Secured Transactions Flashcards Preview

Bar Exam > Secured Transactions > Flashcards

Flashcards in Secured Transactions Deck (87):
1

Secured Transaction

Transaction that give a party a security interest.

2

Security Interest

Essentially like a mortgages on personal property.

3

Governing Law of Secured Transaction

UCC Article 9

4

What to look for in secured transaction questions?

1. A credit transaction
AND
2. An agreement that creates a security interest in the debtor's personal property to secure the debt.

5

Security Interest as Liens: What is a Lien?

An interest in property that secures payment of a debt or performance of an obligation.

6

Lien Operation: Securing Payment in Two Ways

1. Additional Remedies
2. Priority

7

Additional Remedies Afford to Secured Interests

Lienholders generally can repossess the collateral and then sell the collateral at a foreclosure sale, all without going through the full judicial process.

8

Priority: Competition Between Lienholders and Unsecured Creditors

When collateral is sold at a foreclosure sale, the proceeds of the sale are used to pay creditors with liens before those without liens.

9

Priority: Competition Between Lienholders

If there is more than one lien no a piece of property, the general rule is that the first lienholder to provide public notice of its lien gets paid first.

10

Liens Compared to Other Property Interests

Page 2

11

Types of Liens

1. Consensual Liens
2. Judicial Liens
3. Liens Obtained by Operation of Law

12

Consensual Liens

Liens created by contract

**Security Interest and Real Estate Mortgages

13

Judicial Liens

Liens obtained by some judicial process.

**Execution lien

14

Liens Obtained by Operation of Law

Liens obtained by statute or common law.

**People who do work on you land or house receive a mechanics lien.

15

Collateral

The property subject to a security interest.

16

Debtor

Person who owes money to someone.

Any person with an interest in the collateral, other than a security interest.

17

Secured Party/Secured Creditor

A lender, seller, or other creditor who has a security interest.

18

Secured Agreement

An agreement between the secured party and the debtor that creates a security interest in personal property.

19

Purchase Money Security Interest

Created where the money loaned as party of a secured transaction is used to buy the collateral

20

Types of PMSI

1. Seller
2. Lender

21

Seller PMSI

A security interest taken by the seller of collateral to secure all or party of the purchase price of the collateral

**The seller and lender must be the same person

22

Elements of a Seller PMSI

Creditor sells goods to debtor on credit and retains security interest
or
Creditor advances debtor funds used to buy and takes security interest in goods

23

Lender PMSI

Page 3

24

Scope of Article 9

Contractual Security Interest
Sales of Accounts, Chattel Paper, Payment Intangibles, and Promissory Notes
Commercial Consignments
Agricultural Liens
Leases intended to serve as security arrangements
Seller's retention of title to delivered goods

25

Article 9 Exception

Does not Apply to Land Interests

26

Dual Status Rule: PMSI

Security Interest in Nonconsumer goods does not lose its status as PMSI if:
security interest also secured by property not purchased on credit; collateral also secures advances not made for purchase; or PMSI has been refinanced

27

Types of Collateral

Tangible Collateral;
Intangible Collateral; and
Proceeds

28

Tangible Collateral

Consumer Goods
Inventory
Farm Products
Equipment

29

Intangible/Semi-Tangible Collateral

Instruments
Documents
Chattel Paper
Accounts
Deposit Accounts--bank accounts
Investment Property
Commercial Tort Claims
General Intangibles

30

Proceeds

What is received from sale, exchange, collection, or other disposition of collateral or proceeds

31

Attachment

Secures rights against debtor
Rights against third party require perfection

32

Requisites for Attachment

Need all three:
1. Parties agree to create security interest in which (i) creditor takes possession of collateral, (ii) debtor's authenticates security agreement describing collateral, or (iii) creditor takes control of certain types of collateral; and
2. Value give by secured party; and
3. Debtor has rights in collateral

33

Description of Collateral

Cannot say "all of the debtor's assets"
Consumer goods, consumer securities accounts and commercial tort claims need specific descriptions

34

Methods of Obtaining Control

Nonconsumer Deposit Accounts
Electronic Chattel Paper; and
Investment Property

35

Nonconsumer Deposit Account

Bank which nonconsumer deposit account maintained automatically has control over bank account.
Secured party not bank, may obtain by either (i) putting deposit account in secured party's name, or, (ii) agreeing in authenticated record with debtor and bank that bank will comply with the secured party's orders w/o debtor's consent

36

Electronic Chattel Paper

Electronic Chattel Paper--electronically stored
Tangible Chattel Paper--written on paper

