In a recent case involving multiple secured lenders claiming priority to two high-end tractors, the Iowa court of appeals has ruled that the tractors were sold “outside an implied course of dealing.” As a result, the original lender’s security interest was not cut off by the sale. The case applies one of the most basic priority rules found in Article 9, UCC 9-315, which provides that a security interest continues in collateral notwithstanding any disposition unless the secured party authorized the disposition free of the security interest. In the Iowa case, the court found that the secured lender had not authorized any cutoff of its security interest.
In our prior story, we analyzed a recent Iowa case where the lender’s perfected security interest in farm equipment could not be cut off by a third party. Now let’s take a broader look at the relevant UCC provision, 9-315(a). That provision can be of great comfort to the secured lender. Unless (1) the purchaser of the collateral qualifies as a buyer in ordinary course, (2) the security interest is lost for failure to perfect, (3) the secured party consents to the transfer, or (4) some other Article 9 exception applies, the transferee takes the collateral subject to the security interest. Upon discovery of the transfer, the secured party may repossess the collateral through a writ of replevin (as occurred in the recent Iowa case), or bring an action in conversion. The secured party may claim any proceeds and the original collateral but may have only one satisfaction.
Several years ago, the First Circuit decided a matter of first impression at the federal appellate level: whether Article 9 of the UCC governs the taking and perfection of a security interest in a right to payment arising under an insurance policy. Affirming two lower courts, the First Circuit concluded that Article 9 did not govern perfection in such collateral. Instead, Maine common law governed. And since the secured lender did nothing more than file a UCC financing statement, the debtor’s trustee in bankruptcy got the insurance proceeds under the strongarm clause.
In recent years, we have seen some notable pieces of litigation between “first-priority” real estate mortgages and homeowner associations armed with “super-priority” statutory liens for unpaid assessments. This priority litigation occurs after the owner of a condo or a coop apartment defaults on both the mortgage and the homeowner association assessments on the unit. Mortgagees are now coming to realize that their “first-priority” mortgage may be trumped by the “super-priority” claim of the homeowners association (HOA). Even worse, a non-judicial foreclosure sale by the HOA could wipe out an entire mortgage lien that was recorded long before any HOA assessments were levied. A notable case from the District of Columbia dramatically illustrates this new credit risk for real estate secured lenders.
In a recent decision from the Second Circuit, the court examined the right to offset in the intersection between bankruptcy and a statutory trust created under the Perishable Agricultural Commodities Act, 7 U.S.C. §§ 499a, et seq. (“PACA”).
How does a lender perfect and enforce a security interest in a borrower’s interest in a New York cooperative apartment? The baseline rule is that security interests in real estate are outside the scope of Article 9, yet the courts generally conclude that certificates representing a borrower’s interest in a co-op apartment are personal property governed by the perfection and enforcement rules of Article 9. In a similar vein, if the collateral is a borrower’s rights in an LLP or LLC with real estate as the entity’s sole asset, the courts treat the member’s interest as personal property (a general intangible) within the scope of the UCC.
Revised Article 9 has been the law of the land for some years now, but not everyone appreciates the subtle changes it’s made to the rules governing liens on fixtures. Financing fixtures can be tricky business. Lenders or lessors who finance fixtures often cross paths with mortgage lenders who finance the underlying real estate. Here’s a quick refresher course on financing fixtures, and how things have changed under Revised Article 9.
A wholesaler sells goods to a distributor on open account. The distributor resells the goods to retailers on open account, but fails to pay its bill to the wholesaler. The distributor’s financer has a perfected security interest in the distributor’s receivables. Who has priority to the distributor’s receivables generated by resale of the goods? The normal commercial law rule is that an unpaid, unsecured supplier of goods can’t recover the receivables generated by their resale, as against the buyer’s secured lender. That’s because a secured creditor trumps an unsecured creditor. UCC § 9-201(a).
What duty does a secured lender have to sell collateral such as securities if the market is falling and the debtor is in default on its secured loan? The key UCC provision is Section 9-207. That provision imposes a duty of care with respect to pledged collateral, both before and after default. In construing it, the courts have differed as to whether the secure creditor breaches its duty of care by failing to sell pledged securities falling in value.
UCC financing statements are effective for five years. Failure to file a continuation statement within six months before the five-year deadline renders the lender’s security interest unperfected. UCC 9-515(d). So what happens if the debtor files bankruptcy before the original financing statement lapses? In a notable bankruptcy decision from Maryland, the court ruled that post-petition lapse of a senior security interest financing statement did not alter the senior’s position because the filing of the debtor’s Chapter 11 bankruptcy petition “froze” the priority status of the senior lender as of that time.
Can a seller of corn under a requirements contract retrieve the corn (or its proceeds) from a buyer that has gone bankrupt if the seller never perfected a security interest in the corn? In a notable decision from North Carolina, the bankruptcy court ruled that the seller’s “reservation of title” in the sales contract gave it nothing more than an unperfected security interest under Article 2 of the UCC. Failure to perfect that security interest enabled the buyer’s bankruptcy trustee to claim the $4.8 million in proceeds from a subsequent sale of the corn as property of the estate. The trustee had the power to avoid the seller’s unperfected security interest under the “strong arm” clause. Not a good day for the seller.
