Part 1 Security Interests in Personal Property: The PPSA Section II Registration and Priorities

Registration

Personal Property Registry 42(1) There shall be an electronic registry known as the Personal Property Registry for the purposes of registrations under this Act and under any other Act that provides for registration in the Registry. 42(1) There shall be an electronic registry known as the Personal Property Registry for the purposes of registrations under this Act and under any other Act that provides for registration in the Registry.

Method of Registration In the Atlantic provinces, registration is entirely electronic and user administered In the Atlantic provinces, registration is entirely electronic and user administered Compare land law/other PPSA jurisdictions Compare land law/other PPSA jurisdictions The registrant may submit a form, but it is actually indexed by the registry staff The registrant may submit a form, but it is actually indexed by the registry staff There is no delay between registration and searchability There is no delay between registration and searchability

Method of Registration Direct electronic access Direct electronic access Pre-authorized for billing purposes Pre-authorized for billing purposes 43(2) The Registrar may enter into an agreement with any person to provide access to the Registry on terms and conditions that the Registrar considers advisable and may vary the terms and conditions from time to time as the Registrar considers advisable. 43(2) The Registrar may enter into an agreement with any person to provide access to the Registry on terms and conditions that the Registrar considers advisable and may vary the terms and conditions from time to time as the Registrar considers advisable. 43(3) A person who has entered into an agreement with the Registrar under subsection (2) may register a financing statement in the Registry in accordance with the agreement and the regulations. 43(3) A person who has entered into an agreement with the Registrar under subsection (2) may register a financing statement in the Registry in accordance with the agreement and the regulations.

Method of Registration Registration may be undertaken by anyone at a Registry office: s.43(1) Registration may be undertaken by anyone at a Registry office: s.43(1) Very uncommon Very uncommon Can’t rely on the office staff for instructions Can’t rely on the office staff for instructions 52(2)Service New Brunswick is not liable directly or vicariously for loss or damage suffered by a person because of (a) verbal advice given by the Registrar, a Deputy Registrar or an officer, employee or agent respecting this Act Why not?

Method of Registration The Registrar is not liable for any errors in registration The Registrar is not liable for any errors in registration 52(2) Service New Brunswick is not liable directly or vicariously for loss or damage suffered by a person because of... (b) the failure of the Registry to effect a registration or to effect a registration correctly. 52(2) Service New Brunswick is not liable directly or vicariously for loss or damage suffered by a person because of... (b) the failure of the Registry to effect a registration or to effect a registration correctly. Why not? Why not?

Method of Registration Note: s.52(1) A person may bring action against Service New Brunswick to recover loss or damage suffered by that person because of an error or omission in the operation of the Registry if the loss or damage resulted from reliance on a printed search result issued by the Registry. Note: s.52(1) A person may bring action against Service New Brunswick to recover loss or damage suffered by that person because of an error or omission in the operation of the Registry if the loss or damage resulted from reliance on a printed search result issued by the Registry.

Method of Registration Reg s.9(1) A registrant who effects a registration at an office of the Registry shall be issued a printed verification statement of the registration on completion of the registration. Reg s.9(1) A registrant who effects a registration at an office of the Registry shall be issued a printed verification statement of the registration on completion of the registration. Registrant protects themselves by comparing verification statement with what they intended to register Registrant protects themselves by comparing verification statement with what they intended to register

“Financing statement” "financing statement" means the data authorized by the regulations to be entered in the Registry to effect a registration for the purpose of perfecting a security interest in collateral under this Act "financing statement" means the data authorized by the regulations to be entered in the Registry to effect a registration for the purpose of perfecting a security interest in collateral under this Act Only a financing statement is registered: the security agreement itself is not registered Only a financing statement is registered: the security agreement itself is not registered

Notice Based Financing “...the data...” “...the data...” Paperless, electronic system Paperless, electronic system.“...authorized...”.“...authorized...” Debtor name Debtor name Secured party name and address Secured party name and address Description of the collateral Description of the collateral This is all that is registered This is all that is registered

Notice Based Financing The financing statement is not necessarily a perfect reflection of the security agreement The financing statement is not necessarily a perfect reflection of the security agreement It may be registered when no security agreement is in existence (e.g. pre-registration) It may be registered when no security agreement is in existence (e.g. pre-registration) The description of the collateral in the f.s. may not match that in the security agreement The description of the collateral in the f.s. may not match that in the security agreement If the description in the f.s is narrower than the collateral in the agreement, the lender is unperfected with respect to the collateral which is not caught by the description If the description in the f.s is narrower than the collateral in the agreement, the lender is unperfected with respect to the collateral which is not caught by the description The debtor is entitled to have the f.s. amended or discharged to reflect the true state of the agreement The debtor is entitled to have the f.s. amended or discharged to reflect the true state of the agreement

Notice Based Financing D may require SP to provide information about the security agreement to any specified person D may require SP to provide information about the security agreement to any specified person 18(1) The debtor, a creditor, a sheriff, a person with an interest in personal property of the debtor, or an authorized representative of any of them may require a secured party, by a demand in writing, to send or make available the information or documentation referred to in subsection (3) [incl. a statement of indebtedness and list of collateral] to the person making the demand or, if the demand is made by the debtor, to any person at an address specified by the debtor. 18(1) The debtor, a creditor, a sheriff, a person with an interest in personal property of the debtor, or an authorized representative of any of them may require a secured party, by a demand in writing, to send or make available the information or documentation referred to in subsection (3) [incl. a statement of indebtedness and list of collateral] to the person making the demand or, if the demand is made by the debtor, to any person at an address specified by the debtor. SP who fails to reply may be compelled to do so by Court order: s.18(11) SP who fails to reply may be compelled to do so by Court order: s.18(11)

