PLLC, by: Thomas S. Streetman, for appellee.

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