In re Western Farmers Association, 6 B.R. 432, 436 (Bankr. W.D. WA 1980); Matter of Melvin Liquid Fertilizer Co., Inc., 37 B.R. 587, 589 (Bankr. S.D. OH 1984); Matter of McLouth Steel Corp., 22 B.R. 722, 724-5 (Bankr. E.D. MI 1982); In re Wathen's Elevators, Inc., 32 B.R. 912 (Bankr. W.D. KY 1983); see, J. White and R. Summers, Handbook of the Law Under the Uniform Commercial Code, ¶ 24-9, at 1028 (2d ed. 1980); and see, B. Clark, The Law of Secured Transactions under the Uniform Commercial Code, ¶ 10.6[4], at 10-40 (1980). The plaintiffs also find support for their position that CBC is not a good faith purchaser in the case of Monsanto Co. v. Walter E. Heller Co., Inc., 114 Ill.App.3d 1078, 70 Ill.Dec. 646, 449 N.E.2d 993, 36 U.C.C.Rep.Serv. 834 (1983). In that nonbankruptcy case, close relationships existed among the secured creditor with the floating lien, the seller, and the borrower/purchaser.
The duty of good faith exists between the lender and debtor, and one court has found a lender not to be a good faith purchaser due to its conduct, regardless of whether that duty is extended to third parties. In Monsanto Co. v. Heller, 114 Ill.App.3d 1078, 70 Ill.Dec. 646, 449 N.E.2d 993 (1983), Heller had a deep relationship with its debtor, Ilikon, and exercised considerable control over its business practices. Heller continued to cover Ilikon's checks to Monsanto Co. despite detailed knowledge of Ilikon's insolvency.
Defendant argues that its rights as garnishor are superior to Wells Fargo's, because the latter is not a "bona fide purchaser for value" under § 2-403 of the UCC. In support of its argument, Defendant relies on Monsanto Co. v. Walter E. Heller Co., 114 Ill.App.3d 1078, 70 Ill.Dec. 646, 449 N.E.2d 993 (1983) for the proposition that the close relationship between Wells Fargo and Terminal establishes a lack of good faith. In Heller, a supplier-creditor brought an action against the buyer's lender to reclaim goods delivered in exchange for dishonored checks.
Section 2-702 of the U.C.C. also requires that the seller not know of the buyer's insolvency at the time of delivery. See Theo. Hamm Brewing Co. v. First Trust Savings Bank of Kankakee, 103 Ill.App.2d 190, 242 N.E.2d 911 (3rd Dist. 1968) See also Monsanto Co. v. Walter E. Heller Co., 114 Ill. App.3d 1078, 1088-89, 70 Ill.Dec. 646, 652-53, 449 N.E.2d 993, 998-99 (1st Dist. 1983). Technically, Panasonic and Toshiba would have to prove ignorance. However, no issue has been raised here with respect to when Panasonic and Toshiba first learned of the debtor's insolvency.
"The standard for determining `good faith' is a subjective one and rests on the facts of each case." Monsanto Co. v. Walter E. Heller Co., Inc., 449 N.E.2d 993, 1000 (Ill.App.Ct. 1983) ( citingWalter E. Heller Co., Inc. v. Convalescent Home of the First Church of Deliverance, 365 N.E.2d 1285 (Ill.App.Ct. 1977)). The existence of good faith is an "inherently factual" question "to be resolved at trial."
See In re Samuels Co., supra; Genesee Merchants Bank Trust Co. v. Tucker Motor Sales, supra; Villa v. Alvarado State Bank, supra. But cf. Monsanto Co. v. Walter E. Heller Co., 449 N.E.2d 993 (Ill. Dist. Ct. App. 1983) (holder of perfected security interest who acted in bad faith is not good-faith purchaser for value and loses priority over unpaid cash-seller); Dick Hatfield Chevrolet, Inc. v. Bob Watson Motors, Inc., 708 P.2d 494 (Kan. 1985) (same). The Uniform Commercial Code does afford protection to the cash-seller.
The parties have presented their respective positions on this issue by way of supplemental briefs. Whether a sale is a cash sale or a sale on credit is to be determined by the intent of the parties. Monsanto Co v Walter E Heller Co, Inc, 114 Ill. App.3d 1078; 499 N.E.2d 993; 36 UCCRS 834 (1983). Stated another way, the principal test in determining whether a transaction is governed by Article 9 is whether the parties intended the item to secure the payment or performance of an obligation.
The Bank's authorization, however, was needed by Watson Motors because the Bank had to release its security interest in the traded vehicle and release the vehicle title to the acquiring dealer. In short, the Bank's activity does not rise to the level of participation in Watson Motors' business to have sufficient knowledge to constitute bad faith such as was found in Monsanto Co. v. Walter E. Hellers&sCo., 114 Ill.App.3d 1078, 70 Ill.Dec. 646, 449 N.E.2d 993 (1983). Likewise, the Bank's conduct in dishonoring Watson Motors' check and having knowledge that Hatfield was unpaid when it sold the collateral does not constitute bad faith.