Secured Transactions Assignment 16

Secured Transactions Assignment 16
The Personal Property Filing Systems

The Big Picture Part One: The Creditor-Debtor Relationship Creditor

The Big Picture Part One: The Creditor-Debtor Relationship
Part Two: The Creditor-Third Party Relationship Creditor Seller Creditor Debtor Buyer PMSI Tax lien

Part Two: The Creditor-Third Party Relationship Chapter 6: Perfection Creditor Seller Creditor Debtor Buyer PMSI Tax lien

Part Two: The Creditor-Third Party Relationship Chapter 6: Perfection Chapter 7: Maintaining Perfection Creditor Seller Creditor Debtor Buyer PMSI Tax lien

Part Two: The Creditor-Third Party Relationship Chapter 6: Perfection Chapter 7: Maintaining Perfection Chapter 8: The Concept of Priority Creditor Seller Creditor Debtor Buyer PMSI Tax lien

Part Two: The Creditor-Third Party Relationship Chapter 6: Perfection Chapter 7: Maintaining Perfection Chapter 8: The Concept of Priority Chapter 9: Particular Priority Contests Creditor Seller Creditor Debtor Buyer PMSI Tax lien

Priority: The Basic Idea
The right to be paid in full in preference to others.

The right to be paid in full in preference to others. Example 1: 2nd 1st

The right to be paid in full in preference to others. Example 1: 1st gets all available value 2nd 1st

The right to be paid in full in preference to others. Example 1: 1st gets all available value Example 2: 2nd 1st

The right to be paid in full in preference to others. Example 1: 1st gets all available value Example 2: 1st is paid in full; 2nd gets the remainder 2nd 1st

The right to be paid in full in preference to others. Example 1: 1st gets all available value Example 2: 1st is paid in full; 2nd gets the remainder Example 3: 2nd 1st

The right to be paid in full in preference to others. Example 1: 1st gets all available value Example 2: 1st is paid in full; 2nd gets the remainder Example 3: 1st and 2nd are paid in full 2nd 1st

Priority: Who gets it? General rule: The first to attach and perfect a security interest has priority Perfection: Public notice given by a proper method Rationale: First’s treatment is fair because debtor agreed to it Later’s treatment is fair because they knew about first Rejected rules: Distribution based on status (wages, taxes, child support, etc., bankruptcy; government bailout $) The right to trace value given (Louisiana vendor’s lien; statutory liens, author’s manuscript)

Methods of Perfection 1. Filing 2. Possession 3. Control
4. Automatic perfection 5. Levy

Filing system Or Possession Secured party To whom To whom it may
concern: I’m first, Filer To whom it may concern: I’m first, Filer For most collateral, a Secured Party can perfect multiple ways: To whom it may concern: I’m first, Filer To whom it may concern: I’m first, Filer To whom it may concern: I’m first, Filer To whom it may concern: I’m first, Filer To whom it may concern: I’m first, Filer To whom it may concern: I’m first, Filer To whom it may concern: I’m first, Filer To whom it may concern: I’m first. -- Filer Secured party Or Possession

Filing system And Or Possession Secured Searcher party To whom it may
concern: I’m first, Filer To whom it may concern: I’m first, Filer For most collateral, a Secured Party can perfect multiple ways To whom it may concern: I’m first, Filer To whom it may concern: I’m first, Filer To whom it may concern: I’m first, Filer To whom it may concern: I’m first, Filer To whom it may concern: I’m first, Filer To whom it may concern: I’m first, Filer To whom it may concern: I’m first, Filer To whom it may concern: I’m first. -- Filer The searcher must look for both. Secured party Searcher And Or Possession

UCC Searches

The problem: Thousands of filing systems
Real estate and fixture filing systems in each of 3,000 counties UCC filing system in each of 50 states Automobile title filing system in each of 50 states Mobile home title filing systems in many states Boat title filing systems in many states Alcoholic beverage license filing systems in Florida, etc. Patent filing system (Washington) Trademark filing system (Washington) Copyright filing system (Washington) Ship mortgage filing system (Coast Guard) Aircraft filing system (Oklahoma City) Railroad stock filing system UNCITRAL mobile goods filing system (proposed)

