DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Table of Contents
Introduction....................................................................602
Facts............................ 606
A. Synthetic Lease Origination...........................................606
B. Term Loan Origination ...............................................606
C. Synthetic Lease Termination ..........................................607
1. The Synthetic Lease Termination Agreement ........................608
2. The Synthetic Lease Closing Checklist..............................609
3. The Unrelated UCC-3 ............................................611
4. The Synthetic Lease Escrow Agreement.............................612
5. The Synthetic Lease Transaction Payoff.............................614
6. GM’s Understanding..............................................614
D. Subsequent Events...................................................614
Discussion......................................................................615
I. Summary Judgment Standards ............................................615
II. Choice of Law...........................................................616
III. Effectiveness of the Unrelated UCC-3......................................617
A. The Requirement for Authorization.....................................618
B. Was Authorization Granted?...........................................620
1. Actual Authority..................................................621
2. Apparent Authority...............................................634
3. Ratification......................................................635
C. The Committees Other Arguments.....................................637
1. Implied Authority ................................................637
2. “UCC Filings that Mistakenly Terminate a Security Interest Are Legally Effective.”..............................................638
IV. Certification to Circuit....................................................646
Conclusion......................................................................647
In this adversary proceeding under the umbrella of the chapter 11 case of Motors Liquidation Company, formerly known as General Motors Corporation (“GM”), plaintiff Official Committee of Unsecured Creditors (the “Committee”)
The action presents issues as to Uniform Commercial Code (“UCC”) filings that are commonly used in secured financings: a UCC-1 initial financing statement (“UCC-1”), with which a security interest can be perfected, and a UCC-3 financing statement amendment (“UCC-3”), with which, among other things,
But because the UCC-1 whose filing number was referenced in the Unrelated UCC-3 related to the Term Loan, and not the Synthetic Lease, the Court must decide, notwithstanding the absence of anyone’s intention to affect the Term Loan, whether the perfection of the principal lien securing the Term Loan nevertheless came to an end.
Both sides move for summary judgment, in whole or in part.
It is initially tempting to regard the consequences of all UCC filings the same and as absolute (or, as one court put it, though under an earlier statutory regime, “dramatic and final”),
Under Article 9 of the UCC as it was amended in 2001, the termination of a UCC-1 is ineffective unless it has been authorized. The issue here presented— which the UCC then leaves to caselaw — is what is required to constitute “authorization” for the filing of a termination statement when someone other than the secured party files the termination statement on the secured party’s behalf.
As principles underlying the determination of the motions here, the Court concludes, for reasons set forth below:
(1) When an agent acts on behalf of a secured lender principal to terminate an initial financing statement with respect to a financing, to be effective the termination must be authorized by the secured lender principal; and
(2) to determine whether authorization has been granted, the court must consider indicia identified in non-UCC agency law — including (importantly here) that to be so authorized, the agent must believe (and though the distinction does not matter under the facts here, reasonably believe) that the principal intended for the agent to terminate the initial financing statement for that particular financing.
A matching of file numbers by itself is not enough when other indicia lead to a contrary conclusion. And when the agent knows that the secured creditor principal does not intend to bring an initial financing statement to an end (by reason of one or more of the documents that embody the authorization, or by other means), and the agent itself believes that it was not so authorized, the requisite authorization cannot be found.
Applying those principles to the undisputed facts here, the lack of the requisite belief on the part of GM that it was authorized to terminate the Main Term Loan UCC-1 is ultimately conclusive — though the remaining indicia lead to the same conclusion. The undisputed facts here (including, most significantly, the statements in the document the parties used to embody the nature and scope of JPMorgan’s authorization, and the consistent testimony of all of the personnel acting for JPMor-gan and GM) conclusively establish that JPMorgan intended to grant, and granted, authority to GM to terminate UCC-ls only with respect to the Synthetic Lease. As importantly or more so, this was GM’s belief as well. While it is undisputed that JPMorgan knew in advance of GM’s counsel’s intent to file a UCC-3 which showed the “Initial Financing Statement File # ” of a UCC-1 that in fact was the initial
Accordingly, JPMorgan’s motion for summary judgment must be granted, and the Committee’s motion for partial summary judgment must be denied. The bases for the Court’s decision follow.
Facts
Though the parties advance diametrically opposed legal conclusions, the material facts are not in dispute.
A. Synthetic Lease Origination
In October 2001, GM entered into the Synthetic Lease, by which GM obtained up to approximately $300 million in financing from a syndicate of financial institutions. The proceeds were used for the acquisition of (and construction on) several pieces of real estate. The Synthetic Lease was documented by, among other things, a Participation Agreement dated as of October 31, 2001 (the “Participation Agreement”).
GM’s obligations under the Synthetic Lease were secured by liens on an original 12 pieces of real estate (the “Properties”) identified in the Synthetic Lease documentation. To perfect security interests in the Properties, UCC-ls were filed in the counties in which such Properties were located. UCC-ls were also filed with the Delaware Secretary of State.
JPMorgan was one of the backup facility banks, and, as noted (and more importantly for the purposes of this controversy), the administrative agent for the Synthetic Lease. JPMorgan’s Richard W. Duker (“Buker”) acted on behalf of JPMorgan with respect to it.
In connection with the Synthetic Lease, GM was represented by the law firm of Mayer Brown LLP (“Mayer Brown”), and JPMorgan was represented by the law firm of Simpson Thacher & Bartlett LLP (“Simpson Thacher”).
B. Term Loan Origination
About five years later, in November 2006, GM and its then-subsidiary Saturn Corporation (“Saturn”) entered into a 7-year senior secured term loan facility — the Term Loan — from a different syndicate of
The Term Loan provided GM with approximately $1.5 billion in financing. It was a transaction wholly unrelated to the Synthetic Lease.
In connection with the Term Loan, JPMorgan was represented by law firms different from that which had acted for JPMorgan in connection with the Synthetic Lease. This time, JPMorgan was represented by Cravath Swaine & Moore and, later, Morgan, Lewis & Bockius (“Morgan Lewis”).
Documents executed in connection with the Term Loan included a “Term Loan Agreement” and a “Collateral Agreement.” Duker, who was also involved in the Synthetic Lease transaction, was a signatory to the Term Loan Agreement on behalf of JPMorgan as administrative agent.
Under the Collateral Agreement, the Lenders took security interests in a massive amount of collateral (“Term Loan Collateral”) — including, among other things, all of GM’s equipment and fixtures at 42 facilities throughout the United States. Upon the closing of the Term Loan, JPMorgan caused the filing of a total of 28 UCC-1 initial financing statements to perfect the Lenders’ security interests in the Term Loan Collateral — two of which (one for GM and one for Saturn)
C. Synthetic Lease Termination
The Synthetic Lease would mature on October 31, 2008, approximately seven years after it was put in place.
In an email dated September 30, 2008, a GM representative informed Robert Gordon (“Gordon”), a real estate partner at Mayer Brown, GM’s counsel, who was then responsible for the Synthetic Lease, that GM planned to repay the amount due under the Synthetic Lease. GM requested that Mayer Brown “prepare the documents necessary for [JPMorgan and the Lenders] to be paid off for the obligations on that synthetic lease and to release their interest in those properties.”
The documents prepared by Green included three documents and one batch of UCC-3s:
(1) an agreement with respect to the termination of Synthetic Lease obligations and related documentation (the “Synthetic Lease Termination Agreement”);
(2) a closing checklist (the “Synthetic Lease Closing Checklist”);
(3) UCC-3s, and
*608 (4) a letter agreement embodying instructions to an escrow agent with respect to the Synthetic Lease termination (the “Synthetic Lease Escrow Agreement”).
The next day, October 1, GM likewise informed JPMorgan’s Duker of GM’s intent to pay off the amounts due under the Synthetic Lease. As of that time, the balance to be repaid on the Synthetic Lease was about $150 million.
1. The Synthetic Lease Termination Agreement
Two weeks later, on October 15, 2008, Green circulated the Synthetic Lease Termination Agreement to Simpson Thacher, among others, in draft form.
The Synthetic Lease Termination Agreement stated, among other things (as circulated on October 15, and also in its final form), that the Administrative Agent (JPMorgan) and Lessor (the Trust) were thereby releasing all of their liens against the “Properties” that had been created by the operative agreements which were coming to an end, and that they acknowledged that such liens were released. The Synthetic Lease Termination Agreement then went on to provide, as relevant here:
(ii) [T]he Administrative Agent and the Lessor do hereby
(x) [sic.; seemingly should be z] authorize Lessee to file a termination of any existing Financing Statement relating to the Properties.18
Importantly, the words “Financing Statement” and “Properties” as used in the quoted language were capitalized defined terms. The next paragraph of the Synthetic Lease Termination Agreement told the reader where to look for definitions of capitalized terms that did not otherwise appear. It referred the reader to an earlier document, defined as the “Participation Agreement,” that had been entered into back in October 2001 when the Synthetic Lease was put into place.
The Participation Agreement, in turn, listed the 12 particular pieces of real property that originally were collateral under the Synthetic Lease.
The Synthetic Lease Termination Agreement was later executed by GM, JPMorgan and the other parties to the Synthetic Lease termination on or about October 30, 2008, the effective date of the closing of the payoff.
2. The Synthetic Lease Closing Checklist
With assistance from his colleagues at Mayer Brown, Green drafted a closing checklist. It was entitled:
CLOSING CHECKLIST
General Motors: Release of Properties from JPMorgan
Chase Synthetic Lease
CLOSING DATE: October 31, 2008.22
The word “Properties” as used in the Closing Checklist title was capitalized, but because it was part of a title, it is unclear whether “Properties” as used there was intended to be as defined in the Participation Agreement, which was the underlying source for definitions in the Synthetic Lease Termination Agreement. But whether or not it was so intended, it still specified what “Properties” were covered: properties from “JPMorgan Chase Synthetic Lease,” as contrasted to any others.
In order to determine what types of documents should be included on the Synthetic Lease Closing Checklist, Green “looked through a copy of the participation agreement. That’s the main document for the [Synthetic Lease] and it contained a description of how to unwind and the relevant documents.”
The Synthetic Lease Closing Checklist listed several dozen closing documents relating to the Properties, including various UCC-ls that needed to be terminated for each property.
Termination of UCCs (central, DE filings) Blanket-type financing statements as to real Property and related collateral located in Marion County, Indiana (file number 2092532 5, file date 4/12/02 and file number 2092526 7, file date 4/12/02) financing statement as to equipment, fixtures and related collateral located at certain U.S. manufacturing facilities (file number 6416808 4, file date 11/30/06).25
The three UCC-1 filing numbers listed on the Synthetic Lease Closing Checklist were derived from a UCC search Green had requested that a Mayer Brown paralegal, Michael Perlowski, perform. Working from a prior search for UCC-1 financing statements recorded against GM (and without knowledge of the underlying transactions that had involved those filings, or, for that matter, the purpose of his undertaking),
Green circulated a draft of the Synthetic Lease Closing Checklist to GM as well as Simpson Thacher, counsel for JPMorgan, on October 15, 2008. That same day, Duker of JPMorgan received drafts of the Synthetic Lease Closing Checklist from GM and Simpson Thacher. Green circulated updated, but largely similar, drafts of the Synthetic Lease Closing Checklist to Simpson Thacher, among others, later on October 15, and again on October 21, 2008. The subject lines for each of Green’s emails attaching the drafts of the Synthetic Lease Closing Checklist stated that they related to the “GM/JPMorgan Chase— Synthetic Lease.”