Notice Based Financing SP is estopped from denying the validity of the information provided SP is estopped from denying the validity of the information provided 18(14) If a secured party replies to a demand under subsection (1), the secured party... [is] estopped,... from denying 18(14) If a secured party replies to a demand under subsection (1), the secured party... [is] estopped,... from denying (a) the accuracy of any of the information referred to in paragraph (3)(b), (c) or (d) that is contained in the reply, or (a) the accuracy of any of the information referred to in paragraph (3)(b), (c) or (d) that is contained in the reply, or

Notice Based Financing Ensuring the f.s. reflects the agreement Ensuring the f.s. reflects the agreement 50(3) The debtor, or any person with an interest in property that falls within the collateral description included in a registered financing statement, may give a written demand to the secured party if [the f.s. does not reflect the agreement] 50(3) The debtor, or any person with an interest in property that falls within the collateral description included in a registered financing statement, may give a written demand to the secured party if [the f.s. does not reflect the agreement] (a) [The debt has been paid off]; (b) [SP has released some of the collateral]; (c) [the f.s. describes the collateral too broadly]; (d) no security agreement exists between the secured party and the debtor. [e.g. pre-registration and negotiations fell through] (a) [The debt has been paid off]; (b) [SP has released some of the collateral]; (c) [the f.s. describes the collateral too broadly]; (d) no security agreement exists between the secured party and the debtor. [e.g. pre-registration and negotiations fell through]

Notice Based Financing 50(4) [Demand may require that within 15 days SP register a financing change statement which accurately reflects the nature of the agreement or discharging the f.s. if there is no agreement] 50(4) [Demand may require that within 15 days SP register a financing change statement which accurately reflects the nature of the agreement or discharging the f.s. if there is no agreement]

Notice Based Financing Self-help remedy for overbroad f.s. Self-help remedy for overbroad f.s. 50(5) If a secured party fails to comply with a demand under subsection (3) within fifteen days after it is given, or fails to give to the person giving the demand an order of the Court confirming that the registration need not be amended or discharged, the person giving the demand may register the financing change statement referred to in subsection (4). 50(5) If a secured party fails to comply with a demand under subsection (3) within fifteen days after it is given, or fails to give to the person giving the demand an order of the Court confirming that the registration need not be amended or discharged, the person giving the demand may register the financing change statement referred to in subsection (4).

Notice Based Financing What prevents the abuse of D’s right to register a financing change statement? What prevents the abuse of D’s right to register a financing change statement? Reg s.10 Where a registration discharges, re-registers or amends a registration or globally changes multiple registrations, the Registrar shall send a printed or electronic notice verifying the discharge, re- registration, amendment or global change to the secured party, receiver, judgment creditor, claimant, employee or applicant spouse, as the case may be. Reg s.10 Where a registration discharges, re-registers or amends a registration or globally changes multiple registrations, the Registrar shall send a printed or electronic notice verifying the discharge, re- registration, amendment or global change to the secured party, receiver, judgment creditor, claimant, employee or applicant spouse, as the case may be.

Notice Based Financing What prevents the abuse of D’s right to register a financing change statement? What prevents the abuse of D’s right to register a financing change statement? Deemed damages Deemed damages 66(4) If a debtor...registers a financing statement referred to in subsection 50(5) without authority under those subsections and without reasonable excuse, the secured party referred to in those subsections shall be deemed to have suffered damages not less than the amount prescribed. 66(4) If a debtor...registers a financing statement referred to in subsection 50(5) without authority under those subsections and without reasonable excuse, the secured party referred to in those subsections shall be deemed to have suffered damages not less than the amount prescribed. Currently $300 Currently $300 In addition to actual damages In addition to actual damages

Error in the Financing Statement 43(7) The validity of the registration of a financing statement is not affected by any defect, irregularity, omission or error in the financing statement unless the defect, irregularity, omission or error is seriously misleading. 43(7) The validity of the registration of a financing statement is not affected by any defect, irregularity, omission or error in the financing statement unless the defect, irregularity, omission or error is seriously misleading. 43(9) In order to establish that a defect, irregularity, omission or error is seriously misleading, it is not necessary to prove that anyone was actually misled by it. 43(9) In order to establish that a defect, irregularity, omission or error is seriously misleading, it is not necessary to prove that anyone was actually misled by it. Objective test for whether an error is seriously misleading Objective test for whether an error is seriously misleading

Error in the Financing Statement 43(8) Subject to subsection (10), a registration is invalid if there is a seriously misleading defect, irregularity, omission or error in 43(8) Subject to subsection (10), a registration is invalid if there is a seriously misleading defect, irregularity, omission or error in (a) the name of any of the debtors required to be included in the financing statement other than a debtor who does not own or have rights in the collateral, or (a) the name of any of the debtors required to be included in the financing statement other than a debtor who does not own or have rights in the collateral, or (b) the serial number of the collateral if the collateral is consumer goods of a kind that are prescribed as serial numbered goods. (b) the serial number of the collateral if the collateral is consumer goods of a kind that are prescribed as serial numbered goods. If the registration is invalid, the interest is unperfected If the registration is invalid, the interest is unperfected

