Judge Nugent

11-05239 Davis, Trustee v. Brown et al (Doc. # 50) - Document Text

SIGNED this 19th day of September, 2012.



IN RE: )
MICHELLE R. BROWN, ) Case No. 11-12293
) Chapter 7
Debtor. )

CARL B. DAVIS, Trustee )
Plaintiff, )
vs. ) Adversary No. 11-5239

Defendants. )



Case 11-05239 Doc# 50 Filed 09/19/12 Page 1 of 14

These are cross-motions for summary judgment filed by the trustee, Carl B. Davis, and the
defendant Legacy Bank on the Trustee’s complaint to avoid the Bank’s security interest in Michelle
Brown’s ownership interest in the Kansas Medical Center, L.L.C.1 The Bank claims to have a lien in
her 7 units of that company; the controversy here arises because it described those units on all of its
security documents as “7 shares of preferred stock.” The Trustee filed a five-count complaint. In Count
I, the Trustee seeks to determine the secured status of the Bank in the units and, in Count IV, he
invokes his hypothetical lien creditor powers under 11 U.S.C. § 544(a) in his attempt to avoid this lien.
The other counts seek turnover of the units, leave to sell them under 11 U.S.C. § 363(f), and the
marshaling of assets. The parties made no mention of the turnover, sale or marshaling counts in their
summary judgment motions. The Court concludes that Brown’s interest in the LLC is a general
intangible and that, while the Bank’s description of it is somewhat inaccurate, it still meets the
“reasonable identification” standard of KAN. STAT. ANN. § 84-9-108. The Bank’s Assignment and
Control Agreement are therefore sufficient to effect attachment and the financing statement it filed
perfected the Bank’s security interest in Brown’s LLC units.2


The trustee’s complaint to determine the validity of the Bank’s lien in the debtor’s LLC units
and to avoid that lien under 11 U.S.C. § 544 is a core proceeding over which this Court may exercise
subject matter jurisdiction.3

1 On July 10, 2012, the Court heard oral argument on the motions. The trustee Carl Davis
appeared by counsel Kenneth Jack. Legacy Bank appeared by counsel Creath Pollack.

2 Unless otherwise indicated all statutory references are to the Uniform Commercial Code
[UCC] as adopted in Kansas, specifically Kansas Statutes Annotated (2011 Supp.), chapter 84,
articles 8 and 9.

3 28 U.S.C. § 157(b)(1) and (b)(2)(K) and § 1334(b).


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Summary Judgment Standards

Fed. R. Civ. P. 56(c), incorporated in adversary proceedings by Fed. R. Bankr. P. 7056, directs
the entry of summary judgment in favor of a party who “shows that there is no genuine dispute as to
any material fact and that the movant is entitled to a judgment as a matter of law.” The Court’s function
in reviewing a motion for summary judgment is to first determine whether genuine disputes as to
material facts exist for trial. In making this determination, the Court may not weigh the evidence nor
resolve fact issues.4 Once the Court determines which facts are not in dispute, it must then determine
whether those uncontroverted facts establish a sufficient legal basis upon which to grant movant
judgment as a matter of law.5

This matter is well-suited to summary determination where the uncontroverted material facts
are established by the documentary evidence submitted by the parties. There is no dispute here how
the debtor’s ownership interest in the LLC was characterized and described on the relevant security
documents. The task for this Court is to determine whether that description was sufficient as a matter
of law, applying the relevant provisions of the Uniform Commercial Code.


The following facts are undisputed and are established by the documentary evidence submitted.
Dr. Michelle Brown borrowed $315,000 from the Bank in July of 2010. She gave the Bank a note and
executed two security documents: an Assignment of Investment Property/Securities (Assignment) and

4 First Sec. Bank of New Mexico, N.A. v. Pan Am. Bank, 215 F.3d 1147, 1154 (10th Cir. 2000)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)); Concrete Works of Colo., Inc. v. City and Cnty
of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (Court may not resolve disputed questions of fact at
the summary judgment stage).

5 E.E.O.C. v. Lady Baltimore Foods, Inc., 643 F.Supp. 406, 407 (D. Kan. 1986) (Even if there
are no genuine issue of material fact, the movant still has the burden to show it is entitled to
judgment as a matter of law.).


