Secured Transactions (Essay Only) Flashcards
what is attachment
how security interests are created
provides enforcement rights
focus on relationship between debtor and creditor
what is perfection
provides notice of a security interest to establish a claim superior to other parties who may wish to claim an interest in the same collateral
attachment + perfection = good standing in a priority dispute
perfection is about getting priority over a later party
focus on relationship between creditor and anyone else
tip
how to approach priority question
- is this a secured transaction problem (“security agreement” “security interest”)
- ID and classify the property at issue (look at call of the question)
- which parties have or claim an interest in the collateral (at least one will be a secured party with a security interest)
- for each security interest, look at attachment - has the security interest attached? to which collateral? when?
- for each security interest, look at perfection - has the secured party perfected its security interest? when? how? has anything happened for it to lose perfection?
- determine the appropriate priority rule
- apply the priority rule and resolve the dispute
security interest
interest in personal property or fixtures that secures payment or performance of an obligation
security agreement
contract that creates a security interest
secured party
creditor who obtains a security interest in the debtor’s property
obligor
party that must pay or perform the obligation that the collateral secures
debtor
has an interest, other than a security interest, in the collateral (e.g., owner)
scope of Article 9
- transactions, regardless of form, that creates a security interest in personal property or fixtures by contract
- must be consensual
- not real estate
- agricultural liens
sales of certain types of collateral
- chattel paper
- promissory notes
- accounts
- payment intangibles
step 2 - classify collateral
list the types of collateral
- goods
- rights to payment
- documents - bills of lading, warehouse receipts, held by bailee
- investment property - stocks and bonds
- deposit accounts - bank accounts
- commercial tort claims
- letter of credit rights
- payment intangibles - catch all, includes IP
remember classification can change depending on which party holds the collateral
step 2 - classify collateral
what is included in goods?
anything movable at time a SI attaches
- fixtures (if the goods attach to real property where you won’t take it when you move)
- standing timber
- unborn animals
- growing or unharvested crops
- manufactured homes
- consumer goods
- farm products
- inventory - held for sale or lease
- equipment - catch-all
step 2 - classify collateral
what is included in rights to payment?
right to be repaid money by a 3p that the debtor then uses as collateral for a loan
- instrument - promissory notes, checks
- chattel paper - record with (a) monetary obligation and (b) security interest or lease
- accounts - right to payment of a monetary obligation for property that is sold, leased, or licensed, OR for services rendered
- payment intangible - catch-all
look for situation where 3p owes money to your debtor and your debtor uses that money as collateral for the loan
step 4 - attachment
what are the basic requirements for attachment?
- value given by the secured party (no new value needs to be given, binding commitment is value)
- debtor must have rights in the collateral
- there must be a security agreement - (a) authenticated SA that describe the collateral OR (b) secured party has possession or control pursuant to oral or unauthenticated SA
(a) security agreements are RAD
1. record - doesn’t need to be written on paper, but must be stored
2. authenticated by the debtor - signature/symbol of debtor
3. describe the collateral - reasonably ID the collateral, no super generic description, consumer goods and commercial tort claims need more particularity
(b1) attachment by possession pursuant to SA (like you can hold it)
consumer goods, equipment, farm products, chattel paper, tangible docs, certificated securities, instruments, money
(b2) attachment by control pursuant to SA
electronic chattel paper, investment property, LOC rights, deposit accounts
attachment links debt to a particular piece of collateral
SI becomes enforceable against debtor’s collateral upon attachment
when can you use a super generic description of collateral?
