Zimmerling v. Affinity Financial Corporatiopn, et al. (Lawyers Weekly No. 11-097-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   13-P-1439                                       Appeals Court   WILLIAM ZIMMERLING  vs.  AFFINITY FINANCIAL CORPORATION, & others.[1] No. 13-P-1439. Middlesex.     April 8, 2014.  –  August 18, 2014.   Present:  Berry, Katzmann, & Sullivan, JJ. Practice, Civil, Action to reach and apply.  Escrow.  Uniform Commercial Code, Security interest, Secured creditor.  Words, “Transferee,” “Interest in property.”       Civil action commenced in the Superior Court Department on November 24, 2010.   The case was heard by Joseph M. Walker, III, J., on motions for summary judgment, and entry of final judgment was ordered by Kenneth W. Salinger, J.     Brian T. Moore, of Colorado (W. Matthew Iler, Jr., with him) for the plaintiff. Thomas M. Elcock (Thomas Sutcliffe with him) for the interveners.      SULLIVAN, J.  This appeal concerns the enforceability of security interests in funds deposited in an escrow account pursuant to an order of a judge of the Superior Court.  The plaintiff, William Zimmerling (Zimmerling), and the interveners, BHC Interim Funding II, LP, and BHC Interim Funding III, LP, (collectively BHC), are creditors of Affinity Financial Corporation (Affinity).  Zimmerling and BHC both lay claim to money owed to Affinity by AARP Financial, Inc. (AARP Financial).  At issue is whether BHC’s perfected security interests in the funds held by AARP Financial were extinguished because they were transferred from an AARP Financial bank deposit account to a court-ordered escrow account.  See G. L. c. 106, § 9-332(b) (2001) (UCC § 9-332).[2]  We conclude that the BHC security interests in the escrowed funds were not extinguished, and affirm the judgment awarding the amounts held in escrow to BHC. Background.  The case was decided on cross motions for summary judgment based on an undisputed record.  In 2008 BHC advanced funds totalling $ 13.5 million to Affinity.  Loan documents and security agreements were executed in connection with each of the two loans.  Zimmerling does not dispute that these documents created valid security interests, that the security interests were perfected on or about January 15, and April 28, 2008, and that the security interests covered assets, after-acquired assets, and proceeds of assets. By March of 2010 Affinity had defaulted on the loans, and BHC declared Affinity to be in default.  Affinity’s assets were insufficient to pay the loans.  Affinity also owed money to Zimmerling, who had successfully arbitrated a claim for breach of an employment contract against Affinity.  The Zimmerling award was confirmed by […]

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