What is a security interest? Who is a secured party? What is a security agreement? What is a financing statement? What is a security interest? Who is a secured party? What is a security agreement? What is a financing statement? What three requirements must be met to create an enforceable security interest?  What three requirements must be met to create an enforceable security interest?  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 2

What is the most common method of perfecting a security interest under Article 9? What is the most common method of perfecting a security interest under Article 9? If two secured parties have perfected security interests in the collateral of the debtor, which party has priority to the collateral on the debtor’s default?  If two secured parties have perfected security interests in the collateral of the debtor, which party has priority to the collateral on the debtor’s default?  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 3

What rights does a secured creditor have on the debtor’s default? What rights does a secured creditor have on the debtor’s default? © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 4

UCC Article 9 governs transactions when personal property is put up as collateral for debt, including: UCC Article 9 governs transactions when personal property is put up as collateral for debt, including: – Accounts, agricultural liens, chattel paper (writings evidencing a debt), commercial assignments, fixtures, instruments and other intangible property. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 5

Secured Party. Secured Party. Debtor. Debtor. Security Interest. Security Interest. Security Agreement. Security Agreement. Collateral. Collateral. Financing Statement: UCC-1 form. Financing Statement: UCC-1 form. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 6

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To become a secured party, a creditor must “attach” a security interest in collateral of debtor. To become a secured party, a creditor must “attach” a security interest in collateral of debtor. Three requirements to “attach”: Three requirements to “attach”: – 1. Either: oral agreement and possession or a written agreement. – 2. Secured creditor give debtor value. – 3. Debtor has rights in the collateral.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 8

Written or Authenticated Security Agreement. Written or Authenticated Security Agreement. – When collateral is not in possession of secured party, security agreement must be written or authenticated, reasonably describe collateral, and be signed by debtor. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 9

Secured Party Must Give Value. Secured Party Must Give Value. – Creditor gives any consideration that would support a simple contract. – Creditor already gave consideration (antecedent debt). © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 10

Debtor Must Have Rights in the Collateral. Debtor Must Have Rights in the Collateral. – Debtor must have some interest (but not necessarily ownership) in the collateral, or right to obtain possession. – Rights can either be future or current legal interests. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 11

Debtors often put the same property up as collateral to several different creditors. Debtors often put the same property up as collateral to several different creditors. Who gets the collateral if the debtor becomes insolvent? General rule: the first creditor to perfect the security interest gets the collateral. Who gets the collateral if the debtor becomes insolvent? General rule: the first creditor to perfect the security interest gets the collateral. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 12

Two Ways to Perfect: Two Ways to Perfect: – Perfection by Filing a financing statement.  – Perfection Without Filing Financing Statement.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 13

Perfection By Filing. Perfection By Filing. – The Debtor’s (Legal) Name and Address. Specific Types of Debtors: corporate names must be on the “public record” on file with government in debtor’s jurisdiction. Trade Names: generally not sufficient for a financing statement. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 14

Perfection By Filing (cont’d). Perfection By Filing (cont’d). – The Debtor’s (Legal) Name (cont’d). Changes in the Debtor’s Name. – Description of the Collateral: provides sufficient notice to public. – Where to File: central state government office (usually secretary of state). County Filing: only with timber, fixtures, or items to be extracted (oil, gas, minerals). © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 15

Perfection By Filing (cont’d). Perfection By Filing (cont’d). – Consequences of an Improper Filing. Any improper filing renders the secured party’s interest unperfected, to an unsecured interest in bankruptcy. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 16

Perfection Without Filing. Perfection Without Filing. – Security interests can be perfected without filing a financing statement: When collateral is transferred into possession of secured party. When security interest can be “perfected on attachment” (PMSI in consumer goods, and assignment of beneficial interest).  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 17

Perfection Without Filing (cont’d). Perfection Without Filing (cont’d). – Perfection by Possession: common law “pledge” in Art. 9; security instrument does not need to be in writing if collateral in creditor’s possession. – Perfection by Attachment (PMSI): most common is purchase money security interest in consumer goods.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 18

Perfection Without Filing (cont’d). Perfection Without Filing (cont’d). – Perfection by Attachment (cont’d). Automatic Perfection: at the time of sale of goods. Exceptions to Automatic Perfection: (1) certain types of security interests subject to federal or state laws, and (2) PMSI’s in non-consumer goods (business inventory or livestock). © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 19

Effective Time Duration of Perfection. Effective Time Duration of Perfection. – Financing statement is effective for five (5) years. – If continuation statement is filed within six (6)months prior to expiration, original statement is extended an additional five years. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20

Proceeds: cash or property received when collateral is sold or disposed of in some other way. Proceeds: cash or property received when collateral is sold or disposed of in some other way. – Gives creditor a security interest in the proceeds from sale of that collateral. – Perfects automatically and remains perfected for 20 days after debtor receives the proceeds.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 21