Real estate and fixture filing systems in each of 3,000 counties UCC filing system in each of 50 states Automobile title filing system in each of 50 states Mobile home title filing systems in many states Boat title filing systems in many states Alcoholic beverage license filing systems in Florida, etc. Patent filing system (Washington) Trademark filing system (Washington) Copyright filing system (Washington) Ship mortgage filing system (Coast Guard) Aircraft filing system (Oklahoma City) Railroad stock filing system UNCITRAL mobile goods filing system (international aircraft)

Real estate and fixture filing systems in each of 3,000 counties UCC filing system in each of 50 states Automobile title filing system in each of 50 states Mobile home title filing systems in many states Boat title filing systems in many states Alcoholic beverage license filing systems in Florida, etc. Patent filing system (Washington) Trademark filing system (Washington) Copyright filing system (Washington) Ship mortgage filing system (Coast Guard) Aircraft filing system (Oklahoma City) Railroad stock filing system UNCITRAL mobile goods filing system (international aircraft) Designation as loss payee on a policy of insurance

Real estate and fixture filing systems in each of 3,000 counties UCC filing system in each of 50 states Automobile title filing system in each of 50 states Mobile home title filing systems in many states Boat title filing systems in many states Alcoholic beverage license filing systems in Florida, etc. Patent filing system (Washington) Trademark filing system (Washington) Copyright filing system (Washington) Ship mortgage filing system (Coast Guard) Aircraft filing system (Oklahoma City) Railroad stock filing system UNCITRAL mobile goods filing system (internationalaircraft) Designation as a loss payee on a policy of insurance For communication to occur, Filer must file in the right system and Searcher must search in that system

Which filing system? §9-109(a). This article applies to a transaction that creates a security interest in personal property or fixtures by contract

Which filing system? §9-109(a). This article applies to a transaction that creates a security interest in personal property or fixtures by contract §9-310(a). Except as otherwise provided in subsection (b) (possession, control, automatic perfection) a financing statement must be filed to perfect all security interests

Which filing system? §9-109(a). This article applies to a transaction that creates a security interest in personal property or fixtures by contract §9-310(a). Except as otherwise provided in subsection (b) (possession, control, automatic perfection) a financing statement must be filed to perfect all security interests §9-310(b). A financing statement is not necessary to perfect a security interest in property subject to a statute, regulation, or treaty described in §9-311(a)

Which filing system? §9-109(a). This article applies to a transaction that creates a security interest in personal property or fixtures by contract §9-310(a). Except as otherwise provided in subsection (b) (possession, control, automatic perfection) a financing statement must be filed to perfect all security interests §9-310(b). A financing statement is not necessary to perfect a security interest in property subject to a statute, regulation, or treaty described in §9-311(a) §9-311(a). [T]he filing of a financing statement is not necessary or effective to perfect a security interest in property subject to (1) A statute ... of the United States [that] preempts §9-310(a)

Which filing system? §9-109(a). This article applies to a transaction that creates a security interest in personal property or fixtures by contract §9-310(a). Except as otherwise provided in subsection (b) (possession, control, automatic perfection) a financing statement must be filed to perfect all security interests §9-310(b). A financing statement is not necessary to perfect a security interest in property subject to a statute, regulation, or treaty described in §9-311(a) §9-311(a). [T]he filing of a financing statement is not necessary or effective to perfect a security interest in property subject to (1) A statute ... of the United States [that] preempts §9-310(a) (2) [A certificate of title statute of this state]

Which filing system? §9-501(a). [I]f the local law of this State governs perfection of a security interest the office in which to file a financing statement is: (1) the office designated for the filing of a mortgage if the financing statement is filed as a fixture filing

Which filing system? §9-501(a). [I]f the local law of this State governs perfection of a security interest the office in which to file a financing statement is: (1) the office designated for the filing of a mortgage if the financing statement is filed as a fixture filing (2) the office of the Secretary of State in all other cases . . .