Error in the Financing Statement The ultimate test of whether a defect is seriously misleading is whether a search by the correct debtor name/serial number retrieves the erroneous debtor name/serial number The ultimate test of whether a defect is seriously misleading is whether a search by the correct debtor name/serial number retrieves the erroneous debtor name/serial number This is dependent on the PPR search algorithm This is dependent on the PPR search algorithm

Financing Statement: Debtor Name Strict rules regarding the debtor’s name for registration purposes Strict rules regarding the debtor’s name for registration purposes Reg s.20(5) Where the debtor is an individual, the name of the debtor shall be determined, for the purposes of this section, by the following rules: Reg s.20(5) Where the debtor is an individual, the name of the debtor shall be determined, for the purposes of this section, by the following rules: (a) where the debtor was born in Canada and the debtor's birth is registered in Canada with a government agency responsible for the registration of births, the name of the debtor is the name as stated in the debtor's birth certificate or equivalent document issued by the government agency; (a) where the debtor was born in Canada and the debtor's birth is registered in Canada with a government agency responsible for the registration of births, the name of the debtor is the name as stated in the debtor's birth certificate or equivalent document issued by the government agency;

Financing Statement: Debtor Name (b) where the debtor was born in Canada but the debtor's birth is not registered in Canada with a government agency responsible for the registration of births, the name of the debtor is (b) where the debtor was born in Canada but the debtor's birth is not registered in Canada with a government agency responsible for the registration of births, the name of the debtor is (i) the name as stated in a current passport issued to the debtor by the Government of Canada, (i) the name as stated in a current passport issued to the debtor by the Government of Canada, (ii) if the debtor does not have a current Canadian passport, the name as stated in a current social insurance card issued to the debtor by the Government of Canada, or (ii) if the debtor does not have a current Canadian passport, the name as stated in a current social insurance card issued to the debtor by the Government of Canada, or (iii) if the debtor does not have a current Canadian passport or social insurance card, the name as stated in a current passport issued to the debtor by the government of a jurisdiction other than Canada where the debtor habitually resides; (iii) if the debtor does not have a current Canadian passport or social insurance card, the name as stated in a current passport issued to the debtor by the government of a jurisdiction other than Canada where the debtor habitually resides; (c)where the debtor was not born in Canada but is a Canadian citizen... (c)where the debtor was not born in Canada but is a Canadian citizen...

Financing Statement: Debtor Name Strict rules are needed for debtor name because PPR is indexed by debtor name Strict rules are needed for debtor name because PPR is indexed by debtor name Rules are needed to ensure that registrant and searcher use the same name, or registration is not an effective means of publicity Rules are needed to ensure that registrant and searcher use the same name, or registration is not an effective means of publicity Only the Atlantic jurisdictions have such strict debtor name requirements Only the Atlantic jurisdictions have such strict debtor name requirements The name rules are a significant practical impediment to secured lending The name rules are a significant practical impediment to secured lending

Financing Statement: Debtor Name Problem: Problem: D provides driver’s licence to SP1, which does not have correct legal name, and SP1 registers this name D provides driver’s licence to SP1, which does not have correct legal name, and SP1 registers this name A search by correct legal name does not return name as registered A search by correct legal name does not return name as registered Is the registration invalid? Is the registration invalid? What if the issue arises in context of challenge by trustee in bankruptcy? What if the issue arises in context of challenge by trustee in bankruptcy? The detailed name rules in the Atlantic jurisdictions are designed to resolve this issue The detailed name rules in the Atlantic jurisdictions are designed to resolve this issue

Effective Time of Registration 43(4) Registration of a financing statement is effective from the time that a registration number, date and time is assigned to the registration in the Registry. 43(4) Registration of a financing statement is effective from the time that a registration number, date and time is assigned to the registration in the Registry. The number is unique so that security interests can be unambiguously ranked according to order of registration The number is unique so that security interests can be unambiguously ranked according to order of registration

Registration and Attachment 43(5) A financing statement may be registered before or after a security agreement is made or a security interest attaches. 43(5) A financing statement may be registered before or after a security agreement is made or a security interest attaches. Recall s.19 Recall s A security interest is perfected when 19 A security interest is perfected when (a) it has attached, and (a) it has attached, and (b) all steps required for perfection under this Act have been completed, (b) all steps required for perfection under this Act have been completed, regardless of the order of occurrence. regardless of the order of occurrence.

