SENATE BILL NO. 153
INTRODUCED BY M. HALLIGAN
AN ACT GENERALLY REVISING THE PROVISIONS OF THE UNIFORM COMMERCIAL CODE GOVERNING SECURED TRANSACTIONS; REPLACING ARTICLE 9 OF THE UNIFORM COMMERCIAL CODE WITH THE MOST RECENT VERSION OF ARTICLE 9 OF THE UNIFORM COMMERCIAL CODE; AMENDING SECTIONS 2-6-109, 7-4-2631, 25-10-302, 30-1-105, 30-1-201, 30-1-206, 30-2-103, 30-2-210, 30-2-326, 30-2-502, 30-2-716, 30-2A-103, 30-2A-303, 30-2A-307, 30-2A-309, 30-4-208, 30-7-503, 30-8-113, 30-8-116, 30-8-120, 30-8-331, 30-8-332, 30-8-510, 40-5-242, 40-5-248, 69-8-503, 70-24-430, 71-3-125, 71-3-205, 71-3-206, 71-3-408, 71-3-704, 71-3-713, 71-3-808, AND 71-3-908, MCA; REPEALING SECTIONS 30-9-102, 30-9-103, 30-9-104, 30-9-105, 30-9-106, 30-9-107, 30-9-108, 30-9-109, 30-9-110, 30-9-112, 30-9-113, 30-9-114, 30-9-115, 30-9-116, 30-9-201, 30-9-202, 30-9-203, 30-9-204, 30-9-205, 30-9-206, 30-9-207, 30-9-208, 30-9-301, 30-9-302, 30-9-303, 30-9-304, 30-9-305, 30-9-306, 30-9-307, 30-9-308, 30-9-309, 30-9-310, 30-9-311, 30-9-312, 30-9-313, 30-9-314, 30-9-315, 30-9-316, 30-9-317, 30-9-318, 30-9-401, 30-9-402, 30-9-403, 30-9-404, 30-9-405, 30-9-406, 30-9-407, 30-9-409, 30-9-410, 30-9-411, 30-9-412, 30-9-421, 30-9-423, 30-9-431, 30-9-501, 30-9-502, 30-9-503, 30-9-504, 30-9-505, 30-9-506, 30-9-507, 30-9-508, AND 30-9-511, MCA; AND PROVIDING A DELAYED EFFECTIVE DATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Definitions and index of definitions. (1) As used in [sections 1 through 125], the following definitions apply:
(a) "Accession" means goods that are physically united with other goods in such a manner that the identity of the original goods is not lost.
(b) (i) "Account", except as used in "account for", means a right to payment of a monetary obligation, whether or not earned by performance:
(A) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of;
(B) for services rendered or to be rendered;
(C) for a policy of insurance issued or to be issued;
(D) for a secondary obligation incurred or to be incurred;
(E) for energy provided or to be provided;
(F) for the use or hire of a vessel under a charter or other contract;
(G) arising out of the use of a credit or charge card or information contained on or for use with the card; or
(H) as winnings in a lottery or other game of chance operated or sponsored by a state, governmental unit of a state, or person licensed or authorized to operate the game by a state or governmental unit of a state.
(ii) The term includes a health-care-insurance receivable.
(iii) The term does not include:
(A) a right to payment evidenced by chattel paper or an instrument;
(B) a commercial tort claim;
(C) a deposit account;
(D) investment property;
(E) a letter-of-credit right; or
(F) a right to payment for money or funds advanced or sold, other than a right arising out of the use of a credit or charge card or information contained on or for use with the card.
(c) "Account debtor" means a person obligated on an account, chattel paper, or general intangible. The term does not include a person obligated to pay a negotiable instrument, even if the instrument constitutes part of chattel paper.
(d) "Accounting", except as used in "accounting for", means a record:
(i) authenticated by a secured party;
(ii) indicating the aggregate unpaid secured obligations as of a date not more than 35 days earlier or 35 days later than the date of the record; and
(iii) identifying the components of the obligations in reasonable detail.
(e) "Agricultural lien" means an interest, other than a security interest, in farm products:
(i) that secures payment or performance of an obligation for:
(A) goods or services furnished in connection with a debtor's farming operation; or
(B) rent on real property leased by a debtor in connection with its farming operation;
(ii) that is created by statute in favor of a person that:
(A) in the ordinary course of its business furnished goods or services to a debtor in connection with a debtor's farming operation; or
(B) leased real property to a debtor in connection with the debtor's farming operation; and
(iii) whose effectiveness does not depend on the person's possession of the personal property.
(f) "As-extracted collateral" means:
(i) oil, gas, or other minerals that are subject to a security interest that:
(A) is created by a debtor having an interest in the minerals before extraction; and
(B) attaches to the minerals as extracted; or
(ii) accounts arising out of the sale at the wellhead or minehead of oil, gas, or other minerals in which the debtor had an interest before extraction.
(g) "Authenticate" means to:
(i) sign; or
(ii) execute or adopt a symbol, or encrypt a record in whole or in part, with present intent to:
(A) identify the authenticating party; and
(B) adopt, accept, or establish the authenticity of a record or term.
(h) "Bank" means an organization that is engaged in the business of banking. The term includes a savings bank, savings and loan association, credit union, and trust company.
(i) "Cash proceeds" means proceeds that are money, checks, deposit accounts, or the like.
(j) "Certificate of title" means a certificate of title with respect to which a statute provides for the security interest in question to be indicated on the certificate as a condition or result of the security interest's obtaining priority over the rights of a lien creditor with respect to the collateral.
(k) (i) "Chattel paper" means a record or records that evidence both a monetary obligation and a security interest in or a lease of specific goods or of specific goods and software used in the goods.
(ii) The term does not include a charter or other contract involving the use or hire of a vessel. If a transaction is evidenced both by a security agreement or lease and by an instrument or series of instruments, the group of records taken together constitutes chattel paper.
(l) "Collateral" means the property subject to a security interest or agricultural lien. The term includes:
(i) proceeds to which a security interest attaches under [section 34];
(ii) accounts, chattel paper, payment intangibles, and promissory notes that have been sold; and
(iii) goods that are the subject of a consignment.
(m) "Commercial tort claim" means a claim arising in tort if:
(i) the claimant is an organization; or
(ii) the claimant is an individual and the claim:
(A) arose in the course of the claimant's business or profession; and
(B) does not include damages arising out of personal injury to or the death of an individual.
(n) "Commodity account" means an account maintained by a commodity intermediary in which a commodity contract is carried for a commodity customer.
(o) "Commodity contract" means a commodity futures contract, an option on a commodity futures contract, a commodity option, or another contract if the contract or option is:
(i) traded on or subject to the rules of a board of trade that has been designated as a contract market for such a contract pursuant to federal commodities laws; or
(ii) traded on a foreign commodity board of trade, exchange, or market and is carried on the books of a commodity intermediary for a commodity customer.
(p) "Commodity customer" means a person for which a commodity intermediary carries a commodity contract on its books.
(q) "Commodity intermediary" means a person that:
(i) is registered as a futures commission merchant under federal commodities law; or
(ii) in the ordinary course of its business provides clearance or settlement services for a board of trade that has been designated as a contract market pursuant to federal commodities law.
(r) "Communicate" means:
(i) to send a written or other tangible record;
(ii) to transmit a record by any means agreed upon by the persons sending and receiving the record; or
(iii) in the case of transmission of a record to or by a filing office, to transmit a record by any means prescribed by filing-office rule.
(s) "Consignee" means a merchant to which goods are delivered in a consignment.
(t) "Consignment" means a transaction, regardless of its form, in which a person delivers goods to a merchant for the purpose of sale and:
(i) the merchant:
(A) deals in goods of that kind under a name other than the name of the person making delivery;
(B) is not an auctioneer; and
(C) is not generally known by its creditors to be substantially engaged in selling the goods of others;
(ii) with respect to each delivery, the aggregate value of the goods is $1,000 or more at the time of delivery;
(iii) the goods are not consumer goods immediately before delivery; and
(iv) the transaction does not create a security interest that secures an obligation.
(u) "Consignor" means a person that delivers goods to a consignee in a consignment.
(v) "Consumer debtor" means a debtor in a consumer transaction.
(w) "Consumer goods" means goods that are used or bought for use primarily for personal, family, or household purposes.
(x) "Consumer-goods transaction" means a transaction to the extent that:
(i) an individual incurs an obligation primarily for personal, family, or household purposes; and
(ii) a security interest in consumer goods or in consumer goods and software that is used, licensed, or bought for use primarily for personal, family, or household purposes secures the obligation.
(y) "Consumer obligor" means an obligor who is an individual and who incurred the obligation as part of a transaction entered into primarily for personal, family, or household purposes.
(z) "Consumer transaction" means a transaction to the extent that:
(i) an individual incurs an obligation primarily for personal, family, or household purposes;
(ii) a security interest secures the obligation; and
(iii) the collateral is held or acquired primarily for personal, family, or household purposes. The term includes a consumer-goods transaction.
(aa) "Continuation statement" means an amendment of a financing statement that:
(i) identifies, by its file number, the initial financing statement to which it relates; and
(ii) indicates that it is a continuation statement for, or that it is filed to continue the effectiveness of, the identified financing statement.
(bb) "Debtor" means:
(i) a person having a property interest, other than a security interest or other lien, in the collateral, whether or not the person is an obligor;
(ii) a seller of accounts, chattel paper, payment intangibles, or promissory notes; or
(iii) a consignee.
(cc) "Deposit account" means a demand, time, savings, passbook, or similar account maintained with a bank. The term does not include investment property or an account evidenced by an instrument.
(dd) "Document" means a document of title or a receipt of the type described in 30-7-201(2).
(ee) "Electronic chattel paper" means chattel paper evidenced by a record or records consisting of information stored in an electronic medium.
(ff) "Encumbrance" means a right, other than an ownership interest, in real property. The term includes a mortgage and other lien on real property.
(gg) "Equipment" means goods other than inventory, farm products, or consumer goods.
(hh) "Farm products" means goods, other than standing timber, with respect to which the debtor is engaged in a farming operation and that are:
(i) crops grown, growing, or to be grown, including:
(A) crops produced on trees, vines, and bushes; and
(B) aquatic goods produced in aquacultural operations;
(ii) livestock, born or unborn, including aquatic goods produced in aquacultural operations;
(iii) supplies used or produced in a farming operation; or
(iv) products of crops or livestock in their unmanufactured states.
(ii) "Farming operation" means raising, cultivating, propagating, fattening, grazing, or any other farming, livestock, or aquacultural operation.
(jj) "File number" means the number assigned to an initial financing statement pursuant to [section 89(1)].
(kk) "Filing office" means an office designated in [section 71] as the place to file a financing statement.
(ll) "Filing-office rule" means a rule adopted pursuant to [section 96].
(mm) "Financing statement" means a record or records composed of an initial financing statement and any filed record relating to the initial financing statement.
(nn) "Fixture filing" means the filing of a financing statement covering goods that are or are to become fixtures and satisfying the requirements of [section 72(1) and (2)]. The term includes the filing of a financing statement covering goods of a transmitting utility that are or are to become fixtures.
(oo) "Fixtures" means goods that have become so related to particular real property that an interest in them arises under real property law.
(pp) "General intangible" means any personal property, including things in action, other than accounts, chattel paper, commercial tort claims, deposit accounts, documents, goods, instruments, investment property, letter-of-credit rights, letters of credit, money, and oil, gas, or other minerals before extraction. The term includes a payment intangible and software.
(qq) "Good faith" means honesty in fact and the observance of reasonable commercial standards of fair dealing.
(rr) (i) "Goods" means all things that are movable when a security interest attaches. The term includes:
(A) fixtures;
(B) standing timber that is to be cut and removed under a conveyance or contract for sale;
(C) the unborn young of animals;
(D) crops grown, growing, or to be grown, even if the crops are produced on trees, vines, or bushes; and
(E) manufactured homes.
(ii) The term also includes a computer program structurally integrated with goods, any informational content included in the program, and any supporting information provided in connection with a transaction relating to the program or informational content if:
(A) the program is associated with the goods in such a manner that it customarily is considered part of the goods; or
(B) by becoming the owner of the goods, a person would acquire a right to use the program in connection with the goods.
(iii) The term does not include a program integrated with goods that consist solely of the medium with which the program is integrated. The term also does not include accounts, chattel paper, commercial tort claims, deposit accounts, documents, general intangibles, instruments, investment property, letter-of-credit rights, letters of credit, money, or oil, gas, or other minerals before extraction.
(ss) "Governmental unit" means a subdivision, agency, department, county, parish, municipality, or other unit of the government of the United States, a state, or a foreign country. The term includes an organization with a separate corporate existence only if the organization is eligible to issue debt obligations on which interest is exempt from income taxation under the laws of the United States.
(tt) "Health-care-insurance receivable" means an interest in or claim under a policy of insurance that is a right to payment of a monetary obligation for health care goods or services provided.
(uu) (i) "Instrument" means:
(A) a negotiable instrument; or
(B) any other writing that evidences a right to the payment of a monetary obligation, is not itself a security agreement or lease, and is of a type that in the ordinary course of business is transferred by delivery with any necessary indorsement or assignment.
(ii) The term does not include:
(A) investment property;
(B) a letter of credit; or
(C) a writing that evidences a right to payment arising out of the use of a credit or charge card or information contained on or for use with the card.
(vv) "Inventory" means goods, other than farm products, that:
(i) are leased by a person as lessor;
(ii) are held by a person for sale or lease or to be furnished under contracts of service;
(iii) are furnished by a person under a contract of service; or
(iv) consist of raw materials, work in process, or materials used or consumed in a business.
(ww) "Investment property" means a security, whether certificated or uncertificated, security entitlement, securities account, commodity contract, or commodity account.
(xx) "Jurisdiction of organization", with respect to a registered organization, means the jurisdiction under whose law the organization is organized.
(yy) (i) "Letter-of-credit right" means a right to payment and performance under a letter of credit, whether or not the beneficiary has demanded or is at the time entitled to demand payment or performance.
(ii) The term does not include the right of a beneficiary to demand payment or performance under a letter of credit.
(zz) "Lien creditor" means:
(i) a creditor that has acquired a lien on the property involved by attachment, levy, or the like;
(ii) an assignee for benefit of creditors from the time of assignment;
(iii) a trustee in bankruptcy from the date of the filing of the petition; and
(iv) a receiver in equity from the time of appointment.
(aaa) "Manufactured home" means a structure, transportable in one or more sections, that in the traveling mode is 8 body feet or more in width or 40 body feet or more in length or that when erected on site is 320 or more square feet and that is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities and includes the plumbing, heating, air-conditioning, and electrical systems contained therein. The term includes any structure that meets all of the requirements of this subsection except the size requirements and with respect to which the manufacturer voluntarily files a certification required by the United States secretary of housing and urban development and complies with the standards established under Title 42 of the United States Code.
(bbb) "Manufactured-home transaction" means a secured transaction:
(i) that creates a purchase-money security interest in a manufactured home, other than a manufactured home held as inventory; or
(ii) in which a manufactured home, other than a manufactured home held as inventory, is the primary collateral.
(ccc) "Mortgage" means a consensual interest in real property, including fixtures, that is created by a mortgage, trust deed, or similar transaction.
(ddd) "New debtor" means a person that becomes bound as debtor under [section 12(4)] by a security agreement previously entered into by another person.
(eee) (i) "New value" means:
(A) money;
(B) money's worth in property, services, or new credit; or
(C) release by a transferee of an interest in property previously transferred to the transferee.
(ii) The term does not include an obligation substituted for another obligation.
(fff) "Noncash proceeds" means proceeds other than cash proceeds.
(ggg) (i) "Obligor" means a person that, with respect to an obligation secured by a security interest in or an agricultural lien on the collateral:
(A) owes payment or other performance of the obligation;
(B) has provided property other than the collateral to secure payment or other performance of the obligation; or
(C) is otherwise accountable in whole or in part for payment or other performance of the obligation.
(ii) The term does not include an issuer or a nominated person under a letter of credit.
(hhh) "Original debtor" means a person that, as debtor, entered into a security agreement to which a new debtor has become bound under [section 12(4)].
(iii) "Payment intangible" means a general intangible under which the account debtor's principal obligation is a monetary obligation.
(jjj) "Person related to", with respect to an individual, means:
(i) the spouse of the individual;
(ii) a brother, brother-in-law, sister, or sister-in-law of the individual;
(iii) an ancestor or lineal descendant of the individual or the individual's spouse; and
(iv) any other relative, by blood or marriage, of the individual or the individual's spouse who shares the same home with the individual.
(kkk) "Person related to", with respect to an organization, means:
(i) a person directly or indirectly controlling, controlled by, or under common control with the organization;
(ii) an officer or director of, or a person performing similar functions with respect to, the organization;
(iii) an officer or director of, or a person performing similar functions with respect to, a person described in subsection (1)(kkk)(i);
(iv) the spouse of an individual described in subsection (1)(kkk)(i), (1)(kkk)(ii), or (1)(kkk)(iii); or
(v) an individual who is related by blood or marriage to an individual described in subsections (1)(kkk)(i), (1)(kkk)(ii), (1)(kkk)(iii), or (1)(kkk)(iv) and shares the same home with the individual.
(lll) "Proceeds" means the following property:
(i) whatever is acquired upon the sale, lease, license, exchange, or other disposition of collateral;
(ii) whatever is collected on, or distributed on account of, collateral;
(iii) rights arising out of collateral;
(iv) to the extent of the value of collateral, claims arising out of the loss, nonconformity, or interference with the use of, defects or infringement of rights in, or damage to the collateral; and
(v) to the extent of the value of collateral and to the extent payable to the debtor or the secured party, insurance payable by reason of the loss or nonconformity of, defects in, or damage to the collateral.
(mmm) "Promissory note" means an instrument that:
(i) evidences a promise to pay a monetary obligation;
(ii) does not evidence an order to pay; and
(iii) does not contain an acknowledgment by a bank that the bank has received for deposit a sum of money or funds.
(nnn) "Proposal" means a record authenticated by a secured party and including the terms on which the secured party is willing to accept collateral in full or partial satisfaction of the obligation it secures pursuant to [sections 117, 118, and 119].
(ooo) "Public-finance transaction" means a secured transaction in connection with which:
(i) bonds, debentures, certificates of participation, or similar debt securities are issued;
(ii) all or a portion of the securities issued have an initial stated maturity of at least 20 years; and
(iii) the debtor, the obligor, the secured party, the account debtor or other person obligated on collateral, the assignor or assignee of a secured obligation, or the assignor or assignee of a security interest is a state or a governmental unit of a state.
(ppp) "Pursuant to commitment", with respect to an advance made or other value given by a secured party, means pursuant to the secured party's obligation, whether or not a subsequent event of default or other event not within the secured party's control has relieved or may relieve the secured party from its obligation.