Which filing system? §9-109(a) §9-310(a)

Which filing system? §9-109(a) §9-310(a) §9-501(a)(1) Real property

UCC filing system

§9-310(b)(3) §9-311(a) §9-501(a)(2) UCC filing system

§9-310(b)(3) §9-311(a) §9-501(a)(2) Federal filing systems (1) UCC filing system

§9-310(b)(3) §9-311(a) §9-501(a)(2) Federal filing systems (1) UCC filing system (2) State certificate of title systems

The Chapter 11 Debtor as Lien Creditor
In re Peregrine Entertainment, Ltd. “NPI [the bankrupt debtor] claimed that, as debtor in possession, it had a judicial lien on all assets in the bankruptcy estate, including the copyrights and receivables.” Page 285. Purpose of the rule: To invalidate a lien not perfected before bankruptcy

In re Peregrine Entertainment, Ltd. “NPI [the bankrupt debtor] claimed that, as debtor in possession, it had a judicial lien on all assets in the bankruptcy estate, including the copyrights and receivables.” Page 285. Purpose of the rule: To invalidate a lien not perfected before bankruptcy Asset

In re Peregrine Entertainment, Ltd. “NPI [the bankrupt debtor] claimed that, as debtor in possession, it had a judicial lien on all assets in the bankruptcy estate, including the copyrights and receivables.” Page 285. Purpose of the rule: To invalidate a lien not perfected before bankruptcy Security interest Secured creditors Asset

In re Peregrine Entertainment, Ltd. “NPI [the bankrupt debtor] claimed that, as debtor in possession, it had a judicial lien on all assets in the bankruptcy estate, including the copyrights and receivables.” Page 285. Unsecured creditors Purpose of the rule: To invalidate a lien not perfected before bankruptcy Unsecured claims Security interest §544 lien Secured creditors Asset Trustee (DIP) Rule: The bankrupt debtor may avoid any transfer that an ideal lien creditor, levying at bankruptcy, could avoid.

In re Peregrine Entertainment, Ltd. “NPI [the bankrupt debtor] claimed that, as debtor in possession, it had a judicial lien on all assets in the bankruptcy estate, including the copyrights and receivables.” Page 285. Bankruptcy Code §1101 “debtor in possession” means debtor

In re Peregrine Entertainment, Ltd. “NPI [the bankrupt debtor] claimed that, as debtor in possession, it had a judicial lien on all assets in the bankruptcy estate, including the copyrights and receivables.” Page 285. Bankruptcy Code §1101 “debtor in possession” means debtor Bankruptcy Code §1107(a). “[A] debtor in possession shall have all the rights and powers, and shall perform all the functions and duties of a trustee serving in a case under this chapter.”

In re Peregrine Entertainment, Ltd. “NPI [the bankrupt debtor] claimed that, as debtor in possession, it had a judicial lien on all assets in the bankruptcy estate, including the copyrights and receivables.” Page 285. Bankruptcy Code §1101 “debtor in possession” means debtor Bankruptcy Code §1107(a). “[A] debtor in possession shall have all the rights and powers, and shall perform all the functions and duties of a trustee serving in a case under this chapter.” Bankruptcy Code § 544(a)(1). “The trustee shall have the rights and powers of a creditor that obtains . . a judicial lien on all property [an unsecured creditor could have reached at the commencement of the case].”

In re Peregrine Entertainment, Ltd. “NPI [the bankrupt debtor] claimed that, as debtor in possession, it had a judicial lien on all assets in the bankruptcy estate, including the copyrights and receivables.” Page 285. Bankruptcy Code §1101 “debtor in possession” means debtor Bankruptcy Code §1107(a). “[A] debtor in possession shall have all the rights and powers, and shall perform all the functions and duties of a trustee serving in a case under this chapter.” Bankruptcy Code § 544(a)(1). “The trustee shall have the rights and powers of a creditor that obtains . . a judicial lien on all property [an unsecured creditor could have reached at the commencement of the case].” Bottom line: The Chapter 11 debtor can avoid unperfected liens.