The drafts of the Synthetic Lease Closing Checklist identified the Main Term Loan UCC-1 as a “financing statement as to equipment, fixtures and related collateral located at certain U.S. manufacturing facilities (file number 6416808 4, file date 11/30/06).” They made no mention of the words “Term Loan.” The “file date 11/30/06” appearing adjacent to “file number 6416808 4” on the Synthetic Lease Closing Checklist substantially corresponds to the November 29, 2006 date of the Term Loan Agreement, though no one involved recognized that at the time, because everyone believed they were work
S. The Unrelated UCC-S
Another Mayer Brown paralegal, Stewart Gonshorek (“Gonshorek”), was tasked with drafting the UCC-3 termination statements for the unwinding of the Synthetic Lease. One of the UCC-3s that he drafted was the Unrelated UCC-3.
Under section 10 of a draft of the Unrelated UCC-3, a section entitled “OPTIONAL FILER REFERENCE DATA”, Gon-shorek typed in “Matter No. 00652500.”
Gonshorek prepared the Unrelated UCC-3 to “terminate the UCC in connection with the synthetic lease becoming unwound.”
But the Unrelated UCC-3 never used the words “Term Loan,” or any synonym for such.
Further down on the Unrelated UCC-3, it had a Line 9, “Name of Secured Party of Record Authorizing this Amendment,”
While the UCC-3 Gonshorek prepared referenced the Main Term Loan UCC-1 by its filing number and date (6416808 4 on 11.30.06), Gonshorek intended to terminate only a UCC financing statement related to the Synthetic Lease.
On Wednesday, October 15, 2008, Green circulated by email to Simpson Thacher’s Merjian and counsel for Wilmington Trust, among others (and along with an updated checklist and drafts of most of the other closing documents), the draft UCC-3 termination statements that had been prepared by Gonshorek — including the draft Unrelated UCC-3.
The subject line of Green’s e-mail enclosing the draft documents was “GM/JPMorgan Chase-Synthetic Lease (Auto Facilities Real Estate Trust 2001-1)”;
Green had concluded his October 15 email with a line “Please contact me with any questions or comments you may have.” On Friday, October 17, 2008, Simpson Thacher’s Merjian responded, also by email, stating “Nice job on the documents” before continuing with “[m]y only comment,” and going on to state what that comment (which did not relate to the UCC-3s) was.
A The Synthetic Lease Escrow Agreement
Incident to the Synthetic Lease repayment, the parties utilized LandAmerica (the “Title Company”) to serve as an escrow agent, recording agent and title insurance issuer. As a general matter, the Title Company would receive payment from GM and documents executed by the various parties, after which the Title Company would act in accordance with written instructions (executed by counsel for GM, JPMorgan, and the Trust)
The instructions were embodied in the Synthetic Lease Escrow Agreement, which in each of its draft and final form
On October 24, 2008, by email addressed to the Title Company’s William Wineman; Simpson Thacher’s Mardi Merjian, and counsel for Wilmington Trust (the trustee for the Trust), Green circulated a draft of the Synthetic Lease Escrow Agreement, seeking review and any comments.
Again as a general matter, the Synthetic Lease Escrow Agreement listed 47 different documents that would be delivered to the Title Company (defined in that letter as “Escrow Documents”), which, after conditions precedent to closing were satisfied, would be delivered, recorded or otherwise handled by the Title Company in accordance with the instructions set forth in the Synthetic Lease Escrow Agreement.
Termination of that certain Participation Agreement dated as of October 31, 2001, among General Motors Corporation (“GM”), as Lessee and Construction Agent, Auto Facilities Real Estate Trust 2001-1 (“Trust”), as Lessor, Wilmington Trust Company (“Trustee”), as Trustee, the Persons named therein as Investors, the Persons named therein as Backup Facility Banks, Relationship Funding Company, LLC, and JPMorgan Chase Bank (“Agent”), as Administrative Agent, as amended (the “Participation Agreement”) and release of all liens related thereto including liens relating to the following properties: (i) the SPO Headquarters Building located in Grand Blanc, Michigan (the “Grand Blanc Property”); (ii) the GM Powertrain L6 Engine Plant in Flint, Michigan (the “Flint Property”); (iii) the Franklin Deck in Detroit, Michigan (the “Franklin Deck”); (iv) the River East Parking Deck in Detroit, Michigan (the “River East Deck”); and (v) Parcel 6/C in Detroit, Michigan (“Parcel 6/C”) (the Grand Blanc Property, the Flint Property, the Franklin Deck, the River East Deck and Parcel 6/C herein are each a “Property” and, collectively, the “Properties ”).41
Specifically, it provided that its undersigned attorneys represented GM, the Agent, JPMorgan, and the Trustee in connection with that transaction, and that the Title Company had agreed to issue title insurance policies with respect to the Properties. It further stated that “[t]his letter constitutes escrow and recording instructions in connection with the Transaction.”
It then listed the 47 documents or categories of documents that were being delivered to the Title Company, of which the second was “Termination of UCC Financing Statements (File Numbers 2092532 5, 2092526 7, and 6416808 4) (the ‘General UCC Terminations’).”
When all of the conditions precedent to closing set forth in Section A below have been met, you are instructed to close this transaction and disburse the Funds (as defined below) as directed in Section B below and to release from escrow and deliver, record or to otherwise handle the Escrow Documents in accordance with Section C below.44
The third of the General UCC Terminations (relating to UCC financing statement 6416808 4) was the Unrelated UCC-3, which referenced the Main Term Loan UCC-1. But while the Unrelated UCC-3 was listed as one of the documents to be delivered to the Title Company, it was not listed as one of the documents to be recorded.
When asked if he had any comments to the draft Synthetic Lease Escrow Agreement circulated on October 24, 2008, Simpson Thacher’s Merjian replied “it was fine.”
5. The Synthetic Lease Transaction Payoff
GM repaid the amount due on the Synthetic Lease transaction on October 30, 2008. Thereafter, but on the same day, Mayer Brown transmitted the Unrelated UCC-3 to a third-party vendor to cause the filing of the Unrelated UCC-3 with the Delaware Secretary of State. The Unrelated UCC-3 had no place for a signature by JPMorgan, and it was not signed by JPMorgan.
6. GM’s Understanding
Each of the participants on the GM side understood that he was acting only with respect to the Synthetic Lease. None had the understanding that he or she was acting with respect to the Term Loan, or was authorized to do so. Gordon stated, in a declaration, that “GM was not authorized by the Termination Agreement to terminate any financing statement related to the Term Loan Agreement,”
Similarly, GM’s Debra Homie Hoge (the GM business person with responsibility for the Synthetic Lease), stated that GM was not authorized by the Synthetic Lease Termination Agreement, nor did GM believe it had any authority, to terminate any UCC-I related to the Term Loan. She further stated that GM had not granted Mayer Brown authority to do so.
Every deponent in this adversary proceeding (on the JPMorgan side or the GM side) first learned that the Unrelated UCC-3 actually related to the Term Loan only in June 2009, after GM had filed its chapter 11 petition. Before that time, none of them even realized that they had a filed a UCC-3 relating to the Term Loan.
D. Subsequent Events
GM filed its chapter 11 case on June 1, 2009. Approximately two weeks later, Morgan Lewis (which by this time was acting for JPMorgan in connection with the Term Loan and the GM bankruptcy) discovered that Mayer Brown had caused a UCC-3 termination statement to be filed in October 2008 related to the Term Loan.
About three weeks after GM’s chapter II case was filed, this Court gave final approval to GM’s preliminarily approved
On June 30, 2009, as authorized under the DIP Financing Order, the amount then outstanding under the Term Loan (just under $1.5 billion, viz., $1,481,656,507.70) was repaid out of the proceeds of the $33 billion in DIP financing.
One month later, the Committee filed its' complaint in this adversary proceeding.
Discussion
I.
Summary Judgment Standards
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
In determining a summary judgment motion, it is well settled that the court should not weigh the evidence or determine the truth of any matter, and must resolve all ambiguities and draw all reasonable inferences against the moving party.
II.
Choice of Law
Choice of law is not a material concern here.
The issues here are governed, at least in the first instance, by the Uniform Commercial Code, which does not differ in its content as between Delaware and New York — the two states whose law JPMor-gan and the Committee have principally addressed.
Similarly, as intended by the UCC’s drafters,
Effectiveness of the Unrelated UCC-3
It is undisputed that JPMorgan, on behalf of its lending syndicate, at least initially had a duly perfected security interest with respect to its collateral — including, as relevant here, all of the equipment and fixtures at the 42 GM properties covered under the Main Term Loan UCC-1. Thus, if that duly perfected security interest did not come to an end, JPMorgan and the Lenders continued to have a security interest in all of those assets as of the time GM filed its chapter 11 case — the time at which the Lenders’ continued rights to their secured status is measured.
In that connection, JPMorgan does not dispute that a termination statement that referred to the Main Term Loan UCC-1 by number was filed. JPMorgan also recognizes that each of GM and JPMorgan knew or was on notice of the initial financing statement filing number to which the Unrelated UCC-3 referred, though neither was aware that it actually related to the Main Term Loan UCC-1.
But conversely, the Committee does not dispute that neither of the counsel for GM or JPMorgan, nor either of their respective clients, intended to terminate the Main Term Loan UCC-1, or would have filed (or permitted to be filed) the Unrelated UCC-3 if they had known that the filing of that document would have any effect on the Main Term Loan UCC-1.
Determination of the issues here starts with interpretation of the Uniform Commercial Code, whose Article 9 governs security interests. Article 9 was amended in 2001, in respects highly relevant here. Since its 2001 amendment, Article 9 no longer requires the execution of a UCC-3 termination statement by the secured party. Instead, such a filing may be made without any signature, and by anyone, provided that the filing has been authorized by the secured party. Importantly, there now is no automatic consequence by reason of the filing of a termination statement. The fact that a termination statement has been filed does not by itself mean that the initial statement came to an end. It all depends on whether the termination of the underlying initial financing statement was authorized. If the requisite authorization was lacking, the termination was ineffective.
Since the termination statement here was filed not by JPMorgan, but by GM on JPMorgan’s behalf, the resolution of this controversy turns on whether GM was authorized, as part of the payoff of the Synthetic Lease, to terminate JPMorgan’s security interest on the unrelated Term Loan. On the undisputed facts, the Court concludes that GM’s authority to terminate initial financing statements was limited to the measures that related to the paid off Synthetic Lease, and that JPMorgan did not authorize the release of its security
A. The Requirement for Authorization
After the 2001 amendments to the Uniform Commercial Code, three sections of UCC Article 9, which came into being in 2001,
(d) Person entitled to file certain amendments. — A person may file an amendment other than an amendment that adds collateral covered by a financing statement or an amendment that adds a debtor to a financing statement only if:
(1) the secured party of record authorizes the filing; or
(2) [inapplicable under the facts here].
The second, UCC § 9 — 510(a),
(a) Filed record effective if authorized. — A filed record is effective only to the extent that it was filed by a person that may file it under Section 9-509.
