Opinion
Bankruptcy No. 88-02859-C. Adv. No. 88-0301-C.
December 26, 1989.
Scott P. Kirtley, Tulsa, Okla., for plaintiff.
Brian Rayment, Tulsa, Okla., for GMAC.
Warren G. Morris, Tulsa, Okla., for Thummel.
MEMORANDUM DECISION AND ORDER
The Trustee has brought this adversary proceeding against General Motors Acceptance Corporation ("GMAC") and Timothy and Mary Thummel ("Debtors") to avoid the interest of GMAC in a motor vehicle and for additional relief. After considering the evidence and the arguments and authorities of counsel, the Court makes the following findings of fact and conclusions of law:
On May 30, 1986, Debtors entered into an agreement with GMAC whereby GMAC purported to lease a 1986 Toyota pickup ("Vehicle") to Debtors. The agreement is entitled "Lease Agreement" and is also marked "GMAC Direct Leasing Plan" at the top of the agreement. A copy of the agreement ("Agreement") is appended to this decision. On or about May 30, 1986, GMAC obtained a certificate of title from the State of Oklahoma listing GMAC as owner of the Vehicle, but not indicating that the Vehicle was subject to any liens. On September 6, 1988, GMAC delivered a lien entry form to the Oklahoma Tax Commission and a new certificate of title was issued listing GMAC as owner of the Vehicle and as a lienholder. On September 23, 1988, Debtors filed this case for relief under Chapter 7 of the Bankruptcy Code.
The parties have raised two principal issues. First, whether the Agreement constitutes a true lease or merely creates a security interest. Second, if the Agreement merely creates a security interest, whether GMAC has perfected this security interest under Oklahoma law.
In In re Cole, 100 B.R. 561 (Bankr. N.D.Okla. 1989), the Court set forth its interpretation of Oklahoma law governing the distinction between leases and security interests. First, the Court applies amended 12A O.S. § 1-201[ 12A-1-201](37)(b) to determine if a purported lease agreement must automatically be deemed a security interest. This occurs if the "lessee" cannot unilaterally terminate the agreement and any one of four other tests listed is met. In this case, if Debtors were not already in default, they were entitled to unilaterally terminate the Agreement at any time upon 15 days written notice to GMAC, subject to an early termination liability computed under paragraph 14 of the Agreement. Because Debtors could unilaterally terminate the Agreement, the Agreement cannot be automatically deemed to create a security interest under amended § 1-201(37)(b).
The Court applies amended § 1-201 (37) in construing leases entered into prior to the effective date of the amendment (November 1, 1988) because the amendment clarifies prior law rather than substantively changing it. Cole at 563. The amended statute does eliminate any reference to the "intent" of the parties, because most of the criteria courts used to determine intent were as consistent with leases as with security interests. Id. As stated in the Oklahoma Commentary, the remainder of amended § 1-201 (37) "codifies the better case law construing the former provision so as to provide additional statutory guidance as to the relevant considerations in making the determination of whether a lease instead is a security interest". Commentary on Uniform Commercial Code Article 2A as Enacted in Oklahoma, Fred H. Miller.
Next, under § 1-201 (37)(c), the Court disregards the presence of certain enumerated factors because such factors by themselves are deemed to be as consistent with a lease as with a security interest transaction. Cole at 564.
Finally, the Court examines whether the lessor has retained a "meaningful residual interest" in the vehicle, which is the fundamental characteristic distinguishing a lease from a security interest. Cole at 564. For the reasons set forth below, the Court finds that GMAC has retained a "meaningful residual interest" in the Vehicle under the Agreement, and, therefore, the Agreement constitutes a true lease. In reaching this decision, the Court respectfully declines to follow the decisions of Judge Wilson in In re Harvey, 80 B.R. 533 (Bankr.N.D.Okla. 1987), construing an identical GMAC "lease agreement" as creating a security interest, and In re Thompson, 101 B.R. 658 (Bankr.N.D. 1989), which construed a similar Ford Motor Credit Company lease agreement as creating a security interest.
