Bank of N.A. v. Kruge

8 Citing cases

  1. In re Univ. Gen. Hosp. Sys., Inc.

    CASE NO. 15-31086-H3-11 (Bankr. S.D. Tex. Jun. 22, 2015)

    In the instant case, Movant has not met its burden of proof with respect to the absence of Debtors' equity in the property. A landlord's contractual lien must be perfected by filing under the UCC. Bank of North America v. Kruger, 551 S.W.2d 63 (Tex. Civ. App.--Houston [1st Dist.] 1977). On the evidence before this court, the court concludes that Movant did not perfect its contractual lien in the personal property located in the leased space.

  2. In re Waldo

    70 B.R. 16 (Bankr. N.D. Iowa 1986)   Cited 7 times

    These courts hold that the U.C.C. section 9-104(b) exclusion applies only to landlord's liens arising by statute and has no applicability to those landlord liens arising by contract. Todsen v. Runge, 211 Neb. 226, 318 N.W.2d 88 (1982); See also In re Leckie Freeburn Co., 405 F.2d 1043 (6th Cir. 1969); In re King Furniture City, Inc., 240 F. Supp. 453 (E.D.Ark. 1965); Bank of North America v. Krueger, 551 S.W.2d 63 (Tex.Civ.App. 1977); In re Florio, 24 U.C.C. Rep.Serv. 415 (Bankr.R.I. 1978). In Krueger, the court recalled that prior to enactment of the Uniform Commercial Code, liens were regarded as chattel mortgages depending upon filing for perfection against third parties.

  3. In re Furniture Discount Stores, Inc.

    11 B.R. 5 (Bankr. N.D. Tex. 1980)   Cited 5 times
    Holding that landlord's claimed statutory and common law liens for rent were avoidable by § 545 because such liens were liens for rent and/or liens for distress for rent.

    That argument ignores the fact that there has been no perfection of the contractual lien against the trustee. A contractual lien is perfected only by timely compliance with the filing requirements of Article 9 of the Uniform Commercial Code. Bank of North America v. Kruger, 551 S.W.2d 63, 65 (Tex.Civ.App. 1977, N.R.E.). The contractual lien may not be perfected by possession. The landlord cannot rely on possession as perfecting his common law lien or his statutory lien, because the avoidance of those liens by the trustee prevents their use for any purpose, including that use urged by the landlord.

  4. CITIZENS BANK v. ELKS BLDG., N.V

    663 P.2d 56 (Utah 1983)   Cited 11 times
    Analyzing claims of both statutory lien and contractual lien on tenants' personal property

    In In re Leckie Freeburn Coal Co., 405 F.2d 1043, 1045 (6th Cir. 1969), the court held that a contractual lien was created by a lease clause which stated that "all of Lessee's mining machinery and equipment upon said premises shall be subject to a lien to secure unto Lessors payment of all rental . . . which shall have become due and payable hereunder. . . ." In Bank of North America v. Kruger, 551 S.W.2d 63, 64 (Tex.Civ.App. 1977), the lease contained a provision expressly granting a lien to the lessor against all the lessee's personal property to secure performance under the lease ( e.g., to pay rent). Finally, in Todsen v. Runge, 211 Neb. 226, 227, 318 N.W.2d 88, 89 (1982), the lease stated that "[t]he lessors will have a lien on the crops raised on the premises until the final cash [rental] payment is made on Oct. 1, 1979."

  5. Todsen v. Runge

    211 Neb. 226 (Neb. 1982)   Cited 13 times
    In Todsen, we determined that § 9-312(5) governed the priority between the tenant farmer's creditor and the farmer's landlords.

    The case of Music House v. Theaters, 10 N.C. App. 242, 178 S.E.2d 124 (1970), also holds that a contractual landlord's lien was not exempt from the Uniform Commercial Code's filing requirements. In Bank of North America v. Kruger, 551 S.W.2d 63 (Tex. Civ. App. 1977), the court held that a perfected security interest was superior to a prior unrecorded contractual lien of a landlord in the same property. In that case the bank had actual knowledge of the lessor's interest in the lessee's property at the time it extended credit and requested the lessor to subordinate his interest.

  6. Dallas Fire Insurance Co. v. Texas Contractors Surety & Casualty Agency

    128 S.W.3d 279 (Tex. App. 2004)   Cited 11 times
    Finding it within the discretion of a trial court to deny forfeiture where a party fails to request or obtain pertinent jury findings

    However, as TCSCA points out, Dallas Fire never pleaded or obtained jury findings of a continuing tort or continuing injury as a basis to avoid limitations.See Dickson Constr., Inc. v. Fid. Dep. Co. of Maryland, 960 S.W.2d 845, 850 (Tex.App.-Texarkana 1997, no pet.) (holding matter in avoidance of limitations must be affirmatively pleaded); Arquette v. Hancock, 656 S.W.2d 627, 629-30 (Tex.App.-San Antonio 1983, writ ref'd n.r.e.) (holding pleading alleging county constable wrongfully threatened and intimidated plaintiff into paying fine alleged a cause of action accruing when fine paid, not a continuing tort based on alleged continual failure to refund the money); Bank of N. Am. v. Kruger, 551 S.W.2d 63, 67 (Tex.Civ.App.-Houston [1st Dist.] 1977, writ ref'd n.r.e.) (holding action for conversion accrues when property actually taken, not continuing so as to toll limitations by failure to return); Foreman v. Graham, 363 S.W.2d 371, 372-73 (Tex.Civ.App.-Beaumont 1962, no writ) (holding action for debt accrues when payment is due and is not extended by refusal to repay); see also Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 443 (Tex.App.-Fort Worth 1997, pet. denied) (noting plaintiffs obtained finding that injury to property was "ongoing and continuous" but holding theory not applicable to cause of action alleged for permanent injury to land). Finally, Dallas Fire argues that the relation-back statute applies.

  7. Federal Deposit Ins. Corp. v. Sears

    743 S.W.2d 772 (Tex. App. 1988)

    At the beginning of each contract year, if a UCC financing statement has been filed during the previous year, it then becomes superior to the landlord's lien. Bank of North America v. Kruger, 551 S.W.2d 63 (Tex.Civ.App. — Houston [1st Dist.] 1977, writ ref'd n.r.e.), is directly on point. The court found the statutory landlord's lien superior to any security interest perfected during the same year. Kruger defaulted after the contract year (the first year of the lease) in which the bank perfected its security agreement.

  8. Arquette v. Hancock

    656 S.W.2d 627 (Tex. App. 1983)   Cited 29 times
    Holding pleading alleging county constable wrongfully threatened and intimidated plaintiff into paying fine alleged a cause of action accruing when fine paid, not a continuing tort based on alleged continual failure to refund the money

    Additionally, although Arquette's cause of action would not be one for conversion, in that money generally cannot be converted, Houston National Bank v. Biber, 613 S.W.2d 771, 774 (Tex.Civ.App. — Houston [14th Dist.] 1981, writ ref'd n.r.e.), nor for debt, because there was no agreement, they are sufficiently analogous to offer guidance. In a conversion action, the cause accrues when the property is taken, Bank of North America v. Kruger, 551 S.W.2d 63, 67 (Tex.Civ.App. — Houston [1st Dist.] 1977, writ ref'd n.r.e.), irrespective of the length of detention. Likewise, the action for a debt accrues when the money is due and is not extended by a refusal to pay. Foreman v. Graham, 363 S.W.2d 371 (Tex.Civ.App. — Beaumont 1963, no writ).