Basic Rules Need to Be Followed in Order to Ensure the RA9 Filing Scheme - Assignment Example

Question 1: The basic rules that need to be followed in order to ensure the RA9 filing scheme could be outlined in the following terms: (i) The owner of the security interest in the collateral would have to have certain jurisdiction where possessory type collateral is located governs rules of perfection; (ii) the jurisdiction where the debtor is located governs perfection of all non-possessory collateral (other than deposit accounts and letter of credit rights which may only be perfected by obtaining “control”); and (iii) the jurisdiction where fixtures are located (due to their real estate-like qualities) will continue to be the jurisdiction of filing. The debtor’s location, in most cases, will be the jurisdiction of incorporation or organization. 1. Land in Arizona which Massive Dynamics owns and uses to conduct product safety tests, would be considered part of the collateral in accordance with [UCC § 9-102(a)], under the heading of Accounts would fall under the category of collateral as defined by the Uniform Commercial Code, Article 9. It states, more specifically that “property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of” [UCC § 9-102(a)(ii)]. 2. The second collateral at hand is the crops growing on 100 acres of land in Kansas which Massive Dynamics actively farms to provide organic food for its employees. These are inclusive in keeping with the rules of [UCC § 9-102(a)(ii)], as goods “other than standing timber, with respect to which the debtor is engaged in a farming operation and which are: (A) Crops that are being grown or are growing by their own violation. These in turn include: (i) Crops created on bushes, trees and bushes and (ii) Aquatic products that have been manufactured in water-agricultural operations; Other aspects of the same are inclusive of (B) Livestock, born or unborn, which is in turn inclusive of aquatic goods that have been manufactured in water-agricultural operations (C) Provisions used or produced in a farming operation; or (D) Crop of crops or livestock in their actual conditions. 3. The third item is a certificate for 20,000 shares of Massive Dynamics stock. This would fall under the ambit of certificated security, meaning a method of securing interest that is stands for a certificate. This has been defined as Security. The definition in s8- 103, defines a share collateral as an obligation of “an issuer or a share, participation, or other interest in an issuer or in property or an enterprise of an issuer: (i) which is represented by a security certificate in bearer or registered form, or the transfer of which may be registered upon books maintained for that purpose by or on behalf of the issuer; (ii) which is one of a class or series or by its terms is divisible into a class or series of shares, participations, interests, or obligations; and (iii) which: (A) is, or is of a type, dealt in or traded on securities exchanges or securities markets; or (B) is a medium for investment and by its terms expressly provides that it is a security governed by this Article”. 4. A Megalon Model NCC-1701 computer which Massive Dynamics uses to manage its accounts receivable and payroll. The computer is on casters and is thus very easy to move. This would fall under the category of inventory for the business, which means in essence goods beside farm produce that is either taken on lease by the owner of the business, are being held in possession for sale in due course, furnished by an individual under contract or raw materials, inputs, matter and material along with actual stuff used in the running of a business. 5. E. A SuperCool Model Mark VI central air conditioning unit that is installed in Massive Dynamics’ manufacturing facility located in Grand Haven, Michigan. Consumer goods other than motor vehicles-Consumer goods are goods used or bought of personal, family or household purposes [UCC 9-109(i)]. Most security interests in these goods are purchase money security interests under which the debtor would have the use of the collateral while he would be paying for it. The debtor signs a written security agreement going the secured party-in this case the ONB Bank an interest in the collateral (if the debtor agrees to make payments to the seller until the collateral is paid for). The secured party may also be a financing agency (as is the case here)- the debtor would have to agrees to a three way deal wherein the seller delivers the collateral to the debtor, the financing agency would then pay the seller for the collateral, and the debtor would have to make payments to the agency until the loan has been repaid., the purchase money security interest in consumer goods becomes perfected when it attaches except with respect to bona fide purchaser consumers [UCC 9-307(2)]. In this case, the good is actually a fixture given the fact that it is built into the building so that, it has, in a sense, become part of the building itself. In terms of the system of filing, possession and control therefore, in order to perfect this particular collateral the bank would have to file and in a sense, to possess the air conditioning system. 