(qqq) "Record", except as used in "for record", "of record", "record or legal title", and "record owner", means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(rrr) "Registered organization" means an organization organized solely under the law of one state or the United States and as to which the state or the United States is required to maintain a public record showing the organization to have been organized.
(sss) "Secondary obligor" means an obligor to the extent that:
(i) the obligor's obligation is secondary; or
(ii) the obligor has a right of recourse with respect to an obligation secured by collateral against the debtor, another obligor, or property of either.
(ttt) "Secured party" means:
(i) a person in whose favor a security interest is created or provided for under a security agreement, whether or not any obligation to be secured is outstanding;
(ii) a person that holds an agricultural lien;
(iii) a consignor;
(iv) a person to which accounts, chattel paper, payment intangibles, or promissory notes have been sold;
(v) a trustee, indenture trustee, agent, collateral agent, or other representative in whose favor a security interest or agricultural lien is created or provided for; or
(vi) a person that holds a security interest arising under 30-2-401, 30-2-505, 30-2-711(3), 30-2A-508(5), 30-4-208, or [section 161].
(uuu) "Security agreement" means an agreement that creates or provides for a security interest.
(vvv) "Send", in connection with a record or notification, means to:
(i) deposit in the mail, deliver for transmission, or transmit by any other usual means of communication, with postage or cost of transmission provided for, addressed to any address reasonable under the circumstances; or
(ii) cause the record or notification to be received within the time that it would have been received if properly sent under subsection (1)(vvv)(i).
(www) (i) "Software" means a computer program, any informational content included in the program, and any supporting information provided in connection with a transaction relating to the computer program or informational content.
(ii) The term does not include a computer program that is contained in goods unless the goods are a computer or computer peripheral.
(xxx) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
(yyy) "Supporting obligation" means a letter-of-credit right or secondary obligation that supports the payment or performance of an account, chattel paper, document, general intangible, instrument, or investment property.
(zzz) "Tangible chattel paper" means chattel paper evidenced by a record or records consisting of information that is inscribed on a tangible medium.
(aaaa) "Termination statement" means an amendment of a financing statement that:
(i) identifies, by its file number, the initial financing statement to which it relates; and
(ii) indicates either that it is a termination statement or that the identified financing statement is no longer effective.
(bbbb) "Transmitting utility" means a person primarily engaged in the business of:
(i) operating a railroad, subway, street railway, or trolley bus;
(ii) transmitting electric or electronic communications;
(iii) transmitting goods by pipeline or sewer; or
(iv) transmitting or producing and transmitting electricity, steam, gas, or water.
(2) The following definitions in other chapters apply to [sections 1 through 125]:
"Applicant" 30-5-122.
"Beneficiary" 30-5-122.
"Broker" 30-8-112.
"Certificated security" 30-8-112.
"Check" 30-3-104.
"Clearing corporation" 30-8-112.
"Contract for sale" 30-2-106.
"Customer" 30-4-104.
"Entitlement holder" 30-8-112.
"Financial asset" 30-8-112.
"Holder in due course" 30-3-302.
"Issuer" (with respect to a letter of credit or letter-of-credit right) 30-5-122.
"Issuer" (with respect to a security) 30-8-211.
"Lease" 30-2A-103.
"Lease agreement" 30-2A-103.
"Lease contract" 30-2A-103.
"Leasehold interest" 30-2A-103.
"Lessee" 30-2A-103.
"Lessee in ordinary course of business" 30-2A-103.
"Lessor" 30-2A-103.
"Lessor's residual interest" 30-2A-103.
"Letter of credit" 30-5-122.
"Merchant" 30-2-104.
"Negotiable instrument" 30-3-104.
"Nominated person" 30-5-122.
"Note" 30-3-104.
"Proceeds of a letter of credit" 30-5-134.
"Prove" 30-3-102.
"Sale" 30-2-106.
"Securities account" 30-8-501.
"Securities intermediary" 30-8-112.
"Security" 30-8-112.
"Security certificate" 30-8-112.
"Security entitlement" 30-8-112.
"Uncertificated security" 30-8-112.
(3) Chapter 1 contains general definitions and principles of construction and interpretation applicable throughout [sections 1 through 125].
Section 2. Purchase-money security interest -- application of payments -- burden of establishing purchase-money security interest. (1) In this section:
(a) "purchase-money collateral" means goods or software that secures a purchase-money obligation incurred with respect to that collateral; and
(b) "purchase-money obligation" means an obligation of an obligor incurred as all or part of the price of the collateral or for value given to enable the debtor to acquire rights in or the use of the collateral if the value is in fact so used.
(2) A security interest in goods is a purchase-money security interest:
(a) to the extent that the goods are purchase-money collateral with respect to that security interest;
(b) if the security interest is in inventory that is or was purchase-money collateral, also to the extent that the security interest secures a purchase-money obligation incurred with respect to other inventory in which the secured party holds or held a purchase-money security interest; and
(c) also to the extent that the security interest secures a purchase-money obligation incurred with respect to software in which the secured party holds or held a purchase-money security interest.
(3) A security interest in software is a purchase-money security interest to the extent that the security interest also secures a purchase-money obligation incurred with respect to goods in which the secured party holds or held a purchase-money security interest if:
(a) the debtor acquired its interest in the software in an integrated transaction in which it acquired an interest in the goods; and
(b) the debtor acquired its interest in the software for the principal purpose of using the software in the goods.
(4) The security interest of a consignor in goods that are the subject of a consignment is a purchase-money security interest in inventory.
(5) In a transaction other than a consumer-goods transaction, if the extent to which a security interest is a purchase-money security interest depends on the application of a payment to a particular obligation, the payment must be applied:
(a) in accordance with any reasonable method of application to which the parties agree;
(b) in the absence of the parties' agreement to a reasonable method, in accordance with any intention of the obligor manifested at or before the time of payment; or
(c) in the absence of an agreement to a reasonable method and a timely manifestation of the obligor's intention, in the following order:
(i) to obligations that are not secured; and
(ii) if more than one obligation is secured, to obligations secured by purchase-money security interests in the order in which those obligations were incurred.
(6) In a transaction other than a consumer-goods transaction, a purchase-money security interest does not lose its status as such, even if:
(a) the purchase-money collateral also secures an obligation that is not a purchase-money obligation;
(b) collateral that is not purchase-money collateral also secures the purchase-money obligation; or
(c) the purchase-money obligation has been renewed, refinanced, consolidated, or restructured.
(7) In a transaction other than a consumer-goods transaction, a secured party claiming a purchase-money security interest has the burden of establishing the extent to which the security interest is a purchase-money security interest.
(8) The limitation of the rules in subsections (5), (6), and (7) to transactions other than consumer-goods transactions is intended to leave to the court the determination of the proper rules in consumer-goods transactions. The court may not infer from that limitation the nature of the proper rule in consumer-goods transactions and may continue to apply established approaches.
Section 3. Control of deposit account. (1) A secured party has control of a deposit account if:
(a) the secured party is the bank with which the deposit account is maintained;
(b) the debtor, secured party, and bank have agreed in an authenticated record that the bank will comply with instructions originated by the secured party directing disposition of the funds in the account without further consent by the debtor; or
(c) the secured party becomes the bank's customer with respect to the deposit account.
(2) A secured party that has satisfied the requirements of subsection (1) has control, even if the debtor retains the right to direct the disposition of funds from the deposit account.
Section 4. Control of electronic chattel paper. A secured party has control of electronic chattel paper if the record or records comprising the chattel paper are created, stored, and assigned in such a manner that:
(1) a single authoritative copy of the record or records exists that is unique, identifiable, and except as otherwise provided in subsections (4), (5), and (6), unalterable;
(2) the authoritative copy identifies the secured party as the assignee of the record or records;
(3) the authoritative copy is communicated to and maintained by the secured party or its designated custodian;
(4) copies or revisions that add or change an identified assignee of the authoritative copy can be made only with the consent of the secured party;
(5) each copy of the authoritative copy and any copy of a copy is readily identifiable as a copy that is not the authoritative copy; and
(6) any revision of the authoritative copy is readily identifiable as an authorized or unauthorized revision.
Section 5. Control of investment property. (1) A person has control of a certificated security, or security entitlement as provided in 30-8-116.
(2) A secured party has control of a commodity contract if:
(a) the secured party is the commodity intermediary with which the commodity contract is carried; or
(b) the commodity customer, secured party, and commodity intermediary have agreed that the commodity intermediary will apply any value distributed on account of the commodity contract as directed by the secured party without further consent by the commodity customer.
(3) A secured party having control of all security entitlements or commodity contracts carried in a securities account or commodity account has control over the securities account or commodity account.
Section 6. Control of letter-of-credit right. A secured party has control of a letter-of-credit right to the extent of any right to payment or performance by the issuer of any nominated person if the issuer or nominated person has consented to an assignment of proceeds of the letter of credit under 30-5-134(3) or otherwise applicable law or practice.
Section 7. Sufficiency of description. (1) Except as otherwise provided in subsections (3), (4), and (5), a description of personal or real property is sufficient, whether or not it is specific, if it reasonably identifies what is described.
(2) Except as otherwise provided in subsection (4), a description of collateral reasonably identifies the collateral if it identifies the collateral by:
(a) specific listing;
(b) category;
(c) except as otherwise provided in subsection (5), a type of collateral defined in chapters 1 through 9;
(d) quantity;
(e) computational or allocational formula or procedure; or
(f) except as otherwise provided in subsection (3), any other method, if the identity of the collateral is objectively determinable.
(3) A description of collateral as "all the debtor's assets" or "all the debtor's personal property" or using words of similar import does not reasonably identify the collateral.
(4) Except as otherwise provided in subsection (5), a description of a security entitlement, securities account, or commodity account is sufficient if it describes:
(a) the collateral by those terms or as investment property; or
(b) the underlying financial asset or commodity contract.
(5) A description only by type of collateral defined in chapters 1 through 9 is an insufficient description of:
(a) a commercial tort claim; or
(b) in a consumer transaction, consumer goods, a security entitlement, a securities account, or a commodity account.
Section 8. Scope. (1) Except as otherwise provided in subsections (3) and (4), [sections 1 through 125] apply to:
(a) any transaction, regardless of its form, that creates a security interest in personal property or fixtures by contract;
(b) an agricultural lien;
(c) a sale of an account, chattel paper, payment intangible, or promissory note;
(d) a consignment;
(e) a security interest arising under 30-2-401, 30-2-505, 30-2-711(3), or 30-2A-508(5), to the extent provided in [section 9]; and
(f) a security interest arising under 30-4-208 or [section 161].
(2) The application of [sections 1 through 125] to a security interest in a secured obligation is not affected by the fact that the obligation is itself secured by a transaction or interest to which [sections 1 through 125] do not apply.
(3) [Sections 1 through 125] do not apply to the extent that:
(a) a statute, regulation, or treaty of the United States preempts [sections 1 through 125];
(b) another statute of this state expressly governs the creation, perfection, priority, or enforcement of a security interest created by this state or a governmental unit of this state;
(c) a statute of another state, a foreign country, or a governmental unit of another state or a foreign country, other than a statute generally applicable to security interests, expressly governs creation, perfection, priority, or enforcement of a security interest created by the state, country, or governmental unit; or
(d) the rights of a transferee beneficiary or nominated person under a letter of credit are independent and superior under 30-5-134.
(4) [Sections 1 through 125] do not apply to:
(a) a landlord's lien, other than an agricultural lien;
(b) a lien, other than an agricultural lien, given by statute or other rule of law for services or materials, but [section 52] applies with respect to priority of the lien;
(c) an assignment of a claim for wages, salary, or other compensation of an employee;
(d) a sale of accounts, chattel paper, payment intangibles, or promissory notes as part of a sale of the business out of which they arose;
(e) an assignment of accounts, chattel paper, payment intangibles, or promissory notes that is for the purpose of collection only;
(f) an assignment of a right to payment under a contract to an assignee that is also obliged to perform under the contract;
(g) an assignment of a single account, payment intangible, or promissory note to an assignee in full or partial satisfaction of a preexisting indebtedness;
(h) a transfer of an interest in or an assignment of a claim under a policy of insurance, other than an assignment by or to a health care provider of a health-care-insurance receivable and any subsequent assignment of the right to payment, but [sections 34 and 41] apply with respect to proceeds and priorities in proceeds;
(i) an assignment of a right represented by a judgment, other than a judgment taken on a right to payment that was collateral;
(j) a right of recoupment or setoff, but:
(i) [section 59] applies with respect to the effectiveness of rights of recoupment or setoff against deposit accounts; and
(ii) [section 65] applies with respect to defenses or claims of an account debtor;
(k) the creation or transfer of an interest in or lien on real property, including a lease or rents thereunder, except to the extent that provision is made for:
(i) liens on real property in [sections 12 and 27];
(ii) fixtures in [section 53];
(iii) fixture filings in [sections 71, 72, 82, 86, and 89]; and
(iv) security agreements covering personal and real property in [section 101];
(l) an assignment of a claim arising in tort, other than a commercial tort claim, but [sections 34 and 41] apply with respect to proceeds and priorities in proceeds; or
(m) an assignment of a deposit account in a consumer transaction, except that [sections 34 and 41] apply with respect to proceeds and priorities in proceeds.
Section 9. Security interests arising under chapter 2 or 2A. A security interest arising under 30-2-401, 30-2-505, 30-2-711(3), or 30-2A-508(5) is subject to [sections 1 through 125]. However, until the debtor obtains possession of the goods:
(1) the security interest is enforceable, even if the requirements of [section 12(2)(c)] have not been met;
(2) filing is not required to perfect the security interest;
(3) the rights of the secured party on default by the debtor are governed by chapter 2 or 2A, as applicable; and
(4) the security interest has priority over a conflicting security interest created by the debtor.
Section 10. General effectiveness of security agreement. (1) Except as otherwise provided in chapters 1 through 9, a security agreement is effective according to its terms between the parties, against purchasers of the collateral, and against creditors.
(2) A transaction subject to [sections 1 through 125] is subject to any applicable rule of law that establishes a different rule for consumers, to Title 30, chapter 14, part 1, and to Title 31, chapter 1.
(3) In case of conflict between [sections 1 through 125] and a rule of law, statute, or regulation described in subsection (2), the rule of law, statute, or regulation controls. Failure to comply with a statute or regulation described in subsection (2) has only the effect that the statute or regulation specifies.
(4) [Sections 1 through 125] do not:
(a) validate any rate, charge, agreement, or practice that violates a rule of law, statute, or regulation described in subsection (2); or
(b) extend the application of the rule of law, statute, or regulation to a transaction not otherwise subject to it.
Section 11. Title to collateral immaterial. Except as otherwise provided with respect to consignments or sales of accounts, chattel paper, payment intangibles, or promissory notes, the provisions of [sections 1 through 125] with regard to rights, obligations, and remedies apply whether title to collateral is in the secured party or the debtor.
Section 12. Attachment and enforcement of security interest -- proceeds -- supporting obligations -- formal requisites. (1) A security interest attaches to collateral when it becomes enforceable against the debtor with respect to the collateral, unless an agreement expressly postpones the time of attachment.
(2) Except as otherwise provided in subsections (3) through (9), a security interest is enforceable against the debtor and third parties with respect to the collateral only if:
(a) value has been given;
(b) the debtor has rights in the collateral or the power to transfer rights in the collateral to a secured party; and
(c) one of the following conditions is met:
(i) the debtor has authenticated a security agreement that provides a description of the collateral and, if the security interest covers timber to be cut, a description of the land concerned;
(ii) the collateral is not a certificated security and is in the possession of the secured party under [section 32] pursuant to the debtor's security agreement;
(iii) the collateral is a certificated security in registered form and the security certificate has been delivered to the secured party under 30-8-331 pursuant to the debtor's security agreement; or
(iv) the collateral is a deposit account, electronic chattel paper, investment property, or a letter-of-credit right and the secured party has control under [section 3, 4, 5, or 6] pursuant to the debtor's security agreement.
(3) Subsection (2) is subject to 30-4-208 on the security interest of a collecting bank, [section 161] on the security interest of a letter-of-credit issuer or nominated person, [section 9] on a security interest arising under chapter 2 or 2A, and [section 15] on security interests in investment property.
(4) A person becomes bound as debtor by a security agreement entered into by another person if, by operation of law other than [sections 1 through 125] or by contract:
(a) the security agreement becomes effective to create a security interest in the person's property; or
(b) the person becomes generally obligated for the obligations of the other person, including the obligation secured under the security agreement, and acquires or succeeds to all or substantially all of the assets of the other person.
(5) If a new debtor becomes bound as debtor by a security agreement entered into by another person:
(a) the agreement satisfies the requirements of subsection (2)(c) with respect to existing or after-acquired property of the new debtor to the extent the property is described in the agreement; and
(b) another agreement is not necessary to make a security interest in the property enforceable.
(6) The attachment of a security interest in collateral gives the secured party the rights to proceeds provided by [section 34] and is also attachment of a security interest in a supporting obligation for the collateral.
(7) The attachment of a security interest in a right to payment or performance secured by a security interest or other lien on personal or real property is also attachment of a security interest in the security interest, mortgage, or other lien.
(8) The attachment of a security interest in a securities account is also attachment of a security interest in the security entitlements carried in the securities account.
(9) The attachment of a security interest in a commodity account is also attachment of a security interest in the commodity contracts carried in the commodity account.
Section 13. After acquired property -- future advances. (1) Except as otherwise provided in subsection (2), a security agreement may create or provide for a security interest in after-acquired collateral.
(2) A security interest does not attach under a term constituting an after-acquired property clause to:
(a) consumer goods, other than an accession when given as additional security, unless the debtor acquires rights in them within 10 days after the secured party gives value; or
(b) a commercial tort claim.
(3) A security agreement may provide that collateral secures, or that accounts, chattel paper, payment intangibles, or promissory notes are sold in connection with, future advances or other value, whether or not the advances or value are given pursuant to commitment.
Section 14. Use or disposition of collateral permissible. (1) A security interest is not invalid or fraudulent against creditors solely because:
(a) the debtor has the right or ability to:
(i) use, commingle, or dispose of all or part of the collateral, including returned or repossessed goods;
(ii) collect, compromise, enforce, or otherwise deal with collateral;
(iii) accept the return of collateral or make repossessions; or
(iv) use, commingle, or dispose of proceeds; or
(b) the secured party fails to require the debtor to account for proceeds or replace collateral.
(2) This section does not relax the requirements of possession if attachment, perfection, or enforcement of a security interest depends upon possession of the collateral by the secured party.