The most heavily litigated section in the entire UCC is 1-103, which states: “Unless displaced by the particular provisions of this Act, the principles of law and equity . . . shall supplement its provisions.” The purpose of the section is to allow the courts to fill gaps in the statute with recognized principles of law and equity. Because no statute can cover every point, the section makes good sense. In most cases, the courts are careful to use supplementary principles only as gap-fillers, not to “displace” the rules of the UCC. However, we have a number of horrible decisions under Article 9 where clear priority rules are obliterated in the name of “equity.” In this story, we offer a sampler of outrageous cases where the Article 9 priority rules were mangled by overuse of equitable principles imported through UCC 1-103.
In handling a secured transaction under Article 9 of the UCC, the secured lender must make sure that it uses the correct categories of collateral. Different categories often require different methods of perfection. For example, a security interest in a “deposit account” may only be perfected by “control,” while a “securities account” may be perfected by either control or filing a financing statement. In a leading bankruptcy decision from Pennsylvania, the court carefully distinguished between the two categories and concluded that the collateral at issue (a brokerage account and subaccounts the debtor maintained at Charles Schwab) was a “securities account” rather than a “deposit account,” so that filing was a permissible method of perfection. Since the secured lender had filed in the right office, with an adequate description of the collateral, the debtor’s trustee in bankruptcy could not avoid the lender’s security interest under the strongarm clause.
In the last issue of this newsletter, we discussed the “independence principle” that is a fundamental tenet of letter of credit law. The second important principle governing letters of credit is that the issuer must honor a presentment of documents that appears on its face “strictly to comply with the terms and conditions of the letter of credit.” UCC 5-108(a). Though this rule applies to both commercial and standby letters, it has greater significance for commercial letters of credit because the documents are more numerous and complex than in standby letters. Default on the underlying contract by the beneficiary is irrelevant; the key is strict conformity of the documents to the requirements of the letter. If an issuer refuses to pay a draft accompanied by documents that are conforming in all respects, it will be guilty of wrongful dishonor, with sanctions, under UCC 5-111(a).
On July 31, 2018, the Office of the Comptroller of the Currency announced that it would begin accepting national bank charter applications from nondepository financial technology companies who participate in aspects of the business of banking. The decision to move forward with these special purpose national bank (“SPNB”) charters brings to fruition an idea first proposed under former Comptroller Thomas Curry and which was far from guaranteed to be finalized under current Comptroller Joseph Otting. A Policy Statement and supplement to the Comptroller’s Licensing Manual, “Considering Charter Applications From Financial Technology Companies” (“Fintech Supplement”) accompanied the OCC’s announcement.
A movement is afoot to revise UCC Article 9 to exempt ownership interests in limited liability companies (LLCs), general partnerships and limited partnerships from the “anti-assignment” override provisions in UCC 9-406 and 9-408. Should secured lenders welcome these changes, or are they a trap for the unwary?
The facts of the Puerto Rico Bondholder litigation. In The Financial Oversight and Management Board for Puerto Rico v. Altair Global Credit Opportunities Fund (A), LLC, et al., A.P. No. 17-213-LTS (D. P.R. 08/17/18), involving the financial restructuring proceedings of Puerto Rico, the Puerto Rico Employees Retirement System (“ERS”), by and through the Financial Oversight and Management Board (the “Oversight Board”), filed suit against bondholders of the ERS (“Bondholders”), which asserted validly perfected security interests in a range of ERS’ assets. The ERS claims were to invalidate the asserted Bondholders’ security interests.
In our increasingly global marketplace it is becoming more important to know about the rules governing the financing of international trade. One familiar vehicle is the letter of credit, both commercial and standby, which is governed by Article 5 of the UCC and the Uniform Customs and Practices established by the International Chamber of Commerce (UCP No. 600). Most international letters of credit are explicitly made subject to UCP No. 600, which generally is consistent with the UCC rules.
On October 24, 2018, the First Circuit refused to dismiss a consumer’s putative class action against a secured lender that had financed the purchase of her car and, after her default, had repossessed the vehicle and sold it in a wholesale dealer auction. In her complaint, the consumer alleged that the pre-sale and post-sale notices that the lender had sent to her violated the foreclosure rules of the UCC and the Massachusetts Retail Installment Sales Act. The federal district court dismissed the suit against Honda on summary judgment and the consumer appealed.
In the last issue of this newsletter, we discussed the “independence principle” that is a fundamental tenet of letter of credit law. The second important principle governing letters of credit is that the issuer must honor a presentment of documents that appear on their face “strictly to comply with the terms and conditions of the letter of credit.” UCC 5-108(a). Though this rule applies to both commercial and standby letters, it has greater significance for commercial letters of credit because the documents are more numerous and complex than in standby letters. Default on the underlying contract by the beneficiary is irrelevant; the key is strict conformity of the documents to the requirements of the letter. If an issuer refuses to pay a draft accompanied by documents that are conforming in all respects, it will be guilty of wrongful dishonor, with sanctions, under UCC 5-111(a).