Florida/Georgia Personal Injury & Workers Compensation

...have by bringing this adversary proceeding within three days of making its reclamation demand. Therefore, only the first requirement — that of Klondike's statutory or common law right to reclaim the ice cream — remains for decision by this Court. Section 672.702(2) of the Florida Statutes [3] provides the statutory basis for Klondike's assertion of a right of reclamation. As stipulated, Klondike discovered that Debtor received the ice cream bars on credit while insolvent and made a reclamation demand within 10 days of Debtor's receipt of the ice cream bars. Section 672.702(3) of the Florida Statutes, [4] however, limits any right of reclamation when there has been an intervening buyer in ordinary course or other good faith purchaser....

...98, 50 L.Ed.2d 99 (1976); Lavonia Mfg. Co. v. Emery Corp., 52 B.R. 944, 946 (E.D.Pa.1985); In re Diversified Food Serv. Distribs., 130 B.R. 427, 429 (Bankr.S.D.N.Y.1991). See, also, 4 Collier on Bankruptcy, ¶ 546.04 at 546-20 — 546-21. Klondike attempts to avoid the limitation of Section 672.702(3) of the Florida Statutes arguing that a change in statutory language which predates this case removes Barclays from the ambit of Section 672.702(3). Section 672.702(3) of the Florida Statutes formerly provided the reclaiming seller's right of reclamation was subject not only to the rights of a buyer in ordinary course or other good faith purchaser but also to the rights of a lien creditor. Since "or lien creditor" has now been removed from Section 672.702(3) of the Florida Statutes, Klondike contends its right of reclamation is not subject to Barclays' rights. Klondike's contention is without merit. Despite the removal of "or lien creditor" from Section 672.702(3) of the Florida Statutes, Klondike's right of reclamation remains subject to Barclays' rights because Barclays, as stated above, qualifies as a good faith purchaser. Section 672.702(3) of the Florida Statutes, however, does not extinguish Klondike's right of reclamation but merely makes that right "subject to" Barclays' perfected preexisting lien. Neither party has cited, nor has this Court found, any Florida cases interpreting Section 672.702(3)....

...There are, however, non-Florida cases interpreting the precise section of the Uniform Commercial Code (§ 2-702(3)) now before the Court. "`[S]ubject to' . . . means the right is subordinate or inferior to the security interest . . ." Pester Ref. Co. v. Ethyl Corp. (In re Pester Ref. Co.), 964 F.2d 842, 846 (8th Cir.1992). Section 672.702(3) of the Florida Statutes has the effect of placing Klondike's rights behind, or subject to, Barclays' rights in the collateral....

...ion to a seller with such a right of reclamation that has made such a demand only if the court — (A) grants the claim of such a seller priority as a claim of a kind specified in section 503(b) of this title; or (B) secures such claim by a lien. [3] Section 672.702(2) of the Florida Statutes provides: Where the seller discovers that the buyer has received goods on credit while insolvent he may reclaim the goods upon demand made within 10 days after the receipt . . . [4] Section 672.702(3) of the Florida Statutes provides: The seller's right to reclaim under subsection (2) is subject to the rights of a buyer in ordinary course or other good faith purchaser under this chapter ....

...f the value of the existing building" within the meaning of City of Fort Lauderdale Ordinance section 104.3(e). Application of the ordinance created a constructive total loss, because it required that the building be torn down and the site elevated. Section 672.702(1), Florida Statutes (2003), the valued policy law, has been part of Florida law for over a century....

...This case adds a factor to the Netherlands equation. Here there is not just a covered peril that combined with the operation of an ordinance to create a total loss. The equation is [(covered risk) + (excluded risk)] × (operation of ordinance) = total loss under section 672.702(1)....

...Accordingly, the Bank will prevail over their claims, and their counterclaims and crossclaims will be dismissed with prejudice. A judgment will be entered in accordance with these findings and conclusions. NOTES [*] Lykes also has asserted a reclamation claim under either § 672.702(2) or § 672.507(2), Florida Statutes....

...(In re Rawson Food Service, Inc.), 846 F.2d 1343, 1347-1438 (11th Cir. 1988); In re Penthouse Travelers, Inc., 120 B.R. 226, 227 (Bankr.M.D.Fla.1990); Toshiba America, Inc. v. Video King, Inc. (In re Video King, Inc.), 100 B.R. 1008, 1013-1014 (Bankr.N.D.Ill.1989). The parties agree that Section 672.702(2) of the Florida Statutes [3] provides a statutory basis for Tate's assertion of a right of reclamation....

