1. Source. This article supersedes former Uniform Commercial Code (UCC) article
9. As did its predecessor, it provides a comprehensive scheme for the regulation
of security interests in personal property and fixtures. For the most part
this article follows the general approach and retains much of the terminology
of former article 9. In addition to describing many aspects of the operation
and interpretation of this article, these comments explain the material changes
that this article makes to former article 9. Former article 9 superseded the
wide variety of pre-UCC security devices. Unlike the comments to former article
9, however, these comments dwell very little on the pre-UCC state of the law.
For that reason, the comments to former article 9 will remain of substantial
historical value and interest. They also will remain useful in understanding
the background and general conceptual approach of this article.
Citations to "Bankruptcy Code section __" in these comments are to Title
11 of the United States Code as in effect on July 1, 2010.
2. Background and History. In 1990, the Permanent Editorial Board for the UCC with the support
of its sponsors, The American Law Institute and the National Conference of
Commissioners on Uniform State Laws, established a committee to study article
9 of the UCC. The study committee issued its report as of December 1, 1992,
recommending the creation of a drafting committee for the revision of article
9 and also recommending numerous specific changes to article 9. Organized
in 1993, a drafting committee met fifteen times from 1993 to 1998. This article
was approved by its sponsors in 1998. This article was conformed to revised article 1 in 2001 and to amendments to article 7 in 2003. The sponsors approved amendments to selected sections of this article in 2010.
3. Reorganization and Renumbering; Captions; Style. This article reflects a substantial reorganization of former article
9 and renumbering of most sections. New part 4 deals with several aspects
of third-party rights and duties that are unrelated to perfection and priority.
Some of these were covered by part 3 of former article 9. Part 5 deals with
filing (covered by former part 4) and part 6 deals with default and enforcement
(covered by former part 5). Appendix I contains conforming revisions to other
articles of the UCC, and Appendix II contains model provisions for production-money
This article also includes headings for the subsections as an aid to
readers. Unlike section captions, which are part of the UCC, see section 1-107,
subsection headings are not a part of the official text itself and have not
been approved by the sponsors. Each jurisdiction in which this article is
introduced may consider whether to adopt the headings as a part of the statute
and whether to adopt a provision clarifying the effect, if any, to be given
to the headings. This article also has been conformed to current style conventions.
4. Summary of Revisions. Following is a brief summary of some of the more significant revisions
of article 9 that are included in the 1998 revision of this article.
a. Scope of Article 9. This article expands the scope of article 9 in several respects.
Deposit accounts. Section 9-109 includes within this article's scope
deposit accounts as original collateral, except in consumer transactions.
Former article 9 dealt with deposit accounts only as proceeds of other collateral.
Sales of payment intangibles and promissory notes. Section 9-109 also
includes within the scope of this article most sales of "payment intangibles"
(defined in section 9-102 as general intangibles under which an account debtor's
principal obligation is monetary) and "promissory notes" (also defined in
section 9-102). Former article 9 included sales of accounts and chattel paper,
but not sales of payment intangibles or promissory notes. In its inclusion
of sales of payment intangibles and promissory notes, this article continues
the drafting convention found in former article 9; it provides that the sale
of accounts, chattel paper, payment intangibles, or promissory notes creates
a "security interest". The definition of "account" in section 9-102 also has
been expanded to include various rights to payment that were general intangibles
under former article 9.
Health-care-insurance receivables. Section 9-109 narrows article 9's
exclusion of transfers of interests in insurance policies by carving out of
the exclusion "health-care-insurance receivables" (defined in section 9-102).
A health-care-insurance receivable is included within the definition of "account"
in section 9-102.
Nonpossessory statutory agricultural liens. Section 9-109 also brings
nonpossessory statutory agricultural liens within the scope of article 9.
Consignments. Section 9-109 provides that "true" consignments — bailments for the purpose
of sale by the bailee — are security interests covered by article 9, with certain exceptions. See
section 9-102 (defining "consignment"). Currently, many consignments are subject
to article 9's filing requirements by operation of former section 2-326.
Supporting obligations and property securing rights to payment. This
article also addresses explicitly (i) obligations, such as guaranties and
letters of credit, that support payment or performance of collateral such
as accounts, chattel paper, and payment intangibles, and (ii) any property
(including real property) that secures a right to payment or performance that
is subject to an article 9 security interest. See sections 9-203, 9-308.
Commercial tort claims. Section 9-109 expands the scope of article 9
to include the assignment of commercial tort claims by narrowing the exclusion
of tort claims generally. However, this article continues to exclude tort
claims for bodily injury and other nonbusiness tort claims of a natural person.