Multiple Security Agreements 43(6) A registration may relate to one or more than one security agreement. 43(6) A registration may relate to one or more than one security agreement. E.g. a financing statement specifies “all the debtor’s present property” as the collateral E.g. a financing statement specifies “all the debtor’s present property” as the collateral This will be effective to perfect separate security interests in a chair owned by the debtor and a bicycle owned by the debtor, even though the security interests are taken in separate agreements This will be effective to perfect separate security interests in a chair owned by the debtor and a bicycle owned by the debtor, even though the security interests are taken in separate agreements

Duration of Registration 44(1) Except as otherwise prescribed, a registration under this Act is effective for the period of time specified as part of the financing statement by which the registration is effected 44(1) Except as otherwise prescribed, a registration under this Act is effective for the period of time specified as part of the financing statement by which the registration is effected Longer duration is more expensive Longer duration is more expensive Revenue issue Revenue issue

Constructive Notice Abolished Registration not constructive notice Registration not constructive notice 47 Registration of a financing statement in the Registry by itself does not constitute notice or knowledge to any person of the existence or contents of the financing statement or of the existence of the security interest or the contents of any security agreement to which the registration relates 47 Registration of a financing statement in the Registry by itself does not constitute notice or knowledge to any person of the existence or contents of the financing statement or of the existence of the security interest or the contents of any security agreement to which the registration relates

Constructive Notice Abolished The law surrounding old registration systems depended on concept of notice and constructive notice: s.47 makes these concepts irrelevant The law surrounding old registration systems depended on concept of notice and constructive notice: s.47 makes these concepts irrelevant The PPSA depends on express priority rules The PPSA depends on express priority rules

Registry Searches 48(1) A person may search the records of the Registry and obtain a printed search result 48(1) A person may search the records of the Registry and obtain a printed search result (a) at an office of the Registry, or (a) at an office of the Registry, or (b) in accordance with an agreement entered into with the Registrar under subsection 43(2). (b) in accordance with an agreement entered into with the Registrar under subsection 43(2). Individual searching at the registry office is permitted (a) Individual searching at the registry office is permitted (a) But on-line searching from the searcher’s own office is standard (b) But on-line searching from the searcher’s own office is standard (b) Individuals may go to search firms Individuals may go to search firms

Registry Searches 48(2) A search under subsection (1) may be conducted according to 48(2) A search under subsection (1) may be conducted according to (a) the name of the debtor, (a) the name of the debtor, (b) the serial number of goods of a kind that are prescribed as serial numbered goods, or (b) the serial number of goods of a kind that are prescribed as serial numbered goods, or (c) a registration number. (c) a registration number. Debtor name indexing is standard Debtor name indexing is standard Serial number indexing for prescribed goods Serial number indexing for prescribed goods

Evidence of search results 48(3) A printed search result that purports to be issued by the Registry is receivable as evidence and is, in the absence of evidence to the contrary, proof of the registration of any financing statement to which the search result relates, including 48(3) A printed search result that purports to be issued by the Registry is receivable as evidence and is, in the absence of evidence to the contrary, proof of the registration of any financing statement to which the search result relates, including (a) the date and time of registration of the financing statement, and (a) the date and time of registration of the financing statement, and (b) the order of registration of the financing statement as indicated by the registration number, date and time set out in the printed search result. (b) the order of registration of the financing statement as indicated by the registration number, date and time set out in the printed search result.

Evidence of search results Date and time of registration is rarely controversial Date and time of registration is rarely controversial For convenience any printed search result For convenience any printed search result In cases of dispute, an official report from the Registrar is conclusive “proof to the contrary” In cases of dispute, an official report from the Registrar is conclusive “proof to the contrary”

Priorities

Priorities The priority rules depend on The priority rules depend on The nature of the security interest The nature of the security interest Perfected v unperfected Perfected v unperfected Purchase money security interest (pmsi) Purchase money security interest (pmsi) The nature of the parties The nature of the parties Secured Party Secured Party Judgment creditor (trustee in bankruptcy) Judgment creditor (trustee in bankruptcy) Purchaser (lessee) Purchaser (lessee)

Priorities The priority rules depend on The priority rules depend on The nature of the goods The nature of the goods Serial numbered goods Serial numbered goods Consumer goods Consumer goods Inventory Inventory Equipment Equipment

Knowledge Knowledge of a prior interest is irrelevant to priority unless the Act specifically provides otherwise Knowledge of a prior interest is irrelevant to priority unless the Act specifically provides otherwise The priority rules make no reference to knowledge The priority rules make no reference to knowledge and and 65(3) A person does not act in bad faith merely because the person acts with knowledge of the interest of some other person. 65(3) A person does not act in bad faith merely because the person acts with knowledge of the interest of some other person. Taking with knowledge of a prior unregistered interest is not constructive fraud and does not affect priority Taking with knowledge of a prior unregistered interest is not constructive fraud and does not affect priority

Perfected SP v Unperfected SP Residual (general) priority rules apply “Where this Act provides no other method for determining priority between competing security interests in the same collateral” (s.35(1)) Residual (general) priority rules apply “Where this Act provides no other method for determining priority between competing security interests in the same collateral” (s.35(1)) 35(1)(b) a perfected security interest has priority over an unperfected security interest; 35(1)(b) a perfected security interest has priority over an unperfected security interest; This is true even if the unperfected security interest attached first This is true even if the unperfected security interest attached first An unperfected security interest is vulnerable An unperfected security interest is vulnerable nemo dat is not the law nemo dat is not the law

Perfected SP v Perfected SP 35(1)(a) priority between perfected security interests is determined by the order of the occurrence of the following: 35(1)(a) priority between perfected security interests is determined by the order of the occurrence of the following: (i) the registration of a financing statement under section 25 without regard to the time of attachment of the security interest,... (i) the registration of a financing statement under section 25 without regard to the time of attachment of the security interest,... If SP1 attaches first, SP2 attaches second, but SP2 registers first, SP2 has priority. If SP1 attaches first, SP2 attaches second, but SP2 registers first, SP2 has priority.