Section 15. Security interest arising in purchase or delivery of financial asset. (1) A security interest in favor of a securities intermediary attaches to a person's security entitlement if:
(a) the person buys a financial asset through the securities intermediary in a transaction in which the person is obligated to pay the purchase price to the securities intermediary at the time of the purchase; and
(b) the securities intermediary credits the financial asset to the buyer's securities account before the buyer pays the securities intermediary.
(2) The security interest described in subsection (1) secures the person's obligation to pay for the financial asset.
(3) A security interest in favor of a person that delivers a certificated security or other financial asset represented by a writing attaches to the security or other financial asset if:
(a) the security or other financial asset is:
(i) in the ordinary course of business transferred by delivery with any necessary indorsement or assignment; and
(ii) delivered under an agreement between persons in the business of dealing with such securities or financial assets; and
(b) the agreement calls for delivery against payment.
(4) The security interest described in subsection (3) secures the obligation to make payment for the delivery.
Section 16. Rights and duties of secured party having possession or control of collateral. (1) Except as otherwise provided in subsection (4), a secured party shall use reasonable care in the custody and preservation of collateral in the secured party's possession. In the case of chattel paper or an instrument, reasonable care includes taking necessary steps to preserve rights against prior parties unless otherwise agreed.
(2) Except as otherwise provided in subsection (4), if a secured party has possession of collateral:
(a) reasonable expenses, including the cost of insurance and payment of taxes or other charges, incurred in the custody, preservation, use, or operation of the collateral are chargeable to the debtor and are secured by the collateral;
(b) the risk of accidental loss or damage is on the debtor to the extent of a deficiency in any effective insurance coverage;
(c) the secured party shall keep the collateral identifiable, but fungible collateral may be commingled; and
(d) the secured party may use or operate the collateral:
(i) for the purpose of preserving the collateral or its value;
(ii) as permitted by an order of a court having competent jurisdiction; or
(iii) except in the case of consumer goods, in the manner and to the extent agreed by the debtor.
(3) Except as otherwise provided in subsection (4), a secured party having possession of collateral or control of collateral under [section 3, 4, 5, or 6]:
(a) may hold as additional security any proceeds, except money or funds, received from the collateral;
(b) shall apply money or funds received from the collateral to reduce the secured obligation, unless remitted to the debtor; and
(c) may create a security interest in the collateral.
(4) If the secured party is a buyer of accounts, chattel paper, payment intangibles, or promissory notes or a consignor:
(a) subsection (1) does not apply unless the secured party is entitled by agreement:
(i) to charge back uncollected collateral; or
(ii) otherwise to full or limited recourse against the debtor or a secondary obligor based on the nonpayment or other default of an account debtor or other obligor on the collateral; and
(b) subsections (2) and (3) do not apply.
Section 17. Additional duties of secured party having control of collateral. (1) This section applies if:
(a) there is no outstanding secured obligation; and
(b) the secured party is not committed to make advances, incur obligations, or otherwise give value.
(2) Within 10 days after receiving an authenticated demand by the debtor:
(a) a secured party having control of a deposit account under [section 3(1)(b)] shall send to the bank with which the deposit account is maintained an authenticated statement that releases the bank from any further obligation to comply with instructions originated by the secured party;
(b) a secured party having control of a deposit account under [section 3(1)(c)] shall:
(i) pay the debtor the balance on deposit in the deposit account; or
(ii) transfer the balance on deposit into a deposit account in the debtor's name;
(c) a secured party, other than a buyer, having control of electronic chattel paper under [section 4] shall:
(i) communicate the authoritative copy of the electronic chattel paper to the debtor or its designated custodian;
(ii) if the debtor designates a custodian that is the designated custodian with which the authoritative copy of the electronic chattel paper is maintained for the secured party, communicate to the custodian an authenticated record releasing the designated custodian from any further obligation to comply with instructions originated by the secured party and instructing the custodian to comply with instructions originated by the debtor; and
(iii) take appropriate action to enable the debtor or its designated custodian to make copies of or revisions to the authoritative copy that add or change an identified assignee of the authoritative copy without the consent of the secured party;
(d) a secured party having control of investment property under 30-8-116(4)(b) or [section 5(2)] shall send to the securities intermediary or commodity intermediary with which the security entitlement or commodity contract is maintained an authenticated record that releases the securities intermediary or commodity intermediary from any further obligation to comply with entitlement orders or directions originated by the secured party; and
(e) a secured party having control of a letter-of-credit right under [section 6] shall send to each person having an unfulfilled obligation to pay or deliver proceeds of the letter of credit to the secured party an authenticated release from any further obligation to pay or deliver proceeds of the letter of credit to the secured party.
Section 18. Duties of secured party if account debtor has been notified of assignment. (1) Except as otherwise provided in subsection (3), this section applies if:
(a) there is no outstanding secured obligation; and
(b) the secured party is not committed to make advances, incur obligations, or otherwise give value.
(2) Within 10 days after receiving an authenticated demand by the debtor, a secured party shall send to an account debtor that has received notification of an assignment to the secured party as assignee under [section 67(1)] an authenticated record that releases the account debtor from any further obligation to the secured party.
(3) This section does not apply to an assignment constituting the sale of an account, chattel paper, or payment intangible.
Section 19. Request for accounting -- request regarding list of collateral or statement of account. (1) In this section, the following definitions apply:
(a) "Request" means a record of a type described in subsection (1)(b), (1)(c), or (1)(d).
(b) "Request for an accounting" means a record authenticated by a debtor requesting that the recipient provide an accounting of the unpaid obligations secured by collateral and reasonably identifying the transaction or relationship that is the subject of the request.
(c) "Request regarding a list of collateral" means a record authenticated by a debtor requesting that the recipient approve or correct a list of what the debtor believes to be the collateral securing an obligation and reasonably identifying the transaction or relationship that is the subject of the request.
(d) "Request regarding a statement of account" means a record authenticated by a debtor requesting that the recipient approve or correct a statement indicating what the debtor believes to be the aggregate amount of unpaid obligations secured by collateral as of a specified date and reasonably identifying the transaction or relationship that is the subject of the request.
(2) Subject to subsections (3), (4), (5), and (6), a secured party, other than a buyer of accounts, chattel paper, payment intangibles, or promissory notes or a consignor shall comply with a request within 14 days after receipt:
(a) in the case of a request for an accounting, by authenticating and sending to the debtor an accounting; and
(b) in the case of a request regarding a list of collateral or a request regarding a statement of account, by authenticating and sending to the debtor an approval or correction.
(3) A secured party that claims a security interest in all of a particular type of collateral owned by the debtor may comply with a request regarding a list of collateral by sending to the debtor an authenticated record including a statement to that effect within 14 days after receipt.
(4) A person that receives a request regarding a list of collateral, that claims no interest in the collateral when it receives the request, and that claimed an interest in the collateral at an earlier time shall comply with the request within 14 days after receipt by sending to the debtor an authenticated record:
(a) disclaiming any interest in the collateral; and
(b) if known to the recipient, providing the name and mailing address of any assignee of or successor to the recipient's security interest in the collateral.
(5) A person that receives a request for an accounting or a request regarding a statement of account, that claims no interest in the obligations when it receives the request, and that claimed an interest in the obligations at an earlier time shall comply with the request within 14 days after receipt by sending to the debtor an authenticated record:
(a) disclaiming any interest in the obligations; and
(b) if known to the recipient, providing the name and mailing address of any assignee of or successor to the recipient's interest in the obligations.
(6) A debtor is entitled without charge to one response to a request under this section during any 6-month period. The secured party may require payment of a charge not exceeding $25 for each additional response.
Section 20. Law governing perfection and priority of security interests. Except as otherwise provided in [sections 22 through 25], the following rules determine the law governing perfection, the effect of perfection or nonperfection, and the priority of a security interest in collateral:
(1) Except as otherwise provided in this section, while a debtor is located in a jurisdiction, the local law of that jurisdiction governs perfection, the effect of perfection or nonperfection, and the priority of a security interest in collateral.
(2) While collateral is located in a jurisdiction, the local law of that jurisdiction governs perfection, the effect of perfection or nonperfection, and the priority of a possessory security interest in that collateral.
(3) Except as otherwise provided in subsection (4), while negotiable documents, goods, instruments, money, or tangible chattel paper is located in a jurisdiction, the local law of that jurisdiction governs:
(a) perfection of a security interest in the goods by filing a fixture filing;
(b) perfection of a security interest in timber to be cut; and
(c) the effect of perfection or nonperfection and the priority of a nonpossessory security interest in the collateral.
(4) The local law of the jurisdiction in which the wellhead or minehead is located governs perfection, the effect of perfection or nonperfection, and the priority of a security interest in as-extracted collateral.
Section 21. Law governing perfection and priority of agricultural liens. While farm products are located in a jurisdiction, the local law of that jurisdiction governs perfection, the effect of perfection or nonperfection, and the priority of an agricultural lien on the farm products.
Section 22. Law governing perfection and priority of security interests in goods covered by a certificate of title. (1) This section applies to goods covered by a certificate of title, even if there is no other relationship between the jurisdiction under whose certificate of title the goods are covered and the goods or the debtor.
(2) Goods become covered by a certificate of title when a valid application for the certificate of title and the applicable fee are delivered to the appropriate authority. Goods cease to be covered by a certificate of title at the earlier of the time the certificate of title ceases to be effective under the law of the issuing jurisdiction or the time the goods become covered subsequently by a certificate of title issued by another jurisdiction.
(3) The local law of the jurisdiction under whose certificate of title the goods are covered governs perfection, the effect of perfection or nonperfection, and the priority of a security interest in goods covered by a certificate of title from the time the goods become covered by the certificate of title until the goods cease to be covered by the certificate of title.
Section 23. Law governing perfection and priority of security interests in deposit accounts. (1) The local law of a bank's jurisdiction governs perfection, the effect of perfection or nonperfection, and the priority of a security interest in a deposit account maintained with that bank.
(2) The following rules determine a bank's jurisdiction for purposes of [sections 20 through 61]:
(a) If an agreement between the bank and the debtor governing the deposit account expressly provides that a particular jurisdiction is the bank's jurisdiction for purposes of [sections 20 through 61], [sections 1 through 125], or chapters 1 through 9 of this title, that jurisdiction is the bank's jurisdiction.
(b) If subsection (2)(a) does not apply and an agreement between the bank and its customer governing the deposit account expressly provides that the agreement is governed by the law of a particular jurisdiction, that jurisdiction is the bank's jurisdiction.
(c) If subsection (2)(a) or (2)(b) does not apply and an agreement between the bank and its customer governing the deposit account expressly provides that the deposit account is maintained at an office in a particular jurisdiction, that jurisdiction is the bank's jurisdiction.
(d) If none of the preceding subsections apply, the bank's jurisdiction is the jurisdiction in which the office identified in an account statement as the office serving the customer's account is located.
(e) If none of the preceding subsections apply, the bank's jurisdiction is the jurisdiction in which the chief executive office of the bank is located.
Section 24. Law governing perfection and priority of security interests in investment property. (1) Except as otherwise provided in subsection (3), the following rules apply:
(a) While a security certificate is located in a jurisdiction, the local law of that jurisdiction governs perfection, the effect of perfection or nonperfection, and the priority of a security interest in the certificated security represented thereby.
(b) The local law of the issuer's jurisdiction as specified in 30-8-120(4) governs perfection, the effect of perfection or nonperfection, and the priority of a security interest in an uncertificated security.
(c) The local law of the securities intermediary's jurisdiction as specified in 30-8-120(5) governs perfection, the effect of perfection or nonperfection, and the priority of a security interest in a security entitlement or securities account.
(d) The local law of the commodity intermediary's jurisdiction governs perfection, the effect of perfection or nonperfection, and the priority of a security interest in a commodity contract or commodity account.
(2) The following rules determine a commodity intermediary's jurisdiction for purposes of [sections 20 through 61]:
(a) If an agreement between the commodity intermediary and commodity customer governing the commodity account expressly provides that a particular jurisdiction is the commodity intermediary's jurisdiction for purposes of [sections 20 through 61], [sections 1 through 125], or chapters 1 through 9 of this title, that jurisdiction is the commodity intermediary's jurisdiction.
(b) If subsection (2)(a) does not apply and an agreement between the commodity intermediary and commodity customer governing the commodity account expressly provides that the agreement is governed by the law of a particular jurisdiction, that jurisdiction is the commodity intermediary's jurisdiction.
(c) If subsection (2)(a) or (2)(b) does not apply and an agreement between the commodity intermediary and commodity customer governing the commodity account expressly provides that the commodity account is maintained at an office in a particular jurisdiction, that jurisdiction is the commodity intermediary's jurisdiction.
(d) If none of the preceding subsections applies, the commodity intermediary's jurisdiction is the jurisdiction in which the office identified in an account statement as the office serving the commodity customer's account is located.
(e) If none of the preceding subsections applies, the commodity intermediary's jurisdiction is the jurisdiction in which the chief executive office of the commodity intermediary is located.
(3) The local law of the jurisdiction in which the debtor is located governs:
(a) perfection of a security interest in investment property by filing;
(b) automatic perfection of a security interest in investment property granted by a broker or securities intermediary; and
(c) automatic perfection of a security interest in a commodity contract or commodity account granted by a commodity intermediary.
Section 25. Law governing perfection and priority of security interests in letter-of-credit rights. (1) Subject to subsection (3), the local law of the issuer's jurisdiction or a nominated person's jurisdiction governs perfection, the effect of perfection or nonperfection, and the priority of a security interest in a letter-of-credit right if the issuer's jurisdiction or nominated person's jurisdiction is a state.
(2) For purposes of [sections 20 through 61], an issuer's jurisdiction or nominated person's jurisdiction is the jurisdiction whose law governs the liability of the issuer or nominated person with respect to the letter-of-credit right as provided in 30-5-136.
(3) This section does not apply to a security interest that is perfected only under [section 27(4)].
Section 26. Location of debtor. (1) In this section, "place of business" means a place where a debtor conducts its affairs.
(2) Except as otherwise provided in this section, the following rules determine a debtor's location:
(a) A debtor who is an individual is located at the individual's residence.
(b) A debtor that is an organization and has only one place of business is located at its place of business.
(c) A debtor that is an organization and has more than one place of business is located at its chief executive office.
(3) (a) Subsection (2) applies only if a debtor's residence, place of business, or chief executive office, as applicable, is located in a jurisdiction whose law generally requires information concerning the existence of a nonpossessory security interest to be made generally available in a filing, recording, or registration system as a condition or result of the security interest's obtaining priority over the rights of a lien creditor with respect to the collateral. If subsection (2) does not apply, the debtor is located in the District of Columbia.
(4) A person that ceases to exist, have a residence, or have a place of business continues to be located in the jurisdiction specified by subsections (2) and (3).
(5) A registered organization that is organized under the law of a state is located in that state.
(6) Except as otherwise provided in subsection (9), a registered organization that is organized under the law of the United States and a branch or agency of a bank that is a registered organization and is not organized under the law of the United States or a state are located:
(a) in the state that the law of the United States designates, if the law designates a state of location;
(b) in the state that the registered organization designates, if the law of the United States authorizes the registered organization to designate its state of location; or
(c) in the District of Columbia, if subsection (6)(a) or (6)(b) does not apply.
(7) A registered organization continues to be located in the jurisdiction specified by subsection (5) or (6) notwithstanding:
(a) the suspension, revocation, forfeiture, or lapse of the registered organization's status as such in its jurisdiction of organization; or
(b) the dissolution, winding up, or cancellation of the existence of the registered organization.
(8) The United States is located in the District of Columbia.
(9) A branch or agency of a bank that is not organized under the law of the United States or a state is located in the state in which the branch or agency is licensed, if all branches and agencies of the bank are licensed in only one state.
(10) A foreign air carrier under the Federal Aviation Act of 1958, as amended, is located at the designated office of the agent upon which service of process may be made on behalf of the carrier.
(11) This section applies only for purposes of [sections 20 through 61].
Section 27. When security interest or agricultural lien is perfected -- continuity of perfection. (1) Except as otherwise provided in [section 28] and this section, a security interest is perfected if it has attached and all of the applicable requirements for perfection in [sections 29 through 35] have been satisfied. A security interest is perfected when it attaches if the applicable requirements are satisfied before the security interest attaches.
(2) An agricultural lien is perfected if it has become effective and all of the applicable requirements for perfection in [section 29] have been satisfied. An agricultural lien is perfected when it becomes effective if the applicable requirements are satisfied before the agricultural lien becomes effective.
(3) A security interest or agricultural lien is perfected continuously if it is originally perfected in one manner under [sections 1 through 125] and is later perfected in another manner under [sections 1 through 125], without an intermediate period when it was unperfected.
(4) Perfection of a security interest in collateral also perfects a security interest in a supporting obligation for the collateral.
(5) Perfection of a security interest in a right to payment or performance also perfects a security interest in a security interest, mortgage, or other lien on personal or real property securing the right.
(6) Perfection of a security interest in a securities account also perfects a security interest in the security entitlements carried in the securities account.
(7) Perfection of a security interest in a commodity account also perfects a security interest in the commodity contracts carried in the commodity account.
Section 28. Security interest perfected on attachment. The following security interests are perfected when they attach:
(1) a purchase-money security interest in consumer goods, except as otherwise provided in [section 30(2)] with respect to consumer goods that are subject to a statute or treaty described in [section 30(1)];
(2) an assignment of accounts or payment intangibles that does not by itself or in conjunction with other assignments to the same assignee transfer a significant part of the assignor's outstanding accounts or payment intangibles;
(3) a sale of a payment intangible;
(4) a sale of a promissory note;
(5) a security interest created by the assignment of a health-care-insurance receivable to the provider of the health care goods or services;
(6) a security interest arising under 30-2-401, 30-2-505, 30-2-711(3), or 30-2A-508(5), until the debtor obtains possession of the collateral;
(7) a security interest of a collecting bank arising under 30-4-208;
(8) a security interest of an issuer or nominated person arising under [section 161];
(9) a security interest arising in the purchase or delivery of a financial asset under [section 15(3)];
(10) a security interest in investment property created by a broker or securities intermediary;
(11) a security interest in a commodity contract or a commodity account created by a commodity intermediary;
(12) an assignment for the benefit of all creditors of the transferor and subsequent transfers by the assignee thereunder; and
(13) a security interest created by an assignment of a beneficial interest in a decedent's estate.
Section 29. When filing required to perfect security interest or agricultural lien -- security interests and agricultural liens to which filing provisions do not apply. (1) Except as otherwise provided in [section 31(2)] or subsection (2) of this section, a financing statement must be filed to perfect all security interests and agricultural liens.
