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28.6 Summary and Exercises

Summary

The law governing security interests in personal property is Article 9 of the UCC, which defines a security interest as an interest in personal property or fixtures that secures payment or performance of an obligation. Article 9 lumps together all the former types of security devices, including the pledge, chattel mortgage, and conditional sale.

Five types of tangible property may serve as collateral: (1) consumer goods, (2) equipment, (3) farm products, (4) inventory, and (5) fixtures. Five types of intangibles may serve as collateral: (1) accounts, (2) general intangibles (e.g., patents), (3) documents of title, (4) chattel paper, and (5) instruments. Article 9 expressly permits the debtor to give a security interest in after-acquired collateral.

To create an enforceable security interest, the lender and borrower must enter into an agreement establishing the interest, and the lender must follow steps to ensure that the security interest first attaches and then is perfected. There are three general requirements for attachment: (1) there must be an authenticated agreement (or the collateral must physically be in the lender’s possession), (2) the lender must have given value, and (3) the debtor must have some rights in the collateral. Once the interest attaches, the lender has rights in the collateral superior to those of unsecured creditors. But others may defeat his interest unless he perfects the security interest. The three common ways of doing so are (1) filing a financing statement, (2) pledging collateral, and (3) taking a purchase-money security interest (PMSI) in consumer goods.

A financing statement is a simple notice, showing the parties’ names and addresses, the signature of the debtor, and an adequate description of the collateral. The financing statement, effective for five years, must be filed in a public office; the location of the office varies among the states.

Security interests in instruments and negotiable documents can be perfected only by the secured party’s taking possession, with twenty-one-day grace periods applicable under certain circumstances. Goods may also be secured through pledging, which is often done through field warehousing. If a seller of consumer goods takes a PMSI in the goods sold, then perfection is automatic and no filing is required, although the lender may file and probably should, to avoid losing seniority to a bona fide purchaser of consumer goods without knowledge of the security interest, if the goods are used for personal, family, or household purposes.

The general priority rule is “first in time, first in right.” Priority dates from the earlier of two events: (1) filing a financing statement covering the collateral or (2) other perfection of the security interest. Several exceptions to this rule arise when creditors take a PMSI, among them, when a buyer in the ordinary course of business takes free of a security interest created by the seller.

On default, a creditor may repossess the collateral. For the most part, self-help private repossession continues to be lawful but risky. After repossession, the lender may sell the collateral or accept it in satisfaction of the debt. Any excess in the selling price above the debt amount must go to the debtor.

Suretyship is a legal relationship that is created when one person contracts to be responsible for the proper fulfillment of another’s obligation, in case the latter (the principal debtor) fails to fulfill it. The surety may avail itself of the principal’s contract defenses, but under various circumstances, defenses may be available to the one that are not available to the other. One general defense often raised by sureties is alteration of the contract. If the surety is required to perform, it has rights for reimbursement against the principal, including interest and legal fees; and if there is more than one surety, each standing for part of the obligation, one who pays a disproportionate part may seek contribution from the others.

Exercises

  1. Kathy Knittle borrowed $20,000 from Bank to buy inventory to sell in her knit shop and signed a security agreement listing as collateral the entire present and future inventory in the shop, including proceeds from the sale of inventory. Bank filed no financing statement. A month later, Knittle borrowed $5,000 from Creditor, who was aware of Bank’s security interest. Knittle then declared bankruptcy. Who has priority, Bank or Creditor?
  2. Assume the same facts as in Exercise 1, except Creditor—again, aware of Bank’s security interest—filed a financing statement to perfect its interest. Who has priority, Bank or Creditor?
  3. Harold and Wilma are married. First Bank has a mortgage on their house, and it covers after-acquired property. Because Harold has a new job requiring travel to neighboring cities, they purchase a second car for Wilma’s normal household use, financed by Second Bank. They sign a security agreement; Second Bank files nothing. If they were to default on their house payments, First Bank could repossess the house; could it repossess the car, too?

    1. Kathy Knittle borrowed $20,000 from Bank to buy inventory to sell in her knit shop and signed a security agreement listing her collateral—present and future—as security for the loan. Carlene Customer bought yarn and a tabletop loom from Knittle. Shortly thereafter, Knittle declared bankruptcy. Can Bank get the loom from Customer?
    2. Assume that the facts are similar to those in Exercise 4a, except that the loom that Knittle sold had been purchased from Larry Loomaker, who had himself given a secured interest in it (and the other looms he manufactured) from Fine Lumber Company (FLC) to finance the purchase of the lumber to make the looms. Customer bought the loom from Knittle (unaware of Loomaker’s situation); Loomaker failed to pay FLC. Why can FLC repossess the loom from Customer?
    3. What recourse does Customer have now?
  5. Creditor loaned Debtor $30,000 with the provision that the loan was callable by Creditor with sixty days’ notice to Debtor. Debtor, having been called for repayment, asked for a ninety-day extension, which Creditor assented to, provided that Debtor would put up a surety to secure repayment. Surety agreed to serve as surety. When Debtor defaulted, Creditor turned to Surety for payment. Surety asserted that Creditor had given no consideration for Surety’s promise, and therefore Surety was not bound. Is Surety correct?

    1. Mrs. Ace said to University Bookstore: “Sell the books to my daughter. I’ll pay for them.” When University Bookstore presented Mrs. Ace a statement for $900, she refused to pay, denying she’d ever promised to do so, and she raised the statute of frauds as a defense. Is this a good defense?
    2. Defendant ran a stop sign and crashed into Plaintiff’s car, causing $8,000 damage. Plaintiff’s attorney orally negotiated with Defendant’s insurance company, Goodhands Insurance, to settle the case. Subsequently, Goodhands denied liability and refused to pay, and it raised the statute of frauds as a defense, asserting that any promise by it to pay for its insured’s negligence would have to be in writing to be enforceable under the statute’s suretyship clause. Is Goodhands’s defense valid?

    1. First Bank has a security interest in equipment owned by Kathy Knittle in her Knit Shop. If Kathy defaults on her loan and First Bank lawfully repossesses, what are the bank’s options? Explain.
    2. Suppose, instead, that First Bank had a security interest in Kathy’s home knitting machine, worth $10,000. She paid $6,200 on the machine and then defaulted. Now what are the bank’s options?

Self-Test Questions

  1. Creditors may obtain security

    1. by agreement with the debtor
    2. through operation of law
    3. through both of the above
    4. through neither of the above

  2. Under UCC Article 9, when the debtor has pledged collateral to the creditor, what other condition is required for attachment of the security interest?

    1. A written security agreement must be authenticated by the debtor.
    2. There must be a financing statement filed by or for the creditor.
    3. The secured party received consideration.
    4. The debtor must have rights in the collateral.

  3. To perfect a security interest, one may

    1. file a financing statement
    2. pledge collateral
    3. take a purchase-money security interest in consumer goods
    4. do any of the above

  4. Perfection benefits the secured party by

    1. keeping the collateral out of the debtor’s reach
    2. preventing another creditor from getting a secured interest in the collateral
    3. obviating the need to file a financing statement
    4. establishing who gets priority if the debtor defaults

  5. Creditor filed a security interest in inventory on June 1, 2012. Creditor’s interest takes priority over which of the following?

    1. a purchaser in the ordinary course of business who bought on June 5
    2. mechanic’s lien filed on May 10
    3. purchase-money security interest in after-acquired property who filed on May 15
    4. judgment lien creditor who filed the judgment on June 10

Self-Test Answers

  1. c
  2. d
  3. d
  4. d
  5. d