The third, UCC § 9-513(d),
(d) Effect of filing termination statement. — Except as otherwise provided in Section 9-510, upon the filing of a termination statement with the filing office, the financing statement to which the termination statement relates ceases to be effective.71
Thus, under UCC § 9-513(d), the filing of a termination statement generally causes the initial financing statement to which the termination statement relates to no longer be effective. But because UCC § 9-513’s effect is “except as otherwise provided in [UCC § ] 9-510,” one must then look to UCC § 9-510, which requires one to look to § 9-509 to ascertain whether there has been authorization.
A termination statement (filed by means of a UCC-3) is one kind of financing statement — one that is an amendment to an initial financing statement (filed by UCC-1).
As Harry Sigman, one of the members of the drafting committee for Revised Article 9, explained:
Revised Article 9 makes explicit another concept that is implicit under current law — the fact that a filing is on the public record doesn’t guarantee that it is effective. For example, ... a termination statement that bears a forged secured party signature is not effective simply because it gets onto the public record. Revised Article 9 states that a filed record is “effective” only to the extent that its filing is authorized.75
Similarly, as stated in a treatise on the UCC:
A filed record, whether it is an initial financing statement or an amendment, is effective only if it is filed by a person who may file it under the rules of revised Section 9-509 [Rev]. Except in the case of agricultural liens, only a filer who is authorized by the right party may file a record. In the case of an initial financing statement or an amendment adding collateral or adding a debt- or, the authorization (actual or deemed) must come from the debtor. In the case of other amendments, authorization must come from the secured party of record
The fate of a record filed by someone other than a person given the power to do so under revised Section 9-509[Rev] is quite clear. Such a filing is ineffec-*620 Uve. Thus, if a secured party files an initial financing statement without actual or deemed authorization of the debtor, that financing statement is ineffective. The same is true for a termination statement not authorized by the secured party of record.76
After the Uniform Law Commissioners and the American Law Institute (“ALI”) promulgated the revised Article 9 of the UCC that was enacted in 2001, they formed a review committee in 2008 to consider whether further changes or clarifications should be made.
If the person that filed the record was not entitled to do so, the filed record is ineffective, regardless of whether the secured party of record files an information statement. Likewise, if the person that filed the record was entitled to do so, the filed record is effective, even if the secured party of record files an information statement.79
And they concluded:
Just "as searchers bear the burden of determining whether the filing of [an] initial financing statement was authorized, searchers bear the burden of determining whether the filing of every subsequent record was authorized.80
B. Was Authorization Granted?
It is clear, then, that a filed record is effective only to the extent its filing is authorized. But the critical term “authorizes” is not defined in the UCC — in the “Definitions and Index of Definitions” section of Article 9 (UCC § 9-102),
With “authorizes” not having been statutorily defined, the Court turns, as the drafters of the UCC contemplated, to the principal area of the law addressing situations where one is authorized to act on behalf of another — the law of agency.
1. Actual Authority
As articulated in caselaw, “[a]ctual authority exists when an agent has the power ‘to do an act or to conduct a transaction on account of the principal which, with respect to the principal, he is privileged to do because of the principal’s manifestation to him.’ ”
An agent acts with actual authority when, at the time of taking action that has legal consequences for the principal, the agent reasonably believes, in accordance with the principal’s manifestations to the agent, that the principal wishes the agent so to act.87
Actual authority is created by “direct manifestations” of that grant of authority which come from the principal to the agent.
Importantly for reasons that follow, “[t]he focal point for determining whether an agent acted with actual authority is the agent’s reasonable understanding at the time the agent takes action.”
An agent does not have actual authority to do an act if the agent does not reasonably believe that the principal has consented to its commission.... Lack of actual authority is established by showing either that the agent did not believe, or could not reasonably have believed, that the principal’s grant of actual authority encompassed the act in question. This standard requires that the agent’s belief be reasonable, an objective standard, and that the agent actually hold the belief, a subjective standard.91
Thus (presumably because of the requirement that the agent actually hold the belief, a subjective standard),
(a) The Authority Indicia
The underlying facts — as contrasted to conclusions that flow from them — are not in dispute. The parties agree, as does the Court, that the documents that are most significant in analyzing JPMorgan’s manifestations of the authority it gave to GM are four particular documents:
(1) the Synthetic Lease Termination Agreement;
(2) the Synthetic Lease Closing Checklist;
(3) the Unrelated UCC-3; and
(4) the Synthetic Lease Escrow Agreement.
With respect to each of these documents, the Court considers it appropriate to ask two questions: was it an authorization, and, if so, an authorization of what? With respect to the first and fourth of those documents (the Synthetic Lease Termination Agreement and the Synthetic Lease Escrow Agreement), the Court finds a grant of authorization to do something.
(1) The Synthetic Lease Termination Agreement
Of the four key documents, the Synthetic Lease Termination Agreement was by far the most specific in defining the
the Administrative Agent and the Lessor do hereby ... authorize Lessee to file a termination of any existing Financing Statements relating to the Properties.
That plainly is an authorization. It also tells the reader exactly what has been authorized.
The key words “Financing Statements” and “Properties” in the preceding quoted language were capitalized and defined terms. They took their meaning from the Participation Agreement, entered into back in October 2001, which had listed the particular pieces of real property that originally were collateral under the Synthetic Lease.
“Properties” as there used thus meant the Properties (as defined in the Participation Agreement) that were still collateral under the Synthetic Lease.
The Synthetic Lease Termination Agreement can be read in only one way: that Administrative Agent JPMorgan authorized Lessee GM to file terminations of existing financing statements only with respect to the specific properties that were the subject of the Synthetic Lease. The Synthetic Lease Termination Agreement plainly was an authorization to terminate initial financing statements — but only those that it specified. It was not an authorization to bring the Main Term Loan UCC-1 to an end.
(2) The Synthetic Lease Closing Checklist
The second of the four potentially relevant documents is the Synthetic Lease Closing Checklist — a six-page listing of several dozen documents, prepared by GM’s counsel Mayer Brown, that would be executed in connection with the payoff of the Synthetic Lease, some of which would also be filed. The Court is satisfied that personnel from Simpson Thacher and JPMorgan received and reviewed the Synthetic Lease Closing Checklist, and voiced no objection to it. But the Court cannot find an authorization on the part of JPMorgan, by reason of that receipt, review, or failure to protest, to file or terminate anything, and especially cannot find an authorization to terminate the Main Term Loan UCC-1.
Preliminarily, the Synthetic Lease Closing Checklist did not say that it was, nor was it, an authorization to do anything. It did not by its terms invite or call for (or even mention) an authorization from JPMorgan with respect to the documents that were listed upon it, and JPMorgan did not execute it. In each of these respects, it was quite different than the Synthetic Lease Termination Agreement discussed above. Plainly, the Synthetic Lease Clos
Because the Court cannot find the Synthetic Lease Closing Checklist to be an authorization at all, the Court need not address the second question that must be asked: “an authorization of what?” If the Court were required to answer that question, however, it would answer it in the same way that it answered that question for the Synthetic Lease Termination Agreement, as discussed above.
The Synthetic Lease Closing Checklist identified itself as relating to the “Release of Properties from JPMorgan Chase Synthetic Lease.” It made no mention of the Term Loan, nor of any financing other than the Synthetic Lease. Assuming, ar-guendo, that failure to protest to the filing of the listed documents could be deemed to be an authorization, it could only be read as an authorization for what it described— the properties remaining under the Synthetic Lease.
For those same reasons, the Court is unpersuaded that Simpson Thacher’s Mer-jian's statement, “Nice job on the documents,” preceding the one comment he had relating to Synthetic Lease matters, should be deemed to be an authorization of any kind, or, if one reaches the issue, an authorization to terminate the Main Term Loan UCC-1.
It is true, of course, that embodied in the Synthetic Lease Closing Checklist was the number of a UCC-1 which those involved with this case now know to be the Main Term Loan UCC-1. But nobody knew that at the time. Nobody knew that the Main Term Loan UCC-1 would be affected in any way — or more importantly, intended by the Synthetic Lease Closing Checklist to achieve such an end.
It also is true, of course, that by reference to each UCC-1 filing number that was mentioned in the Synthetic Lease Closing Checklist, one could find the original UCC-1 to which the checklist referred; then discern to what the UCC-1 related; and then decide whether or not to authorize the termination of that UCC-1, even if it related to a wholly unrelated transaction. But the failure to have engaged in such an exercise cannot be found to be an authorization.
(3) The Unrelated UCC-3 Itself
The third of the four documents potentially relevant to this inquiry is the draft of the UCC-3 itself. Based on the content of the draft Unrelated UCC-3; its delivery to Simpson Thacher and JPMor-gan before its filing; and Simpson Thacher’s asserted approval of it (or at least Simpson Thacher’s failure to object to its filing), the Committee contends that the Unrelated UCC-3 itself constitutes authorization for the termination of the Main Term Loan UCC-1.
Once again, however, the Court cannot find an authorization here, or conclude, assuming arguendo that the draft UCC-3 was an authorization, that it was an authorization to terminate the Main Term Loan UCC-1. With respect to the first of those issues, the UCC-3 did not call for the signature of the secured party principal. Nor did it have a granting clause or use granting language — such as the “hereby ... authorize” which appears in the
Then, assuming arguendo that the draft UCC-3 could be deemed to be an authorization of something, it cannot be found to be an authorization to terminate the Main Term Loan UCC-1. The Unrelated UCC-3 did not, as the Committee argues, “indicate[]that the effectiveness of the Term Loan Financing Statement is terminated.... ”
Since a draft of the Unrelated UCC-3 was included amongst the documents that were sent to Simpson Thacher, the Court is inclined to agree with the Committee that when Simpson Thacher’s Merjian stated, “Nice job on the documents,” just preceding the one comment he had relating to Synthetic Lease matters, the Unrelated UCC-3 was covered under that remark to no lesser degree than the other documents in the pile. But for the reasons above, that generalized remark still cannot be deemed to be an authorization of any kind, or, if one reaches the issue, an authorization to terminate the Main Term Loan UCC-1. In the absence of an indication that Merjian knew that there was a document that could affect the Main Term Loan UCC-1 in the batch he received, or that Merjian intended that a UCC-3 in that batch terminate the Main Term Loan UCC-1 — and, of course, when neither JPMorgan nor GM had the belief that the Main Term Loan UCC-1 would be affected in any way — the Court cannot find Mer-jian’s comment to constitute an authorization to terminate that wholly unrelated document.
(4) The Synthetic Lease Escrow Agreement
The fourth and last of the documents that are asserted to have potential relevance is the Synthetic Lease Escrow Agreement. As with the Synthetic Lease Termination Agreement, the Synthetic Lease Closing Checklist, and the Unrelated UCC-3, the Court considers this document at two levels: again, whether was it an authorization at all, and, if so, an authorization of what.
At the first level, the Court concludes that the Synthetic Lease Escrow Agreement was indeed an authorization — to authorize the Title Company to act to implement the letter’s joint directions. But the Synthetic Lease Escrow Agreement was not a grant of an authorization to file UCC-3s. The Court so concludes because (1) the UCC-3s were not amongst the documents that were to be recorded or filed under that agreement, and (2) it was the intention of JPMorgan, GM, and the other parties to the Synthetic Lease Ter-
At the second level, the Court concludes, once again, that assuming, arguendo, that the Synthetic Lease Escrow Agreement was intended to constitute a second (and seemingly redundant) basis for authority to terminate UCC-ls, the Synthetic Lease Escrow Agreement was an authorization to terminate UCC-ls only with respect to the Synthetic Lease. It still could not be regarded as an authorization to terminate the Main Term Loan UCC-1.