6. A limousine which the President of Massive Dynamics uses to escort potential clients around its facilities. This would fall under the category of consumer goods. “Goods” means all things that are movable when a security interest attaches. The term is inclusive of all things that would fall under the category of standing timber that is to be cut and removed under a conveyance or contract for sale, the unborn young of animals, (iv) crops developed, mounting, or to be grown, even if the crops are produced on trees, vines, or bushes, and (v) manufactured homes. The term also includes a computer program embedded in goods and any supporting information provided in connection with a transaction relating to the program if (i) the program is associated with the goods in such a manner that it customarily is considered part of the goods, or (ii) by becoming the owner of the goods, a person acquires a right to use the program in connection with the goods. The car by virtue of the fact that it is a movable item that is used by owner in the long term transportation requirements of the business would mean that it would be part of the goods aspect of the overall process. In a secured lending, the bank would have to demonstrate its right to the collateral. If no right is established then a borrower could at some point sell the collateral and leave the bank with no recourse if the terms and conditions of the loan were not met. The bank’s right to the collateral therefore depends on whether a security interest has been attached and perfected. For the security interest to attach, i.e. for it to be legally binding, three basic principles would need to be in force: 1. First, the borrower and the bank must have a written or oral (preferably a written) agreement that states that the bank has a security interest in the property; 2. Second, the bank must give something of value in return, for example, funds or a commitment to lend; 3. Finally, the borrower must maintain rights in the collateral either through ownership or through assignable rights If the goods are to become fixtures, the secured party must protect themselves against the interests of those who could claim an interest in the real estate of which the fixture would become a part. Perfection of a purchase money security interest in goods which are to become fixtures requires fixture filing by the secured party either before the goods becomes fixtures or within ten days thereafter. A fixture filing consists of a financing statement in the real property records of the country where the real estate in which the goods to become a fixture is located, containing the usual contents of a financial statement, plus a description of the real estate to which the goods are to be attached. In case of the shares, the bargain would in essence be a pledge, the idea would be aimed at perfection keeping in mind the attachment would keep in mind that the security interest would attach when the debtor gives the secured party possession of the collateral, the interest of the secured party would also be perfected as of the time of attachment [UCC 9-305]. Question 2: Proceeds are whatever cash or property is received when collateral is sold or disposed of in some other what [UCC 9-102 (a) (64)]. A security interest in the collateral gives the secured party a security interest in the proceeds acquired from the sale of that collateral. The idea therefore is that in case there is a business wherein the bank has perfected security interest in the inventory of a furniture seller. The furniture business owner sells furniture to a certain somebody who is by definition a buyer in the ordinary course of business. A security interest in proceeds perfects automatically on the perfection of the secured party’s interest in the original collateral and remains perfected for twenty days after the debtor receives the proceeds. After acquired property is described as the personal or real property acquired by a debtor after he/she has agreed that all his/her property secures a debt. Thus, the new property also becomes security for the debt. This includes improvements to real property which is security on a deed of trust or mortgage and personal property pledged in a security agreement (UCC-1). 2) in bankruptcy, property acquired by the bankrupt person after he/she has filed papers to be declared bankrupt. This after-acquired property is not included in the assets which may be used to pay any debts which existed at the time of bankruptcy filing. Not only would the security agreement have to clearly identify the intent to create a security interest in after acquired property In case of a perfected secured party’s interest versus the unsecured parties and creditor, the law is clear on the fact that a perfected secured party’s interest has priority over the interests of most other parties, including unsecured creditors, unperfected secured parties, subsequent lien creditors, trustees in bankruptcy, and buyers that do not purchase the collateral in the ordinary course of business. In case of two perfected secured parties, in the context of the same collateral, the general rule is that the first in time of perfection is the first in right to the collateral [UCC 9-322(a)(1)]. In case of perfected secured party versus the interest of a perfected PMSI, it is assumed that the PMSI, even if second in time of perfection has priority providing that the following conditions are met: First, Other collateral-A PMSI has priority, providing it is perfected within twenty days after the debtor takes possession [UCC9-324(a)]. Second, Inventory-A PMSI has priority is it is perfected and proper written or authenticated notice is given to the other security-interest holder on or before the time the debtor takes possession [UCC 9-324(b)] Third, Software, applies to a PMSI in software only if used in goods subject to PMSI. If the goods are inventory then priority is determined the same as for inventory, of they are not then priority is determined as for goods other than inventory. In case of perfected versus purchaser of debtor’s collateral, a buyer of goods in the ordinary course of the seller’s business-makes a case for the buyer over the secured party’s security interest, even if perfected and even if the buyer knows of the security interest [UCC 9-320(a)]. Second, a buyer of consumer goods purchased outside the ordinary course if business-here the buyer prevails again over a secured party’s