Perfected SP v Perfected SP Order of registration, not order of perfection: Order of registration, not order of perfection: SP1 attaches, then SP2 registers, then SP1 registers, then SP2 attaches, SP2 has priority even though SP1 was perfected first. SP1 attaches, then SP2 registers, then SP1 registers, then SP2 attaches, SP2 has priority even though SP1 was perfected first. Attachment is necessary for perfection, but is irrelevant to priorities between perfected interests Attachment is necessary for perfection, but is irrelevant to priorities between perfected interests

Perfected SP v Perfected SP 35(1) (a) priority between perfected security interests is determined by the order of the occurrence of the following: 35(1) (a) priority between perfected security interests is determined by the order of the occurrence of the following: (i) [registration], [or] (i) [registration], [or] (ii) possession of the collateral under section 24 without regard to the time of attachment of the security interest, or (ii) possession of the collateral under section 24 without regard to the time of attachment of the security interest, or (iii) [special cases] (iii) [special cases] whichever is earliest; whichever is earliest; Taking possession is equivalent to registration where perfection by possession is permitted Taking possession is equivalent to registration where perfection by possession is permitted

Unperfected SP v Unperfected SP 35(1) (c) priority between unperfected security interests is determined by the order of attachment of the security interests 35(1) (c) priority between unperfected security interests is determined by the order of attachment of the security interests Order of attachment is relevant to priority only in a competition between two unperfected interests Order of attachment is relevant to priority only in a competition between two unperfected interests

After-Acquired Property 13(1) Subject to section 12 and subsection (2), a security agreement that provides for a security interest in after-acquired personal property attaches to that property in accordance with the terms of the agreement without any need for specific appropriation by the debtor. 13(1) Subject to section 12 and subsection (2), a security agreement that provides for a security interest in after-acquired personal property attaches to that property in accordance with the terms of the agreement without any need for specific appropriation by the debtor. S.13(2) [except crops and consumer goods] S.13(2) [except crops and consumer goods]

Future Advances 35(5) Subject to subsection (6), the priority which a security interest has under subsection (1) applies to all advances, including future advances. 35(5) Subject to subsection (6), the priority which a security interest has under subsection (1) applies to all advances, including future advances.

Future Advances Chronological order of events: Chronological order of events: SP1 SP1 Registers a financing statement in respect of all D’s property Registers a financing statement in respect of all D’s property No agreement is entered into between SP1 and D, and no money is advanced No agreement is entered into between SP1 and D, and no money is advanced SP2 SP2 Inquires of SP1 and D and is told, correctly, that no agreement exists between them. Inquires of SP1 and D and is told, correctly, that no agreement exists between them.

Future Advances SP2 SP2 Enters into an agreement with D taking D’s chair as collateral Enters into an agreement with D taking D’s chair as collateral Registers a financing statement to that effect and advances $ Registers a financing statement to that effect and advances $ SP1 SP1 Enters into an agreement with D taking D’s chair as collateral and advances $ Enters into an agreement with D taking D’s chair as collateral and advances $ Who has priority, SP1 or SP2? Who has priority, SP1 or SP2?

Future Advances Contrast PPSA with common law rule in Hopkinson v Rolt Contrast PPSA with common law rule in Hopkinson v Rolt A mortgage may secure future advances, but advances made after a 2nd mortgagee has A mortgage may secure future advances, but advances made after a 2nd mortgagee has Registered a 2nd mortgage Registered a 2nd mortgage Advanced funds under that 2nd mortgage Advanced funds under that 2nd mortgage Given actual notice of the second mortgage to the 1st mortgagee Given actual notice of the second mortgage to the 1st mortgagee will be subordinated to 2nd mortgagee will be subordinated to 2nd mortgagee Which rule is better? Which rule is better? See Proposed Land Security Act s.13 (Supp) See Proposed Land Security Act s.13 (Supp)

SP v Third Party Third Parties fall into two categories Third Parties fall into two categories Purchasers and other transferees – in particular lessees Purchasers and other transferees – in particular lessees This Section of the Course This Section of the Course Judgment creditor (j.c.) and related parties i.e. trustee in bankruptcy Judgment creditor (j.c.) and related parties i.e. trustee in bankruptcy Dealt with in a subsequent Section Dealt with in a subsequent Section

SP v Transferee General rule is that security interest follows the asset into the hands of the purchaser General rule is that security interest follows the asset into the hands of the purchaser But there are some very important exceptions But there are some very important exceptions

General ‘Exception’ SP may contractually permit D to transfer assets clear of the security interest SP may contractually permit D to transfer assets clear of the security interest Either in general terms in the security agreement itself Either in general terms in the security agreement itself Or specifically in respect of a particular asset, by a subordination agreement or release Or specifically in respect of a particular asset, by a subordination agreement or release

Unperfected SP v Transferee Unperfected SP is very vulnerable to transferee Unperfected SP is very vulnerable to transferee Vulnerable to BFPFV Vulnerable to BFPFV As defined by PPSA As defined by PPSA

