1. The University of Chicago
2/24/2019
Class 21 Secured Transactions, Fall, Default: Turning Collateral into Value
Randal C. Picker
James Parker Hall Distinguished Service Professor of Law
The Law School
The University of Chicago
Copyright © Randal C. Picker. All Rights Reserved.

2. Acting Under 9-607(a)(1) and (a)(3)
2/24/2019
Acting Under 9-607(a)(1) and (a)(3)
1/1: $, SA/FS: AR
Bank
Debtor
2/1: Sale of goods on credit
3/1: Debtor defaults: What acts can/should Bank take as to Buyer?
Buyer

3. 9-607 (a) [Collection and enforcement generally.]
2/24/2019
9-607
(a) [Collection and enforcement generally.]
If so agreed, and in any event after default, a secured party:
(1) may notify an account debtor or other person obligated on collateral to make payment or otherwise render performance to or for the benefit of the secured party; …
February 24, 2019

4. 2/24/2019
9-607
(4) if it holds a security interest in a deposit account perfected by control under Section 9‑104(a)(1), may apply the balance of the deposit account to the obligation secured by the deposit account; and
February 24, 2019

5. 2/24/2019
9-607
(5) if it holds a security interest in a deposit account perfected by control under Section 9‑104(a)(2) or (3), may instruct the bank to pay the balance of the deposit account to or for the benefit of the secured party.
February 24, 2019

6. 9-607 (c) [Commercially reasonable collection and enforcement.]
2/24/2019
9-607
(c) [Commercially reasonable collection and enforcement.]
A secured party shall proceed in a commercially reasonable manner if the secured party:
(1) undertakes to collect from or enforce an obligation of an account debtor or other person obligated on collateral; and
February 24, 2019

7. 2/24/2019
9-608
(a) [Application of proceeds, surplus, and deficiency if obligation secured.]
If a security interest or agricultural lien secures payment or performance of an obligation, the following rules apply:
(1) A secured party shall apply or pay over for application the cash proceeds of collection or enforcement under Section in the following order to:
February 24, 2019

8. 2/24/2019
9-608
(A) the reasonable expenses of collection and enforcement and, to the extent provided for by agreement and not prohibited by law, reasonable attorney’s fees and legal expenses incurred by the secured party;
(B) the satisfaction of obligations secured by the security interest or agricultural lien under which the collection or enforcement is made; and
February 24, 2019

9. 2/24/2019
9-608
(C) the satisfaction of obligations secured by any subordinate security interest in or other lien on the collateral subject to the security interest or agricultural lien under which the collection or enforcement is made if the secured party receives an authenticated demand for proceeds before distribution of the proceeds is completed.
February 24, 2019

10. 2/24/2019
9-608
(3) A secured party need not apply or pay over for application noncash proceeds of collection and enforcement under Section unless the failure to do so would be commercially unreasonable. A secured party that applies or pays over for application noncash proceeds shall do so in a commercially reasonable manner.
February 24, 2019

11. 2/24/2019
9-608
(4) A secured party shall account to and pay a debtor for any surplus, and the obligor is liable for any deficiency.
February 24, 2019

12. 2/24/2019
9-608
(b) [No surplus or deficiency in sales of certain rights to payment.]
If the underlying transaction is a sale of accounts, chattel paper, payment intangibles, or promissory notes, the debtor is not entitled to any surplus, and the obligor is not liable for any deficiency.
February 24, 2019

13. Davis Forestry Worcester Davis Prospect DownEast
2/24/2019
Davis Forestry
2/27/09: Davis files complaint with ex parte attachment motion; more steps 4/6/09 and 4/16/09
Worcester
Davis
9/2005: SA covering deposit accounts et al
3/11/09: P buys assets at auction
3/24/09: P turnover to sub DE
Prospect
DownEast
Who has priority to DA?
February 24, 2019

14. 9-607 (a) [Collection and enforcement generally.]
2/24/2019
9-607
(a) [Collection and enforcement generally.]
If so agreed, and in any event after default, a secured party:
February 24, 2019

15. 2/24/2019
9-607
(4) if it holds a security interest in a deposit account perfected by control under Section 9‑104(a)(1), may apply the balance of the deposit account to the obligation secured by the deposit account; and
February 24, 2019

16. 2/24/2019
9-607
(5) if it holds a security interest in a deposit account perfected by control under Section 9‑104(a)(2) or (3), may instruct the bank to pay the balance of the deposit account to or for the benefit of the secured party.
February 24, 2019

17. Comment 7 to 9-607 What to do if unperfected?
“If a security interest in a deposit account is unperfected, or is perfected by filing by virtue of the proceeds rules of Section 9‑315, the depositary institution ordinarily owes no obligation to obey the secured party’s instructions. See Section 9‑341. To reach the funds without the debtor’s cooperation, the secured party must use an available judicial procedure.”