interest, even if perfected by attachment, providing the buyer purchase as follows: For value Without actual knowledge of the security interest For use as a consumer good Prior to the secured party’s perfection by filing [UCC 9-320(b)]. Buyer of chattel paper-here the buyer prevails again if the buyer: Gave new value in making the purchase Took possession in the ordinary course of the buyer’s business Took without knowledge of the security interest Buyers of instruments, documents and securities- a buyer who is a holder in due course, a holder to whom negotiable documents have been duly negotiated, or a bona fide purchaser of securities has priorities over previously perfected security interest [UCC9-330(d), 9-331(a)]. Finally in case of an unperfected secured party versus and unsecured creditor, the unperfected secured party prevails over unsecured creditors who have obtained judgments against the debtor but who have not begun the legal process to collect on those judgments [UCC 9-201(a)]. 1. In the context of this case, the idea inherent in the sale therefore is simple. When Gloria sold Sara the table, the inventory was secured as collateral against the loan that she had taken out against the entire inventory she owned. When Sara bought the table therefore, she bought the inventory and therefore it was the proceeds that would now form part of the security agreement. The table would now belong solely to Sara and not to Gloria’s inventory list given the fact that she sold it. However, when Sara asks Gloria to store the table all over again trying to see if anyone would buy it for $1000 it would be housed in Gloria’s furniture shop, not as inventory but as Sara’s asset that was being exhibited. However, if sold, the 10 per cent interest that Gloria would get would then form part of the security arrangement that Gloria had entered into with the Octopus National Bank. In the context of the question on the priority owner of the table, the it would remain Sara because she owned the table and had given to Gloria just to exhibit and had not sold it back, thereby nullifying any claims that the bank could have on the table itself. 2. In the context of the oriental rug, which is a case of the perfected secured party, versus the perfected secured PMSI, which is Tom, the one that would hold sway, is Tom, given the fact that First, Tom would fit the category of a PMSI and would thus get priority, providing it is perfected especially given the fact that the agreement had been perfected in twenty days after the debtor takes possession [UCC9-324(a)]. Also, he would have priority given the fact that there was proper agreement signed and the rug was sold on credit, before the time the debtor took actual possession [UCC 9-324(b)] 3. The portrait of Davy Crockett would belong to the one that would be the first to perfect the security agreement on collateral. The loan that Gloria took from the sheriff was an unsecured one, which means that treating the portrait as inventory, and given the fact that it had not been purchased but was part of a credit agreement, which would be annulled after Tom got the rug, the portrait would belong to the bank, in light of the fact that in an instance of conflict between a In case of a perfected secured party’s interest versus the unsecured parties and creditor, the law is clear on the fact that a perfected secured party’s interest has priority over the interests of most other parties, including unsecured creditors, unperfected secured parties, subsequent lien creditors, trustees in bankruptcy, and buyers that do not purchase the collateral in the ordinary course of business. 4. The antique roll top desk would belong to Maude given the fact that a buyer of goods in the ordinary course of the seller’s business-makes a case for the buyer over the secured party’s security interest, even if perfected and even if the buyer knows of the security interest [UCC 9-320(a)]. Question Three   On a default, the secured party has a right to possession of the collateral. Sometimes, he debtor would voluntarily turn over possession (Martin and Hart, 2007). In other cases, however the debtor(s) would refuse. When the collateral is goods, Article 9 gives to the debtor two possessions:   1.      By simply taking the collateral; of this could be done without a breach of peace, or 2.      By bringing a court action. This is usually called replevin or simply an action for possession. When the collateral is in terms of intangibles, then a different procedure is used.   The most important restriction upon repossession is that there is the need for possession without a breach of peace. In case this happens then the creditor is exposed to a tort of liability (UCC-§9-507). The code does not however elaborate on the constituents of a breach of peace action. In this case therefore, the first thing to be established is whether there has in fact been a breach of peace. The fact that the Subaru was taken with the creditor’s children inside would mean a case of kidnap and hence a case of breach of peace. With respect to liability, however, there would be no delegation of liability of illegal repossession, given the fact that the law does not allow delegation in such cases [N.A. v. Sanchez, 836 S.W. 2d 151]. If the second party hires someone to reposses the property and the person during the act of repossession is liable for conversion of otherwise, the secured party would be held liable because duty not to breach of peace cannot be delegated [Robinson v Citicorp Nat’l Servs., Inc., 921 S.W. 2d 52 (Mo Ct. App. 1996]. In the context of this case therefore, Big Auto Sales, would liable in a court injunction, and Paul along with Expert Repo would be liable to tort law, along with kidnapping charges, if at all. Question Four 1. The first case is that of an instance where the note does not have a handwritten signature. Instead, the maker’s signature was computer generated. One has to understand the fact that signing a document is a common but not an exclusive means of authenticating, and, depending on the context, the terms “to signs” and “to intoxicate” may be used as synonyms. In the context of the revised article 9 of the US Commercial Code, defines “authenticate as, “A) to sign or (B) to execute or otherwise adopt a symbol, or encrypt or similarly process a record in whole or in part, with the present intent of the authenticating person to identify and adopt or accept a record. In this case therefore, the note would hold absolute validity. 