See section 9-102 (defining "commercial tort claim").
Transfers by states and governmental units of states. Section 9-109
narrows the exclusion of transfers by states and their governmental units.
It excludes only transfers covered by another statute (other than a statute
generally applicable to security interests) to the extent the statute governs
the creation, perfection, priority, or enforcement of security interests.
Nonassignable general intangibles, promissory notes, health-care-insurance
receivables, and letter-of-credit rights. This article enables a security
interest to attach to letter-of-credit rights, health-care-insurance receivables,
promissory notes, and general intangibles, including contracts, permits, licenses,
and franchises, notwithstanding a contractual or statutory prohibition against
or limitation on assignment. This article explicitly protects third parties
against any adverse effect of the creation or attempted enforcement of the
security interest. See sections 9-408 and 9-409.
Subject to sections 9-408 and 9-409 and two other exceptions (sections
9-406, concerning accounts, chattel paper, and payment intangibles, and 9-407,
concerning interests in leased goods), section 9-401 establishes a baseline
rule that the inclusion of transactions and collateral within the scope of
article 9 has no effect on nonarticle 9 law dealing with the alienability
or inalienability of property. For example, if a commercial tort claim is
nonassignable under other applicable law, the fact that a security interest
in the claim is within the scope of article 9 does not override the other
applicable law's effective prohibition of assignment.
b. Duties of Secured Party. This article provides for expanded duties of secured parties.
Release of control. Section 9-208 imposes upon a secured party having
control of a deposit account, investment property, or a letter-of-credit right
the duty to release control when there is no secured obligation and no commitment
to give value. Section 9-209 contains analogous provisions when an account
debtor has been notified to pay a secured party.
Information. Section 9-210 expands a secured party's duties to provide
the debtor with information concerning collateral and the obligations that
Default and enforcement. Part 6 also includes some additional duties
of secured parties in connection with default and enforcement. See, e.g.,
section 9-616 (duty to explain calculation of deficiency or surplus in a consumer-goods
c. Choice of Law. The choice of law rules for the law governing perfection, the effect
of perfection or nonperfection, and priority are found in part 3, subpart
1 (sections 9-301 through 9-307). See also section 9-316.
Where to file: Location of debtor. This article changes the choice of
law rule governing perfection (i.e., where to file) for most collateral to
the law of the jurisdiction where the debtor is located. See section 9-301.
Under former article 9, the jurisdiction of the debtor's location governed
only perfection and priority of a security interest in accounts, general intangibles,
mobile goods, and, for purposes of perfection by filing, chattel paper and
Determining debtor's location. As a baseline rule, section 9-307 follows
former section 9-103, under which the location of the debtor is the debtor's
place of business (or chief executive office, if the debtor has more than
one place of business). Section 9-307 contains three major exceptions. First,
a "registered organization", such as a corporation or limited liability company,
is located in the state under whose law the debtor is organized, e.g., a corporate
debtor's state of incorporation. Second, an individual debtor is located at
his or her principal residence. Third, there are special rules for determining
the location of the United States and registered organizations organized under
the law of the United States.
Location of non-U.S. debtors. If, applying the foregoing rules, a debtor
is located in a jurisdiction whose law does not require public notice as a
condition of perfection of a nonpossessory security interest, the entity is
deemed located in the District of Columbia. See section 9-307. Thus, to the
extent that this article applies to non-U.S. debtors, perfection could be
accomplished in many cases by a domestic filing.
Priority. For tangible collateral such as goods and instruments, section
9-301 provides that the law applicable to priority and the effect of perfection
or nonperfection will remain the law of the jurisdiction where the collateral
is located, as under former section 9-103 (but without the confusing "last
event" test). For intangible collateral, such as accounts, the applicable
law for priority will be that of the jurisdiction in which the debtor is located.
Possessory security interests; agricultural liens. Perfection, the effect
of perfection or nonperfection, and priority of a possessory security interest
or an agricultural lien are governed by the law of the jurisdiction where
the collateral subject to the security interest or lien is located. See sections
9-301 and 9-302.
Goods covered by certificates of title; deposit accounts; letter-of-credit
rights; investment property. This article includes several refinements to
the treatment of choice of law matters for goods covered by certificates of
title. See section 9-303. It also provides special choice of law rules, similar
to those for investment property under current articles 8 and 9, for deposit
accounts (section 9-304), investment property (section 9-305), and letter-of-credit
rights (section 9-306).
