UCC Article 9 UpdateAgreement and Collateral Descriptions – Perfection by Filing: Debtor Name and...

UCC Article 9 Update

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Presentation Overview

• Case Law Developments, organized by topic:

– Scope of Article 9

– Creation and Attachment: Authentication of Security Agreement and Collateral Descriptions

– Perfection by Filing: Debtor Name and Authority to File

– Perfection by Other Means: Certificates of Title and Participations

– Priorities: Equity, Buyers and Other Transferees

– Default

– Enforcement

• Commercial Reasonableness

– Other Liability Issues


Scope of Article 9 – General Rules §9-109

• Article 9 applies to every transaction within its scope, regardless of form

– Any transaction that creates a security interest

– Agricultural liens

– Sales of accounts, chattel paper, payment intangibles or promissory notes

– Consignments

– Specific security interests arising under Articles 2, 2A, 4 & 5

• Except federal preemption, security interests created by States, statutory liens, wage assignments, sales of businesses, isolated sales and other listed exceptions

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Scope – Insurance

• Insurance is outside Article 9 (except for proceeds claim)

• Montreal: SP with security interest in accounts and payment intangibles did not have security interest in insurance settlement payment, as settlement was in respect of policy claim.

– One needs to get endorsements like Lender’s Loss Liability Payable Endorsement that overrides defenses available against primary insured (Form 438BFU)

– Is business interruption insurance proceeds of accounts and payment intangibles? Not in this case.


Scope – Conditional Sales and Title Retention

• Retention of Title is only a security interest UCC §2-401

• Heien: auto sale conditioned on approval of financing under bailment agreement with dealer, but held limited to security interest and auto was part of buyer’s bankruptcy estate

• Clean Burn: Corn seller leased storage bin on buyer’s property and parties agreed title retained by seller until corn moves by belt into buyer’s plant

– Seller left with unperfected security interest because sales agreement said delivery occurs when corn delivered to buyer’s facility

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Scope - Consignments

• Article 9 treats most consignments as purchase-money security interest transactions that need to be perfected to have priority over consignee’s creditors. UCC §9-109(a)(4).

– Exception for auctioneers, consignment stores, consumer goods and transactions of $1000 or less. UCC §9-102(a)(20).

• Salender: Gallery gives security interest in all goods now owned or hereafter acquired. Gallery goes bankrupt and security interest is acquired by bankruptcy trustee. Consignor of Botticelli painting seeks repossession, and court holds security interest limited to now owned or hereafter owned goods, even though consignee’s power to grant security interest was recognized


Choice of Law – The Hague Convention

• Became effective April 1, 2017, and provides international choice of law rule for securities held in indirect holding system.

• Very “user-friendly” for Article 9: law of securities intermediary’s jurisdiction (usually from account agreement) governs

– Leaves perfection by control under account agreement law but perfection by filing is shifted (by account agreement law) to cause filing in debtor location state (as usual)

– Have account agreement specify law of intermediary’s jurisdiction and that such law applies to Convention issues.

• Works well if D and intermediary are located in US, but odd results if that’s not the case: e.g., foreign D with no filing system suggests SP may need to file in intermediary’s state in the US

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Creation and Attachment – General Rules §9-203

• Requires (1) value, (2) debtor having rights in the collateral and (3) authenticated security agreement describing collateral by item or type, or SP has possession or control of collateral per agreement

• Attachment automatically covers:

– Proceeds,

– Supporting obligations, and

– Underlying security interests and liens (the mortgage follows the note).

• It is important to describe the obligations secured and to define default.


Creation and Attachment – Basic Issues

• Duckworth: security agreement secured a note “in the principal amount of $______ dated December 13, 2008.” (emphasis in original) Unfortunately for SP, actual note for $1.1MM was signed and dated December 15, and bankruptcy trustee raises issue. Contract would have been reformed using parole evidence due to mutual mistake, but not as against hypothetical lien creditor. Accordingly, bankruptcy cuts off reformation rights. UCC §9-201 (security agreement enforceable in accordance with its terms) trumps mere compliance with UCC §9-203.