37

Investment Property

Certificated Securities
Securities Accounts

38

Certificated Securities

Type of Investment Property
Secured party obtains control by taking possession of certificate if in bearer form; or
If registered form must take possession and certificate must be indorsed or registered by issuer

39

Securities Accounts

Secured Party obtains control if:
Secured Party has same rights in account as owner; or
Intermediary may comply with secured party's orders without the owner's further consent

40

Secured Party in Control

Must use reasonable care in storing and preserving, but entitled to reasonable reimbursement for storage

41

Risk of Loss

In secured party's possession on debtor to extent of insurance deficiency

42

After Acquired Property

May be created and if so will attach to property as soon as debtor acquires an interest.
Does not apply to consumer goods unless acquired within 10 days
Does not apply to commercial tort claims

43

Perfection of Security Interest

Establishes secured party's rights to collateral as against the debtor
Other parties may also have rights; perfection protects secured party over these interest

44

Methods of Perfection

Filing
Taking Possession
Control
Automatic
Temporary Perfection

45

Time of Perfection

Perfection occurs upon attachment

46

Perfection by Filing

Must file financing statement
Must file with SOS
Filing Valid for 5 years; continuation statement can get additional 5
Certification of Title Law (for vehicles)

47

Financing Statement Requirements

Debtor name and mailing address
Secured party's name and mailing address
Indication of Collateral
If real property, description of related real property, name of record owner, and indication to file in real property records

48

Effect of Mistake on Debtor Name

Minor errors do not invalidated
Seriously Misleading Errors will (name not returned on search)

49

Perfection by Possession

Cannot include general intangibles, nonconsumer deposit accounts, nonnegotiable documents, electronic chattel paper, certificate of title goods, and accounts
Time of Actual Possession Triggers

50

Perfection by Control

Available for investment property, nonconsumer deposit accounts, and electronic chattel paper

51

Automatic Control

PMSI in consumer goods perfected upon attachment
Limited in motor vehicles and fixtures

52

Temporary Perfection

Proceeds from original collateral for 20 days
Occurs when new value given for authenticated security agreement for instruments, negotiable documents, or certificated securities; valid for 20 day

53

Continuation of 20 Day Interest in Proceeds

Will continue if:
Original collateral perfected by filing financing statement, security interest in type of collateral constituting proceeds would be filed in same place as financing statement and proceeds not purchased with case;
Proceeds are identifiable cash proceeds; or
Security interest perfected withing 20 day period

54

Priority: Secured v. Secured

Unperfected: First to attach
Perfected: will beat unperfected
Both perfected: First to file OR perfect

55

Special Priority Rule for Conflicting Security Interest in Investment Property

Perfected by Control will prevail over any other method

56

PMSI Priorities

Enjoy superpriority

In Inventory: if perfected at time debtor gets possesion and secured party receives written notification; e.g. consigner

In Goods Other than Inventory/Livestock--if same goods or their proceeds priority if perfected within 20 days after debtor takes possession

57

Chattel Paper Purchasers

If purchaser in good faith gives new value and takes possession in ordinary course (or control electronic chattel paper) will have priority over:
Proceeds of inventory unassigned to anyone other than purchaser; and any other security interest as long acquired without knowledge that purchase violated the rights of secured party

58

Instrument Purchaser Priority

If gives value and takes possession in good faith without knowledge that purchase violated rights of secured party will have priority

59

Priority in Proceeds

Filing Collateral achieves priority through filing financial statement
Non-filing Collateral achieves priority by possession or conrol

60

General Rule Priority in Proceeds

Perfected Security Interest in proceeds with have same date of priority as perfected security interest int he original collateral

61

Special Rule for Certain Proceeds of Non-Filing Collateral

Priority in proceeds of non-filing collateral if (i) priority in original collateral, (ii) security interest in proceeds is perfected, and (iii) proceeds are cash proceeds or proceeds of same type as original collateral.

62

Exception--Filing Collateral as Proceeds of Non-Filing Collateral

"if a security interest in original collateral that is non-filing collateral is perfected by a method other than filing, and the proceeds of the original collateral are filing collateral, the first secured party to file a financing statement covering the proceeds has priority over the proceeds" WHAT THE FUCK DOES THAT MEAN!