Change in applicable law. Section 9-316 addresses perfection following
a change in applicable law.
d. Perfection. The rules governing perfection of security interests and agricultural
liens are found in part 3, subpart 2 (sections 9-308 through 9-316).
Deposit accounts; letter-of-credit rights. With certain exceptions,
this article provides that a security interest in a deposit account or a letter-of-credit
right may be perfected only by the secured party's acquiring "control" of
the deposit account or letter-of-credit right. See sections 9-312 and 9-314.
Under section 9-104, a secured party has "control" of a deposit account when,
with the consent of the debtor, the secured party obtains the depositary bank's
agreement to act on the secured party's instructions (including when the secured
party becomes the account holder) or when the secured party is itself the
depositary bank. The control requirements are patterned on section 8-106,
which specifies the requirements for control of investment property. Under
section 9-107, "control" of a letter-of-credit right occurs when the issuer
or nominated person consents to an assignment of proceeds under section 5-114.
Electronic chattel paper. Section 9-102 includes a new defined term:
"Electronic chattel paper". Electronic chattel paper is a record or records
consisting of information stored in an electronic medium (i.e., it is not
written). Perfection of a security interest in electronic chattel paper may
be by control or filing. See sections 9-105 (sui generis definition of control
of electronic chattel paper), 9-312 (perfection by filing), and 9-314 (perfection
Investment property. The perfection requirements for "investment property"
(defined in section 9-102), including perfection by control under section
9-106, remain substantially unchanged. However, a new provision in section
9-314 is designed to ensure that a secured party retains control in "repledge"
transactions that are typical in the securities markets.
Instruments, agricultural liens, and commercial tort claims. This article
expands the types of collateral in which a security interest may be perfected
by filing to include instruments. See section 9-312. Agricultural liens and
security interests in commercial tort claims also are perfected by filing,
under this article. See sections 9-308 and 9-310.
Sales of payment intangibles and promissory notes. Although former article
9 covered the outright sale of accounts and chattel paper, sales of most other
types of receivables also are financing transactions to which article 9 should
apply. Accordingly, section 9-102 expands the definition of "account" to include
many types of receivables (including "health-care-insurance receivables",
defined in section 9-102) that former article 9 classified as "general intangibles".
It thereby subjects to article 9's filing system sales of more types of receivables
than did former article 9. Certain sales of payment intangibles - primarily bank loan participation
transactions - should not be subject to the article 9 filing rules. These transactions fall
in a residual category of collateral, "payment intangibles" (general intangibles
under which the account debtor's principal obligation is monetary), the sale
of which is exempt from the filing requirements of article 9. See sections
9-102, 9-109, and 9-309 (perfection upon attachment). The perfection rules
for sales of promissory notes are the same as those for sales of payment intangibles.
Possessory security interests. Several provisions of this article address
aspects of security interests involving a secured party or a third party who
is in possession of the collateral. In particular, section 9-313 resolves
a number of uncertainties under former section 9-305. It provides that a security
interest in collateral in the possession of a third party is perfected when
the third party acknowledges in an authenticated record that it holds for
the secured party's benefit. Section 9-313 also provides that a third party
need not so acknowledge and that its acknowledgment does not impose any duties
on it, unless it otherwise agrees. A special rule in section 9-313 provides
that if a secured party already is in possession of collateral, its security
interest remains perfected by possession if it delivers the collateral to
a third party and the collateral is accompanied by instructions to hold it
for the secured party or to redeliver it to the secured party. Section 9-313
also clarifies the limited circumstances under which a security interest in
goods covered by a certificate of title may be perfected by the secured party's
Automatic perfection. Section 9-309 lists various types of security
interests as to which no public-notice step is required for perfection (e.g.,
purchase-money security interests in consumer goods other than automobiles).
This automatic perfection also extends to a transfer of a health-care-insurance
receivable to a health-care provider. Those transfers normally will be made
by natural persons who receive health-care services; there is little value
in requiring filing for perfection in that context. Automatic perfection also
applies to security interests created by sales of payment intangibles and
promissory notes. Section 9-308 provides that a perfected security interest
in collateral supported by a "supporting obligation" (such as an account supported
by a guaranty) also is a perfected security interest in the supporting obligation,
and that a perfected security interest in an obligation secured by a security
interest or lien on property (e.g., a real property mortgage) also is a perfected
security interest in the security interest or lien.
e. Priority; Special Rules for Banks and Deposit Accounts. The rules governing priority of security interests and agricultural
liens are found in part 3, subpart 3 (sections 9-317 through 9-339). This
article includes several new priority rules and some special rules relating
to banks and deposit accounts found in part 3, subpart 4 (sections 9-340 through
Purchase-money security interests: General; consumer-goods transactions;
inventory. Section 9-103 substantially rewrites the definition of purchase-money
security interest (PMSI) (although the term is not formally "defined"). The
substantive changes, however, apply only to nonconsumer-goods transactions.
