Crocker v. Delta Group, Inc.

McGEE, Judge. In this case, the parties stipulated the value of the real property purchased by Delta was $3,738,500 and the value of the personal *586 property purchased was $611,500. On appeal, plaintiff argues the trial court erred in determining he had no security interest in the personal property transferred as part of the 1985 sale. Plaintiff further argues that because he had a security interest in the personal property, the anti-deficiency statute does not bar recovery from the defendants to the extent of his security interest in the personal property. We hold plaintiff did not have a security interest in the personal property and affirm the judgment of the trial court. Plaintiff alleges that the purchase contract, when read together with the financing statement, constitutes a security agreement. We disagree. The determination of whether a security interest exists is a two-step process. First, the court must determine as a question of law whether the language in the writing required by N.C. Gen. Stat. § 25-9-203 objectively indicates that the parties intended to create a security interest. If the statute of frauds requirement is met, then the factfinder must determine whether the parties actually intended to create a security interest. In re Murray Brothers, Inc., 53 B.R. 281, 285 (Bankr. E.D.N.C. 1985). Plaintiff failed to show a valid security interest under both prongs of this test. The fact that the parties did not execute a separate instrument denominated as a “security agreement” is not fatal to plaintiffs claim, Little v. Orange County, 31 N.C. App. 495, 497, 229 S.E.2d 823, 825 (1976), and our Supreme Court has held that separate writings may be considered together to satisfy the statute of frauds requirement. See Evans v. Everett, 279 N.C. 352, 183 S.E.2d 109 (1971). However, at a minimum, the writings claimed to be a security agreement must: (1) “contain language clearly manifesting the debtor’s intent to create, grant, and provide for a security interest;” (2) bear the debtor’s signature; (3) describe the obligation secured; (4) describe the collateral subject to the security interest; and (5) describe the land-involved if the security interest covers crops or timber. Id. at 360,183 S.E.2d at 114. Here, the writings fail to fulfill these requirements. The promissory note in favor of Cabana East states it is a purchase money note and does not mention personal property. Instead, it states it is secured by a deed of trust. The deed of trust in favor of Cabana East states it is a purchase money deed of trust and only lists a description of real property as security for the note. *587 The financing statement in this case, standing alone, does no more than meet the requirements of N.C. Gen. Stat. § 25-9-402, and therefore, does not create a security interest in the personal property. Evans, 279 N.C at 358, 183 S.E.2d at 113. The only writing that could conceivably be read in conjunction with the financing statement to create a security agreement is the purchase agreement. However, language in the contract stating the buyer “will execute UCC Financing forms” falls far short of “clearly manifesting the debtor’s intent to grant, create, and provide for a security interest” as required by Evans. See In re Murray Brothers, Inc. 53 B.R. at 284-85 (“Since a financing statement may be filed for reasons other than the perfection of an existing security interest, the filing of a financing statement alone is not enough to create a security interest.”). Further, neither the financing statement nor the clause in the purchase agreement describe the obligation alleged to be secured by the personal property. See Evans, supra; see also 8A Ronald A. Anderson, Anderson on The Uniform Commercial Code § 9-203:99 (3rd ed. 1996) (“A written security agreement must identify the debt or obligation for the securing of which the security interest has been given.”). Therefore, the writings in this case fail as a security agreement as a matter of law. We also note plaintiff failed to satisfy the second prong of the Murray Brothers test, i.e., convincing the factfinder that the parties intended to create a security interest. The trial court found as a fact that “the parties did not agree in the contract that the purchase money note would be secured by any personal property.” “[T]he trial court’s findings of fact have the force and effect of a verdict by a jury and are conclusive on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary.” Fortis Corp. v. Northeast Forest Products, 68 N.C. App. 752, 753-54, 315 S.E.2d 537, 538 (1984). Here, the note and the deed of trust did not mention a security interest in the personal property and the parties never executed a separate security agreement. Further, plaintiff’s former attorney testified in his deposition it was his understanding that the note was secured only by real property, and that there would be no further recourse against Delta if the property sold for less than the amount of the debt at a foreclosure sale. Also, after default but before foreclosure, plaintiff’s former attorney sent defendants’ attorney a letter stating he had “no problem with [defendants] removing items of personal property” from the premises, but that “no item which can be considered a fixture” could be removed. Although there was also *588 some evidence to the contrary, this evidence supports the trial court’s finding-that the parties did not agree the note would be secured by personal property. The trial court’s finding is therefore binding on this Court. Because plaintiff failed to perfect a security interest in the personal property, as a purchase money creditor his recovery upon foreclosure was limited to the sale proceeds. Merritt v. Edwards Ridge, 323 N.C. 330, 336, 372 S.E.2d 559, 563 (1988). Even though the foreclosure of the senior deed of trust eroded the security for plaintiff’s purchase money deed of trust, plaintiff is barred by the anti-deficiency statute from bringing an in personam action against Delta for the outstanding debt. N.C. Gen. Stat. § 45-21.38; Sink v. Egerton, 76 N.C. App. 526, 333 S.E.2d 520 (1985). Plaintiff is also barred by the statute from bringing an action against the Andersons as guarantors of the note. See Adams v. Cooper, 340 N.C. 242, 460 S.E.2d 120 (1995) (anti-deficiency statute bars action against guarantors of purchase money note for balance of purchase price represented by the note.). For the reasons stated, the judgment of the trial court ordering plaintiff recover nothing from the defendants is affirmed. Affirmed. Judges WYNN and JOHN concur.