Problem 16.1, page 293 Leonard owes our client, Felicia, $30k for alimony and child support. Felicia has a judgment. 30k Auto

Problem 16.1, page 293 Leonard owes our client, Felicia, $30k for alimony and child support. Felicia has a judgment. Leonard owes Bernie $36k for money loaned. Leonard gives Bernie a perfected security interest. 30k Auto

Problem 16.1, page 293 Leonard owes our client, Felicia, $30k for alimony and child support. Felicia has a judgment. Leonard owes Bernie $36k for money loaned. Leonard gives Bernie a perfected security interest. Where does Felicia stand? 30k Auto

Problem 16.1, page 293 Felicia Leonard owes our client, Felicia, $30k for alimony and child support. Felicia has a judgment. Leonard owes Bernie $36k for money loaned. Leonard gives Bernie a perfected security interest. Where does Felicia stand? Subordinate, not yet perfected. $36k 30k Bernie Auto

Problem 16.1, page 293 $30k Felicia
Leonard owes our client, Felicia, $30k for alimony and child support. Felicia has a judgment. Leonard owes Bernie $36k for money loaned. Leonard gives Bernie a perfected security interest. Where does Felicia stand? Subordinate, not yet perfected. Can she go ahead with the levy? §9-401. $36k 30k Bernie Auto

Leonard owes our client, Felicia, $30k for alimony and child support. Felicia has a judgment. Leonard owes Bernie $36k for money loaned. Leonard gives Bernie a perfected security interest. Where does Felicia stand? Subordinate, not yet perfected. Can she go ahead with the levy? § What will happen if she does? $36k 30k Bernie

Leonard owes our client, Felicia, $30k for alimony and child support. Felicia has a judgment. Leonard owes Bernie $36k for money loaned. Leonard gives Bernie a perfected security interest. Where does Felicia stand? Subordinate, not yet perfected. Can she go ahead with the levy? § What will happen if she does? Bernie has priority. §9-317(a)(2) $36k 30k Bernie

Problem 16.1, page 293 Leonard owes our client, Felicia, $30k for alimony and child support. Felicia has a judgment. Leonard owes Bernie $36k for money loaned. Leonard gives Bernie a perfected security interest. Where does Felicia stand? Subordinate, not yet perfected. Can she go ahead with the levy? § What will happen if she does? Bernie has priority. §9-317(a)(2) Before either has a lien, why should Leonard get to decide who gets paid? 30k Auto

Problem 16.1, page 293 Contract: “The priority of a secured creditor over other financial creditors can be justified on the grounds that non-secured creditors grant a loan knowing that some assets are subject to security interests or could be subjected to security interests without their permission. If particular creditors will not tolerate other creditors having security interests in the borrower’s assets, they can refuse to make a loan or make it only if the borrower agrees not to subject its assets to any security interests.” Leebron

Problem 16.1, page 293 Property: “It seems clear enough that security interests, under Article 9 and real estate law alike, are interests in property. The legal regime for security interests reflects property law functionally as well as doctrinally. We believe it follows that the law should honor the transfer or retention of security interests on the same normative grounds on which it respects the alienation of property generally.” Harris & Mooney

Problem 16.3, page 294 $4K Cart sale Mark Stevie

Problem 16.3, page 294 General Finance Security interest GFC $5K $4K
Cart sale Mark Stevie

Problem 16.3, page 294 General Finance Is Stevie a BFP? Security
interest GFC $5K $4K Cart sale Mark Stevie

Problem 16.3, page 294 General Finance Is Stevie a BFP?
Can GFC take his cart? Security interest GFC $5K $4K Cart sale Mark Stevie

Can GFC take his cart? Security interest GFC $5K $4K Cart sale Mark Stevie §9-315(a). A security interest continues in collateral notwith-standing sale unless the secured party authorized the disposition free of the security interest

Can GFC take his cart? Security interest GFC $5K $4K Cart sale Mark Stevie §9-315(a). A security interest continues in collateral notwith-standing sale unless the secured party authorized the disposition free of the security interest §9-201(a). [A] security agreement is effective according to its terms against purchasers of the collateral

Can GFC take his cart? Security interest GFC $5K $4K Cart sale Mark Stevie §9-315(a). A security interest continues in collateral notwith-standing sale unless the secured party authorized the disposition free of the security interest §9-201(a). [A] security agreement is effective according to its terms against purchasers of the collateral §1-103(b) Unless displaced by [particular UCC provisions] the principles of law and equity supplement [UCC] provisions.