Here, with respect to whether the Synthetic Lease Escrow Agreement was an authorization at all, the Court concludes that it was — though to the Title Company, not to GM or Mayer Brown. In fact, Mayer Brown, on behalf of GM, was one of the three entities granting the authorization — not the entity being authorized.
With respect to what the Synthetic Lease Escrow Agreement authorized, it authorized the Title Company to record or file specified documents (ie., the 28 Recording Documents),
Significantly, the Synthetic Lease Escrow Agreement, which by its terms gave instructions to the Title Company, did not give Mayer Brown instructions or authority to do anything. Nor, especially, did it give Mayer Brown any instructions concerning what Mayer Brown should do with the Escrow Documents that the Title Company would not file, but instead would only forward to Mayer Brown — including, as relevant here, the Unrelated UCC-3.
Finally, the Synthetic Lease Escrow Agreement described itself as relating to the Participation Agreement, ie., to the Synthetic Lease.
For all of these reasons, the Court cannot find the Synthetic Lease Escrow Agreement to be a source of authority for GM or Mayer Brown to have filed anything, including, especially, anything affecting the Term Loan.
(5) “All Circumstances Attending [Principal’s] Manifestations” to Agent
As noted above,
When the Unrelated UCC-3 was filed, there was one, and only one, “direct manifestation[ ]” of the authority granted to GM by JPMorgan here. That was the Synthetic Lease Termination Agreement, the only document embodying a grant of authority to GM. The “direct manifestation[ ]” of GM’s authority to terminate initial financing statements (which granted authority with respect to the “Financing Statements” relating to the “Properties,” each of which was a defined term in the Synthetic Lease Termination Agreement), came from the Synthetic Lease Termination Agreement, and nowhere else. Having provided the necessary grant of authority in one place (in very express terms), there was no need to express it again, and the Court can find no evidence of an intent to say it again, either in the same terms or different ones. The other asserted manifestations of authority to GM, as argued by the Committee, were not at all “direct,” if they could be regarded as manifestations at all.
The Court then considers “the customs of business, the subject matter, any formal agreement between the parties, and the facts of which both parties were aware.” No expert testimony, or other evidence, was offered as to the “customs of business,” so the Court lacks evidence of that character upon which to rely. But there is a fair amount of evidence in the record as to the remaining factors, as to which there are no disputed issues of fact, and it all points the same way.
The “subject matter” of the transaction was, as nearly every relevant document expressly stated, the termination of the Synthetic Lease. In all of the emails and underlying documents, there was no mention, before the filing of the Unrelated UCC-3, of the Term Loan or of any intent to affect the Term Loan in any way. The affidavits and deposition testimony were wholly consistent. Nobody at GM, JPMorgan, Mayer Brown or Simpson Thacher ever regarded the subject matter of the transaction as anything other than the Synthetic Lease. The Committee effectively asks the Court to conclude that JPMorgan granted authorization to GM to take action with respect to a wholly different subject matter — a wholly unrelated $1.5 billion loan — without any of the participants in the Synthetic Lease payoff ever mentioning that along the way.
Looking at any “formal agreement between the parties,” the Court comes to the same conclusion. The only formal agreement between the parties with respect to authority to file the Unrelated UCC-3, as discussed above in the Court’s discussion of direct manifestations from principal to agent, was the Synthetic Lease Termination Agreement — with respect to which the grant of authority was explicit, and equally explicit with respect to what it covered. Other documents relied upon by the Committee as sources of authorization here were not agreements. They provide no basis for the Court to conclude that JPMorgan and GM agreed to trump or supplement the one formal agreement between the parties that expressly addressed the matter of authority.
Consideration of “the facts of which both parties are aware” likewise supports JPMorgan’s contention that it did not grant authority to terminate the Main Term Loan UCC-1. Here neither principal (JPMorgan) nor agent (GM) believed or understood that JPMorgan authorized GM to terminate the Main Term Loan UCC-1. Their understandings were to the contrary. Nor were they even aware that a UCC-3 referencing an initial financing statement for the Term Loan had been filed until long after the Unrelated UCC-3’s filing, or of any extrinsic facts that would cause either to believe that GM should be terminating the Main Term
Loan UCC-1. As an additional one of the factors to be considered under Demarco, Peltz, and similar cases, “the facts of which both parties were aware” require the Court to conclude that no authorization was given.
Finally consideration of all of the circumstances in the aggregate compels a finding that authority to terminate the Main Term Loan UCC-1 was not granted. Stepping back from the more detailed analysis above, the Court sees the transaction as the payoff of a real estate financing under which the parties intended to bring the real estate financing liens to an end, without any intention to affect anything else. Neither GM nor JPMorgan intended, or believed, that their documents would affect anything else — and, more to the point, thought JPMorgan had authorized GM to affect anything else. A document now known to have related to the unrelated Term Loan was mistakenly filed by Mayer Brown. Even with delivery of a draft of that document to Simpson Thacher in advance, and Simpson Thacher’s failure to protest, the mistaken filing by Mayer Brown of that document— in the absence of recognition by either Mayer Brown or Simpson Thacher that the initial financing statement filing number appearing on it would, upon further investigation, lead to a reference to the Term Loan — does not equate to an authorization by JPMorgan or Simpson Thacher for the termination of JPMor-
(6) Understanding of the Agent
There is, in addition, one more reason why the Court cannot find termination of the Main Term Loan UCC-1 to have been authorized. That is the understanding of the agent.
As discussed above,
If Mayer Brown or GM had actually believed that either had been authorized by JPMorgan to terminate a wholly unrelated $1.5 billion financing, this would be a different case, requiring the Court to then consider whether such a belief was reasonable.
For all of these reasons, the Court concludes that GM and Mayer Brown lacked actual authority to cause JPMorgan’s Main Term Loan UCC-1 to come to an end.
(b) Helpful Caselaw
Because the consideration of indicia of a grant of authority is fact-driven, caselaw dealing with grants of authority in connection with the filing of other UCC-3s is not as helpful as it otherwise might be. But there are a few cases worthy of consideration.
In the Negus-Sons bankruptcy case,
There a secured party, Mutual of Omaha Bank (the “Bank”), had liens on a variety of collateral, some of which the Bank intended to keep and some of which it intended to release. But a Bank employee carelessly placed language in a loan payoff letter provided to a new lender, Wells Fargo Equipment Finance, stating that “[u]pon receipt of payoff all liens will be released.”
The bankruptcy court’s decision in Ne-gus-Sons-Bankruptcy, which the BAP implicitly found not to be clearly erroneous,
But while not fully on point as a factual matter (and while they engage in a factual analysis somewhat less structured than the one this Court has undertaken, pursuant to Demarco, Peltz and similar cases) the decisions by the bankruptcy and district courts in the A.F. Evans bankruptcy
The A.F. Evans cases involved a situation, like this one, in which a creditors’ committee, on behalf of the debtor’s unsecured creditor community, was jousting with a secured lender over the validity of the secured lender’s lien. As here, the secured creditor City National Bank (“City Bank”) originally had a lien on the debtor’s interests in three partnerships. When interests in two of the partnerships were sold, the debtor had asked City Bank to release its liens on those two partnership interests (in exchange for a cash payment to City Bank), leaving only the third under City Bank’s original lien. City Bank agreed. To facilitate the closing of the sale of those two partnerships, the debtor there (analogous to GM here) sent City Bank (analogous to JPMorgan here) proposed escrow instructions directed to the debtor and to a title company, First American Title Insurance Co. (“First American”), along with two proposed UCC-3s checking the box for deletion of collateral (the two partnerships being sold) but not the box for termination. The proposed instructions (analogous in many respects to the Synthetic Lease Termination Agreement here) included an exhibit containing a description of the collateral to be released upon payment to City Bank. The descriptions were limited to the two partnerships being sold, and did not include any reference to the third.
City Bank then caused the instructions to be sent to First American, accompanied by those two UCC-3s, which, again, would release collateral from the scope of the original UCC-1 but not terminate it. But thereafter, someone (presumably at First American, though no finding was made as to who the “someone” was) mistakenly checked an additional box on the UCC-3s, this time the box providing for termination,
The AF. Evans-Bankruptcy court rejected that contention. After going through California’s versions of UCC §§ 9 — 509(d), 9 — 510(a) and 9-513(d),
As the Committee here correctly observes, AF. Evans-Bankruptcy is not the same as this case in the respect that the documents City Bank reviewed and approved in that ease showed nothing wrong, and were changed thereafter. But in a key respect, it is highly relevant to what we have here. The AF. Evans-Bankruptcy court did not equate the authority City Bank had granted to file UCC-3s with respect to identified collateral (two of the three partnerships) to authority to make filings generally. Rather, it measured the agent First American’s authority by looking at the exact authority that City Bank had granted, and found authority to that extent and nothing more. As the AF. Evans-Bankruptcy court explained (referring to City Bank by the acronym “CNB”):
Therefore, First American was not CNB’s agent, except for the limited purpose of handling the closing of the escrow for the debtor’s sale to the buyer of the Westgate and Greenery partnership interests. And First American was not acting within the scope of its very limited authority from CNB when it recorded a UCC-3 Amendment statement in a form other than that which CNB had authorized.128
The decision in AF. Evans-District, which expressly dealt with this contention on appeal, and affirmed the bankruptcy court with respect to it, was to the same effect. On appeal, the AF. Evans creditors’ committee argued that City Bank gave First American broad authorization to file any “appropriate amendments” to City Bank’s UCC-1, and that First American was acting as City Bank’s agent in all matters relating to City Bank’s security interest in the debtor’s property.
As applied to this case, each of A.F. Evans-Bankruptcy and AF. Evans-District support finding authority for GM to terminate UCC-ls with respect to the “Properties” — i.e. the “Properties” that were the subject of the Synthetic Lease— but not for anything else.
2. Apparent Authority
Apparent authority is different from actual authority. Apparent authority arises from the written or spoken words or other conduct which, reasonably interpreted, cause a third party to believe that the principal consents to have an act done on the principal’s behalf by the person purporting to act for him.
Apparent authority is the power held by an agent or other actor to affect a principal’s legal relations with third parties when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal’s manifestations.134
Apparent authority does not in itself carry the consequences of actual authority with respect to the rights and duties that apply to the relationship between agent and principal.
Unlike actual authority, which considers manifestations from the principal to the agent from the perspective of the agent, apparent authority considers the conduct of the principal, and as the principal’s conduct is interpreted by a third party.
As with manifestations of actual authority made to agents,
Importantly, the inquiry requires the belief of an actual third party, who has acted in reasonable reliance on the principal’s representations as to the agent’s authority.
Here the Court finds the doctrine of apparent authority simply to be inapplicable. There here were no statements to third parties with respect to the Term Loan upon which a finding of apparent authority could be made.
3. Ratification
The Committee further contends that the filing of the Unrelated UCC-3 was ratified by JPMorgan,
As set forth in the Restatement, “ratification is the affirmance of a prior act done by another, whereby the act is given effect as if done by an agent acting with actual authority.”
Then, the Second Circuit has required the acceptance of the benefits of a transaction as an additional element beyond the requisite knowledge.
Here three elements necessary to establish a ratification by JPMorgan are missing. First, since ratification requires affirmance of a “prior act,”
Third, the acceptance of benefits requirement also has not been satisfied here. While JPMorgan benefitted from GM’s fulfillment of its duties under the Synthetic Lease, there was no comparable benefit at the time with respect to the Term Loan.