(Nebraska removed the language "In a transaction other than a consumer-goods
transaction" and did not adopt subsection (h)). (Consumer transactions and
consumer-goods transactions are discussed below in comment 4(j)). For nonconsumer-goods
transactions, section 9-103 makes clear that a security interest in collateral
may be (to some extent) both a PMSI as well as a non-PMSI, in accord with
the "dual status" rule applied by some courts under former article 9 (thereby
rejecting the "transformation" rule). The definition provides an even broader
conception of a PMSI in inventory, yielding a result that accords with private
agreements entered into in response to the uncertainty under former article
9. It also treats consignments as purchase-money security interests in inventory.
Section 9-324 revises the PMSI priority rules, but for the most part without
material change in substance. Section 9-324 also clarifies the priority rules
for competing PMSIs in the same collateral.
Purchase-money security interests in livestock; agricultural liens.
Section 9-324 provides a special PMSI priority, similar to the inventory PMSI
priority rule, for livestock. Section 9-322 (which contains the baseline first-to-file-or-perfect
priority rule) also recognizes special nonarticle 9 priority rules for agricultural
liens, which can override the baseline first-in-time rule.
Purchase-money security interests in software. Section 9-324 contains
a new priority rule for a software purchase-money security interest. (Section
9-102 includes a definition of "software".) Under section 9-103, a software
PMSI includes a PMSI in software that is used in goods that are also subject
to a PMSI. (Note also that the definition of "chattel paper" has been expanded
to include records that evidence a monetary obligation and a security interest
in specific goods and software used in the goods.) (Nebraska removed the language
"In a transaction other than a consumer-goods transaction" and did not adopt
Investment property. The priority rules for investment property are
substantially similar to the priority rules found in former section 9-115,
which was added in conjunction with the 1994 revisions to UCC article 8. Under
section 9-328, if a secured party has control of investment property (sections
8-106 and 9-106), its security interest is senior to a security interest perfected
in another manner (e.g., by filing). Also under section 9-328, security interests
perfected by control generally rank according to the time that control is
obtained or, in the case of a security entitlement or a commodity contract
carried in a commodity account, the time when the control arrangement is entered
into. This is a change from former section 9-115, under which the security
interests ranked equally. However, as between a securities intermediary's
security interest in a security entitlement that it maintains for the debtor
and a security interest held by another secured party, the securities intermediary's
security interest is senior.
Deposit accounts. This article's priority rules applicable to deposit
accounts are found in section 9-327. They are patterned on and are similar
to those for investment property in former section 9-115 and section 9-328
of this article. Under section 9-327, if a secured party has control of a
deposit account, its security interest is senior to a security interest perfected
in another manner (i.e., as cash proceeds). Also under section 9-327, security
interests perfected by control rank according to the time that control is
obtained, but as between a depositary bank's security interest and one held
by another secured party, the depositary bank's security interest is senior.
A corresponding rule in section 9-340 makes a depositary bank's right of set-off
generally senior to a security interest held by another secured party. However,
if the other secured party becomes the depositary bank's customer with respect
to the deposit account, then its security interest is senior to the depositary
bank's security interest and right of set-off. See sections 9-327 and 9-340.
Letter-of-credit rights. The priority rules for security interests in
letter-of-credit rights are found in section 9-329. They are somewhat analogous
to those for deposit accounts. A security interest perfected by control has
priority over one perfected in another manner (i.e., as a supporting obligation
for the collateral in which a security interest is perfected). Security interests
in a letter-of-credit right perfected by control rank according to the time
that control is obtained. However, the rights of a transferee beneficiary
or a nominated person are independent and superior to the extent provided
in section 5-114. See section 9-109(c)(4).
Chattel paper and instruments. Section 9-330 is the successor to former
section 9-308. As under former section 9-308, differing priority rules apply
to purchasers of chattel paper who give new value and take possession (or,
in the case of electronic chattel paper, obtain control) of the collateral
depending on whether a conflicting security interest in the collateral is
claimed merely as proceeds. The principal change relates to the role of knowledge
and the effect of an indication of a previous assignment of the collateral.