(2) The filing of a financing statement is not necessary to perfect a security interest:
(a) that is perfected under [section 27(4), (5), (6), or (7)];
(b) that is perfected under [section 28] when it attaches;
(c) in property subject to a statute, regulation, or treaty described in [section 30(1)];
(d) in goods in possession of a bailee that is perfected under [section 31(4)(a) or (4)(b)];
(e) in certificated securities, documents, goods, or instruments that is perfected without filing or possession under [section 31(5), (6), or (7)];
(f) in collateral in the secured party's possession under [section 32];
(g) in a certificated security that is perfected by delivery of the security certificate to the secured party under [section 32];
(h) in a deposit account, electronic chattel paper, investment property, or letter-of-credit right that is perfected by control under [section 33];
(i) in proceeds which is perfected under [section 34]; or
(j) that is perfected under [section 35].
(3) If a secured party assigns a perfected security interest or agricultural lien, a filing under [sections 1 through 125] is not required to continue the perfected status of the security interest against creditors of and transferees from the original debtor.
Section 30. Perfection of security interests in property subject to certain statutes, regulations and treaties. (1) Except as otherwise provided in subsection (4), the filing of a financing statement is not necessary or effective to perfect a security interest in property subject to:
(a) a statute, regulation, or treaty of the United States whose requirements for a security interest's obtaining priority over the rights of a lien creditor with respect to the property preempt [section 29(1)];
(b) the certificate of ownership provisions of Title 23 or Title 61; or
(c) a certificate of title statute of another jurisdiction that provides for a security interest to be indicated on the certificate as a condition or result of the security interest's obtaining priority over the rights of a lien creditor with respect to the property.
(2) Compliance with the requirements of a statute, regulation, or treaty described in subsection (1) for obtaining priority over the rights of a lien creditor is equivalent to the filing of a financing statement under [sections 1 through 125]. Except as otherwise provided in [sections 32 and 35(4) and (5)] and subsection (4) of this section for goods covered by a certificate of title, a security interest in property subject to a statute, regulation, or treaty described in subsection (1) may be perfected only by compliance with those requirements, and a security interest so perfected remains perfected notwithstanding a change in the use or transfer of possession of the collateral.
(3) Except as otherwise provided in [section 35(4) and (5)] and subsection (4) of this section, duration and renewal of perfection of a security interest perfected by compliance with the requirements prescribed by a statute, regulation, or treaty described in subsection (1) are governed by the statute, regulation, or treaty. In other respects the security interest is subject to [sections 1 through 125].
(4) During any period in which collateral is inventory held for sale or lease by a person or leased by that person as lessor and that person is in the business of selling or leasing goods of that kind, this section does not apply to a security interest in that collateral created by that person as debtor.
Section 31. Perfection of security interests in chattel paper, deposit accounts, documents, goods covered by documents, instruments, investment property, letter-of-credit rights, and money -- perfection by permissive filing -- temporary perfection without filing or transfer of possession. (1) A security interest in chattel paper, negotiable documents, instruments, or investment property may be perfected by filing.
(2) Except as otherwise provided in [section 34(3) and (4)] for proceeds:
(a) a security interest in a deposit account may be perfected only by control under [section 33];
(b) a security interest in a letter-of-credit right may be perfected only by control under [section 33], except as otherwise provided in [section 27(4)]; and
(c) a security interest in money may be perfected only by the secured party's taking possession under [section 32].
(3) While goods are in the possession of a bailee that has issued a negotiable document covering the goods:
(a) a security interest in the goods may be perfected by perfecting a security interest in the document; and
(b) a security interest perfected in the document has priority over any security interest that becomes perfected in the goods by another method during that time.
(4) While goods are in the possession of a bailee that has issued a nonnegotiable document covering the goods, a security interest in the goods may be perfected by:
(a) issuance of a document in the name of the secured party;
(b) the bailee's receipt of notification of the secured party's interest; or
(c) filing as to the goods.
(5) A security interest in certificated securities, negotiable documents, or instruments is perfected without filing or the taking of possession for a period of 20 days from the time it attaches to the extent that it arises for new value given under an authenticated security agreement.
(6) A perfected security interest in a negotiable document or goods in possession of a bailee, other than one that has issued a negotiable document for the goods, remains perfected for 20 days without filing if the secured party makes available to the debtor the goods or documents representing the goods for the purpose of:
(a) ultimate sale or exchange; or
(b) loading, unloading, storing, shipping, transshipping, manufacturing, processing, or otherwise dealing with them in a manner preliminary to their sale or exchange.
(7) A perfected security interest in a certificated security or instrument remains perfected for 20 days without filing if the secured party delivers the security certificate or instrument to the debtor for the purpose of:
(a) ultimate sale or exchange; or
(b) presentation, collection, enforcement, renewal, or registration of transfer.
(8) After the 20-day period specified in subsection (5), (6), or (7) expires, perfection depends upon compliance with [sections 1 through 125].
Section 32. When possession by or delivery to secured party perfects security interest without filing. (1) Except as otherwise provided in subsection (2), a secured party may perfect a security interest in negotiable documents, goods, instruments, money, or tangible chattel paper by taking possession of the collateral. A secured party may perfect a security interest in certificated securities by taking delivery of the certificated securities under 30-8-331.
(2) With respect to goods covered by a certificate of title issued by this state, a secured party may perfect a security interest in the goods by taking possession of the goods only in the circumstances described in [section 35(4)].
(3) With respect to collateral other than certificated securities and goods covered by a document, a secured party takes possession of collateral in the possession of a person other than the debtor, the secured party, or a lessee of the collateral from the debtor in the ordinary course of the debtor's business when:
(a) the person in possession authenticates a record acknowledging that it holds possession of the collateral for the secured party's benefit; or
(b) the person takes possession of the collateral after having authenticated a record acknowledging that it will hold possession of collateral for the secured party's benefit.
(4) If perfection of a security interest depends upon possession of the collateral by a secured party, perfection occurs no earlier than the time the secured party takes possession and continues only while the secured party retains possession.
(5) A security interest in a certificated security in registered form is perfected by delivery when delivery of the certificated security occurs under 30-8-331 and remains perfected by delivery until the debtor obtains possession of the security certificate.
(6) A person in possession of collateral is not required to acknowledge that it holds possession for a secured party's benefit.
(7) If a person acknowledges that it holds possession for the secured party's benefit:
(a) the acknowledgment is effective under 30-8-331(1) or subsection (3) of this section, even if the acknowledgment violates the rights of a debtor; and
(b) unless the person otherwise agrees or law other than [sections 1 through 125] otherwise provides, the person does not owe any duty to the secured party and is not required to confirm the acknowledgment to another person.
(8) A secured party having possession of collateral does not relinquish possession by delivering the collateral to a person other than the debtor or a lessee of the collateral from the debtor in the ordinary course of the debtor's business if the person was instructed before the delivery or is instructed contemporaneously with the delivery:
(a) to hold possession of the collateral for the secured party's benefit; or
(b) to redeliver the collateral to the secured party.
(9) A secured party does not relinquish possession even if a delivery under subsection (8) violates the rights of a debtor. A person to which collateral is delivered under subsection (8) does not owe any duty to the secured party and is not required to confirm the delivery to another person unless the person otherwise agrees or law other than [sections 1 through 125] otherwise provides.
Section 33. Perfection by control. (1) A security interest in investment property, a deposit account, a letter-of-credit right, or electronic chattel paper may be perfected by control of the collateral under [section 3, 4, 5, or 6].
(2) A security interest in a deposit account, electronic chattel paper, or a letter-of-credit right is perfected by control under [section 3, 4, or 6] when the secured party obtains control and remains perfected by control only while the secured party retains control.
(3) A security interest in investment property is perfected by control under [section 5] from the time the secured party obtains control and remains perfected by control until:
(a) the secured party does not have control; and
(b) one of the following occurs:
(i) if the collateral is a certificated security, the debtor has or acquires possession of the security certificate;
(ii) if the collateral is an uncertificated security, the issuer has registered or registers the debtor as the registered owner; or
(iii) if the collateral is a security entitlement, the debtor is or becomes the entitlement holder.
Section 34. Secured party's rights on disposition of collateral and in proceeds. (1) Except as otherwise provided in 30-2-403(2) and [sections 1 through 125]:
(a) a security interest or agricultural lien continues in collateral notwithstanding sale, lease, license, exchange, or other disposition thereof unless the secured party authorized the disposition free of the security interest or agricultural lien; and
(b) a security interest attaches to any identifiable proceeds of collateral.
(2) Proceeds that are commingled with other property are identifiable proceeds:
(a) if the proceeds are goods, to the extent provided by [section 55]; and
(b) if the proceeds are not goods, to the extent that the secured party identifies the proceeds by a method of tracing, including application of equitable principles, that is permitted under law other than [sections 1 through 125] with respect to commingled property of the type involved.
(3) A security interest in proceeds is a perfected security interest if the security interest in the original collateral was perfected.
(4) A perfected security interest in proceeds becomes unperfected on the 21st day after the security interest attaches to the proceeds unless:
(a) the following conditions are satisfied:
(i) a filed financing statement covers the original collateral;
(ii) the proceeds are collateral in which a security interest may be perfected by filing in the office in which the financing statement has been filed; and
(iii) the proceeds are not acquired with cash proceeds;
(b) the proceeds are identifiable cash proceeds; or
(c) the security interest in the proceeds is perfected when the security interest attaches to the proceeds or within 20 days thereafter.
(5) If a filed financing statement covers the original collateral, a security interest in proceeds that remains perfected under subsection (4)(a) becomes unperfected at the later of:
(a) when the effectiveness of the filed financing statement lapses under [section 85] or is terminated under [section 83]; or
(b) the 21st day after the security interest attaches to the proceeds.
Section 35. Continued perfection of security interest following change in applicable law. (1) A security interest perfected pursuant to the law of the jurisdiction designated in [section 20(1) or 24(3)] remains perfected until the earliest of:
(a) the time perfection would have ceased under the law of that jurisdiction;
(b) the expiration of 4 months after a change of the debtor's location to another jurisdiction;
(c) the expiration of 1 year after a transfer of collateral to a person that thereby becomes a debtor and is located in another jurisdiction; or
(d) the expiration of 1 year after a new debtor located in another jurisdiction becomes bound under [section 12(4)].
(2) If a security interest described in subsection (1) becomes perfected under the law of the other jurisdiction before the earliest time or event described in that subsection, it remains perfected thereafter. If the security interest does not become perfected under the law of the other jurisdiction before the earliest time or event, it becomes unperfected and is deemed never to have been perfected as against a purchaser of the collateral for value.
(3) A possessory security interest in collateral, other than goods covered by a certificate of title and as-extracted collateral consisting of goods, remains continuously perfected if:
(a) the collateral is located in one jurisdiction and subject to a security interest perfected under the law of that jurisdiction;
(b) thereafter the collateral is brought into another jurisdiction; and
(c) upon entry into the other jurisdiction, the security interest is perfected under the law of the other jurisdiction.
(4) Except as otherwise provided in subsection (5), a security interest in goods covered by a certificate of title that is perfected by any method under the law of another jurisdiction when the goods become covered by a certificate of title from this state remains perfected until the security interest would have become unperfected under the law of the other jurisdiction had the goods not become so covered.
(5) A security interest described in subsection (4) becomes unperfected as against a purchaser of the goods for value and is deemed never to have been perfected as against a purchaser of the goods for value if the applicable requirements for perfection under [section 30(2) or 32] are not satisfied before the earlier of:
(a) the time the security interest would have become unperfected under the law of the other jurisdiction had the goods not become covered by a certificate of title from this state; or
(b) the expiration of 4 months after the goods had become so covered.
(6) A security interest in a deposit account, letter-of-credit right, or investment property that is perfected under the law of the bank's jurisdiction, the issuer's jurisdiction, a nominated person's jurisdiction, the securities intermediary's jurisdiction, or the commodity intermediary's jurisdiction, as applicable, remains perfected until the earlier of:
(a) the time perfection would have ceased under the law of the first jurisdiction; or
(b) the expiration of 4 months after a change of the applicable jurisdiction.
(7) If a security interest described in subsection (6) becomes perfected under the law of the other jurisdiction before the earlier of the time or the end of the period described in that subsection, it remains perfected thereafter. If the security interest does not become perfected under the law of the other jurisdiction before the earlier of that time or the end of that period, it becomes unperfected and is deemed never to have been perfected as against a purchaser of the collateral for value.
Section 36. Interests that take priority over or take free of unperfected security interest or agricultural lien. (1) An unperfected security interest or agricultural lien is subordinate to the rights of:
(a) a person entitled to priority under [section 41]; and
(b) a person that becomes a lien creditor before the earlier of the time the security interest or agricultural lien is perfected or a financing statement covering the collateral is filed.
(2) Except as otherwise provided in subsection (5), a buyer, other than a secured party, of chattel paper, documents, goods, instruments, or a security certificate takes free of a security interest or agricultural lien if the buyer gives value and receives delivery of the collateral without knowledge of the security interest or agricultural lien and before it is perfected.
(3) Except as otherwise provided in subsection (5), a lessee of goods takes free of a security interest or agricultural lien if the lessee gives value and receives delivery of the collateral without knowledge of the security interest or agricultural lien and before it is perfected.
(4) A licensee of a general intangible or a buyer, other than a secured party, of accounts, general intangibles, or investment property other than a certificated security takes free of a security interest if the licensee or buyer gives value without knowledge of the security interest and before it is perfected.
(5) Except as otherwise provided in [sections 39 and 40], if a person files a financing statement with respect to a purchase-money security interest before or within 20 days after the debtor receives delivery of the collateral, the security interest takes priority over the rights of a buyer, lessee, or lien creditor that arise between the time the security interest attaches and the time of filing.
Section 37. No interest retained in right to payment that is sold -- rights and title of seller of account or chattel paper with respect to creditors and purchasers. (1) A debtor that has sold an account, chattel paper, payment intangible, or promissory note does not retain a legal or equitable interest in the collateral sold.
(2) For purposes of determining the rights of creditors of, and purchasers for value of an account or chattel paper from, a debtor that has sold an account or chattel paper, while the buyer's security interest is unperfected, the debtor has rights and title to the account or chattel paper identical to those the debtor sold.
Section 38. Rights and title of consignee with respect to creditors and purchasers. (1) Except as otherwise provided in subsection (2), for purposes of determining the rights of creditors of, and purchasers for value of goods from, a consignee, while the goods are in the possession of the consignee, the consignee has rights and title to the goods identical to those the consignor had or had power to transfer.
(2) For purposes of determining the rights of a creditor of a consignee, law other than [sections 1 through 125] determines the rights and title of a consignee while goods are in the consignee's possession if, under [sections 20 through 61], a perfected security interest held by the consignor would have priority over the rights of the creditor.
Section 39. Buyer of goods. (1) Except as otherwise provided in subsection (5), a buyer in ordinary course of business, other than a person buying farm products from a person engaged in farming operations, takes free of a security interest created by the buyer's seller, even if the security interest is perfected and the buyer knows of its existence.
(2) Except as otherwise provided in subsection (5), a buyer of goods from a person who used or bought the goods for use primarily for personal, family, or household purposes takes free of a security interest, even if perfected, if the buyer buys:
(a) without knowledge of the security interest;
(b) for value;
(c) primarily for the buyer's personal, family, or household purposes; and
(d) before the filing of a financing statement covering the goods.
(3) To the extent that it affects the priority of a security interest over a buyer of goods under subsection (2), the period of effectiveness of a filing made in the jurisdiction in which the seller is located is governed by [section 35(1) and (2)].
(4) A buyer in ordinary course of business buying oil, gas, or other minerals at the wellhead or minehead or after extraction takes free of an interest arising out of an encumbrance.
(5) Subsections (1) and (2) do not affect a security interest in goods in the possession of the secured party under [section 32].
Section 40. Licensee of general intangible and lessee of goods in ordinary course of business. (1) In this section, "licensee in ordinary course of business" means a person that becomes a licensee of a general intangible in good faith, without knowledge that the license violates the rights of another person in the general intangible, and in the ordinary course from a person in the business of licensing general intangibles of that kind. A person becomes a licensee in ordinary course of business if the license to the person comports with the usual or customary practices in the kind of business in which the licensor is engaged or with the licensor's own usual or customary practices.
(2) A licensee of a general intangible in ordinary course of business takes its rights under the license free of a security interest in the general intangible created by the licensor, even if the security interest is perfected and the licensee knows of its existence.
(3) A lessee in ordinary course of business takes its leasehold interest free of a security interest in the goods created by the lessor, even if the security interest is perfected and the lessee knows of its existence.
Section 41. Priorities among conflicting security interests and agricultural liens in same collateral. (1) Except as otherwise provided in this section, priority among conflicting security interests and agricultural liens in the same collateral is determined according to the following rules:
(a) Conflicting perfected security interests and agricultural liens rank according to priority in time of filing or perfection. Priority dates from the earlier of the time a filing covering the collateral is first made or the security interest or agricultural lien is first perfected if there is no period thereafter when there is neither filing nor perfection.
(b) A perfected security interest or agricultural lien has priority over a conflicting unperfected security interest or agricultural lien.
(c) The first security interest or agricultural lien to attach or become effective has priority if conflicting security interests and agricultural liens are unperfected.
(2) For the purposes of subsection (1)(a):
(a) the time of filing or perfection as to a security interest in collateral is also the time of filing or perfection as to a security interest in proceeds; and
(b) the time of filing or perfection as to a security interest in collateral supported by a supporting obligation is also the time of filing or perfection as to a security interest in the supporting obligation.
(3) Except as otherwise provided in subsection (6), a security interest in collateral that qualifies for priority over a conflicting security interest under [section 46, 47, 48, 49, or 50] also has priority over a conflicting security interest in:
(a) any supporting obligation for the collateral; and
(b) proceeds of the collateral if:
(i) the security interest in proceeds is perfected;
(ii) the proceeds are:
(A) cash proceeds; or
(B) of the same type as the collateral; and
(iii) in the case of proceeds that are proceeds of proceeds, all intervening proceeds are cash proceeds, proceeds of the same type as the collateral, or an account relating to the collateral.
(4) Subject to subsection (5) and except as otherwise provided in subsection (6), if a security interest in chattel paper, deposit accounts, negotiable documents, instruments, investment property, or letter-of-credit rights is perfected by a method other than filing, conflicting perfected security interests in proceeds of the collateral rank according to priority in time of filing.
(5) Subsection (4) applies only if the proceeds of the collateral are not cash proceeds, chattel paper, negotiable documents, instruments, investment property, or letter-of-credit rights.
(6) Subsections (1) through (5) are subject to:
(a) subsection (7) and the other provisions of [sections 20 through 61];
(b) 30-4-208 with respect to a security interest of a collecting bank;
(c) [section 161] with respect to a security interest of an issuer or nominated person; and
(d) [section 9] with respect to a security interest arising under chapter 2 or 2A.
(7) A perfected agricultural lien on collateral has priority over a conflicting security interest in or agricultural lien on the same collateral if the statute creating the agricultural lien so provides.
