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.
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.
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).
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.
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?
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.
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 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.
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).
On August 13, the California Supreme Court unanimously ruled that the interest rate on a consumer loan in California can be deemed illegally high under the common-law “unconscionability” doctrine, even if the loan was not subject to the state’s statutory usury cap. De La Torre v. CashCall, Inc., 2018 Cal. LEXIS 5749 (Cal. 2018). Currently, California law sets interest rate caps only on consumer loans of less than $2,500. The defendant in this case, CashCall, Inc., is a nonbank lender of consumer loans to high-risk borrowers. One of CashCall’s signature products was an unsecured $2,600 loan, payable over a 42-month period, and carrying an annual percentage rate of either 96 percent or, later in the class period, 135 percent. The plaintiffs in this case obtained such loans from CashCall and alleged that the high interest rates on these loans violated California’s Unfair Competition Law (UCL). The plaintiffs argued that these high interest rates made such loans unconscionable (and thus unlawful) under the UCL, even though the loans were not subject to the statutory cap because the $2600 principal amount exceeded the $2500 threshold.
Under the rules of Article 9 of the UCC, an assignee of the borrower’s receivables has the right to notify the account debtor to make payments directly to the assignee. If a deflection notice is given and payments to the assignee have already been made, is the assignee required to return those payments to an account debtor who has an affirmative claim against the assignor, or is the account debtor only excused from making further payments to the assignee? That was the jackpot issue in a recent decision from South Carolina. The court ruled that the account debtor could raise the assignor’s misbehavior as a “shield” to making further payments, but not as a “sword” to recover payments already made.
On June 25, 2018, the United States Supreme Court issued its opinion in Ohio v. American Express Co., 138 S. Ct. 2274, 2018 U. S. LEXIS 3845 (S. Ct. 2018). The case involved an antitrust challenge brought by the federal government and several states to “antisteering” provisions in American Express’s merchant contracts. If a merchant wants to participate on American Express’s network it must agree to the antisteering provisions, which prohibit the merchant from discouraging customers (at or near the point of sale) from using an Amex card.
In a recent decision from the State of Washington, a bankruptcy court has ruled that, when a consumer buys a car through a dealer installment contract that is assigned to a third-party financer, the purchase of ancillary products such as gap insurance and extended warranty protection are not “purchase-money obligations” that are protected from cramdown in the debtor’s Chapter 13 bankruptcy. In reaching its decision, the court relied heavily on a leading Ninth Circuit case that refused to protect “negative equity” that was financed by the dealer in connection with the debtor’s trade-in on a new vehicle.
Next to employers, depository institutions probably garner more incoming garnishment notices than any other group. Two of the most recurrent issues deal with joint accounts and name discrepancies. Let’s take a brief ride through this landscape.
In the oil and gas industry, a lender will typically record a mortgage that describes both the mineral interests in the ground as well as those same interests “as extracted,” i.e., the mineral interests the moment they are removed from the ground at the wellhead or minehead. The “as extracted collateral” then becomes subject to Article 9 and its continuation statement requirements. The fact that the lender recorded a mortgage and not a UCC-1A financing statement does not excuse the lender from recording a continuation statement. The same holds true for timber to be cut.
In our prior story, we reported that the U.S. Supreme Court will consider whether the federal Fair Debt Collection Practices Act applies to non-judicial foreclosures of collateral. That development reminds of us of another case decided by the High Court some years ago. The issue was whether a foreclosure sale can become a fraudulent transfer under federal bankruptcy law, on the ground that the price fetched at the sale was inadequate consideration.