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Creation and Attachment – Authentication of Security Agreement

• Hepp: Managing member of LLC did not have actual authority and might not have had apparent authority (!), which requires conduct by principal causing reasonable belief in authority.

• Eyerman: Where individual guarantors signed security agreement only as “members” of LLC and not individually, they did not grant security interest in personal assets, notwithstanding being named as additional debtors on financing statement. Also, even if note and financing statement evidenced intention to create security interest in individual guarantors’ assets, description of collateral as “certain business assets” was insufficient.


Collateral Description Issues

• Assume collateral description will be strictly construed against SP, use UCC collateral types, and avoid limitations like location-based descriptions

• MacNaughton: supergeneric “all personal property” was insufficient for attorney-secured party and could not be reformed as no mutual mistake absent fraud or unconscionable conduct by debtor

• Thornton: Collateral described as manufactured home and “accessions.” Court focuses on ability to detach without injury and independent utility of items. SP gets fireplace, smoke detector, furnace, water heater, electric main, built-in dishwasher, shower and tub, but does not get refrigerator, ice maker, oven, washer or dryer.

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Collateral Description in Consignments

• TSAWD: SP described consigned collateral as “now owned or hereafter acquired.” Issue of fact whether debtor was known generally to deal in consigned goods and so, whether Article 9 applied. Under Article 9, consignment = PMSI only, with limited exceptions.


Perfection by Filing

• File in debtor location state

– State of organization for registered organizations

– Chief executive office state for other organizations

– Residence for individuals

• Except for timber to be cut, as-extracted collateral and fixture filings (central filing in debtor location state does perfect in fixtures)

• Foreign debtors – always file in DC and try to file in chief executive office jurisdiction

• Debtor Name should be 100% correct

• All assets or mirror-image collateral description is best

• Need authority to file

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Perfection by Filing - Debtor Name, UCC §9-503

• The public organic record controls for registered organizations.

• The driver’s license rule (most recent issued by state of residence) applies for individual names:

– Must use DL name, except in AK, CO, CT, DE, NH and WY, where DL name is a safe harbor.

– CA switched to Alternative A on 1/1/15 and OR on 1/1/16.

– Exception for mortgages, trusts (settlor name from trust agreement) and estates (decedent’s name from court order), except in CA

• Common law trusts: Use name of trust from its organic record, or if none, the name of the settlor. Check collateral is held in trust box, and if settlor name used, add information to distinguish settlor’s other trusts. File in trustee location state.


Debtor Name Issues

• Most recent unexpired license or ID requirement:

– New license can mean a debtor name change

– Use name exactly as presented; even if typos or name is presented differently by DMV

– Name changes occur when driver’s license name is changed, not when name otherwise changes

– Suspension = expiry?

• Transition Issues

– Search old common law names until 2018 (2020 for CA and 2021 for OR)

• Non-standard characters: Use paper filing (not in CO, NJ or, after ND) and get “real” name somewhere

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Debtor Name

• Get the debtor name correct: 9-506 does not provide much “wiggle room” with strict search logic intentionally in place

• Nay: Debtor name was Ronald Mark Nay but driver’s license has middle name as “Markt”

– SP files under Ronald Mark Nay and argues instructions on form say to use “correct” debtor name

– Court holds “correct” name is name specified by statute – in this case the driver’s license name

• Use the right box/field – Indicates individual or organization name and filing office will enter exactly as submitted

– Voboril: Individual name placed in organization name box and indexed as organization name. SP loses because search would not find filing.


Perfection by Filing - Authority to File

• Motors Liquidation Bankruptcy Court appropriately uses agency law to evaluate authority of filer, and in close case, concludes borrower’s counsel’s erroneous termination of wrong financing statement was ineffective.

• Case appealed to 2nd Circuit, which asked DE Supreme Court if subjective intent was required.