Section 42. Future advances. (1) Except as otherwise provided in subsection (3), for purposes of determining the priority of a perfected security interest under [section 41(1)(a)], perfection of the security interest dates from the time an advance is made to the extent that the security interest secures an advance that:
(a) is made while the security interest is perfected only:
(i) under [section 28] when it attaches; or
(ii) temporarily under [section 31(5), (6), or (7)]; and
(b) is not made pursuant to a commitment entered into before or while the security interest is perfected by a method other than under [section 28 or 31(5), (6), or (7)].
(2) Except as otherwise provided in subsection (3), a security interest is subordinate to the rights of a person that becomes a lien creditor while the security interest is perfected only to the extent that it secures advances made more than 45 days after the person becomes a lien creditor unless the advance is made:
(a) without knowledge of the lien; or
(b) pursuant to a commitment entered into without knowledge of the lien.
(3) Subsections (1) and (2) do not apply to a security interest held by a secured party that is a buyer of accounts, chattel paper, payment intangibles, or promissory notes or a consignor.
(4) Except as otherwise provided in subsection (5), a buyer of goods other than a buyer in ordinary course of business takes free of a security interest to the extent that it secures advances made after the earlier of:
(a) the time the secured party acquires knowledge of the buyer's purchase; or
(b) 45 days after the purchase.
(5) Subsection (4) does not apply if the advance is made pursuant to a commitment entered into without knowledge of the buyer's purchase and before the expiration of the 45-day period.
(6) Except as otherwise provided in subsection (7), a lessee of goods, other than a lessee in ordinary course of business, takes the leasehold interest free of a security interest to the extent that it secures advances made after the earlier of:
(a) the time the secured party acquires knowledge of the lease; or
(b) 45 days after the lease contract becomes enforceable.
(7) Subsection (6) does not apply if the advance is made pursuant to a commitment entered into without knowledge of the lease and before the expiration of the 45-day period.
Section 43. Priority of purchase-money security interests. (1) Except as otherwise provided in subsection (7), a perfected purchase-money security interest in goods other than inventory or livestock has priority over a conflicting security interest in the same goods, and except as otherwise provided in [section 46], a perfected security interest in its identifiable proceeds also has priority, if the purchase-money security interest is perfected when the debtor receives possession of the collateral or within 20 days thereafter.
(2) Subject to subsection (3) and except as otherwise provided in subsection (7), a perfected purchase-money security interest in inventory has priority over a conflicting security interest in the same inventory, has priority over a conflicting security interest in chattel paper or an instrument constituting proceeds of the inventory and in proceeds of the chattel paper if so provided in [section 49], and except as otherwise provided in [section 46], also has priority in identifiable cash proceeds of the inventory to the extent the identifiable cash proceeds are received on or before the delivery of the inventory to a buyer, if:
(a) the purchase-money security interest is perfected when the debtor receives possession of the inventory;
(b) the purchase-money secured party sends an authenticated notification to the holder of the conflicting security interest;
(c) the holder of the conflicting security interest receives the notification within 5 years before the debtor receives possession of the inventory; and
(d) the notification states that the person sending the notification has or expects to acquire a purchase-money security interest in inventory of the debtor and describes the inventory.
(3) Subsections (2)(b) through (2)(d) apply only if the holder of the conflicting security interest had filed a financing statement covering the same types of inventory:
(a) if the purchase-money security interest is perfected by filing, before the date of the filing; or
(b) if the purchase-money security interest is temporarily perfected without filing or possession under [section 31(6)], before the beginning of the 20-day period thereunder.
(4) Subject to subsection (5) and except as otherwise provided in subsection (7), a perfected purchase-money security interest in livestock that are farm products has priority over a conflicting security interest in the same livestock, and except as otherwise provided in [section 46], a perfected security interest in their identifiable proceeds and identifiable products in their unmanufactured states also has priority, if:
(a) the purchase-money security interest is perfected when the debtor receives possession of the livestock;
(b) the purchase-money secured party sends an authenticated notification to the holder of the conflicting security interest;
(c) the holder of the conflicting security interest receives the notification within 6 months before the debtor receives possession of the livestock; and
(d) the notification states that the person sending the notification has or expects to acquire a purchase-money security interest in livestock of the debtor and describes the livestock.
(5) Subsections (4)(b) through (4)(d) apply only if the holder of the conflicting security interest had filed a financing statement covering the same types of livestock:
(a) if the purchase-money security interest is perfected by filing, before the date of the filing; or
(b) if the purchase-money security interest is temporarily perfected without filing or possession under [section 31(6)], before the beginning of the 20-day period thereunder.
(6) Except as otherwise provided in subsection (7), a perfected purchase-money security interest in software has priority over a conflicting security interest in the same collateral, and except as otherwise provided in [section 46], a perfected security interest in its identifiable proceeds also has priority, to the extent that the purchase-money security interest in the goods in which the software was acquired for use has priority in the goods and proceeds of the goods under this section.
(7) If more than one security interest qualifies for priority in the same collateral under subsection (1), (2), (4), or (6):
(a) a security interest securing an obligation incurred as all or part of the price of the collateral has priority over a security interest securing an obligation incurred for value given to enable the debtor to acquire rights in or the use of collateral; and
(b) in all other cases, [section 41(1)] applies to the qualifying security interests.
Section 44. Priority of security interests in transferred collateral. (1) Except as otherwise provided in subsection (2), a security interest created by a debtor is subordinate to a security interest in the same collateral created by another person if:
(a) the debtor acquired the collateral subject to the security interest created by the other person;
(b) the security interest created by the other person was perfected when the debtor acquired the collateral; and
(c) there is no period thereafter when the security interest is unperfected.
(2) Subsection (1) subordinates a security interest only if the security interest:
(a) otherwise would have priority solely under [section 41(1) or 43]; or
(b) arose solely under 30-2-711(3) or 30-2A-508(5).
Section 45. Priority of security interests created by new debtor. (1) Subject to subsection (2), a security interest created by a new debtor that is perfected by a filed financing statement that is effective solely under [section 78] in collateral in which a new debtor has or acquires rights is subordinate to a security interest in the same collateral that is perfected by another method.
(2) If more than one security interest in the same collateral is subordinate under subsection (1), the other provisions of [sections 20 through 61], as applicable, determine the priority among the subordinated security interests.
Section 46. Priority of security interests in deposit account. The following rules govern priority among conflicting security interests in the same deposit account:
(1) A security interest held by a secured party having control of the deposit account under [section 3] has priority over a conflicting security interest held by a secured party that does not have control.
(2) Except as otherwise provided in subsections (3) and (4), security interests perfected by control under [section 33] rank according to priority in time of obtaining control.
(3) Except as otherwise provided in subsection (4), a security interest held by the bank with which the deposit account is maintained has priority over a conflicting security interest held by another secured party.
(4) A security interest perfected by control under [section 3(1)(c)] has priority over a security interest held by the bank with which the deposit account is maintained.
Section 47. Priority of security interests in investment property. The following rules govern priority among conflicting security interests in the same investment property:
(1) A security interest held by a secured party having control of investment property under [section 5] has priority over a security interest of a secured party that does not have control of the investment property.
(2) Except as otherwise provided in subsections (3) and (4), conflicting security interests held by secured parties each of which has control under [section 5] rank according to priority in time of:
(a) if the collateral is a security, obtaining control;
(b) if the collateral is a security entitlement carried in a securities account and:
(i) if the secured party obtained control under 30-8-116(4)(a), the secured party's becoming the person for which the securities account is maintained;
(ii) if the secured party obtained control under 30-8-116(4)(b), the securities intermediary's agreement to comply with the secured party's entitlement orders with respect to security entitlements carried or to be carried in the securities account; or
(iii) if the secured party obtained control through another person under 30-8-116(4)(c), the time on which priority would be based under this subsection if the other person were the secured party; or
(c) if the collateral is a commodity contract carried with a commodity intermediary, the satisfaction of the requirement for control specified in [section 5(2)(b)] with respect to commodity contracts carried or to be carried with the commodity intermediary.
(3) A security interest held by a securities intermediary in a security entitlement or a securities account maintained with the securities intermediary has priority over a conflicting security interest held by another secured party.
(4) A security interest held by a commodity intermediary in a commodity contract or a commodity account maintained with the commodity intermediary has priority over a conflicting security interest held by another secured party.
(5) A security interest in a certificated security in registered form that is perfected by taking delivery under [section 32(1)] and not by control under [section 33] has priority over a conflicting security interest perfected by a method other than control.
(6) Conflicting security interests granted by a broker, securities intermediary, or commodity intermediary that are perfected without control under [section 5] rank equally.
(7) In all other cases, priority among conflicting security interests in investment property is governed by [sections 41 and 42].
Section 48. Priority of security interests in letter-of-credit right. The following rules govern priority among conflicting security interests in the same letter-of-credit right:
(1) A security interest held by a secured party having control of the letter-of-credit right under [section 6] has priority to the extent of its control over a conflicting security interest held by a secured party that does not have control.
(2) Security interests perfected by control under [section 33] rank according to priority in time of obtaining control.
Section 49. Purchase of chattel paper or instrument. (1) A purchaser of chattel paper has priority over a security interest in the chattel paper that is claimed merely as proceeds of inventory subject to a security interest if:
(a) in good faith and in the ordinary course of the purchaser's business, the purchaser gives new value and takes possession of the chattel paper or obtains control of the chattel paper under [section 4]; and
(b) the chattel paper does not indicate that it has been assigned to an identified assignee other than the purchaser.
(2) A purchaser of chattel paper has priority over a security interest in the chattel paper that is claimed other than merely as proceeds of inventory subject to a security interest if the purchaser gives new value and takes possession of the chattel paper or obtains control of the chattel paper under [section 4] in good faith, in the ordinary course of the purchaser's business, and without knowledge that the purchase violates the rights of the secured party.
(3) Except as otherwise provided in [section 46], a purchaser having priority in chattel paper under subsection (1) or (2) also has priority in proceeds of the chattel paper to the extent that:
(a) [section 41] provides for priority in the proceeds; or
(b) the proceeds consist of the specific goods covered by the chattel paper or cash proceeds of the specific goods, even if the purchaser's security interest in the proceeds is unperfected.
(4) Except as otherwise provided in [section 50(1)], a purchaser of an instrument has priority over a security interest in the instrument perfected by a method other than possession if the purchaser gives value and takes possession of the instrument in good faith and without knowledge that the purchase violates the rights of the secured party.
(5) For purposes of subsections (1) and (2), the holder of a purchase-money security interest in inventory gives new value for chattel paper constituting proceeds of the inventory.
(6) For purposes of subsections (2) and (4), if chattel paper or an instrument indicates that it has been assigned to an identified secured party other than the purchaser, a purchaser of the chattel paper or instrument has knowledge that the purchase violates the rights of the secured party.
Section 50. Priority of rights of purchasers of instruments, documents, and securities under other chapters -- priority of interests in financial assets and security entitlements under chapter 8. (1) [Sections 1 through 125] do not limit the rights of a holder in due course of a negotiable instrument, a holder to whom a negotiable document of title has been duly negotiated, or a protected purchaser of a security. These holders or purchasers take priority over an earlier security interest, even if perfected, to the extent provided in chapters 3, 7, and 8.
(2) [Sections 1 through 125] do not limit the rights of or impose liability on a person to the extent that the person is protected against the assertion of an adverse claim under chapter 8.
(3) Filing under [sections 1 through 125] does not constitute notice of a claim or defense to the holders, purchasers, or persons mentioned in subsections (1) and (2).
Section 51. Transfer of money -- transfer of funds from deposit account. (1) A transferee of money takes the money free of a security interest unless the transferee acts in collusion with the debtor in violating the rights of the secured party.
(2) A transferee of funds from a deposit account takes the funds free of a security interest in the deposit account unless the transferee acts in collusion with the debtor in violating the rights of the secured party.
Section 52. Priority of certain liens arising by operation of law. (1) In this section, "possessory lien" means an interest, other than a security interest or an agricultural lien:
(a) that secures payment or performance of an obligation for services or materials furnished with respect to goods by a person in the ordinary course of the person's business;
(b) that is created by statute or rule of law in favor of the person; and
(c) whose effectiveness depends on the person's possession of the goods.
(2) A possessory lien on goods has priority over a security interest in the goods unless the lien is created by a statute that expressly provides otherwise.
Section 53. Priority of security interests in fixtures and crops. (1) A security interest under [sections 1 through 125] may be created in goods that are fixtures or may continue in goods that become fixtures. A security interest does not exist under [sections 1 through 125] in ordinary building materials incorporated into an improvement on land.
(2) [Sections 1 through 125] do not prevent creation of an encumbrance upon fixtures under real property law.
(3) In cases not governed by subsections (4) through (8), a security interest in fixtures is subordinate to a conflicting interest of an encumbrancer or owner of the related real property that is not the debtor.
(4) Except as otherwise provided in subsection (8), a perfected security interest in fixtures has priority over a conflicting interest of an encumbrancer or owner of the real property if the debtor has an interest of record in or is in possession of the real property and:
(a) the security interest is a purchase-money security interest;
(b) the interest of the encumbrancer or owner arises before the goods become fixtures; and
(c) the security interest is perfected by a fixture filing before the goods become fixtures or within 20 days thereafter.
(5) A perfected security interest in fixtures has priority over a conflicting interest of an encumbrancer or owner of the real property if:
(a) the debtor has an interest of record in the real property or is in possession of the real property and the security interest:
(i) is perfected by a fixture filing before the interest of the encumbrancer or owner is of record; and
(ii) the security interest has priority over any conflicting interest of a predecessor in title of the encumbrancer or owner;
(b) before the goods become fixtures, the security interest is perfected by any method permitted by [sections 1 through 125] and the fixtures are readily removable:
(i) factory or office machines;
(ii) equipment that is not primarily used or leased for use in the operation of the real property; or
(iii) replacements of domestic appliances that are consumer goods;
(c) the conflicting interest is a lien on the real property obtained by legal or equitable proceedings after the security interest was perfected by any method permitted by [sections 1 through 125]; or
(d) the security interest is:
(i) created in a manufactured home in a manufactured-home transaction; and
(ii) perfected pursuant to a statute described in [section 30(1)(b)].
(6) A security interest in fixtures, whether or not perfected, has priority over a conflicting interest of an encumbrancer or owner of the real property if:
(a) the encumbrancer or owner has, in an authenticated record, consented to the security interest or disclaimed an interest in the goods as fixtures; or
(b) the debtor has a right to remove the goods as against the encumbrancer or owner.
(7) The priority of the security interest under subsection (6) continues for a reasonable time if the debtor's right to remove the goods as against the encumbrancer or owner terminates.
(8) A mortgage is a "construction mortgage" to the extent that it secures an obligation incurred for the construction of an improvement on land, including the acquisition cost of the land, if the recorded record so indicates. Except as otherwise provided in subsections (5) and (6), a security interest in fixtures is subordinate to a construction mortgage recorded before the goods become fixtures if the goods become fixtures before the completion of the construction. A mortgage has this priority to the same extent as a construction mortgage to the extent that it is given to refinance a construction mortgage.
(9) A perfected security interest in crops growing on real property has priority over a conflicting interest of an encumbrancer or owner of the real property if the debtor has an interest of record in or is in possession of the real property.
(10) Subsection (9) prevails over any inconsistent provisions of Title 71, chapter 3, parts 8 and 9.
Section 54. Accessions. (1) A security interest may be created in an accession and continues in collateral that becomes an accession.
(2) If a security interest is perfected when the collateral becomes an accession, the security interest remains perfected in the collateral.
(3) Except as otherwise provided in subsection (4), the other provisions of [sections 20 through 61] determine the priority of a security interest in an accession.
(4) A security interest in an accession is subordinate to a security interest in the whole that is perfected by compliance with the requirements of a certificate-of-title statute under [section 30(2)].
(5) After default, subject to [sections 98 through 125], a secured party may remove an accession from other goods if the security interest in the accession has priority over the claims of every person having an interest in the whole.
(6) A secured party that removes an accession from other goods under subsection (5) shall promptly reimburse any encumbrancer or owner of the whole or of the other goods, other than the debtor, for the cost of repair of any physical injury to the whole or the other goods. The secured party need not reimburse the encumbrancer or owner for any diminution in value of the whole or the other goods caused by the absence of the accession removed or by any necessity for replacing it. A person entitled to reimbursement may refuse permission to remove until the secured party gives adequate assurance for the performance of the obligation to reimburse.
Section 55. Commingled goods. (1) In this section, "commingled goods" means goods that are physically united with other goods in such a manner that their identity is lost in a product or mass.
(2) A security interest does not exist in commingled goods as such. However, a security interest may attach to a product or mass that results when goods become commingled goods.
(3) If collateral becomes commingled goods, a security interest attaches to the product or mass.
(4) If a security interest in collateral is perfected before the collateral becomes commingled goods, the security interest that attaches to the product or mass under subsection (3) is perfected.
(5) Except as otherwise provided in subsection (6), the other provisions of [sections 20 through 61], as applicable, determine the priority of a security interest that attaches to the product or mass under subsection (3).
(6) If more than one security interest attaches to the product or mass under subsection (3), the following rules determine priority:
(a) A security interest that is perfected under subsection (4) has priority over a security interest that is unperfected at the time the collateral becomes commingled goods.
(b) If more than one security interest is perfected under subsection (4), the security interests rank equally in proportion to value of the collateral at the time it became commingled goods.
Section 56. Priority of security interests in goods covered by certificate of title. If, while a security interest in goods is perfected by any method under the law of another jurisdiction, this state issues a certificate of title that does not show that the goods are subject to the security interest or contain a statement that they may be subject to security interests not shown on the certificate:
(1) a buyer of the goods, other than a person that is in the business of selling goods of that kind, takes free of the security interest if the buyer gives value and receives delivery of the goods after issuance of the certificate and without knowledge of the security interest; and
(2) the security interest is subordinate to a conflicting security interest in the goods that attaches, and is perfected under [section 30(2)], after issuance of the certificate and without the conflicting secured party's knowledge of the security interest.
Section 57. Priority of security interest or agricultural lien perfected by filed financing statement providing certain incorrect information. If a security interest or agricultural lien is perfected by a filed financing statement providing information described in [section 86(2)(e)] that is incorrect at the time the financing statement is filed:
(1) the security interest or agricultural lien is subordinate to a conflicting perfected security interest in the collateral to the extent that the holder of the conflicting security interest gives value in reasonable reliance upon the incorrect information; and
(2) a purchaser, other than a secured party, of the collateral takes free of the security interest or agricultural lien to the extent that, in reasonable reliance upon the incorrect information, the purchaser gives value and, in the case of chattel paper, documents, goods, instruments, or a security certificate, receives delivery of the collateral.