Thus the Court is unable to find a ratification here.
C. The Committee’s Other Arguments
The Court then considers other arguments put forward by the Committee to the extent they have not been addressed above.
1. Implied Authority
In one of its briefs,
Implied authority is a species of actual authority, the latter of which can be express or implied.
“Implied authority” is often used to mean actual authority either (1) to do what is necessary, usual, and proper to accomplish or perform an agent’s express responsibilities or (2) to act in a manner in which an agent believes the principal wishes the agent to act based on the agent’s reasonable interpretation of the principal’s manifestation in light of the principal’s objectives and other facts known to the agent.158
Similarly, if GM had reasonably believed that it was expressly authorized to bring the Main Term Loan UCC-1 to an end, GM likely, if not plainly, would have had implied authority to take measures to accomplish that end. But again, GM did not have such a belief. There was no actual authority — even authority that GM perceived to exist — to terminate the Main Term Loan UCC-1. For these reasons, the Court cannot find the implied authority doctrine to be applicable here.
2. “UCC Filings that Mistakenly Terminate a Security Interest Are Legally Effective. ”
Recurring themes in the Committee’s briefs are very broad statements (in one instance, as a topic heading)
Because the Committee’s contentions rest on (1) cases involving entities that made the UCC filings themselves; (2) cases that predated the 2001 amendments to UCC Article 9; and (3) cases that while decided after the 2001 amendments to the UCC, relied on the earlier authority without focusing on the fact that the UCC had changed (or some combination of those deficiencies), the Court is not in a position to accept the Committee’s broad statements as properly descriptive of the law, or to consider the underlying cases as relevant to the controversy here.
In the first category are the cases relied upon by the Committee involving erroneous filings by the secured party itself — the Fourth Circuit’s decision in Kitchin Equipment;
In the second category — cases that predated the 2001 amendments — are each of the above as well. Because they were decided under the pre-2001 statutory scheme (and also because the termination statements were filed by the secured parties themselves), none had occasion to consider the authorization requirement.
In the third category are Roswell and S.J. Cox.
S.J. Cox, a 2009 bankruptcy court decision, involved an adversary proceeding for wrongful termination of an initial financing statement, under the post-2001 statutory scheme. Here, unlike the earlier cases discussed above (where the termination statement had been filed by the secured party), a termination statement potentially ending an entity’s security interest in the debtor’s farm equipment was filed by someone else — by an employee of “Kentucky Bank” (previously known as “Peoples Bank of Sandy Hook, Kentucky”) with respect to the plaintiff Peoples Bank of Kentucky, Inc., a different entity.
This Court agrees with the S.J. Cox court that the filing of a termination statement there was unauthorized. And this Court also agrees that priority among the respective secured creditors had to be determined before deciding whether one of them was civilly liable for wrongful termination of another’s security interest — and thus that it was necessary to determine whether the plaintiff Peoples Bank’s first priority interest was affected at all. But this Court cannot agree with the remainder of the S.J. Cox conclusions, and especially its analysis.
Puzzlingly, the S.J. Cox court, when first considering the “Effect of termination of the Financing Statement,”
Additionally (perhaps by reason of its failure to consider UCC §§ 9-509(d) and 9-510), the S.J. Cox court incorrectly stated that “these provisions” (presumably the provisions of the UCC that it had quoted) “make it clear that the only party authorized to file a termination statement is the secured party of record.”
The S.J. Cox court concluded that a cause of action had been established for unauthorized termination of a UCC-1 when, because the termination was unauthorized, it should have held that there was no termination at all.
Puzzlingly, the Committee here contends that S.J. Cox is “on point” and relies on it.
Roswell, in contrast, plainly reached the right bottom line, and indeed was affirmed (on the first of its two rationales) by the Second Circuit.
Roswell involved an action by several secured lenders, for whom Roswell Capital Partners was collateral agent (the “Roswell Lenders”), to foreclose on the assets of their borrower Alternative Construction Technology, Inc. (referred to in the decision by the acronym “ACT”). The Roswell Lenders’ effort to foreclose was opposed not by their borrower ACT, but rather by assertedly secured competing lenders — an individual, James Beshara, and his sole proprietorship, JMB Associates (referred to in the decision by the acronym “JMB,” but here, for greater clarity, as the “JMB Lenders”).
The JMB Lenders extended secured credit to ACT, with respect to which they had duly filed UCC-ls, but thereafter (in June 2006) they exercised a contractual right to convert their debt into equity, and took equity in their borrower ACT instead.
The Roswell court ruled that the equity conversion extinguished the JMB Lenders’ security interest, and with it, the JMB Lenders’ lien.
But in a portion of its decision that was not endorsed by the Circuit on appeal, the Roswell court went on to set forth a second rationale for its conclusion, which was unnecessary to support Roswell’s plainly correct result.
In the second part of its legal analysis, captioned “JMB’s UCC-1 Financing Statement is Ineffective,” the Roswell court considered an additional contention by the Roswell Lenders: that ACT’s filing of a UCC-3 termination statement had canceled the JMB Lenders’ previously filed UCC-ls. Deciding the matter with reference to the Florida UCC (which conformed to the UCC generally), the Roswell court rejected the JMB Lenders’ contention “that the termination statement was ineffective because [the JMB Lenders] did not authorize ACT to file it.”
Even if the termination statement was not authorized by JMB, it nonetheless extinguished any perfected security interest JMB had in the Collateral.191
And it declined to consider a factual argument with respect to whether authorization was lacking, stating that:
This argument need not be considered given that even if the UCC-3 termination statement was unauthorized, it nonetheless extinguished any perfected security interest JMB held in the Collateral after the conversion.192
Unlike the court in S.J. Cox, the Roswell court made reference to the proper statutory provisions, including the Florida equivalents of UCC §§ 9-509 and 9-510,
More specifically, the Roswell court repeated S.J. Cox’s statements (each based on pre-2001 law) that “[t]he termination of a financing statement, even if mistaken, releases the secured creditor’s hen against the debtor’s property,”
This clear rule accords with the policy of the UCC. Potential creditors must be able to rely on termination statements filed in the public record, even if they were filed in error or without authorization,195
It thereafter continued with the statements quoted above to the effect that even if the UCC-3 termination statement was unauthorized, it nonetheless extinguished any perfected security interest the JMB Lenders had in their collateral.
Like others,
The Roswell court further stated that “[t]he UCC therefore places the burden of monitoring for potentially erroneous UCC-3 filings on existing creditors, who are aware of the true state of affairs as to their security interests, rather than potential creditors who will not be in a position know whether a termination statement was authorized or not.”
However in this respect also, the Court cannot agree. “Notice filing” is indeed the regime under the UCC, as recognized in the UCC’s Official Comments,
Then, the Roswell court believed, erroneously in this Court’s view, that notice filing applies only to UCC-ls. Rejecting the JMB Lenders’ contentions (based on the UCC’s Official Comments and Credit Bancorp), that because the UCC had adopted notice filing, the Roswell Lenders were required to further investigate the filing of the UCC-3, the Roswell court stated:
The problem with JMB’s argument is that Credit Bancorp and the Official Comments refer only to “financing statements,” and not to termination statements.201
But the Court believes the Roswell conclusion that flowed from that to be incorrect. As noted above,
Finally, if there were a duty on the part of secured lenders to monitor their UCC filings to protect them from improper termination, one must ask what would a secured lender do if it discovered anything? By then, under the Roswell rationale, termination of the secured lender’s security interest — which by Roswell’s reasoning would have taken place even if unauthorized — would already have transpired.
The concerns this Court voiced with respect to Roswell’s second rationale were
The Toobro court did so by reference to UCC §§ 9-509(d) and 9-510.
The Toobro court then addressed Roswell, in a lengthy footnote, disagreeing with Roswell for much the same reasons this Court has done so.
For these reasons, the Court is unable to agree that there is a general principle of law that “UCC Filings that Mistakenly Terminate a Security Interest Are Legally Effective.” The question is rather whether they have been authorized. That issue must be addressed in the manner this Court addressed it above. For the reasons there set forth, the requisite authority was lacking.
TV.
Certification to Circuit
On rare occasions, a direct appeal from a bankruptcy court to the court of appeals makes sense. In the Court’s view, this is one of those occasions where the Circuit might want to consider that as an option.
In that connection, 28 U.S.C. § 158 grants a court of appeals jurisdiction to hear appeals from final judgments of the bankruptcy court under certain circumstances. First the bankruptcy court (acting on its own motion or on the request of a party to the judgment), or all the appellants and appellees acting jointly, must certify that—
(i) the judgment, order, or decree involves a question of law as to which there is no controlling decision of the court of appeals for the circuit or of the Supreme Court of the United States, or involves a matter of public importance;
(ii) the judgment, order, or decree involves a question of law requiring resolution of conflicting decisions; or
(iii) an immediate appeal from the judgment, order, or decree may materially advance the progress of the case or proceeding in which the appeal is taken....217
Then the court of appeals decides whether it wishes to hear the direct appeal.
In this case, the Court considers each of the three bases for a certification to be present.
With respect to the first prong, the decision here is one of law based on undisputed facts, presented to the Court on cross motions for summary judgment, as to which there is no controlling decision by
With respect to the second prong, available authorities, while helpful to a point, came nowhere close to addressing a factual situation of this nature. The issues were complicated by broad language in the case-law, much of which, in this Court’s view, should no longer be regarded as having validity in cases involving UCC filings by an entity other than the secured party. Though the Court believes that the authorities may be harmonized, in part, and many may be distinguished on their facts, broad language in many of those cases required resolution of conflicting decisions. The Court has declined to follow the reasoning of the second rationale of Roswell, which, if it were regarded as anything other than dictum, would result in a conflict between lower courts in the Second Circuit.
With respect to the third prong, the Court believes that an immediate appeal from the judgment in this adversary proceeding is likely to advance the progress of the GM case. The outcome of this controversy may have a material impact on unsecured creditor distributions, and will obviously have a material effect on secured creditor distributions. A second level of appeal (which would otherwise be likely, given the stakes of the controversy) would have a foreseeable adverse effect on the timing and finality of creditor distributions.
Conclusion
The Court concludes, based on the undisputed facts and under the applicable law, that JPMorgan did not authorize the termination of the UCC-1 with respect to the Term Loan, and that anything JPMor-gan said or did in connection with the payoff of the Synthetic Lease was not effective in bringing the UCC-1 securing the Term Loan to come to an end.
The Court is certifying its judgment for direct appeal to the Second Circuit.
[[Image here]]
Notes
. When GM’s Plan of Reorganization (the "Plan”) was confirmed, after this adversary proceeding was commenced, the Committee's right to pursue this litigation devolved to one of several trusts created under the Plan — the "Avoidance Action Trust.” For simplicity, the Court continues to refer to the plaintiff here as the Committee.
While the Committee continues as plaintiff, there is a controversy, not yet resolved, as to the rights to any proceeds of this litigation. Although the United States Treasury ("Treasury”) disclaimed a lien on the litigation proceeds when it extended its DIP financing, Treasury later contended that it could nevertheless reach those proceeds ahead of GM’s unsecured creditors by reason of Treasury’s rights to a “superpriority” claim. This Court's determination in favor of the Committee as to that contention, on cross-motions for summary judgment in a separate adversary proceeding (brought by the Committee to address unsecured creditors’ tax needs at the time, and to avoid prosecuting an action that if successful but benefitting someone else
. Appearances by the Lenders in this adversary proceeding were deferred while threshold issues, addressed in this decision, were addressed.