Under the Agreement, Debtors purported to lease the Vehicle for 48 months with an option to terminate the Agreement prior to that time. At the end of the 48 month period, one of two things could occur. First, under paragraph 20, Debtors could return the Vehicle to GMAC and Debtors would be liable to pay "any amounts" owing under the Agreement. The Court construes such amounts to include excess mileage charges and damages from excess wear and tear, applicable only if Debtors did not comply with the terms of the Agreement governing these items. Not included are liabilities computed under paragraph 14 entitled "Early Termination and Default". Thus, at scheduled termination, if Debtors complied with the terms of the Agreement, they would be free to return the Vehicle to GMAC and "walk away" without further liability. The Court finds the existence of this option, if it is viable, to be consistent with a lease transaction and inconsistent with a security interest transaction.
In Harvey, Judge Wilson apparently construed the provisions of paragraph 14 to apply both on early termination and scheduled termination. This Court disagrees with this construction. All provisions of paragraph 14 clearly and unambiguously apply on early termination only.
The Court now examines whether the Debtors' option to purchase the Vehicle at scheduled termination in effect eliminates the Debtors' option to return the Vehicle. At scheduled termination, Debtors had the option to purchase the Vehicle for its "Fair Market Value", defined as "the average of the retail and wholesale values stated in a then current vehicle guidebook selected by Lessor". The Court takes judicial notice that such vehicle guidebooks exist and are commonly used to determine the approximate value of used cars. Furthermore, given the predictable nature of used car sales and the volume of information regarding trends in this area, the values stated in current vehicle guidebooks should reasonably approximate the actual fair market value of the average vehicle. The Court also takes judicial notice that, at the end of 48 months, the Vehicle would have a considerable remaining economic life and, therefore, a substantial fair market value. As evidence of this, the Agreement itself sets forth the Vehicle's "residual value", which is the estimated fair market value of the Vehicle at scheduled termination, as $3,047.46. Therefore, the Court finds that, although Debtors had the option to purchase the Vehicle, it is not a foregone conclusion that they would exercise the option. No economic incentive would compel Debtors to exercise the purchase option. Rather, Debtors' exercise of the purchase option would rest on whether the Vehicle continued to suit the Debtors' needs and preferences. See Cole at 564 and Harvey at 538. Under these circumstances, Debtors' option to return the Vehicle and walk away without further liability is certainly a viable option.
The Court recognizes that if Debtors maintained the Vehicle in superb condition, over and above the standards contained in the agreement itself, the Vehicle could be worth more that at the end of the agreement than the "Fair Market Value" as established by industry guidebooks. Nonetheless, the Court does not believe that Debtors could maintain their vehicle in such better condition that they would be economically compelled to purchase the Vehicle at scheduled termination of the Agreement.
In summary, at scheduled termination, if Debtors complied with the terms of the Agreement, they would have the option to (1) return the Vehicle to GMAC without further liability, or (2) purchase the Vehicle at a price closely approximating the actual fair market value of the Vehicle. Under these circumstances, at scheduled termination, GMAC clearly retains a meaningful residual interest in the Vehicle since there is as much chance that Debtors would return the Vehicle and walk away without further liability as there is a chance that Debtors would exercise their option to purchase the Vehicle. Cole at 564.
Provided they are not in default, Debtors also have the option to terminate the Agreement at any time prior to scheduled termination upon 15 days written notice to GMAC. In the event of early termination, one of two things could occur. First, under paragraph 14, Debtors could return the Vehicle to GMAC. GMAC would then sell it in a commercially reasonable manner and apply the proceeds against the amounts owing on early termination as fixed by a formula set forth in paragraph 14(c)(i). Second, under paragraph 10, Debtors could exercise their option to purchase the Vehicle for the greater of its "Fair Market Value" or the amount owing on early termination under paragraph 14(c)(i). In either case, it is clear that GMAC would not receive back the Vehicle, but a sum of money instead. The issue is whether GMAC continues to retain a meaningful residual interest in the Vehicle given the early termination option.