Section 58. Priority subject to subordination. [Sections 1 through 125] do not preclude subordination by agreement by a person entitled to priority.
Section 59. Effectiveness of right of recoupment or setoff against deposit account. (1) Except as otherwise provided in subsection (3), a bank with which a deposit account is maintained may exercise against a secured party that holds a security interest in the deposit account any right of recoupment or setoff.
(2) Except as otherwise provided in subsection (3), the application of [sections 1 through 125] to a security interest in a deposit account does not affect a right of recoupment or setoff of the secured party as to a deposit account maintained with the secured party.
(3) The exercise by a bank of a setoff against a deposit account is ineffective against a secured party that holds a security interest in the deposit account that is perfected by control under [section 3(1)(c)] if the setoff is based on a claim against the debtor.
Section 60. Bank's rights and duties with respect to deposit account. Except as otherwise provided in [section 59(3)] and unless the bank otherwise agrees in an authenticated record, a bank's rights and duties with respect to a deposit account maintained with the bank are not terminated, suspended, or modified by:
(1) the creation, attachment, or perfection of a security interest in the deposit account;
(2) the bank's knowledge of the security interest; or
(3) the bank's receipt of instructions from the secured party.
Section 61. Bank's right to refuse to enter into or disclose existence of control agreement. [Sections 1 through 125] do not require a bank to enter into an agreement of the type described in [section 3(1)(b)], even if its customer so requests or directs. A bank that has entered into such an agreement is not required to confirm the existence of the agreement to another person unless requested to do so by its customer.
Section 62. Alienability of debtor's rights. (1) Except as otherwise provided in [sections 67, 68, 69, and 70] and subsection (2) of this section, whether a debtor's rights in collateral may be voluntarily or involuntarily transferred is governed by applicable law other than [sections 1 through 125].
(2) An agreement between the debtor and secured party that prohibits a transfer of the debtor's rights in collateral or makes the transfer a default does not prevent the transfer from taking effect.
Section 63. Secured party not obligated on contract of debtor. The existence of a security interest, agricultural lien, or authority given to a debtor to dispose of or use collateral, without more, does not impose upon a secured party liability in contract or tort for the debtor's acts or omissions.
Section 64. Agreement not to assert defense against assignee. (1) In this section, "value" has the meaning provided in 30-3-303(1).
(2) Except as otherwise provided in this section, an agreement between an account debtor and an assignor not to assert against an assignee any claim or defense that the account debtor may have against the assignor is enforceable by an assignee that takes an assignment:
(a) for value;
(b) in good faith;
(c) without notice of a claim of a property or possessory right to the property assigned; and
(d) without notice of a defense or claim in recoupment of the type that may be asserted against a person entitled to enforce a negotiable instrument under 30-3-305(1).
(3) Subsection (2) does not apply to defenses of a type that may be asserted against a holder in due course of a negotiable instrument under 30-3-305(2).
(4) In a consumer transaction, if a record evidences the account debtor's obligation, law other than [sections 1 through 125] requires that the record provide a statement to the effect that the rights of an assignee are subject to claims or defenses that the consumer debtor could assert against the original obligee, and the record does not provide such a statement:
(a) the record has the same effect as if the record provided such a statement; and
(b) the account debtor may assert against an assignee those claims and defenses that would have been available if the record provided such a statement.
(5) This section is subject to law other than [sections 1 through 125] that establishes a different rule for an account debtor who is an individual and who incurred the obligation primarily for personal, family, or household purposes.
(6) Except as otherwise provided in subsection (4), this section does not displace law other than [sections 1 through 125] that gives effect to an agreement by an account debtor not to assert a claim or defense against an assignee.
Section 65. Rights acquired by assignee -- claim and defenses against assignee. (1) Unless an account debtor has made an enforceable agreement not to assert defenses or claims, and subject to subsections (2) through (5), the rights of an assignee are subject to:
(a) all terms of the agreement between the account debtor and assignor and any defense or claim in recoupment arising from the transaction that gave rise to the contract; and
(b) any other defense or claim of the account debtor against the assignor that accrues before the account debtor receives a notification of the assignment authenticated by the assignor or the assignee.
(2) Subject to subsection (3) and except as otherwise provided in subsection (4), the claim of an account debtor against an assignor may be asserted against an assignee under subsection (1) only to reduce the amount the account debtor owes.
(3) This section is subject to law other than [sections 1 through 125] that establishes a different rule for an account debtor who is an individual and who incurred the obligation primarily for personal, family, or household purposes.
(4) In a consumer transaction, if a record evidences the account debtor's obligation, law other than [sections 1 through 125] requires that the record provide a statement to the effect that the account debtor's recovery against an assignee with respect to claims and defenses against the assignor may not exceed amounts paid by the account debtor under the record, and the record does not provide such a statement, the extent to which a claim of an account debtor against the assignor may be asserted against an assignee is determined as if the record provided such a statement.
(5) This section does not apply to an assignment of a health-care-insurance receivable.
Section 66. Modification of assigned contract. (1) A modification of or substitution for an assigned contract is effective against an assignee if made in good faith. The assignee acquires corresponding rights under the modified or substituted contract. The assignment may provide that the modification or substitution is a breach of contract by the assignor. This subsection is subject to subsections (2) through (4).
(2) Subsection (1) applies to the extent that:
(a) the right to payment or a part thereof under an assigned contract has not been fully earned by performance; or
(b) the right to payment or a part thereof has been fully earned by performance and the account debtor has not received notification of the assignment under [section 67(1)].
(3) This section is subject to law other than [sections 1 through 125] that establishes a different rule for an account debtor who is an individual and who incurred the obligation primarily for personal, family, or household purposes.
(4) This section does not apply to an assignment of a health-care-insurance receivable.
Section 67. Discharge of account debtor -- notification of assignment -- identification and proof of assignment -- term prohibiting assignment ineffective. (1) Subject to subsections (2) through (8), an account debtor on an account, chattel paper, or payment intangible may discharge its obligation by paying the assignor until, but not after, the account debtor receives a notification, authenticated by the assignor or the assignee, that the amount due or to become due has been assigned and that payment is to be made to the assignee. After receipt of the notification, the account debtor may discharge its obligation by paying the assignee and may not discharge the obligation by paying the assignor.
(2) Subject to subsection (7), notification is ineffective under subsection (1):
(a) if it does not reasonably identify the rights assigned;
(b) to the extent that an agreement between an account debtor and a seller of a payment intangible limits the account debtor's duty to pay a person other than the seller and the limitation is effective under law other than [sections 1 through 125]; or
(c) at the option of an account debtor, if the notification notifies the account debtor to make less than the full amount of any installment or other periodic payment to the assignee, even if:
(i) only a portion of the account, chattel paper, or general intangible has been assigned to that assignee;
(ii) a portion has been assigned to another assignee; or
(iii) the account debtor knows that the assignment to that assignee is limited.
(3) Subject to subsection (7), if requested by the account debtor, an assignee shall seasonably furnish reasonable proof that the assignment has been made. Unless the assignee complies, the account debtor may discharge its obligation by paying the assignor, even if the account debtor has received a notification under subsection (1).
(4) Except as otherwise provided in 30-2A-303, [section 68], and subsection (5) of this section, and subject to subsection (7) of this section, a term in an agreement between an account debtor and an assignor or in a promissory note is ineffective to the extent that it:
(a) prohibits, restricts, or requires the consent of the account debtor or person obligated on the promissory note to the assignment or transfer of, or the creation, attachment, perfection, or enforcement of a security interest in, an account, chattel paper, payment intangible, or promissory note; or
(b) provides that the creation, attachment, perfection, or enforcement of the security interest may give rise to a default, breach, right of recoupment, claim, defense, termination, right of termination, or remedy under the account, chattel paper, payment intangible, or promissory note.
(5) Subsection (4) does not apply to the sale of a payment intangible or promissory note.
(6) Subject to subsection (7), an account debtor may not waive or vary its option under subsection (2)(c).
(7) This section is subject to law other than [sections 1 through 125] that establishes a different rule for an account debtor who is an individual and who incurred the obligation primarily for personal, family, or household purposes.
(8) This section does not apply to an assignment of a health-care-insurance receivable.
Section 68. Restrictions on creation or enforcement of security interest in leasehold interest or in lessor's residual interest. (1) Except as otherwise provided in subsection (2), a term in a lease agreement is ineffective to the extent that it:
(a) prohibits, restricts, or requires the consent of a party to the lease to the creation, attachment, perfection, or enforcement of a security interest in an interest of a party under the lease contract or in the lessor's residual interest in the goods; or
(b) provides that the creation, attachment, perfection, or enforcement of the security interest may give rise to a default, breach, right of recoupment, claim, defense, termination, right of termination, or remedy under the lease.
(2) Except as otherwise provided in 30-2A-303(7), a term described in subsection (1)(b) is effective to the extent that there is:
(a) a transfer by the lessee of the lessee's right of possession or use of the goods in violation of the term; or
(b) a delegation of a material performance of either party to the lease contract in violation of the term.
(3) The creation, attachment, perfection, or enforcement of a security interest in the lessor's interest under the lease contract or the lessor's residual interest in the goods is not a transfer that materially impairs the prospect of obtaining return performance by, materially changes the duty of, or materially increases the burden or risk imposed on the lessee within 30-2A-303(4). This subsection does not apply to the extent that enforcement results in a delegation of a material performance of the lessor.
Section 69. Restrictions on assignment of promissory notes, health-care-insurance receivables, and certain general intangibles ineffective. (1) Except as otherwise provided in subsection (2), a term in a promissory note or in an agreement between an account debtor and a debtor that relates to a health-care-insurance receivable or a general intangible, including a contract, permit, license, or franchise, and that prohibits, restricts, or requires the consent of the person obligated on the promissory note or the account debtor to, the assignment or transfer of, or the creation, attachment, or perfection of a security interest in, the promissory note, health-care-insurance receivable, or general intangible is ineffective to the extent that the term:
(a) would impair the creation, attachment, or perfection of a security interest; or
(b) provides that the creation, attachment, or perfection of the security interest may give rise to a default, breach, right of recoupment, claim, defense, termination, right of termination, or remedy under the promissory note, health-care-insurance receivable, or general intangible.
(2) Subsection (1) applies to a security interest in a payment intangible or promissory note only if the security interest arises out of a sale of the payment intangible or promissory note.
(3) A rule of law, including a provision in a statute or governmental rule or regulation, that prohibits, restricts, or requires the consent of a government, governmental body or official, person obligated on a promissory note, or account debtor to the assignment or transfer of or creation of a security interest in a promissory note, health-care-insurance receivable, or general intangible, including a contract, permit, license, or franchise between an account debtor and a debtor, is ineffective to the extent that the rule of law, statute, or regulation:
(a) would impair the creation, attachment, or perfection of a security interest; or
(b) provides that the creation, attachment, or perfection of the security interest may give rise to a default, breach, right of recoupment, claim, defense, termination, right of termination, or remedy under the promissory note, health-care-insurance receivable, or general intangible.
(4) To the extent that a term in a promissory note or in an agreement between an account debtor and a debtor that relates to a health-care-insurance receivable or general intangible or a rule of law described in subsection (3) would be effective under law other than [sections 1 through 125] but is ineffective under subsection (1) or (3), the creation, attachment, or perfection of a security interest in the promissory note, health-care-insurance receivable, or general intangible:
(a) is not enforceable against the person obligated on the promissory note or the account debtor;
(b) does not impose a duty or obligation on the person obligated on the promissory note or the account debtor;
(c) does not require the person obligated on the promissory note or the account debtor to recognize the security interest, pay or render performance to the secured party, or accept payment or performance from the secured party;
(d) does not entitle the secured party to use or assign the debtor's rights under the promissory note, health-care-insurance receivable, or general intangible, including any related information or materials furnished to the debtor in the transaction giving rise to the promissory note, health-care-insurance receivable, or general intangible;
(e) does not entitle the secured party to use, assign, possess, or have access to any trade secrets or confidential information of the person obligated on the promissory note or the account debtor; and
(f) does not entitle the secured party to enforce the security interest in the promissory note, health-care-insurance receivable, or general intangible.
(5) This section prevails over any inconsistent provisions of other statutes or rules.
Section 70. Restrictions on assignment of letter-of-credit rights ineffective. (1) A term in a letter of credit or a rule of law, including a provision in a statute or governmental rule or regulation, custom, or practice applicable to the letter of credit that prohibits, restricts, or requires the consent of an applicant, issuer, or nominated person to a beneficiary's assignment of or creation of a security interest in a letter-of-credit right is ineffective to the extent that the term or rule of law, custom, or practice:
(a) would impair the creation, attachment, or perfection of a security interest in the letter-of-credit right; or
(b) provides that the creation, attachment, or perfection of the security interest may give rise to a default, breach, right of recoupment, claim, defense, termination, right of termination, or remedy under the letter-of-credit right.
(2) To the extent that a term in a letter of credit is ineffective under subsection (1) but would be effective under law other than [sections 1 through 125] or a custom or practice applicable to the letter of credit, to the transfer of a right to draw or otherwise demand performance under the letter of credit, or to the assignment of a right to proceeds of the letter of credit, the creation, attachment, or perfection of a security interest in the letter-of-credit right:
(a) is not enforceable against the applicant, issuer, nominated person, or transferee beneficiary;
(b) imposes no duties or obligations on the applicant, issuer, nominated person, or transferee beneficiary; and
(c) does not require the applicant, issuer, nominated person, or transferee beneficiary to recognize the security interest, pay or render performance to the secured party, or accept payment or other performance from the secured party.
Section 71. Filing office. (1) Except as otherwise provided in subsection (2), if the local law of this state governs perfection of a security interest or agricultural lien, the office in which to file a financing statement to perfect the security interest or agricultural lien is:
(a) the office designated for the filing or recording of a mortgage on the real property if:
(i) the collateral is as-extracted collateral or timber to be cut; or
(ii) the financing statement is filed as a fixture filing and the collateral is goods that are or are to become fixtures; or
(b) the office of secretary of state in all other cases, including if the collateral is goods that are or are to become fixtures and the financing statement is not filed as a fixture filing.
(2) The office in which to file a financing statement to perfect a security interest in collateral, including fixtures, of a transmitting utility is the office of secretary of state. The financing statement also constitutes a fixture filing as to the collateral indicated in the financing statement that is or is to become fixtures.
Section 72. Contents of financing statement -- mortgage as financing statement -- time of filing financing statement. (1) Subject to subsection (2), a financing statement is sufficient only if it:
(a) provides the name of the debtor;
(b) provides the name of the secured party or a representative of the secured party; and
(c) indicates the collateral covered by the financing statement.
(2) Except as otherwise provided in [section 71(2)], to be sufficient, a financing statement that covers as-extracted collateral or timber to be cut or that is filed as a fixture filing and covers goods that are or are to become fixtures must comply with the requirements of subsection (1) and also:
(a) indicate that it covers this type of collateral;
(b) indicate that it is to be filed for record in the real property records;
(c) provide a description of the real property to which the collateral is related sufficient to give constructive notice of the mortgage under the law of this state if the description were contained in a record of the mortgage of the real property; and
(d) if the debtor does not have an interest of record in the real property, provide the name of a record owner.
(3) A record of mortgage is effective, from the date of recording, as a financing statement filed as a fixture filing or as a financing statement covering as-extracted collateral or timber to be cut only if:
(a) the record indicates the goods or accounts that it covers;
(b) the goods are or are to become fixtures related to the real property described in the record or the collateral is related to the real property described in the record and is as-extracted collateral or timber to be cut;
(c) the record complies with the requirements for a financing statement in this section other than an indication that it is to be filed in the real property records; and
(d) the record is recorded.
(4) A financing statement may be filed before a security agreement is made or a security interest otherwise attaches.
Section 73. Name of debtor and secured party. (1) A financing statement sufficiently provides the name of the debtor:
(a) if the debtor is a registered organization, only if the financing statement provides the name of the debtor indicated on the public record of the debtor's jurisdiction of organization that shows the debtor to have been organized;
(b) if the debtor is a decedent's estate, only if the financing statement provides the name of the decedent and indicates that the debtor is an estate;
(c) if the debtor is a trust or a trustee acting with respect to property held in trust, only if the financing statement:
(i) provides the name, if any, specified for the trust in its organic documents or, if no name is specified, provides the name of the settlor and additional information sufficient to distinguish the debtor from other trusts having one or more of the same settlors; and
(ii) indicates, in the debtor's name or otherwise, that the debtor is a trust or is a trustee acting with respect to property held in trust; and
(d) in other cases:
(i) if the debtor has a name, only if it provides the individual or organizational name of the debtor; and
(ii) if the debtor does not have a name, only if it provides the names of the partners, members, associates, or other persons comprising the debtor.
(2) A financing statement that provides the name of the debtor in accordance with subsection (1) is not rendered ineffective by the absence of:
(a) a trade name or other name of the debtor; or
(b) unless required under subsection (1)(d)(ii), names of partners, members, associates, or other persons comprising the debtor.
(3) A financing statement that provides only the debtor's trade name does not sufficiently provide the name of the debtor.
(4) Failure to indicate the representative capacity of a secured party or representative of a secured party does not affect the sufficiency of a financing statement.
(5) A financing statement may provide the name of more than one debtor and the name of more than one secured party.
Section 74. Indication of collateral. A financing statement sufficiently indicates the collateral that it covers if the financing statement provides:
(1) a description of the collateral pursuant to [section 7]; or
(2) an indication that the financing statement covers all assets or all personal property.
Section 75. Filing and compliance with other statutes and treaties for consignments, leases, bailments, and other transactions. (1) A consignor, lessor, or bailor of goods or a buyer of a payment intangible or promissory note may file a financing statement or may comply with a statute or treaty described in [section 30(1)], using the terms "consignor", "consignee", "lessor", "lessee", "bailor", "bailee", "owner", "registered owner", "buyer", "seller", or words of similar import, instead of the terms "secured party" and "debtor."
(2) [Sections 71 through 97] apply to the filing of a financing statement under subsection (1) and, as appropriate, to compliance that is equivalent to filing a financing statement under [section 30(2)], but the filing or compliance is not of itself a factor in determining whether the collateral secures an obligation. If it is determined for another reason that the collateral secures an obligation, a security interest held by the consignor, lessor, bailor, owner, or buyer that attaches to the collateral is perfected by the filing or compliance.
Section 76. Effect of errors or omissions. (1) A financing statement substantially complying with the requirements of [sections 71 through 97] is effective, even if it includes minor errors or omissions, unless the errors or omissions make the financing statement seriously misleading.
(2) Except as otherwise provided in subsection (3), a financing statement that fails sufficiently to provide the name of the debtor in accordance with [section 73(1)] is seriously misleading.