2. A promise or a note becomes non negotiable in cases where it is conditional where there is an expressed condition to payment. In this case, where the ultimate profitability of the note and its returns on the same are hinged obviously on the promissory getting the highest marks, the note becomes non-negotiable.   3. With respect to the value of the contract the UCC is very clear on the fact that effects of the Code may be varied by the agreement of the parties in accordance with s1-302. this in essence establishes a broad policy that favors freedom of contract in commercial dealings and flexibility through agreement, including custom and usage in accordance with s1-303 [Colorado Interstate Gas co. Inc v. Chemco Inc. 833 P2d 786, 17 UCC]. The failure of any section to mention the ability to vary it by agreement does not imply that freedom of contract is abrogatd-s1-302. The idea in this context would, therefore, remain that the note and its returns would hinge on the fulfillment of the terms of the contract, thereby making it non-negotiable.   4. UCC 3-104 provides that affixed amount is to be payable in money, defining money as “a medium of exchange authorized or adopted by a domestic or foreign government as part of its currency (UCC 1-201(24)]. In this case therefore the note would be non negotiable because of the fact that a Sony TV is not a medium of exchange adopted by the US government, and the fact that the note is not payable in money terms.   5. It has to be understood that in cases where payment could be made only out of a particular fund or source would not render the instrument non-negotiable [UCC 2-106(b)(ii)]. Therefore in case where the note makes it clear that payment would be made out of the proceeds of next year’s crop, would not make the note non negotiable-although there is a chance that if it looks commercially unviable it could be rejected.   6. The term "usury" refers to an unlawfully high interest rate. There can be significant consequences for entering into a "usurious" contract. For example, in some states any interest payment made on an usurious loan is applied to the principal balance of the loan - that is, the law transforms the loan into a "zero interest" loan. Most jurisdictions make usury a criminal offense if the rate is particularly high. In this case therefore the note is non negotiable given the fact that it illegally promises a rate of interest (2 per cent) than the one that is allowed by the United States prime rate of interest.   7. In this case, the non would be negotiable given the fact that any instrument payable in the United States with a face amount stated in a foreign currency, however, is negotiable and could be paid in the foreign money or in the equivalent in the US dollars [UCC 3-107]. The idea therefore is that given the fact that Euros are ultimate a medium of payment or a currency which could be exchanged, would mean that the note is negotiable. Question Five A) The basic definition of holder in due course is found in UCC s3-302(a), which states that one could assume the position only in cases when one is holding an “instrument” under Article 2, which in accordance with s3-104(b) means a negotiable instrument. The idea therefore would need to be that the candidate in question for the position of the holder in due course actually be in possession of the instrument. The idea inherent and a prerequisite that of being a holder in due course remains that the person be acting in good faith, without knowledge of any obvious imperfection in the instrument nor any notice of dishonor. (UCC 3-302). It is also possible for a holder in to come into that position through one of the following circumstances: 1.      an original creditor loans money to a person in return for a promise to repay that money with interest 2.      The original creditor then sells the credit contract (the right to receive repayment of the loan) to a "new creditor" (such as a bank); and 3.      The new creditor takes the debt for value, in good faith, without any knowledge of (a) a defect in the note, (b) any misrepresentations made by the original creditor to the debtor, or (c) any other act that would give the debtor a legal claim against the original creditor. A donee acquiring title to the instrument by way of a gift is not a holder in due course because there is no consideration to the contract (Highway engineering, 2008). By this logic therefore, in this instance Sam would not be a holder in due course because he did not assume credit responsibilities through transaction but go the note as a birthday gift. B) One has to understand the fact that if the status of a "holder in due course had been accorded to Sam then it would have given him a positive sense of defense against the misdeeds of the previous creditor. This would mean that the fact that the goods sold to Maker were useless would have been rendered pointless in this case. But given the fact that the note was a gift, and Sam is not a holder in due course Maker would have the defense that he did not owe Sam anything especially given the fact that the quality of the goods sold to him was inferior, faulty and there was a total failure of consideration. Question Six 1. According to Uniform Commercial Code (UCC) § 3-104(f), a “check” is defined as a “draft … payable on demand and drawn on a bank ….” In the context of this case, when Adam gave supplied a check jointly to Bill and Betty, he created what could be known as an unrestricted joint check agreement, which would require that the ones responsible for the money would have to pay by joint signatures all future payments (Cushman and Myres, 1999). In this case, therefore the fact that the check that was presented to Bill and Betty and in their account was used as jointly would hold legitimacy only when a withdrawal claim would have both their signatures. ONB was therefore justified in returning the check, making it a bad check. 