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an Uncertificated Securities Control Agreement (Control Agreement).6 She executed a financing
statement that the Bank filed with the Secretary of State. The terms of the note refer to it being secured
by, among other things, an “Assignment of Investment Property/Securities - KANSAS MEDICAL
CENTER, LLC.”7 The note also references a “Security Agreement” signed by Dr. Brown. The
Assignment and Control Agreement are part of the record on summary judgment; the security
agreement is not.

Paragraph 2 of the Assignment reads “To secure the payment . . . of the [note], I assign and
grant a security interest to you in all of the Property described in this Agreement that I own . . . .”
Paragraph 3 defines the “Property” as “Investment Property/Securities: 7.000 shares of Preferred Stock
Street, Andover, KS 67002 recorded in my name.” Other than proceeds and replacements, no other
property is described in the Assignment. The Control Agreement was signed by the Bank, Dr. Brown,
and a representative of Kansas Medical Center, Steven Hadley. Kansas Medical Center is referred to as
the Issuer and, in the agreement, the Issuer agrees “to comply with the instructions originated by the
Secured Party without further consent by the Debtor.” The property that is subject to the agreement
“includes the following Investment Property and all proceeds and products . . .” and describes the
“7.000 shares of Preferred stock” referenced in the Assignment. Dr. Brown executed and the Bank filed
a financing statement that refers to”Margin Stock/Securities (uncertificated): 7.000 shares of preferred
W 21st Street, Andover, KS 67002 recorded in Debtor’s [Brown’s] name.”8

6 Adv. Dkt. 21-1 (Note); 21-2 (Assignment); and 21-4 (Control Agreement)

7 Adv. Dkt. 21-1, ¶ 10.

8 Adv. Dkt. 21-6.


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Dr. Brown owned 7 units in the LLC.9 She did not own shares of preferred stock in it–no stock
was issued. The LLC’s operating agreement, filed under seal here, makes no provision for the issuing
of stock; rather those members contributing capital received units, defined as “an instrument used for
purposes of determining certain votes and making certain allocations of profits and losses.” There are
no “instruments” in the summary judgment record.

Included among the exhibits in support of the Bank’s summary judgment motion are two letters,
one dated January 24, 2012 from KMC’s counsel to the Bank’s counsel, together with a list of members
in KMC showing Dr. Brown’s ownership of 7 “units” in the LLC, and a second letter dated July 28,
2010 from the Bank’s vice-president addressed “To Whom It May Concern” stating the Bank’s
agreement to be bound by KMC’s Operating Agreement in the event the Bank pursues remedies under
Dr. Brown’s Security Agreement and “takes control or ownership of the ‘Units’ pledged.”10 In reliance
on that exhibit, the Bank asserts as fact that the ownership interests in KMC are uncertificated, issued
and maintained by KMC.11 The trustee admits that fact. The Bank also asserts that the July 28, 2010
letter is “part of the Control Agreement.”12 The trustee admits the authenticity of the July 28 letter but
denies that it is part of the Control Agreement, citing to the existence of an integration clause in the
Control Agreement and the lack of execution of the letter by the debtor and KMC. These letters reflect
that as between KMC and the Bank, the parties recognized and accurately characterized Dr. Brown’s
ownership interest in KMC as 7 “units.” Why this description of Dr. Brown’s interest in the LLC was
never used on the security documents remains a mystery.

9 Adv. Dkt. 21-3, p.2.

10 Adv. Dkt. 21-3, Ex. C.

11 Adv. Dkt. 21, p. 2, ¶ 3.

12 Adv. Dkt. 21, p. 2, ¶ 6.


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1. The LLC units are general intangibles, not investment property.
Both parties focus their arguments on whether the LLC units are adequately described in the
security documents, both assuming for purposes of that discussion that the collateral is “investment
property.” In doing this, they both skip a critical step in the Article Nine analysis: determining into what
collateral “type” or category the LLC units fall.13 Because these units are not securities as that term is
defined in Article Eight, they are not investment property; rather, they are general intangibles.14