18. Bank’s Rights and Duties
9-341
Except as otherwise provided in Section 9‑340(c), and unless the bank otherwise agrees in an authenticated record, a bank’s rights and duties with respect to a deposit account maintained with the bank are not terminated, suspended, or modified by:
February 24, 2019

19. Bank’s Rights and Duties
(1) the creation, attachment, or perfection of a security interest in the deposit account;
(2) the bank’s knowledge of the security interest; or
(3) the bank’s receipt of instructions from the secured party.
February 24, 2019

20. Davis Forestry Result Default Rights as to Deposit Accounts
Can’t act against deposit account under 9-610
Instead must act under exclusive rights set out in 9-607(a)(4) and 9-607(a)(5)
If those don’t apply, must undertake judicial procedure
February 24, 2019

21. Analysis of Davis Forestry
Probably Wrong
Note two points re 9-607
9-607(a)(2) gives the SP the right to act as to proceeds and that presumably includes deposit account proceeds
February 24, 2019

22. Analysis of Davis Forestry
9-607(a)(1) and (a)(3) create rights to act regarding accounts, but every reason to think that those can also be disposed of under 9-610(a)
Meaning?
9-607(a)(3) and (a)(4) are not the exclusive path to deposit accounts ((a)(2) should work as to proceeds deposit accounts
February 24, 2019

23. Analysis of Davis Forestry
And the existence of rights under doesn’t also generally preclude the application of (put differently, isn’t the exclusive set of default rights as to ordinary accounts and therefore need not obviously be as to deposit accounts)
February 24, 2019

24. Analysis of Davis Forestry
Protection of deposit account bank is a separate issue
February 24, 2019

25. 9-610. Disposition After Default
2/24/2019
Disposition After Default
(a) [Disposition after default.]
After default, a secured party may sell, lease, license, or otherwise dispose of any or all of the collateral in its present condition or following any commercially reasonable preparation or processing.
February 24, 2019

26. 9-610 Cont. (b) [Commercially reasonable disposition.]
2/24/2019
9-610 Cont.
(b) [Commercially reasonable disposition.]
Every aspect of a disposition of collateral, including the method, manner, time, place, and other terms, must be commercially reasonable. If commercially reasonable, a secured party may dispose of collateral by public or private proceedings, by one or more contracts, as a unit or in parcels, and at any time and place and on any terms.
February 24, 2019

27. 9-610 Cont. (c) [Purchase by secured party.]
2/24/2019
9-610 Cont.
(c) [Purchase by secured party.]
A secured party may purchase collateral:
(1) at a public disposition; or
(2) at a private disposition only if the collateral is of a kind that is customarily sold on a recognized market or the subject of widely distributed standard price quotations.
February 24, 2019

28. 9-611. General Notice Provisions
2/24/2019
General Notice Provisions
(b) [Notification of disposition required.]
Except as otherwise provided in subsection (d), a secured party that disposes of collateral under Section 9‑610 shall send to the persons specified in subsection (c) a reasonable authenticated notification of disposition.
February 24, 2019

29. 9-611 Cont. (c) [Persons to be notified.]
2/24/2019
9-611 Cont.
(c) [Persons to be notified.]
To comply with subsection (b), the secured party shall send an authenticated notification of disposition to:
(1) the debtor;
(2) any secondary obligor; and

30. 2/24/2019
9-611 Cont.
(3) if the collateral is other than consumer goods: other secured parties (subject to notice rules)

31. 9-612. Notice Time Periods (a) [Reasonable time is question of fact.]
2/24/2019
Notice Time Periods
(a) [Reasonable time is question of fact.]
Except as otherwise provided in subsection (b), whether a notification is sent within a reasonable time is a question of fact.
February 24, 2019

32. 2/24/2019
9-612 Cont.
(b) [10-day period sufficient in non-consumer transaction.]
In a transaction other than a consumer transaction, a notification of disposition sent after default and 10 days or more before the earliest time of disposition set forth in the notification is sent within a reasonable time before the disposition.
February 24, 2019

33. Priority and Default Rights
Key Questions
How does the existence of a senior security interest effect the rights of a junior secured creditor to repossess collateral under 9-609?
To sell the collateral under 9-610?
Can a senior secured creditor insist that the property be turned over by a junior?
February 24, 2019

34. Priority and Default Rights
Key Questions
What rights do different creditors have to the proceeds of the sale?
February 24, 2019

35. 9-617. Rights of Transferees
2/24/2019
Rights of Transferees
(a) [Effects of disposition.]
A secured party’s disposition of collateral after default:
(1) transfers to a transferee for value all of the debtor’s rights in the collateral;
(2) discharges the security interest under which the disposition is made; and
February 24, 2019

