Priority

Question 1

Perfected Secured Creditor v. Perfected Secured Creditor

Answer 1

As between two secured creditors, the first to file a financing statement OR to perfect has priority.

Question 2

Unperfected Secured Creditor v. Unperfected Secured Creditor

Answer 2

As between two unperfected secured creditors, the first to attach has priority.

Question 3

Perfected Secured Creditor v. Unperfected Secured Creditor

Answer 3

As between a perfected secured creditor and an unperfected secured creditor, the perfected secured creditor has priority.

Question 4

How do PMSIs affect priority battles between secured creditors?

Answer 4

PMSI in goods other than inventory or livestock:

A PMSI has priority over a conflicting secured interest in the same collateral or its identifiable proceeds PMSI is perfected within 20 days of the debtor taking possession of the collateral.

PMSI in inventory or livestock:

A PMSI has priority over a conflicting security interest in the same inventory or livestock if the secured creditor if, before the debtor takes possession of the inventory or livestock, the secured creditor both (1) perfects and (2) sends an authenticated notification to holders of previously filed conflicting security interests in the collateral.

Question 5

PMSI v. PMSI

Answer 5

As between two PMSIs, a seller-financed PMSI has priority over a financer-financed PMSI.

Question 6

Special Rules for Depository Accounts

Answer 6

A security interest in a depository account can only be perfected by control. As between two perfected security interests in a depository account, priority is in the following order:

1. A security interest perfected by control has priority over a security interest perfected via proceeds. (Recall that a secured creditor automatically has a perfected security interest in identifiable proceeds from collateral.)
2. As between two security intersts protected by control, the interest perfected by control earlier has priority.
3. A secured creditor who obtained control by putting the account in her name has priority over secured creditors who obtained control by other means.
4. A secured creditor who obtained control because it maintains the depository account has priority over all other secured creditors, except those who obtained control by putting their name on the depository account.

Question 7

Secured Party v. Buyer of Collateral

(General Rule & Exceptions)

Answer 7

General Rule: If a buyer purchases collateral, the security interest remains on the collateral.

Exceptions: There are several exceptions:

1. Authorized Sales (express or implied);
2. Buyer in the Ordinary Course;
3. Garage Sale Rule.

Question 8

Authorized Sales Exception

Answer 8

A buyer of collateral subject to a security interest takes free of the security interest if the sale is authorized by the secured creditor free of the security interest. Authorization may be express or implied:

• Authorization is express if it is contained in the security agreement.
• Authorization is implied (1) for the sale of inventory to an ordinary consumer when the security agreement is silent or (2) if the secured creditor continually acquiesces to sales even though the security agreement prohibits such sales.

Question 9

Buyer in the Ordinary Course of Business Exception

Answer 9

A buyer in the ordinary course of business takes free from a security interest created by the seller, even if that interest is perfected and even if the buyer knows about the interest.

A buyer is a buyer in the ordinary course if:

1. They purchase the goods in good faith;
2. They purchase the goods without knowledge that the sale violates the rights of the secured creditor;
3. The sale is in the ordinary course of business for the seller.

Question 10

What if a buyer is not a buyer in the ordinary course?

Answer 10

A buyer not in the ordinary course takes collateral subject to a perfected security interest but free from an unperfected security interest.

Question 11

Garage Sale Rule

Answer 11

A buyer of consumer goods in a consumer-to-consumer transaction takes free from a perfected security interest if:

1. She buys without knowledge of the security interest;
2. She buys for value;
3. She buys for personal, household, or family use; UNLESS
4. Before the purchase, the secured creditor filed a financing statement covering the collateral.

⇒ Notice that this is why it’s important that a financing statement can be filed before a security interest attaches.

Question 12

Secured Creditor v. Judgment Lien Holder

Answer 12

As between a secured creditor and a judgment lien holder, the party that either perfects or levies first has priority.

PMSI Rule: A secured creditor holding a PMSI who files within 20 days of the debtor taking possession of the collateral has priority over a judgment lien holder whose lien arises between the time the PMSI attached and the time the secured creditor filed.

Question 13

Secured Creditor v. Statutory Lien Claimant

Answer 13

As between a perfected secured creditor and a statutory lean claimant, the statutory lien claimant has priority.

Question 14

Security Interest in Accession v. Security Interest in Whole

Answer 14

A security interest in an accession is subordinate to a secrity interest in the whole which is perfected in compliance with the requirement of a certificate-of-title statute.

Question 15

Security Interest in Fixture v. Later Security Interest in Real Estate

Answer 15

A perfected security interest in a fixture has priority over a real estate interest that arises subsequent to the perfection of the security interest.

Question 16

Securied Interest in Fixture v. Prior Real Estate Interest

Answer 16

A prior real estate interest that is properly recorded has priority over a security interest that subsequently arises.