{ "id": 1588615, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Betty WOODWARD, Defendant-Appellant", "name_abbreviation": "State v. Woodward", "decision_date": "1983-12-27", "docket_number": "No. 7362", "first_page": "708", "last_page": "713", "citations": [ { "type": "official", "cite": "100 N.M. 708" }, { "type": "parallel", "cite": "675 P.2d 1007" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "199 S.E. 775", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1938, "pin_cites": [ { "page": "776" } ], "opinion_index": 0 }, { "cite": "58 Ga.App. 691", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 1489699 ], "year": 1938, "pin_cites": [ { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/ga-app/58/0691-01" ] }, { "cite": "35 Ark.L.Rev. 111", "category": "journals:journal", "reporter": "Ark. L. Rev.", "year": 1981, "opinion_index": 0 }, { "cite": "12 U.C.C.Rep.Serv. (Callaghan) 990", "category": "reporters:specialty", "reporter": "U.C.C. Rep. Serv. (West)", "year": 1973, "opinion_index": 0 }, { "cite": "267 S.E.2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1980, "pin_cites": [ { "page": "484" }, { "page": "484" } ], "opinion_index": 0 }, { "cite": "154 Ga.App. 32", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 815099 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "32" }, { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/ga-app/154/0032-01" ] }, { "cite": "184 F.Supp. 821", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 1446043 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/f-supp/184/0821-01" ] }, { "cite": "269 N.W. 464", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1936, "pin_cites": [ { "page": "465" } ], "opinion_index": 0 }, { "cite": "198 Minn. 259", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 1736875 ], "year": 1936, "pin_cites": [ { "page": "261-62" } ], "opinion_index": 0, "case_paths": [ "/minn/198/0259-01" ] }, { "cite": "495 F.2d 511", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 188019 ], "opinion_index": 0, "case_paths": [ "/f2d/495/0511-01" ] }, { "cite": "183 N.W.2d 728", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10786879 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nw2d/183/0728-01" ] }, { "cite": "264 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "245 Ga. 261", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1174591 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ga/245/0261-01" ] }, { "cite": "122 Ariz. 141", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 726768 ], "weight": 7, "pin_cites": [ { "page": "142" }, { "page": "696" }, { "parenthetical": "Emphasis in original." }, { "page": "143" }, { "page": "697" } ], "opinion_index": 0, "case_paths": [ "/ariz/122/0141-01" ] }, { "cite": "649 F.2d 763", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 6545568, 1236025 ], "opinion_index": 0, "case_paths": [ "/br/11/0763-01", "/f2d/649/0763-01" ] }, { "cite": "85 N.M. 51", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2768719 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0051-01" ] }, { "cite": "371 So.2d 489", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9593422 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/so2d/371/0489-01" ] }, { "cite": "267 N.E.2d 217", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "358 Mass. 760", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 298484 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/mass/358/0760-01" ] }, { "cite": "249 S.E.2d 72", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "74" } ], "opinion_index": 0 }, { "cite": "242 Ga. 388", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1166760 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/ga/242/0388-01" ] }, { "cite": "455 F.2d 281", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 742819 ], "opinion_index": 0, "case_paths": [ "/f2d/455/0281-01" ] }, { "cite": "585 P.2d 369", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10450965 ], "opinion_index": 0, "case_paths": [ "/p2d/585/0369-01" ] }, { "cite": "221 Kan. 103", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 66403 ], "weight": 2, "year": 1976, "pin_cites": [ { "parenthetical": "defendant found guilty of impairing a security interest by failing to account for the proceeds of a sale of secured personal property" }, { "parenthetical": "defendant found guilty of impairing a security interest by failing to account for the proceeds of a sale of secured personal property" } ], "opinion_index": 0, "case_paths": [ "/kan/221/0103-01" ] } ], "analysis": { "cardinality": 778, "char_count": 15661, "ocr_confidence": 0.77, "pagerank": { "raw": 1.52826125211555e-07, "percentile": 0.6706161247238739 }, "sha256": "25072d275056130dc02ed9b0b214f59eeac815243cba2382827d937c73cebe70", "simhash": "1:7f0715e2b1f76eeb", "word_count": 2478 }, "last_updated": "2023-07-14T21:45:38.267108+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOOD and HENDLEY, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Betty WOODWARD, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nDONNELLY, Judge.\nMay an individual be criminally prosecuted for the improper removal of encumbered property contrary to NMSA 1978, \u00a7 30-16-18, where the document creating the alleged encumbrance fails to detail the property involved? The answer to the question posed involves an admixture of both our criminal statutes and provisions of the Uniform Commercial Code.