36. 2/24/2019
9-617(a) Cont.
(3) discharges any subordinate security interest or other subordinate lien [other than liens created under [cite acts or statutes providing for liens, if any, that are not to be discharged]].
February 24, 2019

37. 9-617 Cont. (b) [Rights of good-faith transferee.]
2/24/2019
9-617 Cont.
(b) [Rights of good-faith transferee.]
A transferee that acts in good faith takes free of the rights and interests described in subsection (a), even if the secured party fails to comply with this article or the requirements of any judicial proceeding.
February 24, 2019

38. 9-615. Application of Proceeds of Disposition
2/24/2019
Application of Proceeds of Disposition
Tracks Our Discussion of on Collections
9-615(a): Expenses of disposition, then secured debt being pursued, then junior secured debts
9-615(c): Noncash proceeds rules
9-615(d): Surplus and deficiency structure
February 24, 2019

39. Junior Disposition Example
TTYN
Junior Disposition Example
Hypo
Assume that collateral has a fair market value of $500K
Three secured creditors: senior owed $300K, second owed $100K and third owed $200K
Assume costs $25K to dispose of collateral
February 24, 2019

40. Junior Disposition Example
TTYN
Junior Disposition Example
Sale
Assume second secured creditor is able to sell at price that fully reflects FMV of the collateral
What will the collateral sell at? How should the proceeds be divided?
February 24, 2019

41. Answer
Sales Price: $200K
Under 9-617(a), second and third security interests are discharged (purchaser takes free of those), but takes subject to senior interest owed $300K
Means net value to purchaser is only $200K
February 24, 2019

42. Answer Division of $200K proceeds
$25K to cover costs of sale under 9-615(a)(1)
$100K to second under 9-615(a)(2)
$75K to third under 9-615(a)(3) assuming conditions are met
First secured creditor has no claim on proceeds as fully protected from continuing security interest
February 24, 2019

43. Status of Proceeds of Disposition by Junior Secured Party
This is 9-615(g)
February 24, 2019

44. 9-615(g): Proceeds and Junior Secured Parties
A secured party that receives cash proceeds of a disposition in good faith and without knowledge that the receipt violates the rights of the holder of a security interest or other lien that is not subordinate to the security interest or agricultural lien under which the disposition is made:
February 24, 2019

45. 9-615(g): Proceeds and Junior Secured Parties
(1) takes the cash proceeds free of the security interest or other lien;
(2) is not obligated to apply the proceeds of the disposition to the satisfaction of obligations secured by the security interest or other lien; and
February 24, 2019

46. 9-615(g): Proceeds and Junior Secured Parties
(3) is not obligated to account to or pay the holder of the security interest or other lien for any surplus.
February 24, 2019

47. Harley-Davidson (CA1 2015) Core Facts Key Issues
Security interest in financed Cessna 421C
Plane repossessed; guarantor on hook for debt
Key Issues
Commercial reasonableness of this particular sale
February 24, 2019

48. 9-311
Perfection of security interests in property subject to certain statutes, regulations, and treaties.
(a) Security interest subject to other law. Except as otherwise provided in subsection (d), the filing of a financing statement is not necessary or effective to perfect a security interest in property subject to:
February 24, 2019

49. 9-311
(1) a statute, regulation, or treaty of the United States whose requirements for a security interest’s obtaining priority over the rights of a lien creditor with respect to the property preempt Section 9-310(a);
February 24, 2019

50. 9-311
Official Comment 2
“An example of the type of federal statute referred to in subsection (a)(1) is 49 U.S.C. sections , for civil aircraft of the United States.”
February 24, 2019

51. February 24, 2019
49 USC 44107

52. February 24, 2019
49 USC 44107

53. FAA Website February 24, 2019 2/24/2019
February 24, 2019
FAA Website

54. February 24, 2019
Search (13 Nov 2017)

55. February 24, 2019
Search (13 Nov 2017)

56. Shopping for Airplanes and Parts
Controller Website
Garmin
February 24, 2019

57. Harley-Davidson (CA1 2015) Evaluating This Sale Missing logbook?
Missing avionics?
Use of dealer?
Vandalism and needed repairs?
As-is warranty?
February 24, 2019

58. Harley-Davidson (CA1 2015)
How do these impact commercial reasonableness?
February 24, 2019

59. 9-620. Retention of Collateral
Old Statute
Keep collateral, discharge debt
New Statute
Allows for partial satisfaction of debt
Means that debtor may owe deficiency judgment
February 24, 2019

60. CBGC Holdings (Bankr. S.D.N.Y. 2010)
Core Facts
Sale of small business coupled with retained security interest and other protective provisions
Default followed document of 12 Feb 2010
“Surrender of Collateral, Consent to Strict Foreclosure, and Release Agreement”
February 24, 2019

61. CBGC Holdings (Bankr. S.D.N.Y. 2010)
Core Facts
No action by SP under agreement until May 18, 2010
SP could move forward after that if debtor didn’t fix the situation
SP started to do so as of May 27, 2010
February 24, 2019