Unperfected SP v Purchaser 20(3) An unperfected security interest in collateral is subordinate to the interest of a transferee of the collateral if the transferee 20(3) An unperfected security interest in collateral is subordinate to the interest of a transferee of the collateral if the transferee (a) acquires the interest under a transaction that is not a security agreement, (a) acquires the interest under a transaction that is not a security agreement, (b) gives value, and (b) gives value, and (c) acquires the interest without knowledge of the security interest and before the security interest is perfected. (c) acquires the interest without knowledge of the security interest and before the security interest is perfected. Note: Unperfected SP also subordinate to j.c./trustee in bankruptcy: s.20(1),(2) Note: Unperfected SP also subordinate to j.c./trustee in bankruptcy: s.20(1),(2)

Perfected SP v Transferee Ordinary course rule Ordinary course rule Yard sale rule Yard sale rule Serial numbered goods rules Serial numbered goods rules

Perfected SP v Purchaser Ordinary course buyer takes free of interests given by the seller... Ordinary course buyer takes free of interests given by the seller... 30(2) A buyer or lessee of goods sold or leased in the ordinary course of business of the seller or lessor takes free of any perfected or unperfected security interest given by the seller or lessor or arising under section 28 or 29, whether or not the buyer or lessee knows of it,... 30(2) A buyer or lessee of goods sold or leased in the ordinary course of business of the seller or lessor takes free of any perfected or unperfected security interest given by the seller or lessor or arising under section 28 or 29, whether or not the buyer or lessee knows of it,... Buyer is still subject to security interests given by prior owners of the goods Buyer is still subject to security interests given by prior owners of the goods

Perfected SP v Purchaser... unless... unless.30(2)... unless the buyer or lessee also knows that the sale or lease constitutes a breach of the security agreement under which the security interest was created..30(2)... unless the buyer or lessee also knows that the sale or lease constitutes a breach of the security agreement under which the security interest was created.

Perfected SP v Purchaser of Consumer Goods A buyer for value of small ticket consumer goods takes free of any security interest (not just those granted by the seller) A buyer for value of small ticket consumer goods takes free of any security interest (not just those granted by the seller) 30(3) A buyer or lessee of goods that are acquired as consumer goods takes free of a perfected or unperfected security interest in the goods if the buyer or lessee 30(3) A buyer or lessee of goods that are acquired as consumer goods takes free of a perfected or unperfected security interest in the goods if the buyer or lessee (a) gave value for the interest acquired, and (a) gave value for the interest acquired, and (b) bought or leased the goods without knowledge of the security interest. (b) bought or leased the goods without knowledge of the security interest.

Perfected SP v Purchaser of Consumer Goods Low value goods only Low value goods only 30(4) Subsection (3) does not apply to a security interest in 30(4) Subsection (3) does not apply to a security interest in (b) goods if the purchase price of the goods exceeds one thousand dollars or if the market value of the goods, in the case of a lease, exceeds one thousand dollars. (b) goods if the purchase price of the goods exceeds one thousand dollars or if the market value of the goods, in the case of a lease, exceeds one thousand dollars.

Serial Numbered Goods Reg s.2 “serial numbered goods" means a motor vehicle, trailer, mobile home, aircraft, boat or an outboard motor for a boat; Reg s.2 “serial numbered goods" means a motor vehicle, trailer, mobile home, aircraft, boat or an outboard motor for a boat; Does not mean all goods which happen to have a serial number Does not mean all goods which happen to have a serial number In Ontario, only motor vehicles In Ontario, only motor vehicles For serial numbered goods, registration by serial number is permitted For serial numbered goods, registration by serial number is permitted But not always required But not always required

Serial Numbered Goods Serial number registration addresses problem of remote security interests (interests granted by a predecessor in title to the seller) Serial number registration addresses problem of remote security interests (interests granted by a predecessor in title to the seller) Why not use serial number registration for all goods? Why not use serial number registration for all goods?

Serial Numbered Goods All goods, including serial numbered goods, fall into three categories All goods, including serial numbered goods, fall into three categories Inventory Inventory Consumer goods Consumer goods Equipment – "equipment" is the residual category: “goods that are held by a debtor other than as inventory or consumer goods” Equipment – "equipment" is the residual category: “goods that are held by a debtor other than as inventory or consumer goods”

Serial Numbered Goods General Scheme Failure to register by serial number Failure to register by serial number Fatal for collateral held as consumer goods Fatal for collateral held as consumer goods Irrelevant for collateral held as inventory Irrelevant for collateral held as inventory Halfway between for collateral held as equipment Halfway between for collateral held as equipment Ineffective against purchaser and secured parties Ineffective against purchaser and secured parties Effective against judgment creditor and trustee in bankruptcy Effective against judgment creditor and trustee in bankruptcy

Serial Numbered Goods 2(2) Except as otherwise provided in this Act, the determination as to whether goods are "consumer goods", "inventory" or "equipment" shall be made as of the time the security interest attaches. 2(2) Except as otherwise provided in this Act, the determination as to whether goods are "consumer goods", "inventory" or "equipment" shall be made as of the time the security interest attaches. Why at the time of attachment? Why at the time of attachment?