\nIn January 1982, the defendant, Betty Woodward, purchased a mobile home from H.G. Fairchild and Jacqualynn Fairchild, in Roswell. The sale price of the mobile home was $25,000. Defendant was to pay $7,000 as a down payment and the balance of $18,000 was to be paid to sellers at the rate of $216 per month over a 15-year period, subject to 12% interest on the unpaid balance.\nThe defendant paid $250 on the down payment and signed a printed form entitled \u201cEscrow Agreement\u201d prepared by the sellers. The escrow document described the property which was the subject of the sale as follows:\n1979 Town & Country Mobile Home \u201cCimmeron Model\u201d as per serial number \u2014 to include both awnings, all skirting, all appliances, washer, dryer, built in oven & range and refrigerator.\nH.G. Fairchild also utilized a printed form to prepare a \u201cSecurity Agreement and Financing Statement\u201d dated January 22, 1982, which provided in part:\nDebtor Betty L. Woodward Mailing Address # 40 Langley St., Roswell NM 88201 herein called Debtor for valuable consideration grants to Secured Party H.G. or Jacqualynn G. Fairchild Escrow Agent \u2014 First Interstate Bank, P.O. Box 2057, Roswell NM 88201 * * * hereinafter called Secured Party, a security interest in the following property and any and all material increase, additions, accessions and substitutions, hereinafter called Collateral:\nDESCRIPTION OF COLLATERAL\n1979 Town CIM SR# 80146397. [Emphasis added.]\nIn April, 1983, defendant moved to Montana leaving the mobile home in Roswell. Shortly thereafter, defendant was arrested in Montana based upon a criminal complaint charging that she committed the improper sale, disposal, removal, or concealing of encumbered property, contrary to Section 30-16-18.\nThe statute under which defendant was charged, provides in applicable part:\nImproper sale, disposal, removal or concealing of encumbered property consists of any person knowingly, and with intent to defraud, selling, transferring, removing or concealing, or in any manner disposing of, any personal property upon which a security interest, chattel mortgage or other lien or encumbrance has attached or been retained, without the written consent of the holder of such security interest, chattel mortgage, conditional sales contract, lien or encumbrance. [Emphasis added.]\nSection 30-16-18.\nAt defendant\u2019s preliminary hearing, the State asserted that the property which defendant unlawfully disposed of, consisted of two awnings, a washer, dryer, and a refrigerator, which items were allegedly removed from the mobile home being purchased by her. The magistrate bound defendant over to the district court for trial on all the alternatives of the offense charged in the criminal complaint. However, the information charged defendant with \u201cremoval\u201d only. The information charged that the \u201cremoval\u201d was of personal property upon which there was either a security interest, chattel mortgage or other lien or encumbrance; however, there is no claim other than a \u201csecurity interest\u201d is involved in this case. Defendant\u2019s motion to dismiss the information was denied; we granted defendant\u2019s application for an interlocutory appeal.\nSection 30-16-18 was enacted by 1963 N.M.Laws, ch. 303, \u00a7 16-18, as part of the Criminal Code. The present statute as enacted, was substantially rewritten and combined several similar prior criminal statutes. See NMSA 1953, \u00a7\u00a7 40-21-41 and 40-21-44. Section 30-16-18 was adopted following the enactment of the Uniform Commercial Code in 1961, and expressly added to the types of encumbrance to which the criminal statute applied, \u201cpersonal property upon which a security interest * * * has attached or been retained * * (Emphasis added). Compare former Sections 40-21-41 and 40-21-44. The term \u201csecurity interest\u201d is defined in the Uniform Commercial Code, NMSA 1978, \u00a7 55-1-201(37), as an interest in personal property or fixtures which secures payment or performance of an obligation. By adding the reference \u201csecurity interest\u201d to Section 30-16-18, the legislature recognized a new type of encumbrance set out in the Uniform Commercial Code.\nThe clear purpose of Section 30-16-18 was to provide protection to a secured party or mortgagee from the improper removal or disposition of encumbered or secured property by making such acts a crime. Compare State v. Ferguson, 221 Kan. 103, 558 P.2d 1092 (1976) (defendant found guilty of impairing a security interest by failing to account for the proceeds of a sale of secured personal property). Although the Uniform Commercial Code specifies that it is to be liberally interpreted, NMSA 1978, \u00a7 55-1-102, criminal statutes proscribing the unlawful removal of encumbered property are generally strictly construed. Hubbell v. State, 585 P.2d 369 (Okl.Cr.1978). We interpret Section 30-16-18 to require a showing that a valid security interest in the encumbered property has properly attached or has been retained, and that the property has been either unlawfully sold, disposed of, removed, transferred or concealed.