Section 9-330 also affords priority to purchasers of instruments who take
possession in good faith and without knowledge that the purchase violates
the rights of the competing secured party. In addition, to qualify for priority,
purchasers of chattel paper, but not of instruments, must purchase in the
ordinary course of business.
Proceeds. Section 9-322 contains new priority rules that clarify when
a special priority of a security interest in collateral continues or does
not continue with respect to proceeds of the collateral. Other refinements
to the priority rules for proceeds are included in sections 9-324 (purchase-money
security interest priority) and 9-330 (priority of certain purchasers of chattel
paper and instruments).
Miscellaneous priority provisions. This article also includes: (i) Clarifications
of selected good-faith-purchase and similar issues (sections 9-317 and 9-331);
(ii) new priority rules to deal with the "double debtor" problem arising when
a debtor creates a security interest in collateral acquired by the debtor
subject to a security interest created by another person (section 9-325);
(iii) new priority rules to deal with the problems created when a change in
corporate structure or the like results in a new entity that has become bound
by the original debtor's after-acquired property agreement (section 9-326);
(iv) a provision enabling most transferees of funds from a deposit account
or money to take free of a security interest (section 9-332); (v) substantially
rewritten and refined priority rules dealing with accessions and commingled
goods (sections 9-335 and 9-336); (vi) revised priority rules for security
interests in goods covered by a certificate of title (section 9-337); and
(vii) provisions designed to ensure that security interests in deposit accounts
will not extend to most transferees of funds on deposit or payees from deposit
accounts and will not otherwise "clog" the payments system (sections 9-341
f. Proceeds. Section 9-102 contains an expanded definition of "proceeds" of collateral
which includes additional rights and property that arise out of collateral,
such as distributions on account of collateral and claims arising out of the
loss or nonconformity of, defects in, or damage to collateral. The term also
includes collections on account of "supporting obligations", such as guarantees.
g. Part 4: Additional Provisions Relating to Third-Party Rights. New part 4 contains several provisions relating to the relationships
between certain third parties and the parties to secured transactions. It
contains new sections 9-401 (replacing former section 9-311) (alienability
of debtor's rights), 9-402 (replacing former section 9-317) (secured party
not obligated on debtor's contracts), 9-403 (replacing former section 9-206)
(agreement not to assert defenses against assignee), 9-404, 9-405, and 9-406
(replacing former section 9-318) (rights acquired by assignee, modification
of assigned contract, discharge of account debtor, restrictions on assignment
of account, chattel paper, promissory note, or payment intangible ineffective),
and 9-407 (replacing some provisions of former section 2A-303) (restrictions
on creation or enforcement of security interest in leasehold interest or lessor's
residual interest ineffective). It also contains new sections 9-408 (restrictions
on assignment of promissory notes, health-care-insurance receivables ineffective,
and certain general intangibles ineffective) and 9-409 (restrictions on assignment
of letter-of-credit rights ineffective), which are discussed above.
h. Filing. Part 5 (formerly part 4) of article 9 has been substantially rewritten
to simplify the statutory text and to deal with numerous problems of interpretation
and implementation that have arisen over the years.
Medium-neutrality. This article is "medium-neutral"; that is, it makes
clear that parties may file and otherwise communicate with a filing office
by means of records communicated and stored in media other than on paper.
Identity of person who files a record; authorization. Part 5 is largely
indifferent as to the person who effects a filing. Instead, it addresses whose
authorization is necessary for a person to file a record with a filing office.
The filing scheme does not contemplate that the identity of a "filer" will
be a part of the searchable records. This approach is consistent with, and
a necessary aspect of, eliminating signatures or other evidence of authorization
from the system (except to the extent that filing offices may choose to employ
authentication procedures in connection with electronic communications). As
long as the appropriate person authorizes the filing, or, in the case of a
termination statement, the debtor is entitled to the termination, it is largely
insignificant whether the secured party or another person files any given
Section 9-509 collects in one place most of the rules that determine
when a record may be filed. In general, the debtor's authorization is required
for the filing of an initial financing statement or an amendment that adds
collateral. With one further exception, a secured party of record's authorization
is required for the filing of other amendments. The exception arises if a
secured party has failed to provide a termination statement that is required
because there is no outstanding secured obligation or commitment to give value.
In that situation, a debtor is authorized to file a termination statement
indicating that it has been filed by the debtor.
