Collection and enforcement by secured
(a) If so agreed, and in any event after default,
a secured party:
(1) may notify an account debtor or other person obligated on collateral
to make payment or otherwise render performance to or for the benefit of the
(2) may take any proceeds to which the secured party is entitled under
(3) may enforce the obligations of an account debtor or other person
obligated on collateral and exercise the rights of the debtor with respect
to the obligation of the account debtor or other person obligated on collateral
to make payment or otherwise render performance to the debtor, and with respect
to any property that secures the obligations of the account debtor or other
person obligated on the collateral;
(4) if it holds a security interest in a deposit account perfected by
control under section 9-104(a)(1), may apply the balance of the deposit account
to the obligation secured by the deposit account; and
(5) if it holds a security interest in a deposit account perfected by
control under section 9-104(a)(2) or (3), may instruct the bank to pay the
balance of the deposit account to or for the benefit of the secured party.
(b) If necessary to enable a secured party to exercise under subdivision
(a)(3) the right of a debtor to enforce a mortgage nonjudicially, the secured
party may record in the office in which a record of the mortgage is recorded:
(1) a copy of the security agreement that creates or provides for a
security interest in the obligation secured by the mortgage; and
(2) the secured party's sworn affidavit in recordable form stating that:
(A) a default has occurred with
respect to the obligation secured by the mortgage; and
(B) the secured party is entitled to enforce the mortgage nonjudicially.
(c) A secured party shall proceed in a commercially reasonable manner
if the secured party:
(1) undertakes to collect from or enforce an obligation of an account
debtor or other person obligated on collateral; and
(2) is entitled to charge back uncollected collateral or otherwise to
full or limited recourse against the debtor or a secondary obligor.
(d) A secured party may deduct from the collections made pursuant to
subsection (c) reasonable expenses of collection and enforcement, including
reasonable attorney's fees and legal expenses incurred by the secured party.
(e) This section does not determine whether an account debtor, bank,
or other person obligated on collateral owes a duty to a secured party.
Source:Laws 1999, LB 550, § 182; Laws 2011, LB90, § 21.
1. Source. Former section 9-502; subsections (b), (d), and (e) are new.
2. Collections: In General. Collateral consisting of rights to payment is not only the most liquid asset of a typical debtor's business but also is property that may be collected without any interruption of the debtor's business. This situation is far different from that in which collateral is inventory or equipment, whose removal may bring the business to a halt. Furthermore, problems of valuation and identification, present with collateral that is tangible personal property, frequently are not as serious in the case of rights to payment and other intangible collateral. Consequently, this section, like former section 9-502, recognizes that financing through assignments of intangibles lacks many of the complexities that arise after default in other types of financing. This section allows the assignee to liquidate collateral by collecting whatever may become due on the collateral, whether or not the method of collection contemplated by the security arrangement before default was direct (i.e., payment by the account debtor to the assignee, "notification" financing) or indirect (i.e., payment by the account debtor to the assignor, "nonnotification" financing).
3. Scope. The scope of this section is broader than that of former section 9-502. It applies not only to collections from account debtors and obligors on instruments but also to enforcement more generally against all persons obligated on collateral. It explicitly provides for the secured party's enforcement of the debtor's rights in respect of the account debtor's (and other third parties') obligations and for the secured party's enforcement of supporting obligations with respect to those obligations. (Supporting obligations are components of the collateral under section 9-203(f).) The rights of a secured party under subsection (a) include the right to enforce claims that the debtor may enjoy against others. For example, the claims might include a breach-of-warranty claim arising out of a defect in equipment that is collateral or a secured party's action for an injunction against infringement of a patent that is collateral. Those claims typically would be proceeds of original collateral under section 9-315.
4. Collection and Enforcement Before Default. Like part 6 generally, this section deals with the rights and duties of secured parties following default. However, as did former section 9-502 with respect to collection rights, this section also applies to the collection and enforcement rights of secured parties even if a default has not occurred, as long as the debtor has so agreed. It is not unusual for debtors to agree that secured parties are entitled to collect and enforce rights against account debtors prior to default.
5. Collections by Junior Secured Party. A secured party who holds a security interest in a right to payment may exercise the right to collect and enforce under this section, even if the security interest is subordinate to a conflicting security interest in the same right to payment. Whether the junior secured party has priority in the collected proceeds depends on whether the junior secured party qualifies for priority as a purchaser of an instrument (e.g., the account debtor's check) under section 9-330(d), as a holder in due course of an instrument under sections 3-305 and 9-331(a), or as a transferee of money under section 9-332(a). See sections 9-330, comment 7; 9-331, comment 5; and 9-332.