\nResolution of whether the Fairchilds have a valid security agreement in the contents of the mobile home sold to defendant is determinative of the issue involved in this appeal. Because this case only concerns the enforceability of the security agreement as between the parties and does not involve rights of third parties or creditors, issues concerning filing or perfection of a security interest are not discussed here. See NMSA 1978, \u00a7 55-9-203, Official Comment 1.\nThe formal requisites necessary to create a security interest in personal property where the debtor is in possession of the goods {see NMSA 1978, \u00a7 55-9-113), are detailed in Section 55-9-203(1). The latter statute provides in applicable part:\n[A] security interest is not enforceable against the debtor or third parties unless:\n(a) the collateral is in the possession of the secured party; or\n(b) the debtor has signed a security agreement which contains a description of the collateral * * *. In describing collateral, the word \u201cproceeds\u201d is sufficient without further description to cover proceeds of any character. [Emphasis added.]\nWhere the creditor does not retain possession of the personal property, and in the absence of a written security agreement meeting the formal requisites of Section 55-9-203, the security agreement is not enforceable in a civil action against the debtor.\nThe description necessary to meet the requirements of Section 55-9-203 is defined in NMSA 1978, \u00a7 55-9-110 which states: \u201cFor the purposes of this article any description of personal property or real estate is sufficient whether or not it is specific if it reasonably identifies what is described.\u201d This rule liberalizes the former requirement that'descriptions of property were to be exact and detailed in their provisions. See Official Comment to Section 55-9-110.\nIt is undisputed that the Fairchilds have a valid security interest in the mobile home. See In re Richards, 455 F.2d 281 (6th Cir.1972); Personal Thrift Plan of Perry v. Georgia Power, 242 Ga. 388, 249 S.E.2d 72 (1978); Still Associates, Inc. v. Murphy, 358 Mass. 760, 267 N.E.2d 217 (1971). However, while the mere description of the mobile home by model and serial number is sufficient to identify the mobile home and its accessions as collateral under the security agreement, it is insufficient to identify the existence of a security interest in the personal property contained in the mobile home. As stated in Personal Thrift Plan of Perry: \u201c[T]he purpose of the description of the collateral in an unfiled security agreement is not to give notice as on a financing statement but is to provide identification of the collateral so as to avoid disputes over its identity.\u201d 242 Ga. at 390, 249 S.E.2d at 74. [Emphasis added.]\nThe security agreement is the contract between the parties and specifies what is the security interest. Thus, the security agreement has a different function from that of the financing statement which functions to notify third parties that an item may be subject to a prior interest. American Restaurant Supply Co. v. Wilson, 371 So.2d 489 (Fla.App.1979). Because the security agreement identifies the items of collateral, greater particularity is required than in the financing statement. Id. See also Jones & Laughlin Supply v. Dugan Prod. Corp., 85 N.M. 51, 508 P.2d 1348 (Ct.App.1973) (since no security interest can exist without a security agreement, when there is a conflict between the description in the financing statement and the security agreement, the latter prevails); accord Matter of Permian Anchor Services, Inc., 649 F.2d 763 (10th Cir.1981).\nIn Mobile Discount Corp. v. Apache Trailer, 122 Ariz. 141, 593 P.2d 695 (App.1979), the determinative issue was whether a sales contract entered into between the buyer of a mobile home and the seller created a security interest in furniture that was supposed to be in the mobile home. The security agreement on its face granted a security interest in a \u201c \u2018[m]obile [h]ome and all attachments and equipment * * \u2019 \u201d and on the reverse side had a paragraph with additional terms under which it was agreed that the word \u201cgoods\u201d meant \u201c \u2018the mobile home described above and all parts, accessories, furnishings and equipment whether or not described above * * \u201d 122 Ariz. at 142, 593 P.2d at 696. (Emphasis in original.) The following paragraph then granted to the seller a security interest in \u201c \u2018the goods described on the reverse side.\u2019 \u201d Id. (Emphasis in original.) The court held a valid security interest existed in the furniture, reasoning that the front of the contract had to be read in conjunction with the additional terms. When so read, a security interest was created in the furniture because the definition of \u201cgoods\u201d included \u201cfurnishings.\u201d 122 Ariz. at 143, 593 P.2d at 697.\nIn the instant case, the security agreement only lists the model, year and serial number of the mobile home itself. There is no reference to the contents or other goods in the mobile home so as to reasonably identify consumer goods located therein. The issue as to the sufficiency of a description of collateral in a security agreement is a question of law for determination by the court and is not an issue for the jury. Bank of Cumming v. Chapman, 245 Ga. 261, 264 S.E.2d 201 (1980). The test of the sufficiency of a description of property, is whether the description does the job it is assigned to do, namely, to make possible the identification of the thing or items described. First State Bank of Nora Springs v. Waychus, 183 N.W.2d 728 (Iowa 1971); In re Munger, 495 F.2d 511 (9th Cir.1974). The security agreement listing only the model and serial number of the mobile home is insufficient to reasonably identify the washer, dryer or refrigerator as goods upon which a security interest exists. These items are normally not accessions or fixtures.