“all of CK’s assets”
okay for financing statement
security agreement needs to be more specific
step 4 - attachment
rights and duties of secured party in possession
- must act with reasonable care with the collateral
- must keep the collateral identifiable
- must relinquish the collateral once obligation has been satisfied
- may charge debtor for reasonable expenses for storing and maintaining the collateral
step 4 - attachment
after-acquired property
SI only attaches to collateral described in SA, so need to include an after acquired property clause to include that
carve-out in most states: if SA describes inventory or accounts, rebuttable presumption that description includes after-acquired inventory or accounts
accessions vs. commingled goods (definitions)
- accessions - goods that are physically united with other goods, but can still ID the original goods
- commingled goods - ID of original goods is lost
step 4 - attachment
accessions - rule for attachment
if collateral becomes an accession, SI is not lost, continues
look at terms of SA to determine whether a lender with a SI in property with which the accession is united obtains a SI
step 4 - attachment
commingled goods - rule for attachment
SI does NOT continue in original goods, but will attach to the larger product or mass that results
step 4 - attachment
proceeds - rule for attachment
if SI attaches to the original collateral, it automatically attaches to the identifiable proceeds whether or not SI states that it covers proceeds
Purchase Money Security Interests (PMSI) - definition
- type of SI
- only applies if collateral is goods or software
- lender PMSI - lender loans money to debtor so debtor can acquire goods; value is actually used to acquire the goods and lender takes SI in those same goods
- seller PMSI - goods bought on credit
- partial PMSI is allowed for non-consumer goods transactions –> Dual Status Rule
- consumer goods transactions: court can apply Dual Status Rule or say there is no PMSI
- PMSI in consumer goods are automatically perfected
- value given allows the debtor to acquire the goods or software AND
- goods or software acquired secure the loan
Article 9 consignment is treated as PMSI in inventory
Dual Status Rule = a SI may be part PMSI and part non-PMSI; party claiming PSMI has burden of establishing that
step 5 - perfection
methods of perfection
- Filing (most common)
- Possession
- Control
- Automatic
- Alternate Perfection System - like state legislation for cars/motorcycles
step 5 - perfection
perfection by filing
- file financing statement in central filing office of appropriate state
- applies to all collateral except deposit accounts, money, LOC, collateral subject to other perfection methods (cars)
- puts others on notice
can’t file for cars or deposit accounts
step 5 - perfection
perfection by filing - requirements for Financing Statement
where should you file?
- central filing office where debtor is located
- debtor is corporation = state of incorporation
- business not registered = state where it operates, chief executive office if multiple states
- individuals = principal residence
- real property-related (incl. fixtures) = county where property is located
step 5 - perfection
perfection by filing - requirements for Financing Statement
what info is required and preferred?
required info
- name of debtor
- name of secured party
- description of collateral –> can be super generic, doesn’t need to mention proceeds or after-acquired property
- if real property –> SA must indicate that it covers this type of collateral, note that it is to be filed in local real property records, describe real property, name the record owner
additional info (effective without this but won’t be accepted)
- addresses for debtor and secured party
- indication whether debtor is individual or organization
step 5 - perfection
perfection by filing - requirements for Financing Statement
what is needed for authorization?
- debtor must authorize a FS in authenticated record
- debtor doesn’t have to sign
step 5 - perfection
perfection by filing - what happens if the debtor’s name is wrong
- important b/c parties seek UCC filings for the debtor’s name
- financing statement must have debtor’s correct legal name
- name or articles of incorporation or name on driver’s license (non-expired)
- if minor error on financing statement, doesn’t affect perfection UNLESS the errors make financing statement seriously misleading
- debtor’s name is almost always seriously misleading EXCEPT if search would uncover the financing statement with error
where is the collateral described? what is the result with attachment and perfection?
- described in SA NOT FS –> attached but not perfected
- described in FS NOT SA –> not attached, not perfected (no enforceable interest in collateral)
- described in SA + FS –> attached + perfected
step 5 - perfection
perfection by filing - issues with filing office
- filing office should refuse a FS that lacks required info or creditor doesn’t pay the fee
- if filing office refuses FS and was not justified, then FS is treated as having been filed
- if filing office indexes incorrectly, no effect on perfection
step 5 - perfection
perfection by filing - how long does FS last?