• DE Supreme Court decides “it is enough that the secured party authorizes the filing to be made… . The Delaware UCC contains no requirement that a secured party … subjectively intends or otherwise understands the effect of the plain terms of its own filing.” 2014 Del LEXIS 491, October 17, 2014.

• 2nd Circuit holds termination was authorized – seems to focus on presumed review by SP

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Motors Liquidation

• Mayer: Borrower’s counsel not responsible to creditors for erroneous filing because it owed no duty to creditors.

• Case pending against agent and agent’s counsel.


Perfection by Filing: Effectiveness, Governing Law

• Financing statements remain effective for future advances, even if original transaction is paid off and advances not originally contemplated, and can be assigned, even if assignment need not be made a matter of record

– Oak Rock: SP files for itself in 2001 and later assigns financing statement to itself as agent (after 2006 filing was allowed to lapse – presumably by mistake). Fact that 2001 loan was paid off and fact that 2006 obligations were not contemplated in 2001 were immaterial.

• SemCrude: Non-uniform law in TX and KA gives suppliers of oil automatically perfected security interests, but choice of law rules (even in TX and KA) point to debtor location state for nonpossessory security interest.

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Perfection by Other Means – Certificates of Title

• Hadley: possession of vehicle certificates of title insufficient when lien notation required. In addition, no attachment without authenticated security agreement as possession of titles is not possession of vehicles, and attorney’s common law charging lien would attach only to proceeds of litigation.

• Ajax: Notice of lien forms sent to, but not completed by, debtor results in no perfection, equitable lien or constructive trust.

• Sweeney: Manufactured home had wheels and axles removed, but was not permanently affixed to real estate, so still certificate of title property

– MI law similar but also requires homeowner to be landowner to get out of certificate of title regime


Perfection by Other Means – Mortgage Assignments

• Attachment and perfection in note also gets the benefit of underlying collateral and “supporting obligations,” but recording assignments of mortgages is not adequate.

– HSBC: two banks both recorded mortgage assignments but priority based on which bank first took possession of related note.

– The mortgage follows the note.

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Perfection by Other Means - Control

• Control (being the depositary/intermediary or its customer, or having a control agreement) is required to perfect SI in deposit accounts and affords better priority for securities accounts

– Avoid “springing” control by careful drafting

• Seitz: reminds us that perfection by filing is an alternative for securities accounts

– Good backstop and helps with proceeds

• Jesup: transfer of funds from controlled account to account at different bank caused security interest to detach because of UCC §9-332 so re-transfer to control bank created avoidable preference.


Priorities – Does Equity matter?

• Article 9 has a race rule for priority

– First to file or perfect, perfected beats unperfected, and first to attach for unperfected security interests. UCC §9-322(a).

– Knowledge is not important – SP2 can file and beat unperfected SP1 even if SP2 knows SP1 intended to file.

• Can equity play a role?

– Feresi: Yes, equity supplements the UCC. UCC §1-103(b).

– After divorce, wife got 12.5% interest in LLC and lien on husband’s 12.5%. Wife failed to file. Manager of LLC gets SI as President of pension plan. Also fails to file, but does when wife tells him she is about to foreclose. Court holds manager breached fiduciary duty.

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Priorities – Maritime Liens, Transformation and Transferees

• World Imports: Carrier with maritime lien could modify deal for goods in transit so lien secured not only current charges but prior charges as well. 7/10/17: “received” means physical receipt for 20-day b’cy reclamation rule, not when shipped.

• SPs with purchase-money security interests get non-temporal priority, if timely perfected and, if collateral is inventory, notice is timely given. What about re-financings?

• Jett: While A9 adopts “dual-status rule” for commercial transactions, “transformation rule” applies to consumers, so SP loses after refinancing that added prior unsecured loans.

• Abbas: Guarantor formed entity to purchase secured party debt but loses priority to judgement creditor as transaction re-characterized as payoff of secured obligation by guarantor.


Priorities – Commercial Tort Claims

• Commercial tort claims (arises out of business and is not for physical injury or death) must be specifically described, so cannot be covered by an after-acquired property clause

• Bayer: Does security interest in CTC always have priority?