Financing statement formal requisites. The formal requisites for a financing
statement are set out in section 9-502. A financing statement must provide
the name of the debtor and the secured party and an indication of the collateral
that it covers. Sections 9-503 and 9-506 address the sufficiency of a name
provided on a financing statement and clarify when a debtor's name is correct
and when an incorrect name is insufficient. Section 9-504 addresses the indication
of collateral covered. Under section 9-504, a super-generic description (e.g.,
"all assets" or "all personal property") in a financing statement is a sufficient
indication of the collateral. (Note, however, that a super-generic description
is inadequate for purposes of a security agreement. See sections 9-108 and
9-203.) To facilitate electronic filing, this article does not require that
the debtor's signature or other authorization appear on a financing statement.
Instead, it prohibits the filing of unauthorized financing statements and
imposes liability upon those who violate the prohibition. See sections 9-509
Filing-office operations. Part 5 contains several provisions governing
filing operations. First, it prohibits the filing office from rejecting an
initial financing statement or other record for a reason other than one of
the few that are specified. See sections 9-516 and 9-520. Second, the filing
office is obliged to link all subsequent records (e.g., assignments, continuation
statements, etc.) to the initial financing statement to which they relate.
See section 9-519. Third, the filing office may delete a financing statement
and related records from the files no earlier than one year after lapse (lapse
normally is five years after the filing date), and then only if a continuation
statement has not been filed. See sections 9-515, 9-519, and 9-522. Thus,
a financing statement and related records would be discovered by a search
of the files even after the filing of a termination statement. This approach
helps eliminate filing-office discretion and also eases problems associated
with multiple secured parties and multiple partial assignments. Fourth, part
5 mandates performance standards for filing offices. See sections 9-519, 9-520,
and 9-523. Fifth, it provides for the promulgation of filing-office rules
to deal with details best left out of the statute and requires the filing
office to submit periodic reports. See sections 9-526 and 9-527.
Defaulting or missing secured parties and fraudulent
filings. In some areas of the country, serious problems have arisen from fraudulent
financing statements that are filed against public officials and other persons.
This article addresses the fraud problem by providing the opportunity for
a debtor to file a termination statement when a secured party wrongfully refuses
or fails to provide a termination statement. See section 9-509. This opportunity
also addresses the problem of secured parties that simply disappear through
mergers or liquidations. In addition, section 9-518 affords a statutory method
by which a debtor who believes that a filed record is inaccurate or was wrongfully
filed may indicate that fact in the files,
albeit without affecting the efficacy, if any, of the challenged record.
Extended period of effectiveness for certain financing statements. Section
9-515 contains an exception to the usual rule that financing statements are
effective for five years unless a continuation statement is filed to continue
the effectiveness for another five years. Under that section, an initial financing
statement filed in connection with a "public-finance transaction" or a "manufactured-home
transaction" (terms defined in section 9-102) is effective for 30 years.
National form of financing statement and related forms. Section 9-521 provides for uniform, national written forms of financing
statements and related written records that must be accepted by a filing office
that accepts written records.
i. Default and Enforcement. Part 6 of article 9 extensively revises former part 5. Provisions relating
to enforcement of consumer-goods transactions and consumer transactions are
discussed in comment 4(j).
Debtor, secondary obligor; waiver. Section 9-602 clarifies the identity
of persons who have rights and persons to whom a secured party owes specified
duties under part 6. Under that section, the rights and duties are enjoyed
by and run to the "debtor", defined in section 9-102 to mean any person with
a nonlien property interest in collateral, and to any "obligor". However,
with one exception (section 9-616, as it relates to a consumer obligor), the
rights and duties concerned affect nondebtor obligors only if they are "secondary
obligors". "Secondary obligor" is defined in section 9-102 to include one
who is secondarily obligated on the secured obligation, e.g., a guarantor,
or one who has a right of recourse against the debtor or another obligor with
respect to an obligation secured by collateral. However, under section 9-628,
the secured party is relieved from any duty or liability to any person unless
the secured party knows that the person is a debtor or obligor. Resolving
an issue on which courts disagreed under former article 9, this article generally
prohibits waiver by a secondary obligor of its rights and a secured party's
duties under part 6. See section 9-602. However, section 9-624 permits a secondary
obligor or debtor to waive the right to notification of disposition of collateral
and, in a nonconsumer transaction, the right to redeem collateral, if the
secondary obligor or debtor agrees to do so after default.