lapse 5 years after date of filing unless continued
file a continuation statement w/in 6 months before FS lapses
if it lapses, secured party loses perfection (unless perfected by other means)
when the obligation is paid back, a termination statement voids the FS
step 5 - perfection
perfection by possession
- tangible collateral - money, goods, instruments, negotiable docs, tangible chattel paper
- as soon as secured party has possession, the interest is perfected
- stays perfected as long as they have possession
possession is only way to perfect SI in money
step 5 - perfection
perfection by control
- specific intangible collateral - deposit accounts, investment property, electronic docs, electronic chattel paper, LOC rights
- control is exclusive method for perfecting SI in deposit accounts and LOC rights (filing a FS is ineffective)
control of deposit accounts
- secured party is the same bank as the bank with the despot account (lender = bank)
- deposit account control agreement: secured party, bank, and debtor agree in authenticated record
- secured party can become bank’s customer for the deposit account
step 5 - perfection
alternate perfection systems (especially state certificate of title statute)
- cars, motorcycles, other vehicles with title
- can’t perfect by filing, possession of the car, or possession of the title
- have to perfect by noting a security interest on that certificate of title
if car is inventory, can perfect by other means
step 5 - perfection
automatic perfection
- some collateral automatically perfect when a SI attaches without filing, possession, or control
- PMSI in consumer goods
- casual or isolated assignments of accounts that don’t transfer a significant part of outstanding accounts receivable
- sales of payment intangibles or promissory notes
if certificate of title statute covers, no auto perfection
step 5 - perfection / post-perfection
what happens if debtor changes their name?
this section is about when something happens to the collateral or debtor after perfection has occurred
- if the name change causes the filed FS to become seriously misleading, secured party has 4 months to discover the change and file an amendment with the new name
- if secured party fails to amend, collateral acquired after 4 month period is not covered
- everything before name change + w/in 4 months remains perfected
step 5 - perfection / post-perfection
what happens if debtor moves out of state?
- SI remains perfected for 4 months after debtor moves out of state UNLESS FS lapses earlier
- filed FS must cover collateral purchased w/in 4 mo window after the move
- must re-file in new state within that 4 mo period
step 5 - perfection / post-perfection
what happens if the collateral moves out of state?
- if debtor still owns the collateral, no re-filing is necessary
- if collateral is transferred to new debtor who is out of state, secured party has 1 year to file FS listing new debtor
if fails to re-file (for any of these scenarios)
- SI ceases to be perfected
- perfection is loss prospectively and against another secured party or purchaser for value, deemed never to have been perfected
step 5 - perfection / post-perfection
what happens if secured party is perfected by possession and gives the collateral back to the debtor?
- secured party is only perfected so long as it has actual physical possession of the property
- use the date of the secured party regaining possession for first in time calc
EXCEPTION for temporary automatic perfection - secured party can give collateral back to debtor for limited purposes
* sell it, exchange it
* secured party is temp perfected for 20 days
* secured party needs to file a FS OR re-possess the collateral w/in 20 days to remain continuously perfected
step 5 - perfection / proceeds
what are proceeds? are they attached?