\nThe State does not contend that the description of the mobile home by year, model and serial number describes the awnings, \u2019 washer, dryer and refrigerator. Rather, the State contends these items could be included in the security agreement as either \u201cadditions\u201d or \u201caccessions,\u201d and there is a factual question as to whether the items were \u201cadditions\u201d or \u201caccessions.\u201d The State contends the motion to dismiss was properly denied on this basis. We agree only to the extent that a factual question exists as to whether the awnings were accessions to the mobile home so that a security interest might have attached to them. The issue of accession is a question of fact. Matter of Permian Anchor Services, Inc.\nNMSA 1978, \u00a7 55-9-314 defines accessions as goods which are installed in or affixed to other goods. However, this section concerns only priority disputes and does not state when goods are accessions for the purposes of deciding whether a security interest in the principal collateral also reaches those goods.\nUnder common law, it is generally accepted that:\n[Wjhere the articles later attached to * * other principal article[s] of personal property become so closely incorporated with the principal article that they cannot be identified and detached therefrom without injury to the * * * other principal article, such articles become a part of the * * * principal article to which they are so attached and will pass by accession to the one having a chattel mortgage or other lien upon the principal article * *. But when the articles added can be readily identified and detached without injury to the principal * * * article, they do not pass by accession. * * *\nGoodrich Silvertown Stores, Etc. v. Pratt Motor Co., 198 Minn. 259, 261-62, 269 N.W. 464, 465 (1936); see also Aero Corporation v. Associated Aerial Survey Co., 184 F.Supp. 821 (D.Maryland 1960); Mixon v. Georgia Bank & Trust Co., 154 Ga.App. 32, 267 S.E.2d 483 (1980); In re Williams, 12 U.C.C.Rep.Serv. (Callaghan) 990 (1973); see generally Nickles, Accessions and Accessories Under Pre-Code Law and U. C. C. Article 9, 35 Ark.L.Rev. 111 (1981).\nIn Mixon v. Georgia Bank & Trust Co., the court stated that \u201c[wjhether a chattel is an \u2018accession\u2019 depends upon the relationship that such chattel bears to another.\u201d 154 Ga.App. at 32, 267 S.E.2d at 484. The court rejected an argument that a security interest automatically reaches goods \u201c \u2018installed in or affixed\u2019 \u201d (see Section 55-9-314), to the main collateral because \u201cthe Code does not indicate the degree to which one chattel must be affixed to another in order to constitute an accession.\u201d 154 Ga.App. at 33, 267 S.E.2d at 484. The court held that the determination of what constitutes an accession must be based on common law principles, \u201cthe lesser chattel must \u2018form such an integral part\u2019 of the greater chattel and must be \u2018so attached to it\u2019 as to constitute \u2018one and the same thing.\u2019 \u201d Id. citing Passieu v. B.F. Goodrich Co., 58 Ga.App. 691, 692, 199 S.E. 775, 776 (1938).\nIn the instant case the security agreement fails to sufficiently describe three of the items of property which defendant was charged with removing, namely, the washer, dryer and refrigerator; it follows that those items of property were not encumbered property under Section 30-16-18, and the information as to such property is subject to dismissal. Because a factual issue remains as to whether the awnings were accessions, the trial court correctly concluded that further evidence was necessary as to such property. We remand for further proceedings consistent herewith. If it is determined that the awnings do not constitute accessions, then the information must be dismissed in its entirety because of the inadequacy of the description of those items. See Jones & Laughlin Supply v. Dugan Prod. Corp. If the awnings are determined to be accessions, description of the mobile home would suffice to include those items and the motion to dismiss as to such property was properly denied.\nIT IS SO ORDERED.\nWOOD and HENDLEY, JJ., concur.", "type": "majority", "author": "DONNELLY, Judge." } ], "attorneys": [ "Paul Bardacke, Atty. Gen., William McEuen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.", "Janet Clow, Chief Public Defender, Henry R. Quintero, Asst. Appellate Defender, Santa Fe, for defendant-appellant." ], "corrections": "", "head_matter": "675 P.2d 1007\nSTATE of New Mexico, Plaintiff-Appellee, v. Betty WOODWARD, Defendant-Appellant.\nNo. 7362.\nCourt of Appeals of New Mexico.\nDec. 27, 1983.\nPaul Bardacke, Atty. Gen., William McEuen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\nJanet Clow, Chief Public Defender, Henry R. Quintero, Asst. Appellate Defender, Santa Fe, for defendant-appellant." }, "file_name": "0708-01", "first_page_order": 740, "last_page_order": 745 }