– SP1 gets deed of trust, fixtures, equipment, chattel paper and general intangibles in 2002; forecloses in 2010, with $3MM deficiency remaining

– SP2 gets commercial tort claim and perfects in 2007

– Case settles (CTC becomes payment intangible) and SP1 garnishes in 2012

– Prior case law (Zych) held that special collateral description rule applies to proceeds of CTCs

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Priorities – Commercial Tort Claims

• Bayer (cont.)

• SP2 argued foreclosure discharged SP1 security interest, but 8th Circuit holds SI in proceeds remains

• 8th Circuit agreed with Zych, but noted that here, CTC included claim for damages to equipment that was SP1’s collateral

• 8th Circuit distinguishes Zych and holds SP1 gets priority to extent CTC settlement is proceeds of original SP1 collateral –i.e., payable for equipment damages as opposed to other claims (such as lost business or punitive damages).

• Case criticized as SP1 should have won on first-to file rule

– SPs who finance CTCs need to get subordination from prior SPs of record


Priorities – Garnishment of Deposit Account

• SP with control has priority in deposit account. While garnishor that gets paid gets priority as a transferee under UCC 9-332, what about time when garnishment is pending?

• Most cases arise where garnishee is the SP as well. If SP promptly acts to block account or set off, SP wins.

• Stierwalt: here SP was a third party who was notified of garnishment in progress, and garnishee turns funds over to marshal

– Court holds that garnishor prevails under UCC§9-332

– But case heavily criticized because marshal is agent of court, not garnishor, and should not be treated as a transferee

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Default

• Default is not defined in Article 9 even though Article 9 creates secured party rights that are triggered by “default”

– Parties are free to define default as they see fit.

• Regions Bank: SP permitted to accelerate because debtor failed to insure aircraft, even though payments current, no other defaults and SP was able to force-place insurance under loam agreements. Duty of good faith not violated and cannot be used to avoid express terms of agreement.


Enforcement Issues: Repossession

• SP may repossess as long as no breach of the peace

• Thompson-Young: Repo team somehow enters apartment building despite security door and “bangs loudly” at 4:00 AM waking debtors who are terrified because they did not buzz anyone in. Debtors remain inside out of fear until 8:30, then, finding club on car, call police. Car is towed before police arrive.

– Court holds no breach of peace because no conduct that “incites or is likely to incite public turbulence, or which leads to or is likely to lead to an immediate loss of public accord”

– Repo team identified itself. There were no threats of an altercation and no entry to apartment.

• Crest: SP held liable to mechanic for conversion of repo’d car

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Enforcement Issues: §9-607 Enforcement

• SP can notify account debtors, who must perform for SP to discharge obligation

• Swift: SP not protected where account debtor paid debtor after email notice from factor where employee informed factor she was not the person who made payment decisions and provided the appropriate contact information.

• Black Diamond: SP takes subject to defenses available to debtor unless account debtor agrees to “hell or high water” provision, so takes subject to contract’s netting provision (notice cuts off only “unrelated” defenses under UCC §9-406).

• Santander: Notice of assignment effective even if not signed by account debtor (which refused) but AD had recoupment claim against debtor law firm for breach of confidentiality in factoring and providing information regarding AD’s legal bills


Enforcement Issues – Strict Foreclosure

• Secured parties can retain collateral in full or partial satisfaction of the secured obligations under UCC §9-620, but only if the debtor and other parties with an interest consent

– Debtor has right to insist on a sale process

• Lampe: Exercise of right to cause pledged interest to be registered in name of SP is not a retention or a disposition

– Debtor still has rights to redeem

– SP still liable for damages for lack of good faith or commercial reasonableness

• Rocky: While SP had right to vote LLC Membership interests in default, managers could still file bankruptcy petition

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Enforcement –Commercial Reasonableness

• Ross: Sales of stock in over-the-counter QB tier market is a sale in a “recognized market” so commercially reasonable, even though sale a few hours later would have yielded a higher price.