The Bank’s documents refer to the units variously as “investment property,” “uncertificated
securities,” or “margin stock.” The units are none of these things. The term “investment property” is
defined in § 84-9-102(a)(49) of the UCC as “a security, whether certificated or uncertificated. . . .” A
“security” is defined in Article Eight at § 84-8-102(a)(15) and its definition applies in Article Nine by
virtue of § 84-9-102(b). A “security” is defined as an “obligation of an issuer or a share, participation
or other interest in an issuer or in property or an enterprise of an issuer” “except as otherwise provided
in K.S.A. § 84-8-103.”15 KAN.STAT.ANN.§ 84-8-103(c) expressly excludes LLC units like those at issue

13 See KAN. STAT. ANN. § 84-9-102(a)(12) (defining collateral as the property subject to a
security interest. Types of collateral include goods, § 84-9-102(a)(44); inventory, § 84-9-102(a)(48);
farm products, § 84-9-102(a)(34); equipment, § 84-9-102(a)(33); general intangibles, § 84-9102(
a)(42); accounts, § 84-9-102(a)(2); chattel paper, § 84-9-102(a)(11); investment property, § 84-9102(
a)(49); consumer goods, § 84-9-102(a)(23); and payment intangibles, § 84-9-102(a)(61).

UNIFORM COMMERCIAL CODE, ¶2.04[7] (3rd ed. 2011); See also In re Turley, 172 F.3d 671 (9th Cir.
1999) (stock that auto racer had to buy as member of auto racing franchise was general intangible
under UCC, not a certificated security); In re Mintz, 192 B.R. 313 (Bankr. D. Mass. 1996) (debtor’s
interest in limited partnership and corresponding distribution rights were not uncertificated
securities, but instead were general intangibles); In re Dreiling, 2007 WL 172364; No. 05-64189
(Bankr. W.D. Mo. Jan. 18, 2007) (Debtors’ interest in a Kansas limited liability company was a
general intangible).

15 KAN. STAT. ANN. § 84-8-102(a)(15).


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here from the definition of “security.”16 It states –

(c) An interest in a partnership or limited liability company is not a security unless it is dealt in or
traded on securities exchanges or in securities markets, its terms expressly provide that
it is a security governed by this article, or it is an investment company security.
However, an interest in a partnership or limited liability company is a financial asset if
it is held in a securities account.17
None of the conditions listed in § 8-103(c) are met by the units in question here. The units are not
traded on any market and the operating agreement makes no provision for Article Eight to apply to
them. KMC is a hospital, not an investment company. Because these units are not securities under
Article Eight, they cannot be investment property under Article Nine.

Instead, these units are general intangibles. That term is defined at § 84-9-102(a)(42) as –
any personal property, including things in action, other than accounts, chattel paper,
commercial tort claims, deposit accounts, documents, goods, instruments, investment
property, letter-of-credit rights, letters of credit, money, and oil, gas, or other minerals

before extraction. The term includes payment intangibles and software.18
As these units fit none of the enumerated exclusions, particularly investment property, they fall into the
catch-all category of personal property and are general intangibles.

The Bank’s Assignment and Control Agreement suffice (just barely) to attach a
security interest in general intangibles.
In order for a security interest to attach to collateral, it must be enforceable. Section 9-203(b)
sets out three requirements for enforceability. First, the secured party must give value.19 Second, the
debtor must have rights in the collateral.20 And, third, some form of security instrument describing the

16 See OFFICIAL UCC COMMENT 4, § 84-8-103(c).
17 KAN. STAT. ANN. § 84-8-103 (emphasis added).
18 KAN. STAT. ANN. § 84-9-102(a)(42) (emphasis added).
19 § 84-9-203(b)(1).
20 § 84-9-203(b)(2).


Case 11-05239 Doc# 50 Filed 09/19/12 Page 7 of 14

collateral must be executed (or “authenticated” in UCC parlance) or the secured party have taken
possession of it.21 There is no dispute that the first two conditions are met here: the Bank lent Brown
money and she owned the LLC units. What is hotly disputed is whether the Bank’s interest attached.
The dispute turns on the poor job the Bank did in describing Brown’s collateral.