. Other things can include the continuation of an earlier initial financing statement, the assignment of a security interest, or the deletion of identified collateral. But one of the boxes that can be checked on a UCC-3 (Box 2, "Termination”) can provide for the effectiveness of an initial financing statement to be wholly brought to an end. When UCC-3 filings so provide, they are normally referred to as "termination statements.” See n. 72 below.
. Neither the terms of the Synthetic Lease, nor the nature of synthetic leases generally, is relevant to the controversy here- — except insofar as it is important to recognize, and agreed by the parties, that the Synthetic Lease financing was wholly unrelated to the Term Loan, and that the only thing they had in common was that UCC-ls were filed with respect to each.
By way of background only, a synthetic lease is a financing transaction under which an asset (most commonly real property) is acquired not by its user but a by a separate entity (often a special purpose vehicle) which then leases the asset to the ultimate user. A synthetic lease has been described as:
A lease which is arranged so that it is not shown as a liability on a company's balance sheet but as an expense on the income statement. The item or asset being leased is owned by a special purpose vehicle (SPV) which then leases it to the company. The SPV is usually owned by the company.
Reuters Financial Glossary, available at http:// glossary.reuters.com/index.php?title= Synthetic-Lease (last viewed 2/28/2013).
. An image of the Unrelated UCC-3 is attached to this decision as Appendix A.
. The Main Term Loan UCC-1 was not the only initial financing statement that had been filed when the Term Loan was put in place. The Term Loan documentation also included UCC-1 filings relating to fixtures, and one relating to assets of one-time GM subsidiary, Saturn. But the Main Term Loan UCC-1, which covered, among other things, all of the equipment and fixtures at 42 GM facilities, was by far the most important of them.
. References to the briefs on the Committee’s motion appear here as Comm. Partial SJ Br.-; JPMorgan Partial SJ Opp.-; and Comm. Partial SJ Reply-(ECF ## 26, 48, and 55, respectively). References to the briefs on JPMorgan’s motion appear here as JPMorgan SJ Br.-; Comm. SJ Opp.-; and JPMorgan SJ Reply-(ECF ## 29, 45, and 56, respectively).
. The Committee moves for partial summary judgment only, recognizing that other UCC-Is with respect to the Term Loan remained in place, covering some other collateral as to which JPMorgan and the Lenders would remain secured. But while the value of the other collateral would need to be determined at a later time, the consequences of invalidation of the Main Term Loan UCC-1 are enormous, and the Committee’s desire to secure even partial summary judgment under the present circumstances is understandable.
.Crestar Bank v. Neal (In re Kitchin Equip. Co. of Virginia, Inc.),
. In much of its argument, the Committee states the issue differently — speaking in terms of the effects of mistakes and contending that UCC filings that mistakenly terminate security interests are legally effective. See Comm. Partial SJ Br. 11-14; Comm. SJ Opp. 4; Comm. Partial SJ Reply 15-16. For reasons addressed below, the Court believes that under the UCC as amended in 2001, that misstates the issue.
. To avoid further lengthening this decision, record citations are limited to quotations and the most significant matters. The parties’ very detailed and often very technical presentations of the facts in their affidavits and Rule 7056-1 Statements have been compressed and restated to more clearly tell the story.
. Being mindful of the Second Circuit's admonitions that summary judgment should be awarded sparingly when matters involving state of mind are involved, see, e.g., Patrick v. LeFevre,
.Parties to the Participation Agreement were GM, as Lessee (and Construction Agent); Auto Facilities Real Estate Trust 2001-1 (the "Trust”), as Lessor; Wilmington Trust Company ("Wilmington Trust”), as Trustee; certain named entities, as "Investors”; other named entities, as "Backup Facility Banks”; an entity called “Relationship Funding Company, LLC”; and Chase Manhattan Bank (to which JPMorgan was successor), as Administrative Agent.
. The other 26 were localized fixture filings, in the various counties in the United States where fixture collateral was located.
. Gordon Dep. 6 (Callagy Decl. Exh. 4); 9/30/08 Sundaram Email (Callagy Decl. Exh. 12).
. Gordon Dep. 12.
. 10/1/08 Gordon Email (Callagy Decl. Exh. 12).
.Synthetic Lease Termination Agreement (Duker Aff. Exh. L) (reformatted for readability). The second paragraph of the Synthetic Lease Termination Agreement, which was paraphrased in the preceding paragraph, and from which the quoted language was taken, stated in full:
In consideration of ONE DOLLAR ($1.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby confessed and acknowledged, the undersigned, each of which is a party to one or more of the agreements identified as the Operative Agreements, hereby agree that (i) each of such Operative Agreements and any Commitment thereunder is hereby terminated and is discharged and of no further force or effect as of the date hereof, and (ii) the Administrative Agent and the Lessor do hereby (x) release all of their Liens and Lessor Liens against the Properties created by the Operative Agreements, (y) acknowledge that such Liens and Lessor Liens are forever released, satisfied and discharged and (x) [sic.; seemingly should be z] authorize Lessee to file a termination of any existing Financing Statements relating to the Properties.
Id. (emphasis added).
. See 1/6/2003 Participation Agreement First Amendment (Duker Aff. Exh. E) at JPMCB-STB-00000918-920 exh. A (six warehouses in Bolingbrook, IL; Reno, NV; Denver, CO; Ontario, CA; Brandon, MS; and Charlotte, NC, respectively; a transmission parts distribution center in Indianapolis, IN; two parking decks in Detroit, MI; an engine plant in Flint, MI; an office building in Grand Blanc, MI; and a vacant parcel of land in Detroit, MI).
. Annex A provided:
*609 ''Financing Statements” means, collectively, the Lessor Financing Statements and the Lessee Financing Statements.
Participation Agreement Annex A (Duker Aff. Exh. B) at 17 (emphasis by italics added; underlining, to signify defined terms that would thereafter be used, in original). It additionally provided definitions for the two terms used there:
"Lessor Financing Statements” means UCC financing statements made by Lessor, as debtor, and Administrative Agent, as secured party, appropriately completed and executed for filing in the appropriate state and county offices in the State where the applicable Property is located and the State of Delaware.
Id. at 26 (underlining, to signify defined terms that would thereafter be used, in original).
"Lessee Financing Statements” means UCC financing statements made by Lessee, as debtor, and Lessor, as secured parly, appropriately completed and executed for filing in the appropriate state and county offices in the State in which each Property is located and the State of Delaware, as the same shall be assigned to the Administrative Agent on behalf of the Secured Parties pursuant to such Lessee Financing Statements.
Id. (underlining, to signify defined terms that would thereafter be used, in original). It should be recalled that as used in the Participation Agreement, the "Lessor” was Auto Facilities Real Estate Trust 2001-1; the "Lessee” was GM, and the Administrative Agent was Chase, the predecessor to JPMorgan. Id. at 3, 26.
. Annex A provided:
"Property” or “Properties” means either individually or collectively, as the case may be, each parcel of Land (including all Appurtenant Rights attached thereto) or, in the case of Land subject to a Ground Lease, the ground leasehold estate to be acquired by the Lessor pursuant to the provisions of the Participation Agreement, as more particularly described in the Requisition and the Memorandum of Lease and Supplement with respect to such Land, together with all of the Improvements at any time located on or under such Land, or multiple parcels of Land with Improvements, as the context may require.
Id. at 35 (emphasis by italics added; underlining, to signify defined terms that would thereafter be used, in original).
. Synthetic Lease Closing Checklist, 10/15/08 Green Email Attachment (Callagy Decl. Exh. 15).
. Green Dep. 8 (Callagy Decl. Exh. 2).
. Synthetic Lease Closing Checklist.
. Id. at 4.
. Perlowski Dep. 10-11, 40-41 (Callagy Deck Exh. 1).
. Id.
.10/15/2008 Sundaram Email (Callagy Deck Exh. 13); 10/15/2008 Merjian Email (Callagy Deck Exh. 15); 10/15/2008 Merjian Ledyard Email (Callagy Deck Exh. 16); 10/21/2008 Merjian Ledyard Email (Callagy Deck Exh. 17).
. Draft Unrelated UCC-3 Email Attachment (Callagy Decl. Exh. 16) at JPMCB-STB-00000206.
. Gonshorek Dep. 20.
. Unrelated UCC-3 (Fisher Deck Exh. X).
. Id. The remainder of Line 9 continued: "(name of assignor, if this is an Assignment). If this is an Amendment authorized by a Debt- or which adds collateral or adds the authorizing Debtor, or if this is a Termination authorized by a Debtor, check here [] and enter name of DEBTOR authorizing this Amendment.”
. Gonshorek Dep. 20.
. 10/15/2008 Merjian Ledyard Email.
. 10/17/2008 Merjian Email (Fisher Decl. Exh. T).
. Signatures by counsel for GM, JPMorgan and the Trust were followed by a signature block for the Title Company, in a different form. It said:
The undersigned acknowledges receipt of these recording instructions and agrees to proceed in strict accordance therewith,
(block caps in original converted to ordinary text for readability).
. So far as the Court can tell, there were no material differences in the Synthetic Lease Escrow Agreement as between its draft as initially circulated by GM counsel Mayer Brown and its execution version. If there were any changes at all, in fact, neither the Committee nor JPMorgan has called the Court’s attention to them.
. Synthetic Lease Escrow Agreement, 10/24/2008 Wineman Email Attachment (Cal-lagy Decl. Exh. 18).
. Id.
. Gordon Dep. 20.
. Synthetic Lease Escrow Agreement at 1 (bold face, for defined terms, in original; emphasis by italics added).
. Id.
. Id. (bold face, for defined term, in original).
. Id. at 4.
. See id. at 5-6. Section C began:
As soon as possible after the release of the Funds pursuant to Section B above, you are instructed to record (or file, as applicable) the documents below (the "Recording Documents”) with the appropriate recording office in the applicable state in the following order as to each Property:
Id. at 5 (bold face, for defined term, in original). It then listed the Recording Documents, which were 23 of the 47 documents that were to be delivered to the Title Company. Neither the Unrelated UCC-3, nor any of the other
. Id. at 6 (as set forth at the beginning of Section D, "Immediately following closing, any extra original documents and copies of all Escrow Documents shall be forward to the counsel for GM, except for those documents which have been forwarded to the recorder’s office (in which case certified copies of the foregoing shall be forwarded to the counsel for GM).”).
. 10/27/2008 Merjian Email (Fisher Decl. Exh. V).
. See Appendix A.
. Gordon Aff., 6/19/09 Email Attachment (Callagy Decl. Exh. 11).
. See Gordon Dep. 66.
. See Green Dep. 99.
. Hoge Aff. ¶ 11.
. See Green Dep. 88-89; Perlowski Dep. 40-41; Gonshorek Dep. 47-48; Hoge Aff. ¶ 12.
. To the extent that the Committee might be successful in this adversary proceeding, the amount paid to JPMorgan and the Lenders would be subject to recapture, as provided in the final DIP Financing Order when the payoff of the Term Loan was authorized. In that event, after the return of the amount previously paid on what was thought to be a duly secured claim, the Lenders would still have a claim for the Term Loan debt, but would have only an unsecured claim, sharing pari passu with the many billions of dollars of other unsecured claims in GM's chapter 11 case.
