Opinion
October 29, 1970
Appeal from the Genesee Special Term.
Present — Del Vecchio, J.P., Marsh, Moule, Bastow and Henry, JJ. [ 55 Misc.2d 788.]
Order and judgment unanimously reversed on the law and facts, without costs, and summary judgment directed in favor of defendant in accordance with the following memorandum: Defendant appeals from an order of Genesee Special Term which granted summary judgment in favor of plaintiff declaring that he had the right to possession of a mobile home and from the judgment entered pursuant to the order. Plaintiff's proof in support of his motion for summary judgment shows that he purchased the mobile home on July 19, 1965 subject to a security interest therein in favor of Wyoming County Bank and Trust Company requiring monthly payments of $43. On May 1, 1966 he gave possession of the mobile home to Barbara Dee. He avers that he and she at that time orally agreed that she would pay the monthly payments due to Wyoming County Bank and Trust Company, and that after all such payments had been made she would become owner of the property. No financial statement was filed to protect plaintiff's interest in it. On July 14, 1966, Barbara Dee, as President of Carpets By Bianco, Inc. gave a chattel mortgage security agreement on the mobile home and a Rambler station wagon to defendant to secure payment of a $2,500 demand note, payment of which was guaranteed by Barbara Dee individually. On July 18, 1966, defendant filed financing statements with the Erie County Clerk and the Secretary of State. The chattel mortgage security agreement authorized defendant upon default in payment of the note to take possession of the security. Prior to the commencement of this action there was a default in payment of the note and defendant took possession of the mobile home. Plaintiff then commenced this action to recover possession of it and moved for summary judgment. Defendant cross-moved for summary judgment in its favor. Special Term in granting plaintiff's motion correctly held that defendant had a valid security interest in the mobile home but erroneously held that plaintiff had an enforceable prior security interest therein which arose when he delivered possession of it to Barbara Dee. Section 9-203 of the Uniform Commercial Code provides that unless the secured party is in possession of the collateral, his security interest, absent a writing, is not enforceable. Here plaintiff was not in possession of the mobile home and there was no writing. He, therefore, had no enforceable security interest. Special Term was also in error in holding that the mobile home was consumer goods and not a motor vehicle within the meaning of section 9-302 of the Uniform Commercial Code and that for that reason no financing statement was required to be filed to perfect plaintiff's security interests. A mobile home is a motor vehicle within the meaning of section 9-302 which requires that a financing statement must be filed to perfect a security interest therein. ( Albany Discount Corp. v. Mohawk Nat. Bank, 54 Misc.2d 238, affd. 30 A.D.2d 919; Matter of Vinarsky, 287 F. Supp. 446.) Defendant has a valid security interest in the mobile home giving it the right to take possession of it and plaintiff has no enforceable prior security interest therein. Defendant is, therefore, entitled to summary judgment declaring that it was and is entitled to possession of the mobile home. The action should be remitted to Genesee Special Term for further proceedings in respect of the provisions of the judgment to be entered in accordance with CPLR 7108.