Attachment occurs if one of four conditions is met. They are: (1) the debtor signs a security
agreement that describes the collateral;22 (2) the collateral “is not a certificated security” and is in the
secured party’s possession under § 9-313 pursuant to the security agreement;23 (3) the collateral is a
registered certificated security and the secured party takes delivery of the certificate under § 8-301;24 or

(4) the collateral is investment property of which the secured party has control under§ 9-106.25 The
trustee argues that the collateral is not adequately described and therefore doesn’t meet the requirements
of the first condition, § 9-203(b)(3)(A), while the Bank claims that it has “possession” of the collateral
under the Control Agreement under § 9-203(b)(3)(B). Because the units are not securities in registered
form, the third condition plainly does not apply.26 And, because the units are not investment property,
the attachment by control provisions in § 9-203(b)(3)(D) do not apply either.
The Bank documents, taken together, amount to “a security agreement that provides a

21 § 84-9-203(b)(3).
22 § 84-9-203(b)(3)(A).
23 § 84-9-203(b)(3)(B).
24 § 84-9-203(b)(3)(C).
25 § 84-9-203(b)(3)(D).
26 See § 8-102(a)(4) defining a “certificated security” as a security that is represented by a

certificate and § 8–102(a)(18) defining an “uncertificated security” as a security without a certificate.


Case 11-05239 Doc# 50 Filed 09/19/12 Page 8 of 14

description of the collateral.”27 None of the documents is entitled “security agreement” but the
Assignment contains granting language that states: “To secure the payment and performance of the
Secured Debts, I [Brown] assign and grant a security interest to you in all of the Property described in this Agreement
that I own . . . .” The note’s terms include a statement that it will be secured by separate security
instruments, including an “Assignment of Investment Property/Securities - KANSAS MEDICAL
CENTER, LLC.”28 The Assignment’s terms also refer only to investment property or securities,
specifically 7.000 shares of Preferred stock in the LLC: there is no catch-all provision that might be read
to incorporate general intangibles into its reach.29 Both the note and the Assignment authorize the Bank
to file a financing statement covering the “Property” to perfect its security interest.30 The Control
Agreement “includes” in the described collateral reference “the following Investment Property . . .,”
followed by the more specific description of 7 shares of preferred stock recorded in Brown’s name and
held by the LLC.31 The use of the word “includes” leaves open the possibility that other UCC types of
collateral might be included. The collateral is both miscategorized as investment property and
misdescribed as preferred stock.32 Preferred stock is issued by a corporation to accord its holders
preference over the holders of common stock in the distribution of dividends or, in the event of

27 § 9-102(a)(72) defines a “security agreement” as an agreement that creates or provides for
a security interest while § 1-201(a)(35) states that a “security interest” means an interest in personal
property that secures payment or performance of an obligation.

28 Adv. Dkt. 21-1, p. 2, ¶ 10.

29 Adv. Dkt. 21-2, p. 1, ¶ 3.

30 Adv. Dkt. 21-1, p. 3, ¶ 12; Adv. Dkt. 21-2, p. 2, ¶ 10.

31 Adv. Dkt. 21-4, p. 1, ¶ 2.

32 The title of the Control Agreement also misdescribes Brown’s interest in the LLC as

“Uncertificated Securities.”


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liquidation, assets. Limited liability company units are issued to investors in LLC’s to evidence members’
relative rights in the distribution of profits and liability for losses. Only if the Court can conclude that
the Bank’s note, Assignment, and Control Agreement, read together as a security agreement, contain
descriptive terms that point to Dr. Brown’s equity interest in KMC can it conclude that the Bank’s
security interest attached. But because the Bank used the wrong UCC collateral type-word “investment
property” in its security documents, the sufficiency of the description is rightly open to question.