(3) If a search of the records of the filing office under the debtor's correct name, using the filing office's standard search logic, if any, would disclose a financing statement that fails sufficiently to provide the name of the debtor in accordance with [section 73(1)], the name provided does not make the financing statement seriously misleading.
(4) For purposes of [section 78(2)], the "debtor's correct name" in subsection (3) means the correct name of the new debtor.
Section 77. Effect of certain events on effectiveness of financing statement. (1) A filed financing statement remains effective with respect to collateral that is sold, exchanged, leased, licensed, or otherwise disposed of and in which a security interest or agricultural lien continues, even if the secured party knows of or consents to the disposition.
(2) Except as otherwise provided in [section 78] and subsection (3) of this section, a financing statement is not rendered ineffective if, after the financing statement is filed, the information provided in the financing statement becomes seriously misleading under the standard set forth in [section 76].
(3) If a debtor so changes its name that a filed financing statement becomes seriously misleading under the standard set forth in [section 76]:
(a) the financing statement is effective to perfect a security interest in collateral acquired by the debtor before or within 4 months after the change; and
(b) the financing statement is not effective to perfect a security interest in collateral acquired by the debtor more than 4 months after the change, unless an amendment to the financing statement that renders the financing statement not seriously misleading is filed within 4 months after the change.
Section 78. Effectiveness of financing statement if new debtor becomes bound by security agreement. (1) Except as otherwise provided in this section, a filed financing statement naming an original debtor is effective to perfect a security interest in collateral in which a new debtor has or acquires rights to the extent that the financing statement would have been effective had the original debtor acquired rights in the collateral.
(2) If the difference between the name of the original debtor and that of the new debtor causes a filed financing statement that is effective under subsection (1) to be seriously misleading under the standard set forth in [section 76]:
(a) the financing statement is effective to perfect a security interest in collateral acquired by the new debtor before and within 4 months after the new debtor becomes bound under [section 12(4)]; and
(b) the financing statement is not effective to perfect a security interest in collateral acquired by the new debtor more than 4 months after the new debtor becomes bound under [section 12(4)] unless an initial financing statement providing the name of the new debtor is filed before the expiration of that time.
(3) This section does not apply to collateral as to which a filed financing statement remains effective against the new debtor under [section 77(1)].
Section 79. Persons entitled to file record. (1) A person may file an initial financing statement, an amendment that adds collateral covered by a financing statement, or an amendment that adds a debtor to a financing statement only if:
(a) the debtor authorizes the filing in an authenticated record; or
(b) the person holds an agricultural lien that has become effective at the time of filing and the financing statement covers only collateral in which the person holds an agricultural lien.
(2) By authenticating a security agreement, a debtor authorizes the filing of an initial financing statement and an amendment covering:
(a) the collateral described in the security agreement; and
(b) property that becomes collateral under [section 34(1)(b)], whether or not the security agreement expressly covers proceeds.
(3) A person may file an amendment other than an amendment that adds collateral covered by a financing statement or an amendment that adds a debtor to a financing statement only if:
(a) the secured party of record authorizes the filing; or
(b) the amendment is a termination statement for a financing statement as to which the secured party of record has failed to file or send a termination statement as required by [section 83(1) or (3)], the debtor authorizes the filing, and the termination statement indicates that the debtor authorized it to be filed.
(4) If there is more than one secured party of record for a financing statement, each secured party of record may authorize the filing of an amendment under subsection (3).
Section 80. Effectiveness of filed record. (1) A filed record is effective only to the extent that it was filed by a person that may file it under [section 79].
(2) A record authorized by one secured party of record does not affect the financing statement with respect to another secured party of record.
(3) A continuation statement that is not filed within the 6-month period prescribed by [section 85(4)] is ineffective.
Section 81. Secured party of record. (1) A secured party of record with respect to a financing statement is a person whose name is provided as the name of the secured party or a representative of the secured party in an initial financing statement that has been filed. If an initial financing statement is filed under [section 84(1)], the assignee named in the initial financing statement is the secured party of record with respect to the financing statement.
(2) If an amendment of a financing statement that provides the name of a person as a secured party or a representative of a secured party is filed, the person named in the amendment is a secured party of record. If an amendment is filed under [section 84(2)], the assignee named in the amendment is a secured party of record.
(3) A person remains a secured party of record until the filing of an amendment of the financing statement that deletes the person.
Section 82. Amendment of financing statement. (1) Subject to [section 79], a person may add or delete collateral covered by, continue or terminate the effectiveness of, or subject to subsection (5), otherwise amend the information provided in, a financing statement by filing an amendment that:
(a) identifies, by its file number, the debtor, the creditor, and the initial financing statement to which the amendment relates; and
(b) if the amendment relates to an initial financing statement filed or recorded in a filing office described in [section 71(1)(b)], provides the date that the initial financing statement was filed or recorded and the information specified in [section 72(2)].
(2) Except as otherwise provided in [section 85], the filing of an amendment does not extend the period of effectiveness of the financing statement.
(3) A financing statement that is amended by an amendment that adds collateral is effective as to the added collateral only from the date of the filing of the amendment.
(4) A financing statement that is amended by an amendment that adds a debtor is effective as to the added debtor only from the date of the filing of the amendment.
(5) An amendment is ineffective to the extent it:
(a) purports to delete all debtors and fails to provide the name of a debtor to be covered by the financing statement; or
(b) purports to delete all secured parties of record and fails to provide the name of a new secured party of record.
Section 83. Termination statement. (1) A secured party shall cause the secured party of record for a financing statement to file a termination statement for the financing statement if the financing statement covers consumer goods and:
(a) there is no obligation secured by the collateral covered by the financing statement and no commitment to make an advance, incur an obligation, or otherwise give value; or
(b) the debtor did not authorize the filing of the initial financing statement.
(2) To comply with subsection (1), a secured party shall cause the secured party of record to file the termination statement:
(a) within 1 month after there is no obligation secured by the collateral covered by the financing statement and no commitment to make an advance, incur an obligation, or otherwise give value; or
(b) if earlier, within 20 days after the secured party receives an authenticated demand from a debtor.
(3) In cases not governed by subsection (1), within 20 days after a secured party receives an authenticated demand from a debtor, the secured party shall cause the secured party of record for a financing statement to send to the debtor a termination statement for the financing statement or file the termination statement in the filing office if:
(a) except in the case of a financing statement covering accounts or chattel paper that has been sold or goods that are the subject of a consignment, there is no obligation secured by the collateral covered by the financing statement and no commitment to make an advance, incur an obligation, or otherwise give value;
(b) the financing statement covers accounts or chattel paper that has been sold but as to which the account debtor or other person obligated has discharged its obligation;
(c) the financing statement covers goods that were the subject of a consignment to the debtor but are not in the debtor's possession; or
(d) the debtor did not authorize the filing of the initial financing statement.
(4) Except as otherwise provided in [section 80], upon the filing of a termination statement with the filing office, the financing statement to which the termination statement relates ceases to be effective.
Section 84. Assignment powers of secured party of record. (1) Except as otherwise provided in subsection (3), an initial financing statement may reflect an assignment of all of the secured party's power to authorize an amendment to the financing statement by providing the name and mailing address of the assignee as the name and address of the secured party.
(2) Except as otherwise provided in subsection (3), a secured party of record may assign of record all or part of its power to authorize an amendment to a financing statement by filing in the filing office an amendment of the financing statement that:
(a) identifies, by its file number, the initial financing statement to which it relates;
(b) provides the name of the assignor; and
(c) provides the name and mailing address of the assignee.
(3) An assignment of record of a security interest in a fixture covered by a real property mortgage that is effective as a fixture filing under [section 72(3)] may be made only by an assignment of record of the mortgage in the manner provided by law of this state other than chapters 1 through 9.
Section 85. Duration and effectiveness of financing statement -- effect of lapsed financing statement. (1) Except as otherwise provided in subsections (2), (5), (6), and (7), a filed financing statement is effective for a period of 5 years after the date of filing.
(2) Except as otherwise provided in subsections (5), (6), and (7), an initial financing statement filed in connection with a public-finance transaction or manufactured-home transaction is effective for a period of 30 years after the date of filing if it indicates that it is filed in connection with a public-finance transaction or manufactured-home transaction.
(3) The effectiveness of a filed financing statement lapses on the expiration of the period of its effectiveness unless before the lapse a continuation statement is filed pursuant to subsection (4). Upon lapse, a financing statement ceases to be effective and any security interest or agricultural lien that was perfected by the financing statement becomes unperfected, unless the security interest is perfected without filing. If the security interest or agricultural lien becomes unperfected upon lapse, it is deemed never to have been perfected as against a purchaser of the collateral for value.
(4) A continuation statement may be filed only within 6 months before the expiration of the 5-year period specified in subsection (1) or the 30-year period specified in subsection (2), whichever is applicable.
(5) Except as otherwise provided in [section 80], upon timely filing of a continuation statement, the effectiveness of the initial financing statement continues for a period of 5 years commencing on the day on which the financing statement would have become ineffective in the absence of the filing. Upon the expiration of the 5-year period, the financing statement lapses in the same manner as provided in subsection (3), unless, before the lapse, another continuation statement is filed pursuant to subsection (4). Succeeding continuation statements may be filed in the same manner to continue the effectiveness of the initial financing statement.
(6) If a debtor is a transmitting utility and a filed financing statement so indicates, the financing statement is effective until a termination statement is filed.
(7) A record of mortgage that is effective as a fixture filing under [section 72(3)] remains effective as a fixture filing until the mortgage is released or satisfied of record or its effectiveness otherwise terminates as to the real property.
Section 86. What constitutes filing -- effectiveness of filing. (1) Except as otherwise provided in subsection (2), communication of a record to a filing office and tender of the filing fee or acceptance of the record by the filing office constitutes filing.
(2) Filing does not occur with respect to a record that a filing office refuses to accept because:
(a) the record is not communicated by a method or medium of communication authorized by the filing office;
(b) an amount equal to or greater than the applicable filing fee is not tendered;
(c) the filing office is unable to index the record because:
(i) in the case of an initial financing statement, the record does not provide a name for the debtor;
(ii) in the case of an amendment or correction statement, the record:
(A) does not identify the initial financing statement as required by [section 82 or 88], as applicable; or
(B) identifies an initial financing statement whose effectiveness has lapsed under [section 85];
(iii) in the case of an initial financing statement that provides the name of a debtor identified as an individual or an amendment that provides a name of a debtor identified as an individual that was not previously provided in the financing statement to which the record relates, the record does not identify the debtor's last name; or
(iv) in the case of a record filed or recorded in the filing office described in [section 71(1)(a)], the record does not provide a sufficient description of the real property to which it relates;
(d) in the case of an initial financing statement or an amendment that adds a secured party of record, the record does not provide a name and mailing address for the secured party of record;
(e) in the case of an initial financing statement or an amendment that provides a name of a debtor that was not previously provided in the financing statement to which the amendment relates, the record does not:
(i) provide a mailing address for the debtor;
(ii) indicate whether the debtor is an individual or an organization; or
(iii) if the financing statement indicates that the debtor is an organization, provide:
(A) a type of organization for the debtor;
(B) a jurisdiction of organization for the debtor; or
(C) an organizational identification number for the debtor or indicate that the debtor has none;
(f) in the case of an assignment reflected in an initial financing statement under [section 84(1)] or an amendment filed under [section 84(2)], the record does not provide a name and mailing address for the assignee; or
(g) in the case of a continuation statement, the record is not filed within the 6-month period prescribed by [section 85(4)].
(3) For purposes of subsection (2):
(a) a record does not provide information if the filing office is unable to read or decipher the information; and
(b) a record that does not indicate that it is an amendment or identify an initial financing statement to which it relates, as required by [section 82, 84, or 88], is an initial financing statement.
(4) A record that is communicated to the filing office with tender of the filing fee, but that the filing office refuses to accept for a reason other than one set forth in subsection (2), is effective as a filed record except as against a purchaser of the collateral that gives value in reasonable reliance upon the absence of the record from the files.
Section 87. Effect of indexing errors. The failure of the filing office to index a record correctly does not affect the effectiveness of the filed record.
Section 88. Claim concerning inaccurate or wrongfully filed record. (1) A person may file in the filing office a correction statement with respect to a record indexed there under the person's name if the person believes that the record is inaccurate or was wrongfully filed.
(2) A correction statement must:
(a) identify the record to which it relates by:
(i) the file number assigned to the initial financing statement to which the record relates; and
(ii) if the correction statement relates to a record filed in a filing office described in [section 71(1)(a)], the date that the initial financing statement was filed or recorded and the information specified in [section 72(2)];
(b) indicate that it is a correction statement; and
(c) provide the basis for the person's belief that the record is inaccurate and indicate the manner in which the person believes the record should be amended to cure any inaccuracy or provide the basis for the person's belief that the record was wrongfully filed.
(3) The filing of a correction statement does not affect the effectiveness of an initial financing statement or other filed record.
Section 89. Numbering, maintaining, and indexing records -- communicating information provided in records. (1) For each record filed in a filing office, the filing office shall:
(a) assign a unique number to the filed record;
(b) create a record that bears the number assigned to the filed record and the date and time of filing;
(c) maintain the filed record for public inspection; and
(d) index the filed record in accordance with subsections (3), (4), and (5).
(2) A file number assigned after January 1, 2002, must include a digit that:
(a) is mathematically derived from or related to the other digits of the file number; and
(b) enables the filing office to detect whether a number communicated as the file number includes a single-digit or transpositional error.
(3) Except as otherwise provided in subsections (4) and (5), the filing office shall:
(a) index an initial financing statement according to the name of the debtor and shall index all filed records relating to the initial financing statement in a manner that associates with one another an initial financing statement and all filed records relating to the initial financing statement; and
(b) index a record that provides a name of a debtor that was not previously provided in the financing statement to which the record relates also according to the name that was not previously provided.
(4) If a financing statement is filed as a fixture filing or covers as-extracted collateral or timber to be cut, it must be filed for record and the filing office shall index it:
(a) under the names of the debtor and of each owner of record shown on the financing statement as if they were the mortgagors under a mortgage of the real property described; and
(b) to the extent that the law of this state provides for indexing of mortgages under the name of the mortgagee, under the name of the secured party as if the secured party were the mortgagee thereunder, or if indexing is by description, as if the financing statement were a mortgage of the real property described.
(5) If a financing statement is filed as a fixture filing or covers as-extracted collateral or timber to be cut, the filing office shall index an assignment filed under [section 84(1)] or an amendment filed under [section 84(2)]:
(a) under the name of the assignor as grantor; and
(b) to the extent that the law of this state provides for indexing the assignment of a mortgage under the name of the assignee, under the name of the assignee.
(6) The filing office shall maintain a capability:
(a) to retrieve a record by the name of the debtor and:
(i) if the filing office is described in [section 71(1)(a)], by the file number assigned to the initial financing statement to which the record relates and the date and time that the record was filed; or
(ii) if the filing office is described in [section 71(1)(b)], by the file number assigned to the initial financing statement to which the record relates; and
(b) to associate and retrieve with one another an initial financing statement and each filed record relating to the initial financing statement.
(7) The filing office may not remove a debtor's name from the index until 1 year after the effectiveness of a financing statement naming the debtor lapses under [section 85] with respect to all secured parties of record.
(8) The filing office shall perform the acts required by subsections (1) through (5) at the time and in the manner prescribed by filing-office rule, but not later than 2 business days after the filing office receives the record in question.
(9) Subsections (2) and (8) do not apply to a filing office described in [section 71(1)(a)].
Section 90. Acceptance and refusal to record. (1) A filing office shall refuse to accept a record for filing for a reason set forth in [sections 72 and 86(2)] and may refuse to accept a record for filing only for a reason set forth in [sections 72 and 86(2)].
(2) If a filing office refuses to accept a record for filing, it shall communicate to the person that presented the record the fact of and reason for the refusal and the date and time the record would have been filed had the filing office accepted it. The communication must be made at the time and in the manner prescribed by filing-office rule but in no event more than 2 business days after the filing office receives the record.
(3) A filed financing statement complying with [section 72(1) and (2)] is effective, even if the filing office is required to refuse to accept it for filing under subsection (1). However, [section 57] applies to a filed financing statement providing information described in [section 86(2)(e)] that is incorrect at the time the financing statement is filed.
(4) If a record communicated to a filing office provides information that relates to more than one debtor, [sections 71 through 97] apply as to each debtor separately.
Section 91. Uniform form of written financing statement and amendment. (1) A filing office that accepts written records may not refuse to accept a written initial financing statement in the model form adopted by the secretary of state except for a reason set forth in [sections 72 and 86(2)].
(2) A filing office that accepts written records may not refuse to accept a written record in the model form adopted by the secretary of state except for a reason set forth in [sections 72 and 86(2)].
Section 92. Maintenance and destruction of records. (1) Subject to the requirements of Title 2, chapter 6, part 2, the filing office shall maintain a record of the information provided in a filed financing statement for at least 1 year after the effectiveness of the filed financing statement has lapsed under [section 85] with respect to all secured parties of record. The record must be retrievable by using the name of the debtor and:
(a) if the record was filed or recorded in the filing office described in [section 71(1)(a)], by using the file number assigned to the initial financing statement to which the record relates and the date and time that the record was filed or recorded; or
(b) if the record was filed or recorded in the filing office described in [section 71(1)(b)], by using the date and time file number assigned to the initial financing statement to which the record relates.
(2) Except to the extent that a statute governing disposition of public records provides otherwise, the filing office may immediately destroy any written record evidencing a financing statement. However, if the filing office destroys a written record, it shall maintain another record of the financing statement that complies with subsection (1).
Section 93. Information from filing office -- sale or license of records. (1) If a person that files a written record requests an acknowledgment of the filing, the filing office shall send to the person an image of the record showing the number assigned to the record pursuant to [section 89(1)(a)] and the date and time of the filing of the record. However, if the person furnishes a copy of the record to the filing office, the filing office may instead:
(a) note upon the copy the number assigned to the record pursuant to [section 89(1)(a)] and the date and time of the filing of the record; and
(b) send the copy to the person.
(2) If a person files a record other than a written record, the filing office shall communicate to the person an acknowledgment that provides:
(a) the information in the record;
(b) the number assigned to the record pursuant to [section 89(1)(a)]; and
(c) the date and time of the filing of the record.
(3) The filing office shall communicate or otherwise make available in a record the following information to any person that requests it:
(a) whether there is on file on a date and time specified by the filing office, but not a date earlier than 3 business days before the filing office receives the request, any financing statement that:
(i) designates a particular debtor;
(ii) has not lapsed under [section 85] with respect to all secured parties of record; and
(iii) if the request so states, has lapsed under [section 85] and a record of which is maintained by the filing office under [section 92(1)];
(b) the date and time of filing of each financing statement; and
(c) the information provided in each financing statement.
