About the author: A prolific writer and presenter, Edward Noyer has penned numerous articles for trade association magazines and paralegal associations across the nation. His background in banking and certification from an American Bar Association-approved paralegal program only add to his credentials, which include a degree in business administration and marketing. Edward is currently the Director of Product Marketing at Parasec.
Can a UCC filer use an assumed name as the organizational name when the assumed name is x-Referenced in the corporate index? Bankruptcy Court asked to decide.
Does the existence of cross-referenced debtor name on a corporate filing office website meet the definition of “public record” for an organizational debtor? This is a question posed recently in the Eastern District of Michigan, Southern Division (Detroit) bankruptcy court case. In the bankruptcy case of In Re: Harvey Goldman & Company, a/k/a Worldwide Equipment Company, 2011 Bankr. E.D. LEXIS 3356 Mich. (Sept. 13, 2011).
“The Harvey Goldman & Company” was formed as a Michigan corporation in 1947 with the filing of Articles of Incorporation. On June 7, 1991, a certificate of assumed name was filed with the Department of Licensing and Regulatory Affairs, Corporations Division. This filing indicated that the corporation would be using the name of “Worldwide Equipment Company” to transact business.
On January 3, 2007, the Abraham and Geraldine Irrevocable Living Trust filed a UCC-1 Financing Statement with the Michigan Secretary of State. The UCC was filed under the debtor name of “World Wide Equipment Co.” The filed UCC states that it covers “inventory in the amount of $650,000 to secure an outstanding loan.”
On July 14, 2010, an involuntary Chapter 7 petition was filed against “The Harvey Goldman & Company.” Having become aware of a security interest claimed by the secured party, the bankruptcy trustee filed a motion for summary judgment against the secured party alleging the financing statement was not filed under the debtor’s corporate name.
The defendant (secured party) filed their financing statement under the name of “World Wide Equipment Co.” a similar name to the name on the assumed name statement of “Worldwide Equipment Company.”
The plaintiff argued that the true name of the corporation was “The Harvey Goldman & Company” and therefore should have been the name provided as the debtor for the UCC filing. The defendant did not dispute that the name of the corporation was “The Harvey Goldman & Company.” The defendant also did not dispute that the Michigan Uniform Commercial Code states that, “... if the debtor is a registered organization the financing statement is only sufficient if it provides the name of the debtor as indicated on the public record of the debtor’s jurisdiction of organization which shows the debtor to have been organized.”
The plaintiff provided proof that a UCC and Tax Lien search from the Michigan Secretary of State conducted by the interim trustee did not disclose the secured parties filing as it was filed under the wrong name. The defendant concurred that their filing failed to be located in the UCC and Tax Lien search obtained from the interim trustee, however, the defendant offered the court four arguments as to why their filing was not seriously misleading and had been filed under the correct debtor name.
- The filing of the assumed name certificate had made that name the name of the debtor. Therefore, the failure to provide the name “The Harvey Goldman & Company” did not make their financing statement seriously misleading.
- A search of the “public record” at the Department of Licensing and Regulatory Affairs corporate division would have led to the debtor name of “Worldwide Equipment Company” as it is cross referenced with “The Harvey Goldman & Company” so a search of either name reveals the other.
- A financing statement is effective even if it has minor errors or omissions unless those errors and omissions make the statement seriously misleading. As the financing statement was cross referenced in the corporate division index, and this agency is a ‘filing office’ this statement would not have been seriously misleading.
- The debtor conducted business using the name “Worldwide Equipment Company” with all checks, letterhead, invoices and signs. In addition, the correct tax identification number had been provided on the financing statement.
The court rejected each and every argument set forth by the defendant as a false argument and fallacious method of reasoning. The instructions on a Michigan Assumed Name Statement clearly state it is to be used by, “corporations...desiring to transact business under an assumed name other than the true name [emphasis added] of the corporation.” Michigan law clearly sets forth that the name of the corporation is the name provided on the Articles of Incorporation. As the Articles of Incorporation list the name of the corporation as “The Harvey Goldman & Company,” this is the name of the organizational debtor. Having establishing the name of the corporation as “The Harvey Goldman & Company” the defendants’ arguments became a house of cards. With a debtor name clearly established, the search logic would now deal the final blow to the defendant.
The search logic is the test as to whether a filing is “seriously misleading.” If a filing is located using the standard search logic, it is not considered “seriously misleading.” However, if the standard search logic fails to locate a filing, it is deemed “seriously misleading” under Michigan law and fails to perfect a security interest.
The final argument raised by the defendant had to do with the fact the corporations’ signage, business documents and tax ID number where all under “Worldwide Equipment Company.” The court found that, “this is unremarkable as it is what one would expect of a corporation doing business under an assumed name.”
The Uniform Commercial Code is very clear in §9503 that when a UCC is filed against an organization it “must contain the name of the debtor indicated on the public record of the debtors jurisdiction of organization which shows the debtor to have been organized.” This section also states that a UCC is not rendered ineffective by the lack of a trade name.
One of the fascinating facts to come from this case is that even if the court had found the trade name was acceptable it would still have been regarded as seriously misleading and ineffective to perfect a security interest as a space was placed between the words “world” and “wide.” Under the search rules in Michigan, this spacing would have resulted in the filing being excluded from the official search. Since the filing would not have been located using the standard search logic the filing would have been seriously misleading and ineffective to perfect a security interest. There was no way in which this defendant could have prevailed in this case. •
Parasec is a legal document filing company and does not provide legal advice. Since every transaction is different, clients are advised to speak to an attorney. Parasec makes no warranties as to the completeness or accuracy of this document.