• Inofin: SP made no reasonable effort to market portfolio of chattel paper, issued conflicting notices of sale and advertised only in general circulation newspaper, which resulted in only SP’s bid.


Enforcement – Commercial Reasonableness

• Harley-Davidson: Aircraft ultimately sent to dealer for sale after delays for missing log books, etc. Aircraft was vandalized and ultimately sold in non-airworthy condition with promise to replace missing avionics.

– District court finds response to vandalism was commercially reasonable

– Appeals court remanded for SP to carry burden of proof on commercial reasonableness issue

• Merely employing a dealer is not enough to assure commercial reasonableness

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Enforcement – Notice of Sale

• Secured parties must notify debtor, secondary obligors, other secured parties of record and others who notify secured party of an interest in the collateral under UCC§9-611 or§9-621 prior to sale or retention of collateral.

• Agri-Science: Debtor defaults and SP gets settlement agreement that provides for a strict foreclosure of farm equipment after debtor gets time to re-finance. Debtor borrows and grants security interest to SP2 but ultimately re-financing fails and settlement agreement becomes effective. SP2 sues for failure to notify. But retention extinguishes junior liens under UCC§9-622 and SP2 could not prove damages under UCC§9-625 because not enough collateral value.


Enforcement – Limitations on Enforcement

• Citigroup: Securities intermediary could not be liable for damages for failure to follow SP’s instructions under control agreement where intermediary interpleaded.

• SPs with security interests in trademark licenses need to get more than licensor’s consent to security interest and foreclosure sale because debtor might not be able to assume license in bankruptcy if licensor could refuse performance from someone else.

– Trump: Because Third Circuit applies “hypothetical test” rather than “actual test” (here, no actual assignment would have occurred), license could not be assumed and was lost.

• Rincon: jury waiver in loan agreement governed by NY law is not enforceable in California on public policy grounds

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Appendix of Cases

• Montreal: In Re Montreal, Maine & Atlantic Ry., Ltd., 521 BR 703 (BAP 1st Cir. 2014).

• Heien: In re Heien, 2015 WL 1189968 (E.D. Mo. 2015).

• Clean Burn: In re Clean Burn Fuels, LLC, 2016 WL 5717232 (M.D.N.C. 2016).

• Salendar: In re Salendar-O’Reilly Galleries, LLC, No. 14 CV 3544 (VB), 2014 WL 7389901 (S.D.N.Y. Nov. 25, 2014).

• Duckworth: In re Duckworth, 776 F. 3d 453 (7th Cir. 2014).

• Hepp: Hepp v. Ultra Green Energy Services, LLC, 2015 WL 1952685 (N.D. Ill. 2015).

• Eyerman: In re Eyerman, 517 B.R. 800 (Bankr. S.D. Ohio 2014).

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Appendix of Cases

• MacNaughton: MacNaughton v. Harmelech, 2016 WL 3771276 (D.N.J. 2016).

• Thornton: In re Thornton, 2016 WL 3092280 (Bankr. S.D. Ind. 2016).

• TSAWD: In re TSAWD Holdings, Inc., 2017 WL 892329 (Bankr. D. Del. 2017).

• Nay: In re: Nay, 2017 Bankr. LEXIS 472 (Bankr. S.D. Ind. Jan. 23, 2017).

• Voboril: In re Voboril, 2017 WL 1048041 (Bankr. E.D. Wis. 2017).


Appendix of Cases

• Mayer: Oakland Police & Fire Ret. Sys. V. Mayer Brown, LLP, 2017 WL 2791101 (7th Cir. 2017).

• Oak Rock: In re Oak Rock Financial, LLC, 527 B.R. 105 (Bankr. E.D.N.Y. 2015).

• SemCrude: In re SemCrude, L.P., 2017 WL 3045889 (3d. Cir. 2017).

• Hadley: In re Hadley, 2015 WL 7455630 (Bankr. N.D. Ohio 2015).

• Ajax: In re Ajax Integrated, LLC, 2016 WL 1178350 (Bankr. N.D.N.Y. 2016).