62. CBGC Holdings (Bankr. S.D.N.Y. 2010)
Key Questions
Does this satisfy the requirements of 9-620(c)?
What is it that we should be concerned about here?
February 24, 2019

63. 9-623. Redemption (a) [Persons that may redeem.]
2/24/2019
Redemption
(a) [Persons that may redeem.]
A debtor, any secondary obligor, or any other secured party or lienholder may redeem collateral.
February 24, 2019

64. 9-623 Cont. (b) [Requirements for redemption.]
2/24/2019
9-623 Cont.
(b) [Requirements for redemption.]
To redeem collateral, a person shall tender:
(1) fulfillment of all obligations secured by the collateral; and
(2) the reasonable expenses and attorney’s fees described in Section 9‑615(a)(1).
February 24, 2019

65. 9-623 Cont. (c) [When redemption may occur.]
2/24/2019
9-623 Cont.
(c) [When redemption may occur.]
A redemption may occur at any time before a secured party:
(1) has collected collateral under Section 9‑607;
(2) has disposed of collateral or entered into a contract for its disposition under Section 9‑610; or
February 24, 2019

66. 2/24/2019
9-623 Cont.
(3) has accepted collateral in full or partial satisfaction of the obligation it secures under Section 9‑622.
February 24, 2019

67. Secured Party Mistakes in Implementing Part 6
2/24/2019
Secured Party Mistakes in Implementing Part 6
9-625: Damages
9-626: Rebuttable Presumption Rule
9-627: Commercial Reasonableness Standards
9-628: Limitations on Liability
February 24, 2019

68. 9-625 (b) [Damages for noncompliance.]
2/24/2019
9-625
(b) [Damages for noncompliance.]
Subject to subsections (c), (d), and (f), a person is liable for damages in the amount of any loss caused by a failure to comply with this article. Loss caused by a failure to comply may include loss resulting from the debtor’s inability to obtain, or increased costs of, alternative financing.
February 24, 2019

69. Deficiency Judgments Hypo
SP is owed $200K
Conducts disposition of the collateral
Costs: $25K
Sale Price: $100K
Creates $125K deficiency judgment (owed to SP as unsecured debt)
February 24, 2019

70. Deficiency Judgments: Old Article 9 Caselaw
2/24/2019
Deficiency Judgments: Old Article 9 Caselaw
Absolute Bar Rule
Failure to comply with default sales rule forfeits deficiency judgment
Rebuttable Presumption Rule
Failure to comply creates rebuttable presumption that complying sale would have resulted in zero deficiency judgment
February 24, 2019

71. Old Article 9 Caselaw Setoff Rule
2/24/2019
Old Article 9 Caselaw
Setoff Rule
No consequence for deficiency judgment
Assess instead damage to debtor: extent to which defect lowered proceeds from sale
February 24, 2019

72. 9-626: Rebuttable Presumption Rule
2/24/2019
9-626: Rebuttable Presumption Rule
(a) [Applicable rules if amount of deficiency or surplus in issue.]
In an action arising from a transaction, other than a consumer transaction, in which the amount of a deficiency or surplus is in issue, the following rules apply:
February 24, 2019

73. 2/24/2019
9-626(a) Cont.
(1) A secured party need not prove compliance with the provisions of this part relating to collection, enforcement, disposition, or acceptance unless the debtor or a secondary obligor places the secured party’s compliance in issue.
February 24, 2019

74. 2/24/2019
9-626(a) Cont.
(2) If the secured party’s compliance is placed in issue, the secured party has the burden of establishing that the collection, enforcement, disposition, or acceptance was conducted in accordance with this part.
February 24, 2019

75. 9-626(a) Cont. (3) [pretty messy but (4) is key];
2/24/2019
9-626(a) Cont.
(3) [pretty messy but (4) is key];
(4) For purposes of paragraph (3)(B), the amount of proceeds that would have been realized is equal to the sum of the secured obligation, expenses, and attorney’s fees unless the secured party proves that the amount is less than that sum.
February 24, 2019

76. 9-626(a) Cont.
Meaning
Once debtor or other person challenges whether disposition complied with Article 9, SP has burden to prove that it did
Assumption is that complying sale would have covered debt and fees
Presumed zero deficiency unless SP proves otherwise
February 24, 2019

77. 9-626 Cont.: Not Necessarily in Consumer Transactions
2/24/2019
9-626 Cont.: Not Necessarily in Consumer Transactions
(b) [Non-consumer transactions; no inference.]
The limitation of the rules in subsection (a) to transactions other than consumer transactions is intended to leave to the court the determination of the proper rules in consumer transactions. The court may not infer from that limitation the nature of the proper rule in consumer transactions and may continue to apply established approaches.
February 24, 2019