- proceeds arise when collateral is sold, leased, licensed, or disposed of
- SI attaches to proceeds automatically
- initially perfected for 20 days
- priority dates from time of perfection in OG collateral IF secured party has remained continuously perfected
step 5 - perfection / proceeds
general rule for perfection of proceeds
initially temporary automatic perfection for 20 days after collateral is sold
beyond 20 days
perfection will lapse UNLESS
1. amend the FS or the OG FS is broad enough to encompass the proceeds
2. cash proceeds rule: perfection continues indefinitely in identifiable cash proceeds
3. same office rule: FS covers the original collateral + proceeds are collateral in which it may be perfected by filing in the same office as OG FS + proceeds are NOT acquired with cash proceeds
tip
FS that covers inventory is sufficient to perfect a SI in accounts
:)
step 6 - priority rules
general rule for priority of proceeds
- follows basic priority rules
- if SI is perfected in proceeds and has been continuously perfected, then measure secured party’s status based on time of filing or perfection as to OG collateral
EXCEPTIONS
- proceeds of PMSI in inventory
- proceeds of non-filing collateral –> priority continues in proceeds provided that SI In proceeds is perfected + proceeds are either cash proceeds or same type of collateral as OG collateral
step 6 - priority rules / potential claimants
secured creditors
- always 1+ of these
- need to know whether and when their interests have attached to the collateral
- whether and when their interests are perfected
- whether they hold a PMSI
step 6 - priority rules / potential claimants
unsecured creditors
- creditors w/o SI in debtor’s collateral
- no rights against the property
- contractual rights against the debtor
- can obtain rights in property from a SI by agreement OR lien in collateral (would become a lien creditor)
step 6 - priority rules / potential claimants
lien creditor
- judicial or statutory
step 6 - priority rules / potential claimants
purchasers of chattel paper, promissory notes, accounts, or payment intangibles
- treat as secured transactions
- treat teh purchaser as a secured party with attached SI
- check if they have been perfected
- if buyer/secured party is not perfected, seller/debtor has sufficient rights in the collateral to grant a SI to another party
step 6 - priority rules / potential claimants
buyers or transferees of other collateral (not chattel paper, promissory notes, accounts, payment intangibles)
may take free of secured party’s SI
tip
how to IRAC priority question
I: the priority issue at dispute (Perfected Security Interest vs. Perfected Security Interest over Equipment)
R: ex. first in time to file or perfect takes priority
A: use the facts
step 6 - priority rules
perfected security interest vs. perfected security interest (not PMSI)
first in time to file or perfect takes priority
step 6 - priority rules
perfected SI vs. unperfected SI
perfected SI > unperfected SI
step 6 - priority rules
unperfected SI vs. unperfected SI
first to attach or become effective takes priority
step 6 - priority rules
perfected SI vs. lien creditor
perfected SI > lien creditor
step 6 - priority rules
unperfected SI vs. lien creditor
lien creditor > unperfected SI
EXCEPT if filed but unattached security interest
if debtor has authenticated SA listing collateral + FS on file, but secured party has not yet given value –> secured party > lien creditor
step 6 - priority rules
security interest vs. statutory lien
statutory lien has priority as long as
1. effectiveness of lien depends on lien holder’s possession of the goods
2. lien secured payment or performance of an obligation for services or materials furnished in ordinary course of person’s business (mechanic’s lien) AND
3. statute doesn’t provide otherwise
step 6 - priority rules
secured party vs. secured party over future advances
remember security agreement can provide that future advances are secured by collateral
Article 9 gives priority to first party to file or perfect to the future advances
even if they had knowledge of the competing security interest
step 6 - priority rules
secured party vs. lien creditor over future advances
- if secured party’s advance is made within 45 days of lien creditor’s lien, secured party wins
- advances over 45 days lose to lien creditor UNLESS advance is made w/o knowledge of lien OR advance is made pursuant to a commitment entered into without knowledge of the lien
step 6 - priority rules
secured party vs. buyer
- phrase the question as “did the buyer take the collateral free of a security interest or subject to a security interest”
- unless secured party authorizes the sale free and clear of its security interest, buyer takes subject to a perfected security interest
exception 1: buyer in the ordinary course of business
takes free of SI created by buyer’s seller IF
* buyer buys good from a merchant
* ordinary course of merchant’s biz
* buyer acts in good faith and without knowledge that sale violates the rights of others in teh same goods
* seller is engaged in business of selling goods of this kind, not pawn broker
exception 2: garage sale exception
