United States of America, Plaintiff-appellee, v. Burlington Industries et al., Defendants,bill's Trucking Service, Inc., Defendant-appellant, 600 F.2d 517 (5th Cir. 1979)

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US Court of Appeals for the Fifth Circuit - 600 F.2d 517 (5th Cir. 1979) Aug. 9, 1979

Kenneth J. Duckworth, Hialeah, Fla., for defendant-appellant.

Morton Hollander, Harland F. Leathers, Attys., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before JONES, RONEY and TJOFLAT, Circuit Judges.


By summary judgment, the district court decided that a security interest of the Small Business Administration in personal property of a debtor would prevail over the lien of a warehouseman. It is not clear what law was being applied. Since that decision this Court has decided two cases: Kimbell Foods, Inc. v. Republic National Bank, 557 F.2d 491 (5th Cir. 1977), and United States v. Crittenden, 563 F.2d 678 (5th Cir. 1977), and the United States Supreme Court has written an extensive opinion in review of those cases, United States v. Kimbell Foods, Inc., --- U.S. ----, 99 S. Ct. 1448, 59 L. Ed. 2d 711 (1979). We have this day published an opinion in the following case argued on the same date as the case at bar, which, like this case, was withheld from decision pending the decision of the Supreme Court in Kimbell. United States v. S.K.A. Associates, Inc., 600 F.2d 513 (5th Cir. 1979). In that opinion we focused on the application of 31 U.S.C.A. § 191 to this kind of case. Our decision there would equally apply to the ultimate disposition of this case.

Federal law now clearly requires the contest between this warehouseman and the SBA to be decided under the nondiscriminatory commercial law of Florida as if both were private commercial creditors. Since there are issues of fact which must be resolved before the result under such law can be determined, and the district court should first address the proper application of local law to the facts, we vacate the summary judgment and remand for resolution of the issues in light of these subsequent decisions.