UCC Article 9 Update: Searching and Filing Under...

UCC Article 9 Update:

Searching and Filing Under New Amendments Lessons Learned Under the Recent Rules, Best Practices for Secured Lenders

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

The audio portion of the conference may be accessed via the telephone or by using your computer's

speakers. Please refer to the instructions emailed to registrants for additional information. If you

have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.

THURSDAY, MAY 14, 2015

Presenting a live 90-minute webinar with interactive Q&A

Edwin E. Smith, Partner, Morgan Lewis & Bockius LLP, New York

Steven O. Weise, Partner, Proskauer Rose, Los Angeles

Tips for Optimal Quality

Sound Quality

If you are listening via your computer speakers, please note that the quality

of your sound will vary depending on the speed and quality of your internet

connection.

If the sound quality is not satisfactory, you may listen via the phone: dial

1-866-819-0113 and enter your PIN when prompted. Otherwise, please

send us a chat or e-mail [email protected] immediately so we can address

the problem.

If you dialed in and have any difficulties during the call, press *0 for assistance.

Viewing Quality

To maximize your screen, press the F11 key on your keyboard. To exit full screen,

press the F11 key again.

FOR LIVE EVENT ONLY

Continuing Education Credits

For CLE purposes, please let us know how many people are listening at your

location by completing each of the following steps:

• In the chat box, type (1) your company name and (2) the number of

attendees at your location

• Click the word balloon button to send

In order for us to process your CLE, you must confirm your participation by

completing and submitting an Official Record of Attendance (CLE Form) to

Strafford within 10 days following the program.

The CLE form is included in your dial in instructions email and in a thank you

email that you will receive at the end of this program.

Strafford will send your CLE credit confirmation within approximately 30 days of

receiving the completed CLE form.

For additional information about CLE credit processing call us at 1-800-926-7926

ext. 35.

FOR LIVE EVENT ONLY

Commercial Law Developments – 2014 | 48902716.1 4

UCC Article 9 Update: Searching and Filing Under New Amendments

Edwin E. Smith Morgan Lewis Bockius LLP

[email protected]

Steve Weise Proskauer Rose LLP

[email protected]


When to use a financing statement

In re Gem Refrigerator Co.; Seitz v. Republic First Bank, 512 BR 194 (Bankr. ED Pa. 2014) –Importance of determining whether an account is a securities account or a deposit account, because a security interest in a securities account can be perfected with a financing statement and a security interest in a deposit account cannot


When to use a financing statement

In re HW Partners, LLC, No. 11–03366–JAR11, 2013 WL 4874172 (Bankr. E.D. Wash. Sept. 12, 2013) – Recording assignment of mortgage does not perfect security interest in notes secured by mortgage


Authority to file

In re Motors Liquidation Co., 755 F.3d 78 (2d Cir. 2014); 2014 WL 5305937 (Del. 2014); _ F. 3d _ (2d Cir. 2015) – A termination statement is authorized by the secured party if the secured party of record reviewed and knowingly approved the termination statement for filing, regardless of whether the secured party subjectively intended or understood the effect of the filing


Authority to file

In re the Adoni Group, _ B.R. _ (Bankr. SDNY May 4, 2015) – Ratification of filing that was not authorized at time of filing


Where to file

Copyright

o Aerocon Engineering, Inc., v. Silicon Valley Bank (In re World Aux. Power Co.), 303 F.3d 1120 (9th Cir. 2002) – File in Copyright Office for registered copyright and under UCC for unregistered copyrights

Patents

o Moldo v. Matsco, Inc. (In re Cybernetic Services, Inc.), 252 F.3d 1039 (9th Cir. 2001) – File under UCC

o Precautionary PTO filing (to beat buyers)?

Trademarks

o Trimarchi v. Together Development Corp., 255 B.R. 606 (D. Mass. 2000) – File under UCC


Where to file

Dayka & Hackett, LLC v. Del Monte Fresh Produce N.A., Inc., 269 P.3d 709, 76 UCC Rep.2d 637 (Ariz. Ct. App. 2010) – When to follow the rules of a non-U.S. filing system under UCC § 9-307(c)


Where to file

Clinton v. Adams, 2014 WL 6896021 (C.D. Cal. 2014) – Security interest was unperfected because the law firm filed a financing statement in California, where the infringement claim was prosecuted, rather than in Florida, where the debtor is located


Where to file

Sturtz Machinery, Inc. v. Dove’s Industries, Inc., 83 U.C.C. Rep.Serv. 2d 425 (N.D. Ohio 2014) – Lender perfected its security interest in the debtor’s fixtures by filing a financing statement in Pennsylvania, where the debtor was located, even though the fixtures were located in Virginia


Searching

In re: Spearing Tool and Manufacturing Co., Inc. 2005 U.S. App. LEXIS 11808 (6th Cir. 2005) – Location of filing for Federal tax lien and name used by IRS on notice


Searching

• Look for descriptions of collateral that can turn into other collateral as ‘proceeds’

• Generally follow priority of original collateral

• Special rules for non-temporal priority (§ 9-322(c))


Debtor name

In re Patriot Electric and Mechanical, Inc., 2014 WL 1761928 (Bankr. D. Md. 2014) – Were the filed financing statement and continuation statements that listed the debtor’s original name – “Patriot Electric, Inc.” – but not the name the debtor adopted after the financing statement was filed – “Patriot Electric and Mechanical, Inc.” effective?