Can GFC take his cart? Security interest GFC $5K $4K Cart sale Mark Stevie §9-315(a). A security interest continues in collateral notwith-standing sale unless the secured party authorized the disposition free of the security interest §9-201(a). [A] security agreement is effective according to its terms against purchasers of the collateral §1-103(b) Unless displaced by [particular UCC provisions] the principles of law and equity supplement [UCC] provisions. § Every contract or duty within [the UCC] imposes an obligation of good faith in its performance and enforcement.

Problem 16.3, page 294 General Finance What do we tell Stevie?
Security interest Cart sale Mark Stevie §9-315(a). A security interest continues in collateral notwith-standing sale unless the secured party authorized the disposition free of the security interest §9-201(a). [A] security agreement is effective according to its terms against purchasers of the collateral §1-103(b) Unless displaced by [particular UCC provisions] the principles of law and equity supplement [UCC] provisions. § Every contract or duty within [the UCC] imposes an obligation of good faith in its performance and enforcement.

Is GFC’s conduct “virtually fraudulent?” Security interest Cart sale Mark Stevie §9-315(a). A security interest continues in collateral notwith-standing sale unless the secured party authorized the disposition free of the security interest §9-201(a). [A] security agreement is effective according to its terms against purchasers of the collateral §1-103(b) Unless displaced by [particular UCC provisions] the principles of law and equity supplement [UCC] provisions. § Every contract or duty within [the UCC] imposes an obligation of good faith in its performance and enforcement.

Is GFC’s conduct “virtually fraudulent?” Security interest Cart sale Mark Stevie What is the relevance of other GFC cases? §9-315(a). A security interest continues in collateral notwith-standing sale unless the secured party authorized the disposition free of the security interest §9-201(a). [A] security agreement is effective according to its terms against purchasers of the collateral §1-103(b) Unless displaced by [particular UCC provisions] the principles of law and equity supplement [UCC] provisions. § Every contract or duty within [the UCC] imposes an obligation of good faith in its performance and enforcement.

Problem 16.3, page 294 Lehman Brothers Security interest Predatory
loans First Alliance Home owners §9-315(a). A security interest continues in collateral notwith-standing sale unless the secured party authorized the disposition free of the security interest §9-201(a). [A] security agreement is effective according to its terms against purchasers of the collateral §1-103(b) Unless displaced by [particular UCC provisions] the principles of law and equity supplement [UCC] provisions. § Every contract or duty within [the UCC] imposes an obligation of good faith in its performance and enforcement.

Problem 16.3, page 294 Lehman Brothers
Ninth Circuit, 2006: Lehman Brothers may have “aided and abetted” the First Alliance fraud. Security interest Predatory loans First Alliance Home owners §9-315(a). A security interest continues in collateral notwith-standing sale unless the secured party authorized the disposition free of the security interest §9-201(a). [A] security agreement is effective according to its terms against purchasers of the collateral §1-103(b) Unless displaced by [particular UCC provisions] the principles of law and equity supplement [UCC] provisions. § Every contract or duty within [the UCC] imposes an obligation of good faith in its performance and enforcement.

Problem 16.3, page 294 General Finance
th Circuit, 2006: Le General Finance may have “aided and abetted” Mark’s fraud. Security interest Cart sale Mark Stevie §9-315(a). A security interest continues in collateral notwith-standing sale unless the secured party authorized the disposition free of the security interest §9-201(a). [A] security agreement is effective according to its terms against purchasers of the collateral §1-103(b) Unless displaced by [particular UCC provisions] the principles of law and equity supplement [UCC] provisions. § Every contract or duty within [the UCC] imposes an obligation of good faith in its performance and enforcement.