Rights of collection and enforcement of collateral. Section 9-607 explains
in greater detail than former section 9-502 the rights of a secured party
who seeks to collect or enforce collateral, including accounts, chattel paper,
and payment intangibles. It also sets forth the enforcement rights of a depositary
bank holding a security interest in a deposit account maintained with the
depositary bank. Section 9-607 relates solely to the rights of a secured party
vis-a-vis a debtor with respect to collections and enforcement. It does not
affect the rights or duties of third parties, such as account debtors on collateral,
which are addressed elsewhere (e.g., section 9-406). Section 9-608 clarifies
the manner in which proceeds of collection or enforcement are to be applied.
Disposition of collateral: Warranties of title. Section 9-610 imposes
on a secured party who disposes of collateral the warranties of title, quiet
possession, and the like that are otherwise applicable under other law. It
also provides rules for the exclusion or modification of those warranties.
Disposition of collateral: Notification, application of proceeds, surplus
and deficiency, other effects. Section 9-611 requires a secured party to give
notification of a disposition of collateral to other secured parties and lienholders
who have filed financing statements against the debtor covering the collateral.
(That duty was eliminated by the 1972 revisions to article 9.) However, that
section relieves the secured party from that duty when the secured party undertakes
a search of the records and a report of the results is unreasonably delayed.
Section 9-613, which applies only to nonconsumer transactions, specifies the
contents of a sufficient notification of disposition and provides that a notification
sent 10 days or more before the earliest time for disposition is sent within
a reasonable time. Section 9-615 addresses the application of proceeds of
disposition, the entitlement of a debtor to any surplus, and the liability
of an obligor for any deficiency. Section 9-619 clarifies the effects of a
disposition by a secured party, including the rights of transferees of the
Rights and duties of secondary obligor. Section 9-618 provides that
a secondary obligor obtains the rights and assumes the duties of a secured
party if the secondary obligor receives an assignment of a secured obligation,
agrees to assume the secured party's rights and duties upon a transfer to
it of collateral, or becomes subrogated to the rights of the secured party
with respect to the collateral. The assumption, transfer, or subrogation is
not a disposition of collateral under section 9-610, but it does relieve the
former secured party of further duties. Former section 9-504(5) did not address
whether a secured party was relieved of its duties in this situation.
Transfer of record or legal title. Section 9-619 contains a new provision
making clear that a transfer of record or legal title to a secured party is
not of itself a disposition under part 6. This rule applies regardless of
the circumstances under which the transfer of title occurs.
Strict foreclosure. Section 9-620, unlike former section 9-505, permits
a secured party to accept collateral in partial satisfaction, as well as full
satisfaction, of the obligations secured. This right of strict foreclosure
extends to intangible as well as tangible property. Section 9-622 clarifies
the effects of an acceptance of collateral on the rights of junior claimants.
It rejects the approach taken by some courts - deeming a secured party to have constructively retained collateral in satisfaction
of the secured obligations - in the case of a secured party's unreasonable delay in the disposition of
collateral. Instead, unreasonable delay is relevant when determining whether
a disposition under section 9-610 is commercially reasonable.
Effect of noncompliance: "Rebuttable presumption" test. Section 9-626 adopts the "rebuttable presumption" test for the failure
of a secured party to proceed in accordance with certain provisions of part
6. (As discussed in comment 4(j), the test does not necessarily apply to consumer
transactions.) Under this approach, the deficiency claim of a noncomplying
secured party is calculated by crediting the obligor with the greater of the
actual net proceeds of a disposition and the amount of net proceeds that would
have been realized if the disposition had been conducted in accordance with
part 6 (e.g., in a commercially reasonable manner). For nonconsumer transactions,
section 9-626 rejects the "absolute bar" test that some courts have imposed;
that approach bars a noncomplying secured party from recovering any deficiency,
regardless of the loss (if any) the debtor suffered as a consequence of the
noncompliance. (Nebraska removed the language "other than a consumer transaction"
and did not adopt subsection (b).)
"Low-price" dispositions: Calculation of deficiency and surplus. Section
9-615(f) addresses the problem of procedurally regular dispositions that fetch
a low price. Subsection (f) provides a special method for calculating a deficiency
if the proceeds of a disposition of collateral to a secured party, a person
related to the secured party, or a secondary obligor are "significantly below
the range of proceeds that a complying disposition to a person other than
the secured party, a person related to the secured party, or a secondary obligor
would have brought". ("Person related to" is defined in section 9-102.) In
these situations there is reason to suspect that there may be inadequate incentives
to obtain a better price. Consequently, instead of calculating a deficiency
(or surplus) based on the actual net proceeds, the deficiency (or surplus)
would be calculated based on the proceeds that would have been received in
a disposition to a person other than the secured party, a person related to
the secured party, or a secondary obligor.
j. Consumer Goods, Consumer-Goods Transactions, and Consumer Transactions. This article (including the accompanying conforming revisions (see appendix
I)) includes several special rules for "consumer goods", "consumer transactions",
and "consumer-goods transactions". Each term is defined in section 9-102.