consumer buyer will take free of SI even if it’s perfected IF
* buyer buys consumer goods for value
* for their own person, family, or household use
* from a consumer seller
* without knowledge of the SI
* unless secured party has filed a FS covering the goods before the purchase occurs
step 6 - priority rules
buyer vs. unperfected SI
buyer takes subject to a SI
EXCEPTION: user will take free of an unperfected SI if buyer
* gives value
* receives delivery of the collateral
AND
* w/o knowledge of preexisting interest
step 6 - priority rules
buyer vs. future advances
- if buyer takes subject to SI + after the sale, secured party makes a future advance to seller/debtor
buyer will take free of that future advance IF
- secured party had knowledge of buyer’s purchase when it made the advance
OR - future advance is made 45+ days after purchase
step 6 - priority rules
purchasers of chattel paper and instruments
if purchaser/secured party doesn’t have knowledge of competing SI –> probs have priority over competing secured parties
step 6 - priority rules
transferees of money or funds from deposit account
takes free of SI UNLESS transferee acts in collusion with debtor to violate rights of a secured party
step 6 - priority rules
SI vs. buyer’s and seller’s Article 2 SI
Article 2 SI > Article 9 SI
as long as buyer or seller retains possession
UCC Article 2 is the UCC from Contracts basically
step 6 - priority rules
PMSI vs. lien creditor
follow rule for lien creditor vs. SI
BUT
PMSI have 20 day grace period starting when debtor receives possession to perfect
IF PSMI perfects within 20 days, PSMI > lien creditor
step 6 - priority rules
PMSI vs. SI - goods that aren’t inventory
PMSI > all other security interests, no matter when they are perfected IF secured party perfects within 20 days of debtor receiving the goods
if don’t perfect within 20 days, apply secured party vs. secured party rule (first in time to file or perfect)
PMSI in consumer goods is auto perfected so 20 day rule will always be met
step 6 - priority rules
PSMI vs. SI - inventory
PMSI > all other secured interests in that same inventory
IF PMSI
- perfects before inventory is delivered to debtor
AND - sends an authenticated notification of PMSI to other secured parties (notification is effective for 5 years)
if fail this super priority rule, then apply secured party vs. secured party
step 6 - priority rules
PMSI vs. PMSI
seller PMSI > lender PMSI
otherwise, apply first to file or perfect
step 6 - priority rules
fixtures vs. real property interests
SI in fixtures > interest in real property IF secured party files a fixture filing (type of FS) before real property interest is recorded
PMSI in fixtures > real property interest IF debtor has interest of record in real property or is in possession of real property AND secured interest is perfected by a fixture filing before goods become fixtures or within 20 days after goods become fixtures
step 6 - priority rules
fixture vs. fixture
if both Article 9 interests in fixtures, apply general priority rules
step 6 - priority rules
construction mortgage vs. PMSI
construction mortgage > any subsequent SI in fixtures, including PMSI in fixtures) IF
recorded before goods become fixtures + goods become fixtures before construction is complete
lease vs. secured transaction
- Article 9 does NOT apply to a true lease
bright line test
1. lessee of property is obligated to pay the FULL obligation under the lease (whether or not its terminated early) AND
2. one of the following outcomes
- OG term of lease >= remaining economic life of goods
- lessee is bound to renew the lease for the remaining economic life of teh goods
- lessee has option to renew the lease for no additional consideration or nominal additional consideration
- lessee has option to become owner or goods for no or nominal additional consideration
if pass test, it is a secured transaction (Article 9 governs), need to perfect SI
factors are showing what a secured transaction is
consignments - definition
party (consignor) has ownership of goods BUT gives possession of the goods to another party (consignee) for the purpose of allowing the consignee to sell the goods
consignments are like big ticket consignments of inventory where consignee could be easily mistaken as owning the collateral
consignments - rules
- risk that consignee’s lenders may be misled into thinking that consigned inventory is actually owned by consignee not consignor
- consignments that carry this risk are Article 9 secured transactions
- consignor is a secured party + must perfect
- apply rules of PMSI in inventory
consignments - when do consignors have to file a FS to protect their interests
- consignor must deliver goods to a merchant who deals in goods of the kind for the merchant to sell
- merchant is not generally known by its creditors to be substantially engaged in the biz of selling goods of others
- value of goods must be at least $1k in each delivery AND
- good must not be consumer goods immediately before delivery
tip
default and enforcement
may come up after a priority dispute has been resolved
attachment is the pre-req to repossession rights or rights to enforce a security interest
default and enforcement
what is default?
