In re Johnson

571 B.R. 167

IN RE: Michael L. JOHNSON, Debtor

CASE NO. 17–00218–5–JNC

United States Bankruptcy Court, E.D. North Carolina, Greenville Division.

Signed May 17, 2017

William H. Kroll, Stubbs & Perdue, P.A., Raleigh, NC, for Debtor.

Joseph A. Bledsoe, III, New Bern, NC, for Trustee.

ORDER ALLOWING MOTION TO COMPEL

Joseph N. Callaway, United States Bankruptcy Judge

The matter before the court is the Motion to Compel Debtor to Assume or Reject Lease Agreement filed by creditor RTO National, LLC ("RTO") on January 31, 2017 (D.E. 16; the "Motion to Compel"). A Response in Opposition was filed by the Debtor on February 9, 2017 (D.E. 19; the "Response"). A hearing was held on April 5, 2017 in Greenville, North Carolina, following which the court took the matter under advisement. After a review of the record and arguments of counsel at the hearing, the matter is ready for determination.

JURISDICTION

This matter is a core proceeding pursuant to 28 U.S.C. § 157, and this court has jurisdiction pursuant to 28 U.S.C. §§ 151, 157, and 1334. This court has the authority to hear this matter pursuant to the General Order of Reference entered August 3, 1984 by the United States District Court for the Eastern District of North Carolina.

BACKGROUND

Michael L. Johnson ("Mr. Johnson" or the "Debtor") filed a voluntary petition for relief under chapter 13 of the Bankruptcy Code on January 16, 2017. Prior to filing, Mr. Johnson entered into a "Consumer Rental Purchase Agreement" on March 8, 2016 (D.E. 16, Ex. A.; the "Agreement"). Pursuant to the terms of the Agreement, Mr. Johnson contracted to buy or lease a ten foot by twelve foot storage shed or small barn (the "Barn")¹ through a stream of "rental payments" in the amount of $52.64 per month for fifty-seven months, along with a loss damage waiver fee of $4.95 per month and taxes of $3.68 per month. The full payment due RTO each month is therefore $61.27 (the "Rental Payment"). As of the Agreement's execution date, the cash price to purchase the Barn outright was $1,520.74, including taxes (the "Cash Price").

The Agreement continues on a month-to-month basis so long as Mr. Johnson continues to make the monthly Rental Payment. At the conclusion of the fifty-seven month period, the Agreement allows the Debtor to make a final payment of $183.81 (the "Balloon Payment"), representing three Rental Payments, at which point the lease terminates and Mr. Johnson becomes the owner of the Barn. D.E. 16, Ex. A. at ¶ 5. In total, and excluding sales tax and damage waiver, under the Agreement Mr. Johnson would pay $3,158.40 to RTO over the course of the fifty-seven month period, representing $52.64 per month plus the Balloon Payment. Alternatively, Mr. Johnson has the option to purchase the Barn at any time during the life of the Agreement at a significant discount by simply paying the remaining balance of Rental Payments owed, multiplied by sixty-five percent, plus the applicable sales tax (the "Early Purchase Option"). Only Mr. Johnson may exercise the Early Purchase Option; RTO has no right to force a purchase of the Barn even if a default occurs.

On Schedule D of his petition, Mr. Johnson listed RTO as holding a claim in the amount of $2,108.17 secured by a lien on a "utility storage barn," presumably the Barn as identified here. Mr. Johnson listed no executory contracts or unexpired leases on Schedule G of his petition. In his proposed chapter 13 plan, Mr. Johnson seeks to retain the Barn and pay RTO a total of $600.00, the alleged value of the Barn as of the petition date, at an annual interest rate of 5.5 percent. In this case, Mr. Johnson consistently asserts an ownership interest (albeit subject to a lien) rather than a leasehold or rental interest in the Barn. Further, he does not seek to set aside or avoid the purported security interest of RTO.

At the April 5, 2017 hearing, counsel for the Debtor explained that the Barn is not affixed to the Debtor's real property and is only secured by pins in the ground or on a pad. As a result, the Barn remains personal property and is a consumer good; it is not a fixture. See N.C. GEN. STAT. § 25–9–102(23). No financing statement was filed with the North Carolina Secretary of State by RTO. RTO filed its proof of claim on April 10, 2017 and included a prepetition arrearage claim in the amount of $152.54 as of the petition date (Claim No. 6–1). No competent evidence was presented at the hearing by either party to establish the actual present value of the Barn, or to project its value at a later date.