Serial Numbered Consumer Goods If the collateral is If the collateral is serial numbered goods, and serial numbered goods, and consumer goods consumer goods Then Then the registration is invalid and therefore the registration is invalid and therefore the security interest is not perfected if the serial number if omitted or inaccurate the security interest is not perfected if the serial number if omitted or inaccurate

Serial Numbered Consumer Goods 43(8) Subject to subsection (10), a registration is invalid if there is a seriously misleading defect, irregularity, omission or error in 43(8) Subject to subsection (10), a registration is invalid if there is a seriously misleading defect, irregularity, omission or error in (b) the serial number of the collateral if the collateral is consumer goods of a kind that are prescribed as serial numbered goods. (b) the serial number of the collateral if the collateral is consumer goods of a kind that are prescribed as serial numbered goods. The defect is not cured if D name is correct The defect is not cured if D name is correct Why not? Why not?

Serial Numbered Consumer Goods "consumer goods" means goods that are used or acquired for use primarily for personal, family or household purposes; "consumer goods" means goods that are used or acquired for use primarily for personal, family or household purposes; The test for consumer goods is subjective. What in fact is the purpose for which the goods are used, not what is the purpose for which those types of goods are generally used. The test for consumer goods is subjective. What in fact is the purpose for which the goods are used, not what is the purpose for which those types of goods are generally used. Determined at the time the security interest attaches – s. 2(2) Determined at the time the security interest attaches – s. 2(2)

Serial Numbered Inventory Registration by serial number is not necessary to perfect a security interest in serial numbered goods which are held as inventory Registration by serial number is not necessary to perfect a security interest in serial numbered goods which are held as inventory Since the specific rules apply only to consumer goods and equipment, the general rules apply to inventory Since the specific rules apply only to consumer goods and equipment, the general rules apply to inventory

Serial Numbered Inventory Why isn’t serial # registration required for inventory? Why isn’t serial # registration required for inventory? Recall that the determination of the nature of the goods is made at the time the security interest attaches Recall that the determination of the nature of the goods is made at the time the security interest attaches D1 grants interest to SP1, sells in bulk to B, who sells to P in the ordinary course D1 grants interest to SP1, sells in bulk to B, who sells to P in the ordinary course Is SP1's interest effective against P? Is SP1's interest effective against P?

Serial Numbered Equipment SP v Purchaser 30(6) A buyer or lessee of goods takes free of a security interest in the goods perfected by registration under section 25 if 30(6) A buyer or lessee of goods takes free of a security interest in the goods perfected by registration under section 25 if (a) the buyer or lessee bought or leased the goods without knowledge of the security interest, and (a) the buyer or lessee bought or leased the goods without knowledge of the security interest, and (b) the goods were not described by serial number in the registration relating to the security interest. (b) the goods were not described by serial number in the registration relating to the security interest.

Serial Numbered Equipment SP v Purchaser 30(7) Subsection (6) applies only to goods that are equipment and that are of a kind that are prescribed as serial numbered goods 30(7) Subsection (6) applies only to goods that are equipment and that are of a kind that are prescribed as serial numbered goods Purchaser without knowledge takes free if serial number not used in registration Purchaser without knowledge takes free if serial number not used in registration P takes clear of ALL security interests P takes clear of ALL security interests NOT just those granted by the seller NOT just those granted by the seller takes free of a security interest takes free of a security interest

Serial Numbered Equipment SP v SP 35(4) A security interest in goods that are equipment and are of a kind that are prescribed as serial numbered goods is not registered or perfected by registration for the purposes of subsection (1)[competing security interests], (7) [lasped registration] or (8) [security interest granted by transferee] or 34(1) [purchase money security interests] unless a financing statement relating to the security interest that includes a description of the goods by serial number is registered

Serial Numbered Equipment Serial number goods which are not inventory or consumer goods must be registered by serial number in order to be perfected as against another secured party Serial number goods which are not inventory or consumer goods must be registered by serial number in order to be perfected as against another secured party Knowledge is irrelevant Knowledge is irrelevant Cf SP v P, where knowledge is relevant Cf SP v P, where knowledge is relevant

Serial Numbered Equipment SP v J.C. 35(4) A security interest in goods that are equipment and are of a kind that are prescribed as serial numbered goods is not registered or perfected by registration for the purposes of subsection (1), (7) or (8) or 34(1) unless a financing statement relating to the security interest that includes a description of the goods by serial number is registered. 35(4) A security interest in goods that are equipment and are of a kind that are prescribed as serial numbered goods is not registered or perfected by registration for the purposes of subsection (1), (7) or (8) or 34(1) unless a financing statement relating to the security interest that includes a description of the goods by serial number is registered.

Serial Numbered Equipment SP v J.C. No mention is made of subsection (6), which deals with JC and trustee in bankruptcy No mention is made of subsection (6), which deals with JC and trustee in bankruptcy Therefore, normal rules apply Therefore, normal rules apply Interest is perfected by registration for purposes of priority against j.c and trustee in bankruptcy even without serial number Interest is perfected by registration for purposes of priority against j.c and trustee in bankruptcy even without serial number

Consumer Goods & Equipment Consequences of failure to register the correct serial number is slightly different for consumer goods & equipment Consequences of failure to register the correct serial number is slightly different for consumer goods & equipment Consumer goods Consumer goods Interest is unperfected for all purposes s.43(8) Interest is unperfected for all purposes s.43(8) Including as against JC or trustee in bankruptcy Including as against JC or trustee in bankruptcy Equipment Equipment Security interest effective against JC or trustee in bankruptcy Security interest effective against JC or trustee in bankruptcy Why is there a difference ? Why is there a difference ?

