1. Chapter 1: Legal Ethics 1

2. © 2013 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. Learning Objectives 1.What is a security interest? Who is a secured party? What is a security agreement? What is a financing statement? 2.What three requirements must be met to create an enforceable security interest?  2

3. © 2013 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. Learning Objectives 3.What is the most common method of perfecting security interest under Article 9? 4.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? 5.What rights does a secured creditor have on the debtor’s default? 3

4. © 2013 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.Introduction  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 over $1000, fixtures, instruments and other intangible property. 4

5. © 2013 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. Terminology of Secured Transactions  Secured Party.  Debtor.  Security Interest.  Security Agreement.  Collateral.  Financing Statement: UCC-1 form. 5

6. © 2013 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. Exhibit 18-1 Secured Transactions 6

7. © 2013 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. Creating a Security Interest  To become a secured party, a creditor must “attach” a security interest in collateral of debtor.  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.  7

8. © 2013 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. Creating a Security Interest  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. 8

9. © 2013 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. Creating a Security Interest  Secured Party Must Give Value. – Creditor gives any consideration that would support a simple contract. – Creditor already gave consideration (antecedent debt). 9

10. © 2013 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. Creating a Security Interest  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. 10

11. © 2013 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. Perfecting a Security Interest  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. 11

12. © 2013 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. Perfecting a Security Interest  Perfection by Filing a financing statement.   Perfection Without Filing Financing Statement.  12

13. © 2013 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. Perfecting a Security Interest  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. 13

14. © 2013 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. Perfecting a Security Interest  Perfection by Filing. – The Debtor’s (Legal) Name and Address. 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). 14

15. © 2013 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. Perfecting a Security Interest  Perfection by Filing. – The Debtor’s (Legal) Name and Address. Where to File. Consequences of an Improper Filing. Any improper filing renders the secured party’s interest unperfected, to an unsecured interest in bankruptcy. – CASE 18.1 I N RE C AMTECH P RECISION M ANUFACTURING, I NC. (2011). – CASE 18.1 I N RE C AMTECH P RECISION M ANUFACTURING, I NC. (2011). What mistake did Regions Bank make in its filings? 15

16. © 2013 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. Perfecting a Security Interest  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).  16

17. © 2013 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. Perfecting a Security Interest  Perfection Without Filing. – 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: most common is purchase money security interest in consumer goods.  17

18. © 2013 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. Perfecting a Security Interest  Perfection Without Filing. – Perfection by Attachment. 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). 18

19. © 2013 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. Perfecting a Security Interest  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. 19

20. © 2013 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. The Scope of a Security Interest  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.  20

21. © 2013 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. The Scope of a Security Interest  Proceeds (cont’d). – Extension of 20 days can be provided for in the financing agreement. – UCC also permits identifiable cash proceeds to be perfected after 20 days. 21

22. © 2013 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. The Scope of a Security Interest  After-Acquired Property: property debtor acquires after execution of security agreement. – When debtor buys new inventory, security agreement has an ‘after – acquired’ clause that gives secured party a security interest in new collateral. 22

23. © 2013 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. The Scope of a Security Interest  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. 23

24. © 2013 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. The Scope of a Security Interest  Floating Lien Concept. – 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. 24

25. © 2013 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. Creditor InterestPriority Secured vs. unsecured creditorsSecured 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 winsPriorities 25

26. © 2013 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.Priorities  General Rules of Priority. 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.  26

27. © 2013 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.Priorities  General Rule: (cont’d). – Conflicting unperfected security interests: first to attach has priority. – CASE 18.2 C ITIZENS N ATIONAL B ANK OF J ESSAMINE C OUNTY V. W ASHINGTON M UTUAL B ANK (2010). – CASE 18.2 C ITIZENS N ATIONAL B ANK OF J ESSAMINE C OUNTY V. W ASHINGTON M UTUAL B ANK (2010). Which of the two security interests in the land had priority? 27

28. © 2013 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.Priorities  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.  28

29. © 2013 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.Priorities  Exceptions to the General Rule. – 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. 29

30. © 2013 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. Rights and Duties of Debtors and Creditors  Information Requests.  Release, Assignment, and Amendment.  Confirmation or Accounting Request by Debtor. – Debtor entitled to one request every six months without charge.  30

31. © 2013 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. Rights and Duties of Debtors and Creditors  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. 31

32. © 2013 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.Default  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. 32

33. © 2013 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.Default  Disposition of the Collateral. – 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.  33

34. © 2013 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.Default  Disposition of the Collateral. – 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.  34

35. © 2013 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.Default  Disposition of the Collateral. – 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.  35

36. © 2013 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.Default  Disposition Procedures. – Price is only one aspect of a ‘commercially reasonable manner’ of disposition. – CASE 18.3 H ICKLIN V. O NYX A CCEPTANCE C ORP. (2009). – CASE 18.3 H ICKLIN V. O NYX A CCEPTANCE C ORP. (2009). What other factors besides price did the court look for to show commercially reasonable manner? 36

37. © 2013 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.Default  Disposition Procedures. – Proceeds from Disposition. Reasonable expenses incurred by secured party. Balance of debt owed to secured party. Junior Lienholders. Surplus to Debtor.  37

38. © 2013 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.Default  Disposition Procedures. – 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. 38