...Since Debtor failed to pay for or return the cheese in response to Tate's written reclamation demand, it was incumbent on Tate to pursue the reclamation demand through appropriate judicial channels. Although Tate fulfilled the technical requirements of Section 546(c) of the Bankruptcy Code and Section 672.702(2) of the Florida Statutes, Tate failed to assert diligently its right of reclamation and, consequently, has lost that right....

...umber Date Disposition (if reported) In re Hall Elmtree Associates, Ltd. ....................... AZ-91-1435-VAsR 2/28/92 DISMISSED 126 B.R. 73 IN PART, REVERSED IN PART NOTES [1] Section 2-702 of the Uniform Commercial Code is codified in Florida as Section 672.702 of the Florida Statutes....

...ion to a seller with such a right of reclamation that has made such a demand only if the court — (A) grants the claim of such a seller priority as a claim of a kind specified in section 503(b) of this title; or (B) secures such claim by a lien. [3] Section 672.702(2) of the Florida Statutes provides: Where the seller discovers that the buyer has received goods on credit while insolvent he may reclaim the goods upon demand made within 10 days after the receipt ....

...9, 1979) *760 and Phillip Morris, Inc. v. The Eli Witt Company, 2 B.R. 492 (Bkrtcy.M.D.Fla.1980). In both of these cases, this Court held that the right of a seller of goods to reclaim property based on § 2-702 of the UCC as adopted in the State of Florida as Fla.Stat. § 672.702 cannot be asserted against a debtor-in-possession....

...While the case did not directly deal with the rights of a trustee in bankruptcy or a debtor in an arrangement proceeding, the case is, nevertheless, dispositive of the instant controversy. This is so because the judgment lien status referred to in Fla.Stat. § 672.702, which is accorded to a trustee in bankruptcy by virtue of § 70(c) of the Bankruptcy Act is equally accorded to a debtor in a Chapter XI proceeding by virtue of § 341 of the Bankruptcy Act....

...e Debtor contends that it is absurd to find that a seller without any security interest is better off than a seller with an unperfected security interest. In addition, the Debtor points out that Florida law controls, and under Florida law, Fla.Stat. § 672.702; 679.301, a debtor-in-possession as a lien creditor has priority over a reclaiming seller....

...melting & Refining, Inc., supra in which both the majority and dissenting opinions reaffirm the validity of the Samuels, supra case holding that an intervening lien creditor cuts off the rights of a reclaiming seller of goods. In addition, Fla.Stat. § 672.702 expressly subjects a seller's reclamation rights to the rights of a lien creditor and, as previously noted, a Chapter XI debtor-in-possession possesses the status of a hypothetical lien creditor....

...The seller of goods seeks reclamation of goods under 11 U.S.C. § 546(c). (C.P. No. 1). The debtor has answered and has asserted an affirmative defense. (C.P. No. 3). The matter was tried on July 15. The relief sought in the complaint is based on § 2-702 of the Uniform Commercial Code (§ 672.702, Florida Statutes, 1981)....

...the debtor's possession on the date of the seller's demand. The debtor sold the goods after the demand was made. Under Florida law, the seller's rights are subject to the rights of a buyer in ordinary course or other good faith purchaser. Fla.Stat. § 672.702(3)....

...This matter came before the Court on the complaint for reclamation of property, filed by Lawrence Pharmaceuticals, Inc. ("Lawrence") against the Debtor Best Buy Drugs, Inc. ("Best Buy") and heard on April 11, 1988. The complaint seeks the reclamation of personal property or other relief pursuant to 11 U.S.C. 546(c) and Section 672.702 of the Florida statutes....

...nly to the issue of insolvency. The parties further stipulated that Best Buy was at the time of the filing of the Chapter 11 petition insolvent as such term is defined in the Uniform Commercial Code and the State Reclamation Statute, Florida Statute 672.702, but that Defendant Best Buy was not insolvent using the "balance sheet" method as defined in 11 U.S.C....

...a seller may not reclaim any such goods unless such seller demands in writing reclamation of such goods before 10 days after receipt of such goods by the debtor . . . In order to establish entitlement to reclamation from a debtor under § 546(c) and § 672.702(2), Florida Statutes, a seller must satisfy the following four-part test: 1....

...He also testified that she told him that GPC would return the Paper only after she got the written demand. GPC argues that the June 18 letter is not a written demand for reclamation because it does not contain the word "reclamation" or a reference to § 546(c) or § 672.702, Florida Statutes....

...2.50. Banks also delivered lumber to the Debtor on March 6, 1990, the date the Chapter 11 Petition was filed. On March 9, Banks made a written demand for the return of the merchandise delivered on February 28 and March 2, 1990, pursuant to Fla.Stat. § 672.702....

