No. 83CA0807Colorado Court of Appeals.
Decided May 9, 1985. Rehearing Denied June 20, 1985.
Appeal from the District Court of Kit Carson County Honorable Dean Johnson, Judge
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Wood, Ris Hames, P.C., Christopher M. Brandt, Colin C. Campbell, for Petitioner-Appellee Northwestern Mutual Life Insurance Company.
Callahan Callahan, Thomas J. Callahan, for Receiver-Appellee Steve Laughlin.
John Mason, Jr., Associates, John Mason, Jr.; Homm Cribbs, George Homm, for Respondent-Appellant.
Division I.
Opinion by CHIEF JUDGE ENOCH.
[1] Respondent, Intrawest Bank of Denver (Bank), appeals from an order appointing a receiver on farm property under a petition from Northwestern Mutual Life Insurance Company (Northwest) and the subsequent order which discharged the receiver. We affirm. [2] Northwest was the holder of a first deed of trust on farm property operated by Tom McCormick and Company (debtor). It provided that upon default and Northwest’s foreclosure, Northwest would have an absolute right to appoint a receiver and have the receiver apply the rents, issues, and profits it collected to the balance of the debt then due. In addition, upon foreclosure, interest on the debt was to increase from ten and one-half to fifteen and one-half percent. [3] The Bank held a second deed of trust on the same real estate, and alleged that it held a security interest on growing crops and three water pumps. However, no deed of trust, financing statement, or other document indicative of a security agreement between debtor and Bank was ever introduced into evidence, nor became part of the record. [4] In September 1981, debtor defaulted on its indebtedness to Northwest, and the Bank and abandoned the property. The Bank foreclosed on the property and took possession. It then obtained ownership of the property, in part through its deed of trust under a bankruptcy order, and in part through redemption from the foreclosure action of a junior lienor. In obtaining ownership of the property, the Bank understood that it took the property subject to Northwest’s deed of trust. [5] In early April 1982, Northwest began foreclosure proceedings under C.R.C.P. 120 and obtained an order for the sale of the property. Northwest then petitioned for the appointment of a receiver, and a hearing was held on the petition April 12, 1982, at which the Bank was present, and after which the trial court ordered thePage 1317
appointment of a receiver. The Bank’s later motion to set aside this appointment was denied, and on May 12, 1982, Steve Laughlin (receiver) was appointed the receiver.
[6] In January 1983, the period of redemption from Northwest’s foreclosure sale expired with the Bank not having exercised its right to redemption, and thus, a Public Trustee’s deed was issued to Northwest. At a hearing in February 1983, the receiver was discharged. I.
[7] We first reject Northwest’s contention that the Bank’s appeal of the trial court’s appointment of the receiver was untimely. C.A.R. 1(a)(4) allows for an interlocutory appeal of an order appointing a receiver, and interlocutory appeals authorized by statute are permissive, not mandatory Jouflas v. Wyatt, 646 P.2d 946 (Colo.App. 1982); 9 Moore’s Federal Practice 110.18 (2d ed. 1980). If an interlocutory appeal is not taken from an order appointing a receiver, a party may still appeal the subject matter of the interlocutory order upon the entry of a final judgment. Moore’s Federal Practice 110.19(2) (2d ed. 1980). Therefore, failure to appeal the appointment of the receiver does not preclude the Bank from raising the issue when it became merged into the final judgment upon the receiver’s discharge. 9 Moore’s Federal Practice 110.18 (2d ed. 1980).
II.
[8] The Bank first contends that the trial court was without jurisdiction to appoint a receiver because no action or proceedings were filed and pending against the Bank at the time of the appointment. We disagree.
III.
[10] The Bank next contends that the trial court abused its discretion when it appointed the receiver. We disagree.
IV.
[12] The Bank next contends that the funds acquired during the receivership from the sale of crops harvested, and profits, were improperly distributed. We disagree.
§ 4-9-104(j), C.R.S., it is possible to determine the priority between a “rents and profits” clause in a deed of trust and a perfected security interest in crops.
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[14] A security interest in crops constitutes a severance from the property, Tolland Co. v. First State Bank, 95 Colo. 321, 35 P.2d 867(1934), and crops are treated as “goods” under the UCC. Section 4-9-105(f), C.R.S. Under the UCC the priority of a perfected security interest in crops is established as of the date of its filing. Welbourne Development Co. v. Affiliated Clearance Corp., 28 Colo. App. 313, 472 P.2d 648 (1970); § 4-9-302, C.R.S. [15] A creditor’s rights to rents and profits under a deed of trust, however, do not accrue until after the creditor has foreclosed and taken a substantial step, such as requesting the appointment of a receiver, toward acquiring possession of the property. Erwin v. West, 105 Colo. 71, 99 P.2d 201 (1939); Tolland, supra. Therefore, inasmuch as under the UCC priority of a perfected security interest in crops depends upon the date of its filing, it will normally have priority under the “first in time” rule over a creditor’s “rents and profits” clause in a deed of trust because there the priority is determined by the time of application for receivership. See Tolland, supra. [16] Here, however, we are unable to determine whether the Bank had a perfected security interest in crops before Northwest applied for a receiver. No security agreement, financing statement, or document reflecting a security interest in crops was tendered to the court or offered into evidence. Furthermore, there is nothing in the evidence to indicate that the Bank’s alleged security agreement in crops was perfected through filing a financing statement in the proper county, nor was there evidence introduced as to when the Bank acquired its interest, or the purposes behind the transaction. See § 4-9-401(a), C.R.S. See also
§ 4-9-204(4)(a), C.R.S. [17] It is the obligation of the party asserting error to present a record that discloses error, Slater v. Van Schaack Co., 162 Colo. 201, 425 P.2d 302 (1967), and facts asserted in a brief but not contained in the evidence presented to a trial court are insufficient to cure a deficient record. In Re Marriage of Nguyen, 684 P.2d 258 (Colo App. 1983). Thus, because of the Bank’s failure to sustain its burden of proving that it had a perfected security interest in the proceeds of the crops, the court was correct in its order of distribution of the proceeds of the crops or profits from the receivership to Northwest.
V.
[18] The Bank finally contends that the court erred in its review of the receiver’s administration of the property and his subsequent discharge. We disagree.
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