(i) Revised sections 2-502 and 2-716 provide a buyer of consumer goods
with enhanced rights to possession of the goods, thereby accelerating the
opportunity to achieve "buyer in ordinary course of business" status under
(ii) Section 9-103(e) (allocation of payments for determining extent
of purchase-money status), (f) (purchase-money status not affected by cross-collateralization,
refinancing, restructuring, or the like), and (g) (secured party has burden
of establishing extent of purchase-money status) do not apply to consumer-goods
transactions. Section 9-103 also provides that the limitation of those provisions
to transactions other than consumer-goods transactions leaves to the courts
the proper rules for consumer-goods transactions and prohibits the courts
from drawing inferences from that limitation. (Nebraska removed the language
"In a transaction other than a consumer-goods transaction" and did not adopt
(iii) Section 9-108 provides that in a consumer transaction a description
of consumer goods, a security entitlement, securities account, or commodity
account "only by (UCC-defined) type of collateral" is not a sufficient collateral
description in a security agreement.
(iv) Sections 9-403 and 9-404 make effective the Federal Trade Commission's
antiholder-in-due-course rule (when applicable), 16 C.F.R. part 433, even
in the absence of the required legend.
(v) The 10-day safe-harbor for notification of a disposition provided
by section 9-612 does not apply in a consumer transaction.
(vi) Section 9-613 (contents and form of notice of disposition) does
not apply to a consumer-goods transaction.
(vii) Section 9-614 contains special requirements for the contents of
a notification of disposition and a safe-harbor, "plain English" form of notification,
for consumer-goods transactions.
(viii) Section 9-616 requires a secured party in a consumer-goods transaction
to provide a debtor with a notification of how it calculated a deficiency
at the time it first undertakes to collect a deficiency.
(ix) Section 9-620 prohibits partial strict foreclosure with respect
to consumer-goods collateral and, unless the debtor agrees to waive the requirement
in an authenticated record after default, in certain cases requires the secured
party to dispose of consumer-goods collateral which has been repossessed.
(x) Section 9-626 ("rebuttable presumption" rule) does not apply to
a consumer transaction. Section 9-626 also provides that its limitation to
transactions other than consumer transactions leaves to the courts the proper
rules for consumer transactions and prohibits the courts from drawing inferences
from that limitation. (Nebraska removed the language "other than a consumer
transaction" and did not adopt subsection (b).)
k. Good Faith. Section 9-102 contains a new definition of "good faith" that includes
not only "honesty in fact" but also "the observance of reasonable commercial
standards of fair dealing". The definition is similar to the ones adopted
in connection with other, recently completed revisions of the UCC.
l. Transition Provisions. Part 7 (sections 9-701 through 9-709) contains transition provisions.
Transition from former article 9 to this article will be particularly challenging
in view of its expanded scope, its modification of choice of law rules for
perfection and priority, and its expansion of the methods of perfection.
m. Conforming and Related Amendments to Other UCC Articles. Appendix I contains several proposed revisions to the provisions and
Comments of other UCC articles. For the most part the revisions are explained
in the Comments to the proposed revisions. Cross-references in other UCC articles
to sections of Article 9 also have been revised.
Article 1. Revised section 1-201 contains revisions to the definitions
of "buyer in ordinary course of business", "purchaser", and "security interest".
Articles 2 and 2A. Sections 2-210, 2-326, 2-502, 2-716, 2A-303, and
2A-307 have been revised to address the intersection between articles 2 and
2A and article 9.
Article 5. New section 5-118 is patterned on section 4-210. It provides for a security interest in documents presented under a letter
of credit in favor of the issuer and a nominated person on the letter of credit.
Article 8. Revisions to section 8-106, which deals with "control" of
securities and security entitlements, conform it to section 8-302, which deals
with "delivery". Revisions to section 8-110, which deals with a "securities
intermediary's jurisdiction", conform it to the revised treatment of a "commodity
intermediary's jurisdiction" in section 9-305. Sections 8-301 and 8-302 have
been revised for clarification. Section 8-510 has been revised to conform
it to the revised priority rules of section 9-328. Several comments in article
8 also have been revised.