GMAC would receive at least the Fair Market Value of the vehicle or the amount owing on early termination and at most the actual sale proceeds of the vehicle (if the sale proceeds exceeded the early termination liability).
The Court finds that the early termination option does not destroy GMAC's meaningful residual interest in the Vehicle, but operates as a sort of liquidated damages clause designed primarily to protect the benefit of GMAC's bargain as if the Agreement were performed to its scheduled termination. Using the analysis set forth above, the Court finds that it is not a foregone conclusion that Debtors would exercise the option to purchase the Vehicle on early termination, because the option price would at least closely approximate the actual fair market value of the Vehicle. Rather, it is just as likely that Debtors would return the Vehicle to GMAC, and, therefore, become liable for the amount set out in paragraph 14(c)(i). Under paragraph 14(c)(i), GMAC is assured of receiving the benefit of its bargain as if the Agreement were performed to scheduled termination. Under this paragraph, Debtors are liable for past due rent, if any, and all unmatured rent, just as if the Agreement had extended to its full term. In addition, Debtors must pay "additional amounts owed", such as excess mileage or wear and tear charges. In addition, Debtor's are liable for the Vehicle's "residual value" of $3,047.46, which is the estimated fair market value of the Vehicle at scheduled termination (while this is not exactly what GMAC bargained for at scheduled termination — GMAC bargained for the Vehicle itself or a price established by current industry guidebooks — it is the closest possible approximation as of the date of the Agreement). From this amount owing for rent, additional charges and the residual value, "unearned charges" are then subtracted. The "unearned charges" function as a sort of a rebate or adjustment against the Debtor's liability. The rebate or adjustment makes sense because otherwise, under paragraph 14(c)(i), GMAC would receive the full benefit of its bargain — 48 months rent plus the value of the vehicle at the end of 48 months — ahead of schedule, thereby in effect receiving more than it bargained for. Finally, in addition to this total amount, Debtors must pay a charge of $600.00 if termination occurs during the first 12 months, $400.00 if termination occurs during the next 12 months, and $200 if termination occurs during the next 12 months. This charge appears to be a penalty designed primarily to discourage early termination.
Whether the liquidated damages aspect of the provision is legally valid is an issue not before the Court at this time.
Other aspects of the Agreement support the Court's finding that GMAC retains a meaningful residual interest in the Vehicle. For example, the Agreement imposes restrictions on mileage and requires Debtors to maintain the Vehicle in "good condition" as carefully set forth in the Agreement. These conditions are designed to ensure the GMAC's residual interest in the Vehicle is protected and, therefore, "meaningful". The Court also notes that these conditions are inconsistent with the rights of a buyer in a typical vehicle purchase situation. See Cole at 565.
In summary, the Court finds that GMAC retains a meaningful residual interest in the Vehicle under the Agreement, and, therefore, the Agreement constitutes a true lease.
In addition, the Court finds that the Debtors' payment obligation under the Agreement is inconsistent with a secured sale transaction. See Cole at 565. In a secured sale transaction, Debtors would have been obligated to pay approximately the present value of the Vehicle's fair market value (in addition to sales tax and license and registration fees). Assuming a 12% discount rate, which the Court finds to be reasonable, the present value of Debtors' payment obligation (not including sales tax and license and registration fees) was approximately $4,817.76. While there was no direct evidence on the fair market value of the Vehicle, the Court finds that it would be at least somewhere between the "factory delivery price" of $6,298.00 and the "total delivery price" of $7,550.00. Thus, Debtors' payment obligation was significantly less than the payment obligation of a typical buyer in a sales transaction.
In figuring the Debtors' payment obligation, the Court also did not include the approximate option price of the Vehicle because, as explained above, Debtors were not "obligated" or economically compelled to pay the option price.