The Agreement required the Debtor to provide a one-time security deposit equal to one monthly payment at the outset of the transaction (the "Security Deposit"). In addition, the Agreement provides that the Debtor accepts the risk of loss for the Barn; the Debtor is responsible for ongoing maintenance of the Barn; certain uses of the Barn are prohibited; and the Debtor may pledge or encumber the Barn.

The Agreement also specifically addresses its termination and the consequences of termination, stating:

You [the Debtor] can terminate this Agreement at any time by returning the Property to us or arranging with us for its return and paying all amounts due to us on the date of termination. If you terminate, you agree to return the Property to us in the same condition it was on this date, normal wear and tear excepted. If you terminate, you will still owe us any past-due rental payments, and you will continue to owe rent until you return the Property to us.

D.E. 16, Ex. A., at ¶ 11. Upon termination, the Debtor is entitled to receive a refund of the Security Deposit if all payments are current. In addition, the Agreement is subject to automatic termination by RTO upon the Debtor's failure to remit a "timely renewal payment." D.E. 16, Ex. A at ¶ 12. Upon a failure to pay, RTO may immediately take possession of the Barn and assess all repossession costs and attorney's fees against the Debtor.

In the Motion to Compel, RTO contends that the Agreement is a true lease and asks the court to compel the Debtor to assume or reject it in accordance with 11 U.S.C. § 365. Mr. Johnson, in his Response, asserts that he owns that Barn and RTO has only a security interest under the Agreement, relying primarily on the terms stating that Mr. Johnson assumed all responsibility for risk of loss and the existence of the Early Purchase Option.

DISCUSSION

The primary issue before the court is whether the Agreement is a true lease or a disguised secured transaction. Pursuant to the choice of law provision contained in the Agreement, North Carolina law is applicable. If the Agreement is a true lease, Mr. Johnson must assume or reject it as an executory contract pursuant to 11 U.S.C. § 365(d)(2) and amend his chapter 13 plan accordingly. On the other hand, if the Agreement is a disguised sale and secured transaction, then the Debtor must treat the claim as secured through his chapter 13 plan and make monthly payments (presumably "inside" the plan) to RTO based on the actual value of the consumer good. See 11 U.S.C. §§ 506 and 1325(a)(5).

The Debtor bears the burden to prove that the Agreement is not a true lease, as he is the party seeking to reclassify the Agreement. See In re Purdy , 763 F.3d 513 (6th Cir. 2014) (citations omitted) (explaining that "at all points in this analysis, the party challenging the leas[e] bears the burden of proving that [it] is something else").

Generally speaking, a lease invokes only temporary possession of the item at hand and the possessing party is contractually obligated to return the subject good or property to the owner " ‘with some expected residual interest of value remaining at the end of the lease term.’ " In re QDS Components, Inc., 292 B.R. 313, 322 (Bankr. S.D. Ohio 2002) (quoting James J. White & Robert S. Summers, Uniform Commercial Code , vol. 4, § 30–3 (5th ed., West 2002) ). A sale of a good, on the other hand, passes ownership title to the possessing party without condition or retention of ownership interest even if the item is pledged back. The collateralization of the item does not defeat ownership, as " ‘a security interest is only an inchoate interest contingent on default and limited to the remaining secured debt.’ " Id. (citations omitted); see also Purdy , 763 F.3d at 518.

In North Carolina, a security interest is specifically defined as "an interest in personal property or fixtures which secures payment or performance of an obligation." N.C. GEN. STAT. § 25–1–201(35).²

The transfer and retention of property rights in bankruptcy cases are governed and determined by state law. Butner v. United States , 440 U.S. 48, 55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979). North Carolina, along with all other states, has adopted the Uniform Commercial Code ("UCC"), which is codified in Chapter 25 of the North Carolina General Statutes. Section 1–203 of Article 1 of Chapter 25 of the North Carolina General Statutes, entitled "Lease Distinguished from Security Interest," controls whether an agreement constitutes a lease or creates a security interest.

A. UCC § 1–203(b) : The Bright–Line Test

The statute begins by providing, "whether a transaction in the form of a lease creates a lease or security interest is determined by the facts of each case." N.C. GEN. STAT. § 25–1–203(a). Thus, the individual facts presented in each case are a key component. However, Section 1–203(b) of the UCC, as codified by North Carolina in North Carolina General Statutes § 25–1–203(b), provides further detail, stating:

(b) A transaction in the form of a lease creates a security interest if the consideration that the lessee is to pay the lessor for the right to possession and use of the goods is an obligation for the term of the lease and is not subject to termination by the lessee, and:

(1) The original term of the lease is equal to or greater than the remaining economic life of the goods;

(2) The lessee is bound to renew the lease for the remaining economic life of the goods or is bound

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