The collateral description serves the purpose of identifying that part of the debtor’s property
which the secured party’s lien encumbers. UCC § 9-108(b) provides the yardstick for judging whether
a description is adequate to the task. If it “reasonably identifies” the collateral, it is. Collateral is
reasonably identified if it is identified by a “specific listing,” category, UCC collateral type, quantity,
computational formula, or “any other method, if the identity of the collateral is objectively
determinable.” The Bank’s description is “specific” but inaccurate because it refers to 7 shares of
preferred stock in a LLC – LLCs don’t issue stock. The Bank chose the wrong category and UCC
collateral type-word – LLC units aren’t securities, preferred stock or investment property. The
Assignment does identify the correct quantity of ownership units, though it calls them shares of
preferred stock. It is silent as to computational method. The Control Agreement’s property reference
“includes” investment property, opening the possibility that KMC might be retaining something other
than securities. That leaves the question under § 9-108(b)(6): whether the identity of the units is
“objectively determinable.” Does the description “do the job assigned to it: make possible the
identification of the collateral described?”33

Kansas case law in this area is sparse, but on point. The Bank relies heavily on John Deere Co. v.
Butler Co. Implement, Inc., where the Kansas Supreme Court considered whether a lender’s security

33 § 84-9-108, OFFICIAL UCC COMMENT 2.


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agreement that referred to a John Deere dealer’s inventory and new and used equipment as listed on
certain exhibits included after-acquired property.34 Finding no after-acquired language, the court had no
hesitation finding that the lender’s security interest did not attach to after-acquired property. However,
the bank’s second security agreement that described the collateral as the dealer’s interest in “all
equipment, used equipment and parts inventory” was held to include the debtor’s equipment inventory,
even though the bank did not employ the “inventory” category in the description. Referring to the
Kansas comments to former § 84-9-110, the precursor to § 9-108, the court held that a description in
a security agreement must be such that it allows third persons, “aided by reasonable inquiries which the
instrument itself suggests, to identify the property.”35 If the document “gives clues sufficient that third
persons by reasonable care and diligence may ascertain the property covered, it is adequate.”36
Concluding that “equipment “ commonly describes what implement dealers sell and that the security
agreement’s clear reference to equipment “now owned or hereafter acquired” clearly referred to
equipment that might be acquired in the future for resale, the court held that the failure of the bank to
use the word “inventory” to describe its collateral was not fatal to the bank’s claim to the dealer’s
inventory. The Trustee responds that the John Deere case does not apply here because in that case, the
security agreement referred to equipment that existed; here the security agreement referred to preferred
stock that never existed.

34 232 Kan. 273, 655 P.2d 124 (1982), partially superseded by statute on other grounds, Bank of
Kansas v. Hutchinson Health Serv., 246 Kan. 83, 785 P.2d 1349 (1990)(K.S.A. § 44-717(c) was amended
after John Deere to bring interpleader actions within its reach; this statute and the portion of the John
Deere decision addressing its applicability in that case has no bearing on the instant case before this

35 Id. at 282.

36 Id. See also, § 84-9-110 (1996), KANSAS COMMENT, 1996. OFFICIAL UCC COMMENT 2 to
current § 84-9-108 notes that the current statute “retains substantially the same formulation” as the
former version, § 84-9-110.


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Professor Clark comments that the John Deere court “may have gone too far in holding that a
misclassification of farm machinery held by a dealer for sale as equipment rather than inventory was not
a fatal error in description” and that “another court might conclude that an error in generic description
is fatal, given the separate Article 9 categories and the ease with which the creditor could avoid the
problem . . . .”37 Like the Kansas Supreme Court, this Court does not “condon[e] the careless
draftsmanship giving rise to this issue.”38 And, like Professor Clark, I find it hard to justify the repeated
mischaracterization of these not-uncommon assets when the Uniform Commercial Code so clearly
states into what category they fall. Clearly, the Bank presumed Brown’s interests in the LLC were
“uncertificated securities” and relied on its preprinted forms instead of common sense in documenting
its lien in Brown’s 7 LLC units.39 That said, while the Assignment “lacks [accurate] details,” it “gives
clues” that would allow a third party to ascertain what property of Dr. Brown’s she pledged to repay the
note. The language of the note, the Assignment, and the Control Agreement all suggest that she
intended to pledge her interest in Kansas Medical Center, LLC. Her name and address are supplied; a
third party could make inquiry of her. Likewise, the name and address of the issuer, KMC, are also
supplied. A third party could easily contact the hospital or its representatives for further information.
Finally, the quantum of Brown’s interest in the LLC was accurately depicted, even if its legal nature was

If the point of a reasonable description in the security documents is to make what part of the

UNIFORM COMMERCIAL CODE, ¶2.03[3][a] (3rd ed. 2011).