For all the reasons stated above, the Court finds that the Agreement constitutes a true lease and does not create a security interest. Normally, the Court's conclusion on this issue would make it unnecessary to address the second issue regarding whether or not GMAC can be deemed to have perfected a security interest in the Vehicle. However, due to the divergence of opinion in this area of the law, the Court feels that it would be useful to briefly address this second issue. For the purposes of this discussion, which is admittedly dicta, the Court will assume that the Agreement does create a security interest rather than a lease.
It is undisputed that GMAC did not follow the appropriate procedure under Oklahoma law to have its lien noted on the certificate of title until September 6, 1988, which was within 90 days of the bankruptcy filing. Assuming GMAC's security interest was not already perfected, the Trustee could avoid GMAC's action to perfect its security interest on September 6, 1988, as a preference under 11 U.S.C. § 547(b). However, it is also undisputed that, on or about the date of the Agreement, GMAC did follow appropriate procedures to obtain a certificate of title indicating GMAC as "owner" of the Vehicle. The issue is whether that action was adequate to perfect GMAC's security interest in the Vehicle under Oklahoma law.
GMAC did not deliver a lien entry form with the Oklahoma Tax Commission as required under 47 O.S. § 1110[ 47-1110](A)(1) (Supp. 1989) until September 6, 1988.
The Oklahoma Supreme Court, in construing the immediate predecessor to the current certificate of title statute, held that case law under the Uniform Commercial Code concerning substantial compliance with perfection requirements is applicable in construing perfection requirements under the certificate of title statute. Woodson v. Ford Motor Credit Co., 637 P.2d 588, 591 (Okla. 1981) and Woodson v. General Motors Acceptance Corp., 635 P.2d 601 (Okla. 1981). In the latter case, the Oklahoma Supreme Court held that the policy underlying the perfection and recordation of security interests is to provide notice to interested parties and the Court specifically considered whether a third party would be prejudiced by a lienholder's failure to strictly comply with the certificate of title statute. Woodson v. GMAC at 603. In light of these cases, the Court finds that GMAC's action in obtaining a certificate of title listing it as "owner" of the Vehicle gave notice to interested parties of its interest in the Vehicle so that no third party could be prejudiced by GMAC's failure to have its lien noted on the title. Therefore, under Oklahoma law, GMAC substantially complied with the requirements for perfecting its security interest, and the Court finds that such security interest is perfected. In reaching this conclusion, the Court respectfully declines to follow the decision of Judge Wilson in In re Thompson, 101 B.R. 658 (Bankr.N.D.Okla. 1989), in which Judge Wilson concluded that "a security interest in a motor vehicle is perfected solely by delivery of a lien entry form to the Oklahoma Tax Commission . . ." See Thompson at 677. The Court notes that the overwhelming majority of cases faced with this issue have reached the same conclusion as the instant decision in construing other state certificate of title statutes. See In re Circus Time, Inc., 641 F.2d 39 (1st Cir. 1981); In re Load-It, Inc., 774 F.2d 1077 (11th Cir. 1985); In re Yeager Trucking, 29 B.R. 131 (Bankr.D.Colo. 1983); In re Coors of the Cumberland, Inc., 19 B.R. 313 (Bankr.M. D.Tenn. 1982); In re National Welding of Michigan, Inc., 61 B.R. 314 (W.D.Mich. 1986); In re Loague, 25 B.R. 940 (Bankr.N. D.Miss. 1982); In re McCall, 27 B.R. 106 (Bankr.W.D.N.Y. 1983); In re Trivett, 12 B.R. 373 (Bankr.E.D.Tenn. 1981).
It is not clear whether Judge Wilson considered the argument that lessors in Thompson had "substantially complied" with Oklahoma perfection requirements since there is no discussion of that issue.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Trustee's Complaint be, and hereby is, denied for the reasons stated above.
EXHIBIT A