2. In accordance with S4A-403 of the UCC, it is mandated that the Payment of the sender’s obligation under S4A-402 to pay the receiving bank occurs when the sender is a bank and the payment occurs when the receiving bank receives final settlement of the obligation through a Federal Reserve Bank or through a fund transfer system (Cooper, 2005). Also, if the receiving bank debits an account of the sender with the receiving bank, payment occurs when the debit is made to the extent the debit is covered by a withdrawable credit balance in the account. Given the fact that ONB refused to honor the check and the fact that at the end of the transaction, there was no available balance in Dan’s account, CSB was well within its rights to debit the amount. 3. There are two aspects to a bounced check situation such as this. First and foremost, there could be a criminal or a civil law suit that could be brought by Dan against Bill. Also, the idea is that in such cases, the idea of intentional deception which is subjective would come into play, because of the fact that intentional deception would mean a criminal injunction. One state court of appeals has taken the position that, if the corporate signer was aware that there were insufficient funds and intended to defraud, he could be held responsible (Bad check laws, 2008). Finally, Dan as the creditor could ask for three times the amount payable earlier as settlement in a civil injunction case. 4. In this case, the liability for the transaction would fall solely with Bill and not with Betty given the fact that it was not a joint purchase of the camera by Bill and Betty. In fact, the only involvement that one could prove in Betty’s case would be that of the joint check that should have been signed by both. The fact that Betty was unaware and not a part of the transaction would mean that she is free of responsibility where the liability for the bad check is concerned. 5. Adam would have no liability because his duties of payment would end the minute he signed a check to Bill and Betty and the payment for the same was cleared. Further transactions on the amount would rest solely with Bill and Betty (UCC s4-103). Question 7: 1. There are two possibilities that one could consider here. First the bank could prove, that Julia as a reasonable consumer, failed to exercise appropriate care and did not care to inform the bank about the stolen check thereby freeing the bank of all liability and that the payment made by the bank was made in good faith. The problem here with respect to the bank is the period of notification according to the law extends to 30 days, within which the item or statement of account and notify the bank could be made. In this respect therefore, Julia in here capacity as reasonable customer could allege that the bank did not exercise ordinary care in paying the item and that the failure substantially contributed to loss. 2. In this case the definition of the obligated bank would come into the picture given the fact that it is the bank that is the issuer of the cashier’s check or teller’s check or the accepter of the certified check that is to be held at fault for the problem. In the context of this case therefore, given the fact that the check amount was cleared by a teller at CSB, ONB could go back and ask CSB to be the obligated bank holding them at fault. 3. There could be no claim that Julia could bring against Stan given the fact that the check was stolen out of Julia’s safe after, the same had been handed over to her by Stan. The fact that his check cleared on time would also then mean that he was in no way liable for the fact that the check got stolen. Julia, therefore cannot hold Stan to responsibility for any more money. 4. In case of Elroy electronics, Julia can bring an injunction against Elroy for having mailed her money to a wrong address, given the fact that she did not get possession of the check at all and the fact that she did lose it was not to her fault in way-the loss of possession was not the result of transfer by the declarer. Reference: Ruth, G. E., (1999). Commercial lending. Kogan Page Publishers. pp288-290 Miller, L., Jentz, M. A., (2007). Business Law Today: The Essentials. Cengage Learning. pp484-486 Duncan, R. F., and Lyons, W. H., (1987). The law and practice of secured transactions: working with article 9, Volume 1. Law Journal Press. pp6-65 Cooper, C., (2005). The portable UCC. American Bar Association. P160 Cushman, R. F., and Myres, J. J., (1999). Construction Law Handbook. Aspen Publishing House. P541 Bad check laws, 2008. Retrieved July 21, 2010, Highway engineering, (2008). Legal Aspects of business. Nirali Prakashan. Pune., p531 Brook, J., (2007). Payment systems: examples and explanations. Aspen Publishers Online. Pp58-62 Martin, N., and Hart, F. M., (2007). Secured transactions. Aspen Publishers Online. Pp44-46 Lawrence, L., (2004). Payment Systems. Aspen Publishers Online. P101 Evans, D. A., (1995). Texas Business Law. Pelican Publishing Company. Pp458-460 Uniform Commercial Code. Retrieved July 24, 2010, Read More