63

Fixture Filing

Generally, first party to file a fixture filing or record its real property interest will prevail
Exception: PSMI who makes fixture filing within 20 days of affixation

64

Accessions Priority

Generally First to file or perfect
Exception: becomes part of whole subject to security interest perfected by notation on certificate of title

65

US v. B/L Priority

B/L will generally has interest superior to US interest if received without knowledge of security interest, gives value and receives
If account no need for deliver (receipt)
No delivery requirement if account, electronic chattel paper, general intangible, or investment property other than certified security

66

PSP v. Br/L

Holder perfected secuirty interest has rights superior except:
secured party consents
buyer or lessee in ordinary course of business takes free of nonpossessory perfected security interest in goods unless knows sale of lease is in violation of security interest
consumer purchaser from consumer
buyer/lessee not in ordinary course of business

67

SP v. HIDC

HIDC has priority over security interest in negotiable instrument

68

SP v. TM/DAF

Debtor transfers to person, they will take free of any security interest int he money or funds unless acts in collusion

69

SP v. JL/C/HPL

Types:
USP v. JLC
PSP v. JLC
SP v. PLN

70

SP v. JL/C: USP v. JL/C

JL/C prevails over holder of security interest in collateral if lien becomes before security interest is perfected
PMSI Exception--attaches PMSI before JL/C acquires interest in collateral, attachment gives priority over judicial lien if filed within 20 days of receipt

71

IMPORTANT
Abbreviations of Parties

Secured Party--SP
Unsecured Party--UP
Perfected Secured Party--PSP
Unperfected Secured Party--USP
Buyer/Lessee--B/L
Holder in Due Course--HIDC
Judicial Lien/Creditor--JL/C
Possessory Lien--JL

72

PSP v. JL/C

Prior perfected generally has priority
Exceptions: Future Advances if perfected before lien but made more than 45 days after lien arose after unless made without knowledge or pursuant to commitment made without knowledge

73

SP v. Article 2

Art. 2 grants buyer/seller possessory security interest in goods with priority as long as in possession

74

Priorities in Nutshell
1-5

Excluding investment property and nonconsumer deposits accounts with control priority generally as follows:
1. Buyer in Ordinary Course
2. HIDC
3. Tranferee of Money or funds from Deposit Accounts
4. Purchasers of Chattel Paper or Instruments
5. Possessory Lienholder

75

Priorities in Nutshell
6-11

6. Article 2 Claimant with Possession
7. PMSI
8. Perfected Security Interests and Judicial Liens that have attached to collateral
a. first to file or perfect for PSI
b. attached lien generally if attached before perfection
9. Purchaser buys for value and receives delivery without notice.
10. Unperfected Security Interests
11. Debtor

76

Rights on Default

Right to Take Possession and Sell Collateral
Ordinary Judicial Action
Remedies are Cumulative but only 1 Satisfaction

77

JXN Rules

General: Law of State where Debtor is Located
PSI, Fixtures, and timber is state of collateral's location
Certficate of Title state of title
CEO Exceptions for Investment Property and Deposit Accounts

78

Taking Possession and Sale

SP has right to sue on debt or take possession, sell it by public or private sale, and sue to collect deficiency.
Must be commercially Reasonable
Debtors and Sureties entitled to Notice

79

Reasonableness of a Sale

Sufficiency of the Advertising
If limited market, whether people in the market were contacted
whether needed cleaning or repair; and
Sale by Public Auction, convenience of the time and place

80

Retention of Collateral in Satisfaction of Debt

60% paid, SP must dispose of collateral within 90 days of repossession or debtor can recover in conversion
Secured Party may propose to retain collateral in full satisfaction of obligation; requires consent or case full satisfaction is not objected to retention within 20 days after notice sent and SP must send written notice of such proposals to debtor, and if object in writing within 20 day, SP must dispose and properly disburse proceeds

81

Debtor Right of Redemption

Until SP sells collateral/discharged debt by retention of the collateral, debtor, surety, other SP or lienholder may redeem collateral by paying all obligations secured plus reasonable expenses

82

Failure to Comply with Code Requirements

SP liable for actual damages caused by failure to follow Art. 9
Apply:
Rebuttable Presumption of Value
Absolute Bar Rule; or
Setoff Rule

83

Rebuttable Presumption of Value

In nonconsumer transactions unless SP proves otherwise value of collateral is presumed equal to debt

84

Absolute Bar Rule

Deny SP deficiency regardless of whether SP can prove collateral is worth less than debt

85

Setoff Rule

Allow SP to recover deficiency minus actual damages that debtor can prove

86

Relocation of Debtor

Perfection governed by law of state where debtor is located, security interest generally remain perfected for 4 months after move or until lapse

87

New Debtor Different State

Transferred to new debtor located in different state perfection does not lapse for one year or first perfection lapses, whichever earlier.