• Sweeney: In re Sweeney, 2016 WL 4402220 (Bankr. E.D.N.C. 2016).

• HSBC: HSBC Bank USA v. Perez, 2015 WL 2078683 (Fla. Ct. App. 2015).

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Appendix of Cases

• Seitz: Seitz v. Republic First Bank (In re Gem Refrigerator Co.), 512 B.R. 194 (Bankr. E.D. Pa. 2014).

• Jesup: In re Jesup & Lamont, Inc., 507 B.R. 452 (Bankr. S.D.N.Y. 2014).

• Feresi: Feresi v. The Livery, LLC, 232 Cal. App. 4th 419, 181 Cal. Rptr. 3d 265 (2d Dist. 2014).

• World Imports: In re World Imports, Ltd., Inc., 2016 WL 1580730 (3d Cir. 2016).

• Jett: In re Jett, 2017 WL 112525 (Bankr. S.D. Miss. 2017).


Appendix of Cases

• Abbas: Abbas Corp. (PVT) Ltd. v Michael Aziz Oriental Rugs, Inc., 2016 WL 1574030 (d. Mass. 2016).

• Bayer: Bayer CropScience, LLC v. Stearns Bank National Association, 837 f. 3D 911 (8TH Cir. 2016).

• Zych: In re Zych, 379 B.R. 857 (Bankr. D. Minn. 2007).

• Stierwalt: Stierwalt v. Associated Third Party Administrators, 2016 WL 2996936 (N.D. Cal. 2016).

• Regions Bank: 422 S.W. 3d 550 (Tenn. Ct. App. 2013).

• Thompson-Young: Thompson-Young v. Wells Fargo Dealer Services, Inc., 2014 WL 3726900 (Ill. App. Ct. 2014).

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Appendix of Cases

• Motors Liquidation: In re: Motors Liquidation Company, 486 B. R. 596, 2013 Bankr. LEXIS 814 (Bankr. S.D.N.Y. March 1, 2013); appeal, 2014 U.S. App. LEXIS 11598, June 17, 2014.

• Crest: Crest Infiniti II, LP v. Texas RV Outlet, 2015 WL 350621 (Tex. Ct. App. 2015).

• Santander: Santander Bank v. Durham Commercial Capital Corp., 2016 WL 199408 (D. Mass. 2016).

• Lampe: 395 Lampe, LLC v. Kawish, LLC, 2014 WL 221814 (W.D. Wash. 2014).

• Rocky: In re Rocky Aspen, LLC, 2017 WL 977813 (D. Colo. 2017).

• Ross: Ross v. Rothstein, 2015 WL 1120086 (D. Kan. 2015).


Appendix of Cases

• Inofin: In re Inofin, Inc., 512 B.R. 19 (Bankr. D. Mass. 2014).

• Harley-Davidson: Harley-Davidson Credit Corp. v. Galvin, Case No. 15-1157 (1st Cir. December 8, 2015).

• Agri-Science: Agri-Science Technologies, L/L/C. v Greiner’s Green Acres, Inc., Case No. 14-010505-CK (Mich. Ct. App., March 17, 2016).

• Swift: Swift Energy Operating, L.L.C. v. Plemco-South, Inc., 2015 WL 446095 (La. Ct. App. 2015).

• Black Diamond: In re Black Diamond Mining Company, LLC, 2015 WL 664406 (No. 14-5232, 6th Cir. 2015).

• Citigroup: Citigroup Global Markets, Inc. v. KLCC Inv., LLC, 2015 WL 5853916 (S.D.N.Y. 2015).

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Appendix of Cases

• Trump: In re Trump Resorts, Inc., 2015 WL 756873 (Bankr. D. Del. 2015).

• Rincon: Rincon EV Realty LLC v. CP III Rincon Towers, Inc., 2017 WL 429267 (Cal. Ct. App. 2017).

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UCC Article 9 UpdateAgreement and Collateral Descriptions – Perfection by Filing: Debtor Name and...

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