38 232 Kan. at 282.

39 Had the Bank used a common security agreement form and claimed a lien in Brown’s
“general intangibles” or “all of debtor’s interest in Kansas Medical Center, LLC” this would be a
much simpler case.


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debtor’s property is encumbered “objectively determinable,” the facts in this case support my
concluding that this description suffices to attach the security interest. Dr. Brown owned no stock, but
she did own 7 units in the LLC. The security instrument described the number of units and identifies
the issuing entity as a limited liability company. As LLCs typically do not issue “stock,” a reader could
reasonably conclude that the “preferred stock” was, in fact, a membership interest. The Trustee admits
that KMC issued and maintained the membership units and did not controvert that KMC wrote a letter
to the Bank stating as much. And, there is no doubt that these units are what Dr. Brown offered and
what the Bank received as security for the repayment of its note.

The Assignment, the Control Agreement, and the correspondence allow me to conclude that
Dr. Brown granted an interest in her 7 “shares” of Kansas Medical Center, LLC. The reference to stock
is incorrect, but not fatally misleading. It suggests that Dr. Brown owns, and has pledged, her 7 units
of “equity” interest in the company -- the nature of that interest is “objectively determinable.” By an
admittedly thin margin, the Bank’s description “reasonably identifies” the collateral under § 9-108 and
therefore complies with § 9-203(b)(3)(A). The Bank’s security interest attached to Dr. Brown’s 7 units
in Kansas Medical Center, LLC.

3. The Bank’s financing statement perfected its security interest in the LLC units.
A security interest in general intangibles may only be perfected by filing a financing statement.40

40 § 84-9-310(a). See also In re Turley, 172 F.3d 671 (9th Cir. 1999) (stock that auto racer had to
buy as member of auto racing franchise was general intangible under UCC, not a certificated
security, and could only be perfected by filing financing statement; bank’s possession of stock
certificate did not perfect security interest and was without consequence); In re Mintz, 192 B.R. 313
(Bankr. D. Mass. 1996) (debtor’s interest in limited partnership and corresponding distribution rights
were not uncertificated securities and bank was not required to perfect security interest therein under
Article 8 of the UCC, but by filing a financing statement for general intangibles under Article 9); In re
Dreiling, 2007 WL 172364; No. 05-64189 (Bankr. W.D. Mo. Jan. 18, 2007) (Security interest in
debtor’s interest in Kansas limited liability company was a general intangible and required to be
perfected by filing a financing statement).


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A financing statement is sufficient to perfect a security interest when it contains the names of the debtor
and the secured party, and when it “indicates the collateral covered.”41 The “indication” of the collateral
is sufficient if it meets the description standards set out in § 9-108.42 The Bank’s financing statement
exhibits yet more “careless draftsmanship” by referring to the collateral as “margin stock/securities
(uncertificated)” and describing it as “7.000 shares of preferred stock” in Kansas Medical Center.43 But
the statement also contains KMC’s address and correctly identifies the number of shares of interest that
Dr. Brown owns. The misnomers “margin stock,” “uncertificated securities,” and “preferred stock” are
not enough to render the financing statement seriously misleading and, as set out above, the description
meets the requirements of § 9-108, if only by a hair.


The Bank’s security documents successfully attached and perfected its security interest in
Michelle Brown’s membership units in Kansas Medical Center, LLC. There are no issues of material fact
and the Bank is entitled to judgment as a matter of law. The Trustee’s motion for summary judgment
is therefore DENIED and the Bank’s motion for summary judgment is GRANTED. Partial judgment
for the Bank on Counts I and IV of the Trustee’s complaint will be entered. A judgment on decision
will issue forthwith.

The Trustee is directed to prepare and submit an agreed final pretrial order on Counts II, III,
and V of his complaint not later than 28 days from the entry of this order and the Clerk is directed to
set this proceeding for final pretrial conference and trial thereafter.

# # #

41 § 84-9-502(a).

42 § 84-9-504(a) (adopting § 9-108's “reasonably identifies” description standard).

43 Adv. Dkt. 21-6.


Case 11-05239 Doc# 50 Filed 09/19/12 Page 14 of 14


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