Filing and compliance with other statutes and treaties for consignments, leases, other bailments, and other transactions.
(a) A consignor, lessor, or other bailor of goods, a licensor, or a buyer of a payment intangible or promissory note may file a financing statement, or may comply with a statute, regulation, or treaty described in section 9-311(a), using the terms "consignor", "consignee", "lessor", "lessee", "bailor", "bailee", "licensor", "licensee", "owner", "registered owner", "buyer", "seller", or words of similar import, instead of the terms "secured party" and "debtor".
(b) This part applies to the filing of a financing statement under subsection (a) and, as appropriate, to compliance that is equivalent to filing a financing statement under section 9-311(b), but the filing or compliance is not of itself a factor in determining whether the collateral secures an obligation. If it is determined for another reason that the collateral secures an obligation, a security interest held by the consignor, lessor, bailor, licensor, owner, or buyer which attaches to the collateral is perfected by the filing or compliance.
Source:Laws 1999, LB 550, § 149.
1. Source. Former section 9-408.
2. Precautionary Filing. Occasionally, doubts arise concerning whether a transaction creates a relationship to which this article or its filing provisions apply. For example, questions may arise over whether a "lease" of equipment in fact creates a security interest or whether the "sale" of payment intangibles in fact secures an obligation, thereby requiring action to perfect the security interest. This section, which derives from former section 9-408, affords the option of filing of a financing statement with appropriate changes of terminology but without affecting the substantive question of classification of the transaction.
3. Changes from Former Section 9-408. This section expands the rule of former section 9-408 to embrace more generally other bailments and transactions, as well as sales transactions, primarily sales of payment intangibles and promissory notes. It provides the same benefits for compliance with a statute or treaty described in section 9-311(a) that former section 9-408 provided for filing, in connection with the use of terms such as "lessor", "consignor", etc. The references to "owner" and "registered owner" are intended to address, for example, the situation where a putative lessor is the registered owner of an automobile covered by a certificate of title and the transaction is determined to create a security interest. Although this section provides that the security interest is perfected, the relevant certificate of title statute may expressly provide to the contrary or may be ambiguous. If so, it may be necessary or advisable to amend the certificate of title statute to ensure that perfection of the security interest will be achieved.
As did former section 1-201, former article 9 referred to transactions, including leases and consignments, "intended as security". This misleading phrase created the erroneous impression that the parties to a transaction can dictate how the law will classify it (e.g., as a bailment or as a security interest) and thus affect the rights of third parties. This article deletes the phrase wherever it appears. Subsection (b) expresses the principle more precisely by referring to a security interest that "secures an obligation".
4. Consignments. Although a "true" consignment is a bailment, the filing and priority provisions of former article 9 applied to "true" consignments. See former sections 2-326(3) and 9-114. A consignment "intended as security" created a security interest that was in all respects subject to former article 9. This article subsumes most true consignments under the rubric of "security interest". See sections 1-201(b)(35) (definition of "security interest"), 9-102 (definition of "consignment"), and 9-109(a)(4). Nevertheless, it maintains the distinction between a (true) "consignment", as to which only certain aspects of article 9 apply, and a so-called consignment that actually "secures an obligation", to which article 9 applies in full. The revisions to this section reflect the change in terminology.