What constitutes filing; effectiveness
(a) Except as otherwise provided in subsection
(b), communication of a record to a filing office and tender of the filing
fee or acceptance of the record by the filing office constitutes filing.
(b) Filing does not occur with respect to a record that a filing office
refuses to accept because:
(1) the record is not communicated by a method or medium of communication
authorized by the filing office;
(2) an amount equal to or greater than the applicable filing fee is
(3) the filing office is unable to index the record because:
(A) in the case of an initial financing statement, the record does not
provide a name for the debtor;
(B) in the case of an amendment or information statement, the
(i) does not identify the initial financing statement as required by
section 9-512 or 9-518, as applicable; or
(ii) identifies an initial financing statement whose effectiveness has
lapsed under section 9-515;
(C) in the case of an initial financing statement that provides the
name of a debtor identified as an individual or an amendment that provides
a name of a debtor identified as an individual which was not previously provided
in the financing statement to which the record relates, the record does not
identify the debtor's surname; or
(D) in the case of a record filed or recorded in the filing office described
in section 9-501(a)(1), the record does not provide a sufficient description
of the real property to which it relates;
(4) in the case of an initial financing statement or an amendment that
adds a secured party of record, the record does not provide a name and mailing
address for the secured party of record;
(5) in the case of an initial financing statement or an amendment that
provides a name of a debtor which was not previously provided in the financing
statement to which the amendment relates, the record does not:
(A) provide a mailing address for the debtor; or
(B) indicate whether the name
provided as the name of the debtor is the name of an individual or an organization;
(6) in the case of an assignment reflected in an initial financing statement
under section 9-514(a) or an amendment filed under section 9-514(b), the record
does not provide a name and mailing address for the assignee;
(7) in the case of a continuation statement, the record is not filed
within the six-month period prescribed by section 9-515(d); or
(8) in the case of a financing statement or an amendment to a financing
statement, the same person or entity is listed as both debtor and secured
(c) For purposes of subsection (b):
(1) a record does not provide information if the filing office is unable
to read or decipher the information; and
(2) a record that does not indicate that it is an amendment or identify
an initial financing statement to which it relates, as required by section
9-512, 9-514, or 9-518, is an initial financing statement.
(d) A record that is communicated to the filing office with tender of
the filing fee, but which the filing office refuses to accept for a reason
other than one set forth in subsection (b), is effective as a filed record
except as against a purchaser of the collateral which gives value in reasonable
reliance upon the absence of the record from the files.
Source:Laws 1999, LB 550, § 160; Laws 2003, LB 494, § 1; Laws 2011, LB90, § 18.
1. Source. Subsection (a): Former section 9-403(1); the remainder is new.
2. What Constitutes Filing. Subsection (a) deals generically with what constitutes filing of a record, including an initial financing statement and amendments of all kinds (e.g., assignments, termination statements, and continuation statements). It follows former section 9-403(1), under which either acceptance of a record by the filing office or presentation of the record and tender of the filing fee constitutes filing.
3. Effectiveness of Rejected Record. Subsection (b) provides an exclusive list of grounds upon which the filing office may reject a record. See section 9-520(a). Although some of these grounds would also be grounds for rendering a filed record ineffective (e.g., an initial financing statement does not provide a name for the debtor), many others would not be (e.g., an initial financing statement does not provide a mailing address for the debtor or secured party of record). Neither this section nor section 9-520 requires or authorizes the filing office to determine, or even consider, the accuracy of information provided in a record.
A financing statement or other record that is communicated to the filing office but which the filing office refuses to accept provides no public notice, regardless of the reason for the rejection. However, this section distinguishes between records that the filing office rightfully rejects and those that it wrongfully rejects. A filer is able to prevent a rightful rejection by complying with the requirements of subsection (b). No purpose is served by giving effect to records that justifiably never find their way into the system, and subsection (b) so provides.
Subsection (d) deals with the filing office's unjustified refusal to accept a record. Here, the filer is in no position to prevent the rejection and as a general matter should not be prejudiced by it. Although wrongfully rejected records generally are effective, subsection (d) contains a special rule to protect a third-party purchaser of the collateral (e.g., a buyer or competing secured party) who gives value in reliance upon the apparent absence of the record from the files. As against a person who searches the public record and reasonably relies on what the public record shows, subsection (d) imposes upon the filer the risk that a record failed to make its way into the filing system because of the filing office's wrongful rejection of it. (Compare section 9-517, under which a mis-indexed financing statement is fully effective.) This risk is likely to be small, particularly when a record is presented electronically, and the filer can guard against this risk by conducting a post-filing search of the records. Moreover, section 9-520(b) requires the filing office to give prompt notice of its refusal to accept a record for filing.
4. Method or Medium of Communication. Rejection pursuant to subsection (b)(1) for failure to communicate a record properly should be understood to mean noncompliance with procedures relating to security, authentication, or other communication-related requirements that the filing office may impose. Subsection (b)(1) does not authorize a filing office to impose additional substantive requirements. See section 9-520, comment 2.
5. Address for Secured Party of Record. Under subsection (b)(4) and section 9-520(a), the lack of a mailing address for the secured party of record requires the filing office to reject an initial financing statement. The failure to include an address for the secured party of record no longer renders a financing statement ineffective. See section 9-502(a). The function of the address is not to identify the secured party of record but rather to provide an address to which others can send required notifications, e.g., of a purchase-money security interest in inventory or of the disposition of collateral. Inasmuch as the address shown on a filed financing statement is an "address that is reasonable under the circumstances", a person required to send a notification to the secured party may satisfy the requirement by sending a notification to that address, even if the address is or becomes incorrect. See section 9-102 (definition of "send"). Similarly, because the address is "held out by (the secured party) as the place for receipt of such communications (i.e., communications relating to security interests)", the secured party is deemed to have received a notification delivered to that address. See section 1-201(26).
6. Uncertainty Concerning Individual Debtor's Surname. Subsection (b)(3)(C) requires the filing office to reject an initial financing statement or amendment adding an individual debtor if the office cannot index the record because it does not identify the debtor's surname (e.g., it is unclear whether the debtor's surname is Elton or John).
7. Inability of Filing Office to Read or Decipher Information. Under subsection (c)(1), if the filing office cannot read or decipher information, the information is not provided by a record for purposes of subsection (b).
8. Classification of Records. For purposes of subsection (b), a record that does not indicate it is an amendment or identify an initial financing statement to which it relates is deemed to be an initial financing statement. See subsection (c)(2).
9. Effectiveness of Rejectable But Unrejected Record. Section 9-520(a) requires the filing office to refuse to accept an initial financing statement for a reason set forth in subsection (b). However, if the filing office accepts such a financing statement nevertheless, the financing statement generally is effective if it complies with the requirements of section 9-502(a) and (b). See section 9-520(c). Similarly, an otherwise effective financing statement generally remains so even though the information in the financing statement becomes incorrect. See section 9-507(b). (Note that if the information required by subsection (b)(5) is incorrect when the financing statement is filed, section 9-338 applies.)