...Of course, an allowance for administrative costs under § 546(c) can only be granted if the seller of goods has a right to reclaim the goods sold and the right is denied by the court. § 546(c)(2)(A). Thus, the threshold question is whether or not Banks has met the requirements for reclamation of both Fla.Stat. § 672.702 and § 546(c) of the Bankruptcy Code....

...., at 1347, citing, In re New York Wholesale Distributors Corp., 58 B.R. 497, 500 (Bankr.S.D.N.Y.1986); In re Rozel Industries, Inc., 74 B.R. 643 (Bkrtcy.N.D.Ill. 1987); In re Flagstaff Foodservice Corp., 56 B.R. 899 (Bkrtcy.S.D.N.Y.1986). Fla.Stat. § 672.702 provides a statutory right of reclamation, and there is no dispute that Banks made the necessary written demand before ten days after the Debtor's receipt of the lumber, as required *228 by § 546(c) of the Bankruptcy Code. Both Fla.Stat. § 672.702 and § 546(c) of the Bankruptcy Code, as noted above, require as a condition precedent to the reclamation evidence that at the time the buyer received the goods, the buyer was insolvent....

...ys after the debtor received the goods and at a time while the debtor was insolvent. Therefore, plaintiff is not entitled to reclamation under 11 U.S.C. § 546(c). Similarly, plaintiff concedes and I find that it is not entitled to reclamation under § 672.702, Florida Statutes (U.C.C....

...common law reclamation rights of a seller who has sold goods to the debtor. The section is intended "to recognize, in part, the validity of section 2-702 of the Uniform Commercial Code." Notes of Committee on the Judiciary, Senate Report No. 95-989. Section 672.702 of the Florida Statutes, which constitutes Florida's version of § 2-702 of the Uniform Commercial Code, provides: 672.702....

...ing an interest in property." Fla.Stat. § 671.201(32). Consequently, a secured creditor is a "purchaser" for purposes of § 672.403 of the Florida Statutes. III. Right of reclamation as "subject to" perfected security interests. As set forth above, § 672.702(3) of the Florida Statutes provides that a seller's *498 right to reclaim "is subject to the rights of a buyer in ordinary course or other good faith purchaser under the chapter (s.672.403)." (Emphasis supplied)....

...a good faith purchaser under § 2-702(3).") Accordingly, a seller's right of reclamation is "subject to" the interest of a secured creditor with a perfected security interest in the buyer's inventory, including after-acquired inventory, pursuant to § 672.702(3) of the Florida Statutes....

...the premises. [1] 593 So.2d at 562 n. 8. Because this seller did not perfect its security interest the landlord's lien was superior. We therefore reverse. GUNTHER, C.J., and FARMER, J., concur. NOTES [1] Whether a seller's right of reclamation under section 672.702, Florida Statutes, where seller discovers buyer is insolvent after delivery, is not involved here....

...The Eli Witt Company, Case No. 79-896-Bky-T (M.D.Fla., Aug. 21, 1981). In all of these cases, this court held that the right of a seller of goods to reclaim property based on § 2-702 of the Uniform Commercial Code, adopted in the State of Florida as. Florida Statutes § 672.702, cannot be asserted against a debtor-in-possession....

...aim, and that the seller was not entitled to the allowance of an administrative claim. In re Affiliated of Florida, Inc., 237 B.R. at 501. In so holding, the Court first applied Florida's version of the Uniform Commercial Code to the seller's claim. Section 672.702 of the Florida Statutes provides: 672.702....

...e goods upon demand made within 10 days after the receipt,. . . . (3) The seller's right to reclaim under subsection (2) is subject to the rights of a buyer in ordinary course or other good faith purchaser under this chapter (§ 672.403). Fla. Stat. 672.702(Emphasis supplied). According to the statute, therefore, a seller's right of reclamation is subject to the rights of a good faith purchaser under Florida law. It is well-established that a secured creditor is a "purchaser" for purposes of § 672.702 of the statute....

...137, 140 (Bankr.W.D.Mo.2002). *798 A seller's right of reclamation is subordinate to any prior perfected liens on the property sold to the buyer. Despite its subordinated status, however, the right of reclamation continues to exist as a seller's remedy under § 672.702 of the Florida Statutes....

...the seller was entitled to the allowance of an administrative claim. In re Affiliated of Florida, Inc., 237 B.R. at 500. B. The value of the right of reclamation The Court has determined that Electrical is a seller with a right of reclamation under § 672.702 of the Florida Statutes....