6. Relationship to Rights and Duties of Persons Obligated on Collateral. This section permits a secured party to collect and enforce obligations included in collateral in its capacity as a secured party. It is not necessary for a secured party first to become the owner of the collateral pursuant to a disposition or acceptance. However, the secured party's rights, as between it and the debtor, to collect from and enforce collateral against account debtors and others obligated on collateral under subsection (a) are subject to section 9-341, part 4, and other applicable law. Neither this section nor former section 9-502 should be understood to regulate the duties of an account debtor or other person obligated on collateral. Subsection (e) makes this explicit. For example, the secured party may be unable to exercise the debtor's rights under an instrument if the debtor is in possession of the instrument, or under a nontransferable letter of credit if the debtor is the beneficiary. Unless a secured party has control over a letter-of-credit right and is entitled to receive payment or performance from the issuer or a nominated person under article 5, its remedies with respect to the letter-of-credit right may be limited to the recovery of any identifiable proceeds from the debtor. This section establishes only the baseline rights of the secured party vis-a-vis the debtor — the secured party is entitled to enforce and collect after default or earlier if so agreed.
7. Deposit Account Collateral. Subsections (a)(4) and (5) set forth the self-help remedy for a secured party whose collateral is a deposit account. Subsection (a)(4) addresses the rights of a secured party that is the bank with which the deposit account is maintained. That secured party automatically has control of the deposit account under section 9-104(a)(1). After default, and otherwise if so agreed, the bank/secured party may apply the funds on deposit to the secured obligation.
If a security interest of a third party is perfected by control (section 9-104(a)(2) or (a)(3)), then after default, and otherwise if so agreed, the secured party may instruct the bank to pay out the funds in the account. If the third party has control under section 9-104(a)(3), the depositary institution is obliged to obey the instruction because the secured party is its customer. See section 4-401. If the third party has control under section 9-104(a)(2), the control agreement determines the depositary institution's obligation to obey.
If a security interest in a deposit account is unperfected, or is perfected by filing by virtue of the proceeds rules of section 9-315, the depositary institution ordinarily owes no obligation to obey the secured party's instructions. See section 9-341. To reach the funds without the debtor's cooperation, the secured party must use an available judicial procedure.
8. Rights Against Mortgagor of Real Property. Subsection (b) addresses the situation in which the collateral consists of a mortgage note (or other obligation secured by a mortgage on real property). After the debtor's (mortgagee's) default, the secured party (assignee) may wish to proceed with a nonjudicial foreclosure of the mortgage securing the note but may be unable to do so because it has not become the assignee of record. The assignee/secured party may not have taken a recordable assignment at the commencement of the transaction (perhaps the mortgage note in question was one of hundreds assigned to the secured party as collateral). Having defaulted, the mortgagee may be unwilling to sign a recordable assignment. This section enables the secured party (assignee) to become the assignee of record by recording in the applicable real property records the security agreement and an affidavit certifying default. Of course, the secured party's rights derive from those of its debtor. Subsection (b) would not entitle the secured party to proceed with a foreclosure unless the mortgagor also were in default or the debtor (mortgagee) otherwise enjoyed the right to foreclose.
9. Commercial Reasonableness. Subsection (c) provides that the secured party's collection and enforcement rights under subsection (a) must be exercised in a commercially reasonable manner. These rights include the right to settle and compromise claims against the account debtor. The secured party's failure to observe the standard of commercial reasonableness could render it liable to an aggrieved person under section 9-625, and the secured party's recovery of a deficiency would be subject to section 9-626. Subsection (c) does not apply if, as is characteristic of most sales of accounts, chattel paper, payment intangibles, and promissory notes, the secured party (buyer) has no right of recourse against the debtor (seller) or a secondary obligor. However, if the secured party does have a right of recourse, the commercial reasonableness standard applies to collection and enforcement even though the assignment to the secured party was a "true" sale. The obligation to proceed in a commercially reasonable manner arises because the collection process affects the extent of the seller's recourse liability, not because the seller retains an interest in the sold collateral (the seller does not). Concerning classification of a transaction, see section 9-109, comment 4.
10. Attorney's Fees and Legal Expenses. The phrase "reasonable attorney's fees and legal expenses", which appears in subsection (d), includes only those fees and expenses incurred in proceeding against account debtors or other third parties. The secured party's right to recover these expenses from the collections arises automatically under this section. The secured party also may incur other attorney's fees and legal expenses in proceeding against the debtor or obligor. Whether the secured party has a right to recover those fees and expenses depends on whether the debtor or obligor has agreed to pay them, as is the case with respect to attorney's fees and legal expenses under sections 9-608(a)(1)(A) and 9-615(a)(1). The parties also may agree to allocate a portion of the secured party's overhead to collection and enforcement under subsection (d) or section 9-608(a).