not defined in Article 9
refer to security agreement + applicable contract law
default and enforcement
enforcement right in general
- triggered by default
- enforcement rights are cumulative and may be exercised simulateolus
- can seek possession of tangible collateral and sell or retain it in satisfaction of the obligation owed
- abandon its Article 9 rights and obtain a judgment against debtor or obligor on the obligation
- use other courses of action agreed on by debtor and secured party
default and enforcement
repossession of goods and other tangible collateral
once there has been a default, secured party can repossess the collateral
1. by using the judicial process
2. by using self-help repossesion (secured party cannot breach the peace)
large equipment can be rendered unusable in lieu of repossession
after repossession, secured party can dispose of the collateral in Article 9 disposition sale or can accept the collateral in satisfaction of all or part of the obligation
default and enforcement
disposition of collateral - what it the standard
commercially reasonable standard
secured party may sell, lease, license, or dispose of the collateral so long as the everything about disposition is commercially reasonable
commercially reasonable IF
- sold in usual manner in a recognized market
- sold at the price current in that market or
- otherwise in conformity with the reasonable commercial practices among deals in that type of collateral
price alone is not determinative of whether a sale is commercially reasonable
default and enforcement
disposition of collateral - details of the disposition
disposition sale can be public or private
secured party can buy the collateral at public sale (but not private sale) UNLESS price of collateral is fixed (e.g., NYSE) or subject to widely distributed standard price quotes
sale must still be commercially reasonable
default and enforcement
disposition of collateral - what notice is required
- secured party has to send authenticated notice of dipsotiion to a variety of parties
- parties who need notice: debtor, secondary obligors, other secured party, anyone else who has a claim or interest
- safe harbor of timing for non-commercial transactions: reasonable if sent at least 10 days before sale
notice must include (1) secured party + debtor’s name, (2) description, (3) how, when, where collateral is disposed of, (4) statement that debtor is entitled to accounting for unpaid indebtedness
- notice not required if collateral is perishable, sold on recognized market, or notice is waived by default
default and enforcement
disposition of collateral - what happens to the proceeds of a disposition
cash proceeds in this order
1. reasonable expenses for collection and enforcement
2. pay the debt to foreclosing secured party
3. pay subordinate security interests
4. surplus goes to the debtor
senior security interests survive the sale
if not enough money to satisfy the debt, secured party can seek deficiency judgment against obligator for remaining amount
acceptance of collateral in full satisfaction of debt
debtor must consent after default to acceptance in an authenticated record
acceptance by silence is allowed if debtor doesn’t object within 20 days
consumer good transactions –> secured party can only accept the collateral in full satisfaction of the obligation
if consumer goods and debtor has paid back more than 60% of the value, goods must be sold
acceptance of collateral in partial satisfaction of debt
debtor must consent after default in an authenticated record
consent by silence is NOT permitted
not allowed in consumer transactions
remedies for secured party’s failure to comply
- injunctive relief - if failure is ongoing
- actual damages - loss resulting from secured party’s violations
- statutory damages - minimum damages in consumer goods
- can prevent secure party from claiming a deficiency
- secured party that improperly responses collateral may be liable for conversion (tort)
future acquired goods, when does attachment occur?
Essay 5386
if secured party has perfected SI in all future inventory, etc. (this is first), then the SI attaches to those items when it is delivered
so it’s possible that a PMSI seller will get a SI in the item first if delivery occurs a few days later (this is when secured party SI attaches)
what is the only way to perfect a security interest in money?
possession!
what is the only way to perfect a security interest in deposit accounts and LOC rights?
control!
what category are raw materials included in?
Essay 3466
they are inventory
rule for security interest in collateral when there are proceeds
Essay 2454
security interest in collateral automatically attaches to identifiable proceeds
Proceeds = that which is acquired upon the sale, exchange, or other disposition of collateral
rule statement queen!
priority rule for PMSI vs. SI not in inventory
A perfected purchase-money security interest in goods other than inventory has priority over a conflicting security interest in the same goods so long as the interest was perfected when the debtor received possession of the collateral or within 20 days thereafter.