Debtor name

In re C.W. Mining Co., 488 B.R. 715 (D. Utah 2013) --Financing statement with improper punctuation of debtor’s name was insufficient to perfect security interest


Debtor name

Debtor name Mistaken financing statement

C. W. Mining Company CW Mining Company

EDM Corporation EDM Corporation d/b/a EDM

Equipment

Michael Erwin Mike Erwin

Terrance Joseph Kinderknecht Terry J. Kinderknecht

Rodger House Roger House

Michael Barry Mike Barry

Andrew Fuell Andrew Fuel

Silver Dollar, LLC Silver Dollar Stores, LLC

Jim Ross Tires, Inc. Jim Ross Tire Inc.


Description of collateral

Clinton v. Adams, 2014 WL 6896021 (C.D. Cal. 2014) – Reference to money due does not include underlying claim



In re Sterling United; Ring v. First Niagara Bank, N.A., 2014 Bankr. LEXIS 4238 (Bankr.W.D.N.Y. 2014) – Court evaluates whether a collateral description in a financing statement is seriously misleading under Article 9. Court concludes filings were good enough to put subsequent searchers on notice



• In re Nickeson, 2014 WL 6686524 (Bankr. D.S.D. 2014) – Collateral description did not cover the debtor’s stock in a closely held corporation, which is classified as investment property, not a general intangible

• See also Russell Road Food and Beverage, LLC v. Galam, 2014 WL 6746569 (9th Cir. 2014)



In re Estate of Wheeler, 2013 WL 3440953 (Colo. Ct. App. 2013) – Collateral description “all property now owned or hereafter acquired by [the tenant] which shall come in or be placed upon the Premises” reasonably identified secured collateral as all of tenant’s personal property at tenant’s jewelry store



In re Gene Express, Inc., 2013 WL 1787971 (Bankr. E.D.N.C. 2013) – Collateral description of “any personal property belonging to Tenant and left on the Premises” is “supergeneric” and not sufficient



In re Salander-O'Reilly Galleries, LLC, 506 B.R. 600 (Bankr. S.D.N.Y. 2014), rev’d, 2014 WL 7389901 (S.D.N.Y. 2014) – Description of collateral as goods “owned” by debtor did not include goods where the debtor was only a consignee



U.S. Commodity Futures Trading Commission v. U.S. Bank, 2013 WL 5944179 (N.D. Iowa 2013) – Meaning of the “granting” language in the guaranties depends on extrinsic evidence in light of the context of the dispute and determination left to the trier of fact



• Collins v. Angell, No. 3:12–CV–0589, 2013 WL 3243559 (N.D.N.Y. June 26, 2013) – Factual question about whether a security agreement and financing statement that identified collateralized cattle by name and ear tag number was effective with respect to cattle whose ear tag had either fallen off or did not match one of the listed numbers

• In re Baker, 511 B.R. 41 (Bankr. N.D.N.Y. 2013) – Describing cows by spots and ear tags



In re Cunningham, 489 B.R. 602 (Bankr. D. Kan. 2013) – Description of “the goods purchased on your Account” did not ID collateral



Johnson v. Binkley, No. 2 CA–CV 2012–0167, 2013 WL 5593287 (Ariz. Ct. App. Oct. 9, 2013) – Deed of trust granting a security interest in “Personal Property,” defined as “all equipment, fixtures, and other articles of personal property . . . attached to the Real Property,” was limited to fixtures


Amendment

Monroe Bank & Trust v. Chie Contractors, Inc., 2013 WL 1629300 (Mich. Ct. App. 2013) – Financing statement amendment that purported to simultaneously amend and terminate the prior filing did not terminate


Amendment

In re Residential Capital, LLC, 497 B.R. 403 (Bankr. S.D.N.Y. 2013 ) – Collateral agent for junior secured noteholders – not the debtor – executed releases of collateral and filed amendments identifying various categories of released collateral – the releases and amendments were authorized even if the collateral agent acted outside the scope the authority granted by the noteholders


Amendment

In re Oak Rock Financial, LLC, _ B.R. _ (Bankr. EDNY March 19, m2015) – Assignee of financing statement has all of the rights of an assignor


Amendment

In re Northern Beef Packers Ltd. Partnership Tax ID/EIN 26-2530200, 83 U.C.C. Rep. Serv. 2d 104 (Bankr. D.S.D. 2014) – Security interest became unperfected when the lessor amended its financing statement to “restate” the collateral to consist only of the equipment covered now or in the future by a lease or security agreement between it and the debtor


Lapse

In re Highland Construction Management Services, LP, 2013 WL 1336918 (Bankr. E.D. Va. 2013) – Financing statement that lapses after the filing of a petition in bankruptcy wins as against a debtor-in-possession’s rights as a hypothetical lien creditor


Lapse

In re Colony Beach and Tennis Club, Inc., 508 B.R. 468 (Bankr. M.D. Fla. 2014) – Effect of post-petition lapse

Date post:	17-Jul-2020
Category:	Documents
Upload:	others
View:	2 times
Download:	0 times

UCC Article 9 Update: Searching and Filing Under...

Documents