. Fed.R.Civ.P. 56(a), made applicable to this adversary proceeding by Fed. R. Bankr.P. 7056; see also Anderson v. Liberty Lobby, Inc.,
. See Rodriguez v. City of New York,
. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
. See Matsushita,
. See Anderson,
. Id.
. Bronx Household of Faith v. Board of Educ. of City of New York,
. The Main Term Loan UCC-1 and the Unrelated UCC-3 were each filed in Delaware, as was required because GM was a Delaware corporation, which thus was deemed to be "located” in Delaware by reason of its organization there under UCC §§ 9-301 and 9-307. Thus, strictly speaking, Delaware law governs the perfection of JPMorgan’ security interest, the effect of perfection or nonperfection, and the priority of JPMorgan’s security interest in collateral. See UCC § 9-301(1).
The Term Loan documentation had a New York choice of law provision. But while it would govern matters of enforcement or interpretation of that agreement as between JPMorgan and GM, it would not govern the matters just described.
. 6 Del. C. § 9-101 et seq. It became effective in Delaware on July 1, 2001, the day that had been recommended as the effective date by the National Conference of Commissioners on Uniform State Laws, which was also the day (presumably for that reason) that the revised Article 9 became effective in New York.
. See n. 83 below.
. The Committee properly notes (Comm. Partial SJ Br. 10) that if a security interest is unperfected as of the time of the petition, it will be trumped by the statutory lien of a trustee or debtor in possession under section 544 of the Bankruptcy Code. But that is not debated by JPMorgan. The issue here is rather whether or not the Lenders' previously perfected lien remained so.
. See Comm. SJ Opp. 12 ("Of course, if JPMorgan had analyzed and appreciated the consequences of the UCC filing, it never would have permitted Old GM’s counsel to cause the Term Loan Termination Statement to be filed.”).
. See Harry C. Sigman, The Filing System Under Revised Article 9, 73 Am. Bankr.L.J. 61, 70-71 (1999) ("Sigman ").
. 6 Del. C. § 9-509(d).
. 6Del. C. § 9-510(a).
. 6 Del. C. § 9-513(d).
. (emphasis added).
. UCC § 9-102(39) (6 Del. C. § 9-102(39)), one of UCC Article 9's many definitions, defines a "financing statement.” That section provides:
"Financing statement” means a record or records composed of an initial financing statement and any filed record relating to the initial financing statement.
(emphasis added). Similarly, UCC § 9-102(79) (6 Del. C. § 9-102(79)), another of UCC Article 9's definitions, defines a "termination statement.” That section provides:
“Termination statement” means an amendment of a financing statement which:
(A) identifies, by its file number, the initial financing statement to which it relates; and
(B) indicates either that it is a termination statement or that the identified financing statement is no longer effective.
Failures to focus on the distinction between an “initial financing statement” and a “financing statement,” and on the fact that a "termination statement” is one kind of a “financing statement,” have introduced error into the caselaw, most significantly in one of the cases relied upon by the Committee, Roswell Capital Partners LLC v. Alternative Construction Technologies,
. See, in addition to UCC §§ 9-509 and 9-510, Official Comment 3 to UCC § 9-502, as enacted in Delaware and elsewhere. It provides, in relevant part:
The fact that this Article does not require that an authenticating symbol be contained in the public record does not mean that all filings are authorized. Rather, Section 9-509(a) entitles a person to file an initial financing statement, an amendment that adds collateral, or an amendment that adds a debtor only if the debtor authorizes the filing, and Section 9-509(d) entitles a person other than the debtor [sic.; query whether it should say "secured party of record”] to file a termination statement only if the secured party of record authorizes the filing. Of course, a filing has legal effect only to the extent it is authorized. See Section 9-510.
6 Del. C. § 9-502 cmt. 3 (emphasis added).
. In its opening brief on its motion for partial summary judgment, the Committee argues that "the filing of a termination statement renders ineffective the financing statement to which the termination relates and causes the subject lien to become un-perfected.” Comm. Partial SJ Br. 9. For its failure to address the critical requirement of authorization, and the exception expressly articulated in UCC § 9 — 513(d), that statement is an overly general, and consequentially inaccurate, statement of the present law. See discussion at page 60 below.
Pre-2001 caselaw that the Committee argues supports such a generalization, see, e.g., In re Silvernail Mirror & Glass, Inc., 142 B.R. 987 (Bankr.M.D.Fla.1992) {“Silvernail”), analyzed the issues under a different statutory scheme, and cannot be relied on in instances where the changes in the UCC matter. Language in other post-2001 decisions upon which the Committee relies, Peoples Bank of Kentucky, Inc. v. U.S. Bank, N.A. (In re S.J. Cox Enterprises, Inc.), 2009 Bankr.LEXIS 4573,
.Sigman, n. 67 above, 73 Am. Bankr.L.J. at 71.
. Hawkland’s Uniform Commercial Code Series {"Hawkland’’) § 9-510:2[Rev] (2012) (emphasis added).
Roswell has language, arguably dictum, to the contrary. For a discussion of this Court’s inability to agree with Roswell in this and other respects, see the discussion beginning at page 64 below.
. See their report, reprinted in Hawkland Art. 9 [Rev.] App. C.
. Id.
. Id. (italics in original, used to indicate an addition, deleted).
. Id. (italics in original, used to indicate an addition, deleted; apparent omitted text added in brackets).
. 6 Del. C. § 9-102.
. 6 Del. C. § 1-201.
. See Official Comment 3 to UCC § 9-509 (6 Del. C. § 9-509 cmt. 3) (“Law other than this Article, including the law with respect to ratification of past acts, generally determines whether a person has the requisite authority to file a record under this section.”); accord UCC § 9-502 cmt. 3 (6 Del. C. § 9-502 cmt. 3) (same).
Unless displaced by the particular provisions of the Uniform Commercial Code, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, es-toppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause supplement its provisions.
(emphasis added).
. Neither the Committee nor JPMorgan suggests that there is any relevant statutory law in this regard. The principles emerge from caselaw, and caselaw-driven authorities such as the Restatement of Agency.
. Another type, "implied" authority, which is a species of actual authority, is discussed at page 58 below.
. Hidden Brook Air, Inc. v. Thabet Aviation Intern., Inc., 241 F.Supp.2d. 246, 260 (S.D.N.Y.2002) ("Hidden Brook Air”) (under New York law) (quoting Minskoff v. American Exp. Travel Related Servs. Co.,
. Restatement (Third) of Agency (''Restatement”) § 2.01 (2006); see also id. § 3.01 ("Actual authority, as defined in § 2.01, is created by a principal's manifestation to an agent that, as reasonably understood by the agent, expresses the principal’s assent that the agent take action on the principal’s behalf.’’).
. Demarco v. Edens,
. Demarco,
. Restatement, § 2.01 cmt. c.
. Restatement, § 2.02 cmt. e.
. Id.
. See Merex A.G. v. Fairchild Weston Systems, Inc.,
In another case, Opp v. Wheaton Van Lines, Inc.,
. See page 32 & nn. 88-89 above.
. With respect to the other two documents (the Synthetic Lease Closing Checklist and the Unrelated UCC-3), the Court cannot even find that.
. See n. 18 above.
. See n. 21 above.
. See n. 20 above, quoting the original definitions.
. See Comm. Partial SJ Br. 14 ("The draft of the Term Loan Termination Statement [i.e., the Unrelated UCC-3] indicated that the effectiveness of the Term Loan Financing Statement is terminated and identified JPMorgan as the secured party of record authorizing the termination.”).
. See n. 99 above.
. Addressing one of the important premises for its arguments here, the Committee argues that:
In this case, the Term Loan Termination Statement [z.e., the Unrelated UCC-3] stated unambiguously that the Term Loan Financing Statement was terminated with respect to the security interest of JPMorgan, the secured party of record authorizing its filing.
See Comm. Partial SJ Br. 13. But that is not quite correct. The words “Term Loan Financing Statement” or "Term Loan” never appeared on the Unrelated UCC-3. The Committee’s argument rests on what might have been learned in the multi-step inquiry process if any of Simpson Thacher, JPMorgan, Mayer Brown or GM had engaged in one.
. See n. 45 above.
. See page 19 above.
. See n. 46 above.
. In its briefing and at oral argument on these motions, see Comm. SJ Opp. 6 n. 6, Comm. Partial SJ Reply 11, and Arg. Tr. at 31-32 (ECF # 63), the Committee asked rhetorically, in substance, if the remainder of the Escrow Documents were not being returned for filing, what were they returned for? Certainly the filing of at least some of them was foreseeable — though many more documents were to be returned than were, or could be, filed. But the fact remains that the Synthetic Lease Escrow Agreement embodied no authority for GM to do anything with respect to documents so returned, whether the filing of any of them was foreseeable or not.
. See nn. 38 and 39 above.
. See page 32, above.
. Demarco,
. The Committee asserts that the Synthetic Lease Termination Agreement does not say that it is the sole source of authority to GM, and that it lacked an integration clause — and thus that the Committee is not foreclosed from relying on other documents as sources of authority. Comm. SJ Opp. 9 n. 9; Comm. Partial SJ Reply 14-15. The Court agrees with the Committee that it is not so foreclosed, and has assumed, consistent with De mar-co, Peltz and similar cases, that if there were any other formal agreements likewise speaking to a grant of authority, the Court should consider them as well. For these reasons, the
. Collateral Agreement § 7.13 (Duker Aff. Exh. H).
. Collateral Agreement § 4.03.
. Term Loan Agreement § 10.01 (Duker Aff. Exh. G).
. See page 33 & n. 91 above.
. See Restatement § 2.02 cmt. e. Though under the facts here, any such belief, if it existed, would be absurd, the Court is uncertain whether the absurdity of the agent’s belief can be decided on a summary judgment motion when reasonableness is at issue. That issue need not be decided here, of course, because those on the GM side did not have a belief that JPMorgan had authorized the termination of its security interest on the unrelated Term Loan, reasonable or otherwise.
. Here the "actual authority” that the Committee asks the Court to find is ultimately based on the results of an investigative process that never happened. It is not based on anything JPMorgan said or signed, or that GM believed. It rather is the result of a logical syllogism resulting from Simpson Thacher’s failure to protest when it saw GM's draft UCC-3 listing a particular initial financing statement filing number, when if Simpson Thacher, Mayer Brown, or either of their clients had investigated and tracked down the referenced UCC-1, and then investigated further to ascertain the financing to which that UCC-1 related, they would have discovered that the UCC-1 in question related not to the Synthetic Lease but rather to the Term Loan. That is not a proxy for actual authority, which requires the reasonable belief by the agent that it has been authorized to act in the respect at issue.
. The Committee also relies on "implied authority,” which is a species of actual authority. Because the Committee asserts this as a separate contention, the Court considers it as such, and deals with it below. See page 58 below.
. See Lange v. Mutual of Omaha Bank (In re Negus-Sons, Inc.), 2011 Bankr.LEXIS 2378,
. Negus-Sons-Bankruptcy, 2011 Bankr.LEXIS 2378, at *12,
. The Bank contended that its authorization was more limited, referring only to its equipment collateral and not its entire security interest. See 2011 Bankr.LEXIS 2378, at *9-10,
This letter is to confirm that upon receipt of funds from Wells Fargo Equipment Finance, Inc. for the entire payoff of all accounts that you agree to terminate your security interest in all the collateral with all the companies listed above and forward all titles to the following address:
We have prepared an amendment to your UCC filing(s) to effectuate these terminations. Please indicate your consent to the filing of these amendments, and your authorization for us to file them on your behalf, by signing in the space provided below....