Proceeds (cont’d). Proceeds (cont’d). – Extension of he 20 days can be provided for in the financing agreement. UCC also permits identifiable cash proceeds to be perfected after 20 days. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 22

After-Acquired Property. After-Acquired Property. – Property debtor acquires after execution of security agreement. – Generally debtor buys new inventory to replace old inventory, so security agreement has an ‘after –acquired’ clause that gives secured party a security interest in new collateral. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 23

Future Advances. Future Advances. – Used in establishing a “line of credit.” – Creditor wants to lend money in the future that will be secured by the same collateral as debtor puts up for first loan, called cross-collateralization. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 24

Floating-Lien Concept: security interest in proceeds, after-acquired property, or in collateral subject to future advances. Floating-Lien Concept: security interest in proceeds, after-acquired property, or in collateral subject to future advances. – Floating Lien in Inventory: lien “floats” over the changing inventory. – Floating Lien in Shifting Stock of Goods: raw materials to finished goods. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 25

Creditor InterestPriority Secured vs. unsecured creditors Secured wins Perfected secured vs. unperfected secured creditor First in time wins Secured creditor vs. secured creditor First in time wins Buyer not in the ordinary course of the Seller’s business BNIOCB loses Buyer in the ordinary course of the Seller’s business BIOCB wins © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 26

General Rule: when more than one creditor claims rights in collateral: General Rule: when more than one creditor claims rights in collateral: – Perfected security interest has priority over unsecured creditors and interests. – Conflicting unperfected security interests: generally first in filing has priority.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 27

General Rule: (cont’d). General Rule: (cont’d). – Conflicting unperfected security interests: first to attach has priority. Citizens National Bank of Jessamine County v. Washington Mutual Bank – CASE 24.1 Citizens National Bank of Jessamine County v. Washington Mutual Bank (2010). Which of the two security interests in the land had priority? © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 28

Exceptions to the General Rule. Exceptions to the General Rule. – Buyers in the Ordinary Course of Business. Buyer in good faith and without knowledge of defects. Takes goods free of security interest. – PMSI in Goods Other Than Inventory and Livestock.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 29

Exceptions to the General Rule (cont’d). Exceptions to the General Rule (cont’d). – PMSI In Inventory. Perfected interest in inventory has priority over conflicting interest. – Buyers of the Collateral. Buyers in the Ordinary Course of Business. Buyers of Farm Products, Instruments, Documents, or Securities. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 30

Information Requests. Information Requests. Release, Assignment, and Amendment. Release, Assignment, and Amendment. Confirmation or Accounting Request by Debtor. Confirmation or Accounting Request by Debtor. – Debtor entitled to one request every six months without charge.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 31

Termination Statement. Termination Statement. – All creditors must file. – For consumer debts, must file within one month or when request in writing, must file within 10 days of receipt of request, whichever is earliest. – For all other written requests - within 10 days of receipt. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 32

Basic Remedies: Basic Remedies: – Repossession of the Collateral—Self Help Remedy. – Judicial Remedies: creditor can give up security interest and sue to get judgment, then execute or levy. First National Bank of Litchfield v. Miller CASE 24.2 First National Bank of Litchfield v. Miller (2008). How could Norwest and the bank avoided problems in this case? © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 33

Disposition of the Collateral. Disposition of the Collateral. – After taking possession, secured party has several options. – Retention of Collateral by the Secured Party: unless consumer goods and buyer has paid 60% as PMSI. Secured party must give timely notice to buyer and any junior lienholder.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 34

Disposition of the Collateral (cont’d). Disposition of the Collateral (cont’d). – Consumer Goods: if PMSI and buyer has paid 60%, secured party must sell or dispose of property within 90 days. – Disposition Procedures: UCC allows great flexibility.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 35

Disposition of the Collateral (cont’d). Disposition of the Collateral (cont’d). – Disposition Procedures (cont’d). Secured party may sell, lease, license or otherwise dispose of any collateral. Can be disposed at public or private sale, as long as the process is commercially reasonable. Secured party can purchase the collateral.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 36

Disposition of the Collateral (cont’d). Disposition of the Collateral (cont’d). – Disposition Procedures (cont’d). Price is only one aspect of a ‘commercially reasonable manner’ of disposition. Hicklin v. Onyx Acceptance Corp. CASE 24.3 Hicklin v. Onyx Acceptance Corp. (2009). What other factors besides price did the court look for to show commercially reasonable manner? © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 37

Disposition of the Collateral (cont’d). Disposition of the Collateral (cont’d). – Proceeds from Disposition. Reasonable expenses incurred by secured party. Balance of debt owed to secured party. Junior Lienholders. Surplus to Debtor. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 38

Disposition Procedures (cont’d). Disposition Procedures (cont’d). – Noncash Proceeds. – Deficiency Judgment: difference between sale and what is actually owing by debtor. – Redemption Rights: debtor or other secured party to retake and maintain the collateral. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 39