Serial Numbered Goods in Ontario Serial number registration only required for motor vehicles Serial number registration only required for motor vehicles Priority rules Priority rules Same for Same for Consumer goods Consumer goods Serial number registration required (Reg 3(7)) or registration invalid Serial number registration required (Reg 3(7)) or registration invalid Inventory Inventory Serial number registration not required Serial number registration not required Different for equipment Different for equipment

Serial # Eqpt in Ontario SP v P If serial # not included If serial # not included Purchase clears security interest given by the seller Purchase clears security interest given by the seller Includes purchases out of the ordinary course Includes purchases out of the ordinary course Cf Model Act – clears all security interests Cf Model Act – clears all security interests In Ont remote purchaser not protected directly In Ont remote purchaser not protected directly But initial sale usually cleared But initial sale usually cleared Because includes purchases out of the ordinary course Because includes purchases out of the ordinary course

Serial # Eqpt in Ontario SP v SP / JC Registration valid against SP & JC even if no serial number Registration valid against SP & JC even if no serial number

Serial # Eqpt Comparison Registration w/o Serial # SP1 vModel ActOnt PProtectedProtected (variant) SP2ProtectedUnprotected JCUnprotected

Serial Numbered Equipment in Ontario 28(5)Where a motor vehicle...is sold other than in the ordinary course of business of the seller and the motor vehicle is classified as equipment of the seller, the buyer takes it free from any security interest therein given by the seller even though it is perfected by registration unless the vehicle identification number of the motor vehicle is set out in the designated place on a registered financing statement or financing change statement or unless the buyer knew that the sale constituted a breach of the security agreement. 28(5)Where a motor vehicle...is sold other than in the ordinary course of business of the seller and the motor vehicle is classified as equipment of the seller, the buyer takes it free from any security interest therein given by the seller even though it is perfected by registration unless the vehicle identification number of the motor vehicle is set out in the designated place on a registered financing statement or financing change statement or unless the buyer knew that the sale constituted a breach of the security agreement.

Purchase money security interest "purchase money security interest" means "purchase money security interest" means (a) a security interest taken in collateral to the extent that it secures all or part of the purchase price of the collateral,... (a) a security interest taken in collateral to the extent that it secures all or part of the purchase price of the collateral,... Money loaned to buy the very goods which are used as collateral for that loan Money loaned to buy the very goods which are used as collateral for that loan

Purchase money security interest “Super-priority” for PMSI “Super-priority” for PMSI 34(1) Subject to section 28, a purchase money security interest in 34(1) Subject to section 28, a purchase money security interest in (a) collateral or its proceeds,...that is perfected not later than fifteen days after the debtor.. obtains possession of the collateral, or [(b)...] (a) collateral or its proceeds, other than intangibles or inventory,...that is perfected not later than fifteen days after the debtor.. obtains possession of the collateral, or [(b)...] has priority over any other security interest in the same collateral given by the same debtor. has priority over any other security interest in the same collateral given by the same debtor.

Purchase money security interest Why is there a super-priority for pmsi? Why is there a super-priority for pmsi? Grace period because these loans are often made at the time of purchase Grace period because these loans are often made at the time of purchase

Purchase money security interest “Super-priority” for PMSI “Super-priority” for PMSI 34(1) Subject to section 28, a purchase money security interest in 34(1) Subject to section 28, a purchase money security interest in (a) collateral or its proceeds, (a) collateral or its proceeds, other than intangibles or inventory has priority over any other security interest in the same collateral given by the same debtor. has priority over any other security interest in the same collateral given by the same debtor. Why is inventory excluded? Why is inventory excluded?

Purchase money security interest Note: In BC and Man pmsi in serial numbered equipment need not be registered by serial number to be effective against another SP Note: In BC and Man pmsi in serial numbered equipment need not be registered by serial number to be effective against another SP D name registration thought sufficient D name registration thought sufficient

Serial Numbered Equipment SP v SP non-Atlantic Purchase money security interests Purchase money security interests In Western jurisdictions s. 35(4) does not list 34(1) – purchase money security interests In Western jurisdictions s. 35(4) does not list 34(1) – purchase money security interests Therefore serial number registration is not needed for pmsi Therefore serial number registration is not needed for pmsi E.g pmsi gets super-priority over other SP even without serial number E.g pmsi gets super-priority over other SP even without serial number

Proceeds 28(1) Subject to this Act, if collateral is dealt with or otherwise gives rise to proceeds, the security interest 28(1) Subject to this Act, if collateral is dealt with or otherwise gives rise to proceeds, the security interest (a) continues in the collateral unless the secured party expressly or impliedly authorizes the dealing, and (a) continues in the collateral unless the secured party expressly or impliedly authorizes the dealing, and (b) extends to the proceeds. (b) extends to the proceeds.

Proceeds The security interest in proceeds is subject to “tracing” rules The security interest in proceeds is subject to “tracing” rules Ie proceeds are deposited in a bank account which is then draft down to zero before new money is deposited: the security interest does not extend to the “new” money Ie proceeds are deposited in a bank account which is then draft down to zero before new money is deposited: the security interest does not extend to the “new” money