Id. (emphasis added).
.The BAP stated that "[t]he record supports the bankruptcy court’s determination that Wells Fargo had the authority to terminate [the] financing statements.” Negus-Sons-BAP,
The BAP also stated that in light of its rulings, it did “not need to address the more general question of whether unauthorized termination statements are effective,” id. at 757, though it went on to say that it was hesitant to endorse the holding in Roswell, which "appears to be contrary to the plain language of the Uniform Commercial Code.” Id. at 757 n. 10; see also this Court's discussion of Roswell, beginning at page 64 below.
. Other cases involving termination of UCC-ls by entities acting (albeit without authority) on behalf of secured lenders, S.J. Cox and Roswell, are in this Court's view erroneously decided, and thus are inappropriate for discussion in this context. The Court addresses them below, in the context in which the Committee relies upon them, beginning at pages 61 and 64, respectively.
. See Official Committee of Unsecured Creditors v. City National Bank, N.A. (In re A.F. Evans Co.), 2009 Bank.LEXIS 2473,
. See 2009 Bankr.LEXIS 2473, at *2-3,
. See 2009 Bankr.LEXIS 2473, at *5,
. See 2009 Bankr.LEXIS 2473, at *6,
. 2009 Bankr.LEXIS 2473, at *8,
. 2009 Bankr.LEXIS 2473, at *10,
. Id. (emphasis added).
. A.F. Evans-District,
. Id. ("City National Bank hereby releases all of its right, title and interest in [Westgate and Greenery] and authorizes the filing of appropriate amendments to [the] UCC Financing Statement.
. Id. (emphasis added).
. A.F. Evans-Bankruptcy is also noteworthy for its view that it should not rely on two decisions upon which the Committee relies here, by the Ninth Circuit BAP and Ninth Circuit, respectively, in Koehring Co. v. Nolden (In re Pacific Trencher & Equipment, Inc.),
. Hidden Brook Air, 241 F.Supp.2d. at 261.
. Restatement § 2.03.
. Id. cmt. a.
. Minskoff v. American Exp. Travel Related Services Co., Inc.,
. Hallock v. State of New York,
. Hallock, 64 N.Y.2d at 231, 485 N.Y.S.2d 510,
. See page 32 & n. 89 above.
. Restatement § 2.03 cmt. c ("A principal’s conduct does not occur in a vacuum. A third party's reasonable understanding of the principal’s conduct will reflect general business custom as well as usage that is particular to the principal’s industry and prior dealings between the parties.”).
. Restatement § 2.03 cmt. c.
. See Providence College,
. Comm. SJ Opp. 18-19; Comm. Partial SJ Reply 13.
. Restatement § 4.01(1); see also Holm v. C.M.P. Sheet Metal, Inc.,
. Restatement § 4.01(2).
. Adelphia Recovery Trust v. HSBC Bank USA,
. Restatement § 4.06
. Id. cmt. b. This actual knowledge is in contrast to "notice” as used in the Restatement, which includes not just knowledge of a fact, but also reason to know the fact, having received an effective notification of the fact, or there existing circumstances under which a person "should know” the fact to fulfill a duty owed to another person. See Restatement % 1.04(4).
. Holm, 89 A.D.2d at 233,
. See, e.g., Rodonich v. House Wreckers Union Local 95,
. See Monarch Insurance Co. of Ohio v. Insurance Corp. of Ireland Ltd.,
. Restatement § 4.01(1).
. Restatement § 4.06.
. See Comm. SJ Opp. 11.
. See Nationwide Life Ins. Co. v. Hearst/ABC-Viacom Entertainment Services,
. Nationwide,
. Id. (quoting 1979 version of Black’s Law Dictionary); Hidden Brook Air,
.Restatement § 2.01 cmt. b. The two circumstances are not mutually exclusive. Id.; see also Vig v. Deka Realty Corp.,
.At the end of its implied authority argument, the Committee states that "this case concerns an uncontested agency relationship between JPMorgan and Old GM, pursuant to which Old GM was authorized to make UCC filings on behalf of JPMorgan.” Comm. SJ Opp. 15 n. 12. That statement, while technically true, suffers from its excessive breadth, and a failure to state other uncontested, and critical, facts. GM was authorized "to make UCC filings” only with respect to the "Financing Statements” relating to the "Properties” — which, as discussed above, were those with respect to the Synthetic Lease alone. See the Synthetic Lease Termination Agreement and its definitional cross-references, quoted at nn. 18-21 above.
. See Comm. Partial SJ Br. 11-14 (“Even If Mistaken, The Term Loan Termination Statement is Legally Effective”); see also Comm. SJ Opp. 4 ("JPMorgan acknowledges, as it must, the consistent authority holding that UCC filings that mistakenly terminate a security interest are legally effective.”); Comm. Partial SJ Reply 15-16 ("[A] termination statement that is filed by mistake, like the Term Loan Termination Statement at issue in this case, is legally effective.”).
. Comm. Partial SJ Br. at 9.
. See n. 160 above.
. See n. 9 above.
. See n. 132 above.
. See n. 74 above.
. Rock Hill National Bank v. York Chemical Industries, Inc. (In re York Chemical Industries, Inc.),
. In re Hampton, 2001 Bankr.LEXIS 2060,
. J.I. Case Credit Corp. v. Foos,
. See Kitchin Equipment,
. See n. 74 above.
. 2009 Bankr.LEXIS 4573, at *1-2,
. 2009 Bankr.LEXIS 4573, at *15,
. 2009 Bankr.LEXIS 4573, at *13-14,
. 2009 Bankr.LEXIS 4573, at *8,
. Ky.Rev.Stat. § 355.9-509(1).
. Ky.Rev.Stat. §§ 355.9-509(4) and 355.9-510, respectively.
. It did quote UCC § 9-513, Ky.Rev.Stat. § 355.9-513, in part, including quotation of UCC § 9-513(d), Ky.Rev.Stat. § 355.9-513(4), but failed to take note of the clause at the beginning of that subsection, "[e]xcept as otherwise provided in KRS 355.9-510 [UCC § 9-510].”
. S.J. Cox, 2009 Bankr.LEXIS 4573, at *10-11,
. 2009 Bankr.LEXIS 4573, at *11,
. Likewise, a UCC treatise has observed that S.J. Cox was incorrectly decided. See Hawkland § 9-509:4[Rev] n0.50 ("court seems to hold, incorrectly, that the filing actually terminated the financing statement”).
. See Comm. Partial SJ Reply 17-18.
. Though the second rationale was addressed by each side in its briefing to the Second Circuit, the Circuit did not speak to the second rationale, upon which the Committee here relies.
. Roswell,
.
.
.
.
. Roswell Capital Partners LLC. v. Beshara,
. The discussion of the second rationale began "[wjhile JMB’s failure to show that it had any enforceable security interest in the Collateral at the time the Plaintiffs filed their UCC-1 financing statements in July 2007 permits summary judgment to be awarded to the Plaintiffs, the parties dispute as well the validity and effect of ACT’s filing ... of the UCC-3.” Roswell, 2010 U.S. Dist, LEXIS 90695, at *21,
Roswell's second rationale has been described in a UCC treatise as “troubling dictum.” Hawlcland § 9-510:2[Rev] at n. 1.50. But the Court does not need to decide whether or not it was dictum, because district court decisions are not binding on bankruptcy courts, except with respect to any district court mandate pursuant to an appeal.
. Roswell,
.
.
. Fla. Stat. §§ 679.509 and 679.510, respectively.
.
. Id. (emphasis added).
. See Negus-Sons-BAP,
.
. As stated in Official Comment 2 to UCC § 9-502, which addresses the sufficiency of a financing statement:
This section adopts the system of "notice filing.” ... The notice itself indicates merely that a person may have a security interest in the collateral indicated. Further inquiry from the parties concerned will be necessary to disclose the complete state of affairs.
. SEC v. Credit Bancorp, Ltd.,
. Roswell was cited approvingly with respect to “notice filing” in a recent North Carolina case, Ward v. Bank of Granite (In re Hickory Printing Group, Inc.),
Roswell's "notice filing” analysis, see id. at 398, and its endorsement of Roswell's statements as to burdens on the part of secured creditors to maintain their perfected liens, see id. at 404, for the reasons stated above. Nor can the Court agree with the overly broad language in Hickory Printing based on Kitchin Equipment, Pacific Trencher, York Chemical, and Silvernail.
In cases like Hickory Printing (but unlike the one here) where the UCC-3 is filed by the secured party itself, and not by a debtor or other third party (and thus where authorization is not at issue), pre-2001 cases may still have vitality. But they do not support the "notice filing” conclusions the Roswell court reached, and the Hickory Printing court endorsed.
.
. See page 28 & n. 72 above.
. Emphasis added.
. The Roswell court seemed to believe that a provision of the UCC imposing civil liability
.
.
.
.
.
.
.
.
. Id.
. The Toobro court stated, in this connection:
In Roswell Capital, the SDNY court considered but distinguished the "notice filing” comment of UCC § 9-502 stating that it "refer[s] only to financing statements,’ and not to termination statements.” See2010 LEXIS 90695 *24, n. 14. This distinction is inconsistent with the definitions of "financing statement” and "termination statement” under Article 9. See UCC §§ 9-102(39), (79).... Since a termination state*646 ment is a record "relating to the initial financing statement,” it is part of a "financing statement” as this term is defined by the UCC. See UCC § 9-102(39). Consequently, the "notice filing” comment of UCC § 9-502 applies to termination statements.
Id.
. Id. Toobro's holding was approved in a UCC treatise. See Hawldand § 9-510:2 at n. 1.50 ("court correctly held that termination statement filed by a person not authorized to do so by secured party was ineffective to terminate financing statement even though it might mislead searchers; court declined to follow troubling dictum to the contrary in [.Roswell ]”).
. The Court need not lengthen this decision further by specifically addressing any of the other contentions raised by the Committee on these motions. The Court has canvassed them and satisfied itself that no material points other than those it has specifically addressed were raised and require discussion. To the extent those points were not expressly addressed in this decision, they must be rejected.
Similarly, in light of its conclusions, the Court does not need to address JPMorgan's constructive trust argument, or any of the other bases upon which JPMorgan asserted that it should prevail.
. 28 U.S.C. § 158(d).
. Id.; see also In re General Motors Corp.,
. In one of its earlier decisions in the GM case, see the Sale Appeal Certification Decision,
This Court did so because while GM’s well-being and that of its suppliers, as a business matter, had substantial public importance, the legal issues were not particularly debatable. The 363 Sale Decision was a straightforward application of controlling authority in the Second Circuit (if not also elsewhere)— including five published decisions of the Second Circuit on the 363 Sale issue, and the Circuit’s oral affirmance of Chrysler (on a direct appeal) on the successor liability issue. See Sale Appeal Certification Decision,
Here, by contrast, the Court had much less in the way of available caselaw — and none from the Circuit — with which to work. Also, though the Court is mindful of its earlier statement in the Sale Appeal Certification Decision that appellate courts “review judgments, not statements in opinions,”