Which filing system? Security interests in “personal property or fixtures” §9-109(a) §9-310(a) §9-501(a)(1) Real property system §9-310(b)(3) §9-311(a) §9-501(a)(2) Federal filing systems (1) UCC filing system (2) State certificate of title systems

Problem 16.4, page 295 Where do we file on Keith Pipes’ tools? §9-109, 9-501(2). UCC filing system Where do we search? Bernie Wolfson’s patent? §9-109(c)(1); 9-311(a)(1) UCC filing system (Cybernetic)

Problem 16.4, page 295 Where do we file on Keith Pipes’ tools? §9-109, 9-501(2). UCC filing system Where do we search? Bernie Wolfson’s patent? §9-109(c)(1); 9-311(a)(1) UCC filing system (Cybernetic) If Wolfson sold the patent to Sheepson, and Sheepson granted a security interest, how would we discover that? Issuance Assignment PTO Wolfson Sheepson

Problem 16.4, page 295 Where do we file on Keith Pipes’ tools? §9-109, 9-501(2). UCC filing system Where do we search? Bernie Wolfson’s patent? §9-109(c)(1); 9-311(a)(1) UCC filing system (Cybernetic) If Wolfson sold the patent to Sheepson, and Sheepson granted a security interest, how would we discover that? Bank2 Bank1 Security interest Security interest Issuance Assignment PTO Wolfson Sheepson

Problem 16.4, page 295 Where do we file on Keith Pipes’ tools? §9-109, 9-501(2). UCC filing system Where do we search? Bernie Wolfson’s patent? §9-109(c)(1); 9-311(a)(1) UCC filing system (Cybernetic) If Wolfson sold the patent to Sheepson, and Sheepson granted a security interest, how would we discover that? Shouldn’t the system have required all filings in the PTO? Bank2 Bank1 Security interest Security interest Issuance Assignment PTO Wolfson Sheepson

Problem 16.4, page 295 Where do we file on Keith Pipes’ tools? §9-109, 9-501(2). UCC filing system Where do we search? Bernie Wolfson’s patent? §9-109(c)(1); 9-311(a)(1) UCC filing system (Cybernetic) If Wolfson sold the patent to Sheepson, and Sheepson granted a security interest, how would we discover that? c. Nyl Ikcupol’s royalties?

Problem 16.4, page 295 Where do we file on Keith Pipes’ tools? §9-109, 9-501(2). UCC filing system Where do we search? Bernie Wolfson’s patent? §9-109(c)(1); 9-311(a)(1) UCC filing system (Cybernetic) If Wolfson sold the patent to Sheepson, and Sheepson granted a security interest, how would we discover that? c. Nyl Ikcupol’s royalties? Accounts? Copyright receivables?

Problem 16.4, page 295 Where do we file on Keith Pipes’ tools? §9-109, 9-501(2). UCC filing system Where do we search? Bernie Wolfson’s patent? §9-109(c)(1); 9-311(a)(1) UCC filing system (Cybernetic) If Wolfson sold the patent to Sheepson, and Sheepson granted a security interest, how would we discover that? Nyl Ikcupol’s royalties? Accounts? Copyright receivables? Broadcast Music v. Hirsch, page File in UCC records. Shouldn’t we take the copyrights as collateral?

Problem 16.4, page 295 Where do we file on the Indiana auto dealer’s auto inventory? § 9-311(a)(2) and (d); 9-501(a)(2) Secretary of State, UCC Dealer’s autos not for sale? § 9-311(a)(2) Secretary of State, Division of Motor Vehicles Dealer’s accounts from sale of automobiles? §9-501(a)(2) Dealer’s trademark? Note 14, page 290

Aneta Ferguson, The Trademark Filing Trap, 49 Idea 197 (2009)

Problem 16.5, page 295 We represent a bank, taking security interests. If first to file wins, should we search first or file first? Search Disburse File Search File Disburse

Problem 16.5, page 295 We represent a bank, taking security interests. If first to file wins, should we search first or file first? Is this filing a problem? Competing Filing 2 Search Disburse File Search Competing Filing 2 File Disburse

Problem 16.5, page 295 We represent a bank, taking security interests. If first to file wins, should we search first or file first? Is this filing a problem? Competing Filing 1 Competing Filing 2 Competing Filing 3 Search Disburse File Answer: File first. Search through the date of filing. If the search results show the filing to be first, disburse.

Secured Transactions Assignment 16

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