(4) In complying with its duty under subsection (3), the filing office may communicate information in any medium. However, if requested, the filing office shall communicate information by issuing a record that can be admitted into evidence in the courts of this state without extrinsic evidence of its authenticity.
(5) The filing office shall perform the acts required by subsections (1) through (4) at the time and in the manner prescribed by filing-office rule, but not later than 2 business days after the filing office receives the request.
(6) At least weekly, the filing office shall offer to sell or license to the public on a nonexclusive basis, in bulk, copies of all records filed in it under [sections 71 through 97], in a reasonable form or medium from time to time available to the filing office.
Section 94. Delay by filing office. Delay by the filing office beyond a time limit prescribed in [sections 71 through 97] is excused if:
(1) the delay is caused by interruption of communication or computer facilities, war, emergency conditions, failure of equipment, or other circumstances beyond the control of the filing office; and
(2) the filing office exercises reasonable diligence under the circumstances.
Section 95. Fees. (1) Except as otherwise provided in subsection (5), the fee for filing and indexing a record under [sections 71 through 97], other than an initial financing statement of the kind described in [section 72(3)], must be commensurate with costs and must be established by rule.
(2) Except as otherwise provided in subsection (5), the fee for filing and indexing an initial financing statement of the kind described in [section 72(3)] must be commensurate with costs and must be established by rule.
(3) The number of names required to be indexed does not affect the amount of the fees in subsections (1) and (2).
(4) The fee for responding to a request for information from the filing office, including for communicating whether there is on file any financing statement naming a particular debtor, must be commensurate with costs and must be established by rule.
(5) This section does not require a fee with respect to a record of mortgage that is effective as a financing statement filed as a fixture filing or as a financing statement covering as-extracted collateral or timber to be cut under [section 72(3)]. However, the recording and satisfaction fees that otherwise would be applicable to the record of mortgage apply.
Section 96. Filing-office rules. (1) The secretary of state shall adopt and publish rules to carry out the provisions of [sections 1 through 125]. The filing-office rules must be:
(a) consistent with [sections 1 through 125]; and
(b) adopted and published in accordance with Title 2, chapter 4.
(2) To keep the filing-office rules and practices of the filing office in harmony with the rules and practices of filing offices in other jurisdictions that enact substantially [sections 71 through 97] and to keep the technology used by the filing office compatible with the technology used by filing offices in other jurisdictions that enact substantially [sections 71 through 97], the secretary of state, so far as is consistent with the purposes, policies, and provisions of [sections 1 through 125], in adopting, amending, and repealing filing-office rules shall:
(a) consult with filing offices in other jurisdictions that enact substantially [sections 71 through 97];
(b) consult the most recent version of the model rules promulgated by the international association of corporate administrators or any successor organization; and
(c) take into consideration the rules and practices of and the technology used by filing offices in other jurisdictions that enact substantially [sections 71 through 97].
Section 97. Duty to report. The secretary of state shall report to each session of the legislature on the operation of the filing office. The report must contain a statement of the extent to which:
(1) the filing-office rules are not in harmony with the rules of filing offices in other jurisdictions that enact substantially [sections 71 through 97] and the reasons for these variations; and
(2) the filing-office rules are not in harmony with the most recent version of the model rules promulgated by the international association of corporate administrators or any successor organization and the reasons for these variations.
Section 98. Rights after default -- judicial enforcement -- consignor or buyer of accounts, chattel paper, payment intangibles, or promissory notes. (1) After default, a secured party has the rights provided in [sections 98 through 125] and, except as otherwise provided in [section 99], those provided by agreement of the parties. A secured party:
(a) may reduce a claim to judgment, foreclose, or otherwise enforce the claim, security interest, or agricultural lien by any available judicial procedure; and
(b) if the collateral is documents, may proceed either as to the documents or as to the goods they cover.
(2) A secured party in possession of collateral or control of collateral under [section 3, 4, 5, or 6] has the rights and duties provided in [section 16].
(3) The rights under subsections (1) and (2) are cumulative and may be exercised simultaneously.
(4) Except as otherwise provided in [section 102] and subsection (7) of this section, after default, a debtor and an obligor have the rights provided in [sections 98 through 125] and by agreement of the parties.
(5) If a secured party has reduced its claim to judgment, the lien of any levy that may be made upon the collateral by virtue of an execution based upon the judgment relates back to the earliest of:
(a) the date of perfection of the security interest or agricultural lien in the collateral;
(b) the date of filing a financing statement covering the collateral; or
(c) any date specified in a statute under which the agricultural lien was created.
(6) A sale pursuant to an execution is a foreclosure of the security interest or agricultural lien by judicial procedure within the meaning of this section. A secured party may purchase at the sale and thereafter hold the collateral free of any other requirements of [sections 1 through 125].
(7) Except as otherwise provided in [section 104(3)], [sections 98 through 125] impose no duties upon a secured party that is a consignor or is a buyer of accounts, chattel paper, payment intangibles, or promissory notes.
Section 99. Waiver and variance of rights and duties. Except as provided in [section 121], to the extent that they give rights to a debtor or obligor and impose duties on a secured party, the debtor or obligor may not waive or vary the rules stated in the following listed sections:
(1) [section 16(2)(d)(iii)], which deals with use and operation of the collateral by the secured party;
(2) [section 19], which deals with requests for an accounting and requests concerning a list of collateral and statement of account;
(3) [section 104(3)], which deals with collection and enforcement of collateral;
(4) [sections 105(1) and 112(3)] to the extent that they deal with application or payment of noncash proceeds of collection, enforcement, or disposition;
(5) [sections 105(1) and 112(4)] to the extent that they require accounting for or payment of surplus proceeds of collateral;
(6) [section 106] to the extent that it imposes upon a secured party that takes possession of collateral without judicial process the duty to do so without breach of the peace;
(7) [sections 107(2), 108, 110, and 111], which deal with disposition of collateral;
(8) [section 112(6)], which deals with calculation of a deficiency or surplus when a disposition is made to the secured party, a person related to the secured party, or a secondary obligor;
(9) [section 113], which deals with explanation of the calculation of a surplus or deficiency;
(10) [section 117, 118, and 119], which deal with acceptance of collateral in satisfaction of obligation;
(11) [section 120], which deals with redemption of collateral;
(12) [section 121], which deals with permissible waivers; and
(13) [sections 122 and 123], which deal with the secured party's liability for failure to comply with [sections 1 through 125].
Section 100. Agreement on standards concerning rights and duties. (1) The parties may determine by agreement the standards measuring the fulfillment of the rights of a debtor or obligor and the duties of a secured party if the standards are not manifestly unreasonable.
(2) Subsection (1) does not apply to the duty under [section 106] to refrain from breaching the peace.
Section 101. Procedure if security agreement covers real property or fixtures. (1) If a security agreement covers both personal and real property, a secured party may proceed:
(a) under [sections 98 through 125] as to the personal property without prejudicing any rights and remedies with respect to the real property; or
(b) as to both the personal property and the real property in accordance with the rights and remedies with respect to the real property, in which case the other provisions of [sections 98 through 125] do not apply.
(2) Subject to subsection (3), if a security agreement covers goods that are or become fixtures, a secured party may proceed:
(a) under [sections 98 through 125]; or
(b) in accordance with the rights and remedies with respect to real property, in which case the other provisions of [sections 98 through 125] do not apply.
(3) Subject to the other provisions of [sections 98 through 125], if a secured party holding a security interest in fixtures has priority over all owners and encumbrancers of the real property, the secured party, on default, may remove the collateral from the real property.
(4) A secured party that removes collateral shall promptly reimburse any encumbrancer or owner of the real property, other than the debtor, for the cost of repair of any physical injury caused by the removal. The secured party need not reimburse the encumbrancer or owner for any diminution in value of the real property caused by the absence of the goods removed or by any necessity of replacing them. A person entitled to reimbursement may refuse permission to remove until the secured party gives adequate assurance for the performance of the obligation to reimburse.
Section 102. Unknown debtor or secondary obligor. A secured party does not owe a duty based on its status as secured party:
(1) to a person that is a debtor or obligor, unless the secured party knows:
(a) that the person is a debtor or obligor;
(b) the identity of the person; and
(c) how to communicate with the person; or
(2) to a secured party or lienholder that has filed a financing statement against the person unless the secured party knows:
(a) that a person is a debtor; and
(b) the identity of the person.
Section 103. Time of default for agricultural lien. For purposes of [sections 98 through 125], a default occurs in connection with an agricultural lien at the time the secured party becomes entitled to enforce the lien in accordance with the statute under which it was created.
Section 104. Collection and enforcement by secured party. (1) If so agreed, and in any event on default, a secured party:
(a) 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 secured party;
(b) may take any proceeds to which the secured party is entitled under [section 34];
(c) may enforce the obligations of an account debtor or other person obligated on collateral and exercise the rights and remedies 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;
(d) if it holds a security interest in a deposit account perfected by control under [section 3(1)(a)], may apply the balance of the deposit account to the obligation secured by the deposit account; and
(e) if it holds a security interest in a deposit account perfected by control under [section 3(1)(b) or (1)(c)], may instruct the bank to pay the balance of the deposit account to or for the benefit of the secured party.
(2) If necessary to enable a secured party to exercise under subsection (1)(c) the right of a debtor to enforce nonjudicially any mortgage, the secured party may record in the office in which the mortgage is recorded:
(a) a copy of the security agreement that creates or provides for a security interest in the obligation secured by the mortgage; and
(b) the secured party's sworn affidavit in recordable form stating that:
(i) a default has occurred; and
(ii) the secured party is entitled to enforce the mortgage nonjudicially.
(3) A secured party shall proceed in a commercially reasonable manner if the secured party:
(a) undertakes to collect from or enforce an obligation of an account debtor or other person obligated on collateral; and
(b) is entitled to charge back uncollected collateral or otherwise to full or limited recourse against the debtor or a secondary obligor.
(4) A secured party may deduct from the collections made pursuant to subsection (3) reasonable expenses of collection and enforcement, including reasonable attorneys fees and legal expenses incurred by the secured party.
(5) This section does not determine whether an account debtor, bank, or other person obligated on collateral owes a duty to a secured party.
Section 105. Application of proceeds of collection or enforcement -- liability for deficiency and right to surplus. (1) If a security interest or agricultural lien secures payment or performance of an obligation, the following rules apply:
(a) A secured party shall apply or pay over for application the cash proceeds of collection or enforcement under this section in the following order to:
(i) the reasonable expenses of collection and enforcement and, to the extent provided for by agreement and not prohibited by law, reasonable attorneys fees and legal expenses incurred by the secured party;
(ii) the satisfaction of obligations secured by the security interest or agricultural lien under which the collection or enforcement is made; and
(iii) the satisfaction of obligations secured by any subordinate security interest in or other lien on the collateral subject to the security interest or agricultural lien under which the collection or enforcement is made if the secured party receives an authenticated demand for proceeds before distribution of the proceeds is completed.
(b) If requested by a secured party, a holder of a subordinate security interest or other lien shall furnish reasonable proof of the interest or lien within a reasonable time. Unless the holder complies, the secured party need not comply with the holder's demand under subsection (1)(a)(iii).
(c) A secured party need not apply or pay over for application the noncash proceeds of collection and enforcement under this section unless the failure to do so would be commercially unreasonable. A secured party that applies or pays over for application noncash proceeds shall do so in a commercially reasonable manner.
(d) A secured party shall account to and pay a debtor for any surplus, and the obligor is liable for any deficiency.
(2) If the underlying transaction is a sale of accounts, chattel paper, payment intangibles, or promissory notes, the debtor is not entitled to any surplus and the obligor is not liable for any deficiency.
Section 106. Secured party's right to take possession after default. (1) After default, a secured party:
(a) may take possession of the collateral; and
(b) without removal, may render equipment unusable and dispose of collateral on a debtor's premises under [section 107].
(2) A secured party may proceed under subsection (1):
(a) pursuant to judicial process; or
(b) without judicial process, if it proceeds without breach of the peace.
(3) If so agreed, and in any event after default, a secured party may require the debtor to assemble the collateral and make it available to the secured party at a place to be designated by the secured party that is reasonably convenient to both parties.
Section 107. Disposition of collateral after default. (1) After default, a secured party may sell, lease, license, or otherwise dispose of any or all of the collateral in its present condition or following any commercially reasonable preparation or processing.
(2) Every aspect of a disposition of collateral, including the method, manner, time, place, and other terms, must be commercially reasonable. If commercially reasonable, a secured party may dispose of collateral by public or private proceedings, by one or more contracts, as a unit or in parcels, and at any time and place and on any terms.
(3) A secured party may purchase collateral:
(a) at a public disposition; or
(b) at a private disposition only if the collateral is of a kind that is customarily sold on a recognized market or the subject of widely distributed standard price quotations.
(4) A contract for sale, lease, license, or other disposition includes the warranties relating to title, possession, quiet enjoyment, and the like that by operation of law accompany a voluntary disposition of property of the kind subject to the contract.
(5) A secured party may disclaim or modify warranties under subsection (4):
(a) in a manner that would be effective to disclaim or modify the warranties in a voluntary disposition of property of the kind subject to the contract of disposition; or
(b) by communicating to the purchaser a record evidencing the contract for disposition and including an express disclaimer or modification of the warranties.
(6) A record is sufficient to disclaim warranties under subsection (5) if it indicates "There is no warranty relating to title, possession, quiet enjoyment, or the like in this disposition" or uses words of similar import.
Section 108. Notification before disposition of collateral. (1) In this section, "notification date" means the earlier of the date on which:
(a) a secured party sends to the debtor and any secondary obligor an authenticated notification of disposition; or
(b) the debtor and any secondary obligor waive the right to notification.
(2) Except as otherwise provided in subsection (4), a secured party that disposes of collateral under [section 107] shall send to the persons specified in subsection (3) a reasonable authenticated notification of disposition.
(3) To comply with subsection (2), the secured party shall send an authenticated notification of disposition to:
(a) the debtor;
(b) any secondary obligor; and
(c) if the collateral is other than consumer goods:
(i) any other person from which the secured party has received, before the notification date, an authenticated notification of a claim of an interest in the collateral;
(ii) any other secured party that, 10 days before the notification date, held a security interest in or agricultural lien on the collateral perfected by the filing of a financing statement that:
(A) identified the collateral;
(B) was indexed under the debtor's name as of that date; and
(C) was filed in the office in which to file a financing statement against the debtor covering the collateral as of that date; and
(iii) any other secured party that, 10 days before the notification date, held a security interest in the collateral perfected by compliance with a statute, regulation, or treaty described in [section 30(1)].
(4) Subsection (2) does not apply if the collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market.
(5) A secured party complies with the requirement for notification prescribed in subsection (3)(c)(ii) if:
(a) not later than 20 days or earlier than 30 days before the notification date, the secured party requests, in a commercially reasonable manner, information concerning financing statements indexed under the debtor's name in the office indicated in subsection (3)(c)(ii); and
(b) before the notification date, the secured party:
(i) did not receive a response to the request for information; or
(ii) received a response to the request for information and sent an authenticated notification of disposition to each secured party named in that response and whose financing statement covered the collateral.
Section 109. Timeliness of notification before disposition of collateral. (1) Except as otherwise provided in subsection (2), whether a notification is sent within a reasonable time is a question of fact.
(2) In a transaction other than a consumer transaction, a notification of disposition sent after default and 10 days or more before the earliest time of disposition set forth in the notification is sent within a reasonable time before the disposition.
Section 110. Contents and form of notification before disposition of collateral -- general. (1) Except in a consumer-goods transaction, the following rules apply:
(a) The contents of a notification of disposition are sufficient if the notification:
(i) describes the debtor and the secured party;
(ii) describes the collateral that is the subject of the intended disposition;
(iii) states the method of intended disposition;
(iv) states that the debtor is entitled to an accounting of the unpaid indebtedness and states the charge, if any, for an accounting; and
(v) states the time and place of a public sale or the time after which any other disposition is to be made.
(b) Whether the contents of a notification that lacks any of the information set forth in subsection (1) are nevertheless sufficient is a question of fact.
(c) The contents of a notification providing substantially the information specified in subsection (1) are sufficient, even if the notification includes:
(i) information not specified by that subsection; or
(ii) minor errors that are not seriously misleading.
(d) A particular phrasing of the notification is not required.
(2) The following form of notification and the form appearing in [section 111(3)], when completed, each provides sufficient information:
NOTIFICATION OF DISPOSITION OF COLLATERAL
To: [Name of debtor, obligor, or other person to which the notification is sent]
From: [Name, address, and telephone number of secured party]
Name of Debtor(s): [Include only if debtor(s) are not an addressee]
[For a public disposition:]
We will sell [or lease or license, as applicable] the [describe collateral] [to the highest qualified bidder] in public as follows:
Day and Date:
Time:
Place:
[For a private disposition:]
We will sell [or lease or license, as applicable] the [describe collateral] privately sometime after [day and date] .
You are entitled to an accounting of the unpaid indebtedness secured by the property that we intend to sell [or lease or license, as applicable] [for a charge of $ ]. You may request an accounting by calling us at [telephone number]
[End of Form]
Section 111. Contents and form of notification before disposition of collateral -- consumer-goods transaction. In a consumer-goods transaction, the following rules apply:
(1) A notification of disposition must provide the following information:
(a) the information specified in [section 110(1)(a)];
(b) a description of any liability for a deficiency of the person to which the notification is sent;
(c) a telephone number from which the amount that must be paid to the secured party to redeem the collateral under [section 120] is available; and
(d) a telephone number or mailing address from which additional information concerning the disposition and the obligation secured is available.
(2) A particular phrasing of the notification is not required.
(3) The following form of notification, when completed, provides sufficient information:
[Name and address of secured party]
[Date]
NOTICE OF OUR PLAN TO SELL PROPERTY
[Name and address of any obligor who is also a debtor]
Subject: [Identification of Transaction]
We have your [describe collateral] , because you broke promises in our agreement.
[For a public disposition:]
We will sell [describe collateral] at public sale. A sale could include a lease or license. The sale will be held as follows:
Date:
Time:
Place:
You may attend the sale and bring bidders if you want.
[For a private disposition:]
We will sell [describe collateral] at private sale sometime after [date] . A sale could include a lease or license.
The money that we get from the sale (after paying our costs) will reduce the amount you owe. If we get less money than you owe, you [will or will not, as applicable] still owe us the difference. If we get more money than you owe, you will get the extra money, unless we must pay it to someone else.
You can get the property back at any time before we sell it by paying us the full amount you owe (not just the past due payments), including our expenses. To learn the exact amount you must pay, call us at [telephone number] .
If you want us to explain to you in writing how we have figured the amount that you owe us, you may call us at [telephone number] [or write us at [secured party's address] ] and request a written explanation. [We will charge you $ for the explanation if we sent you another written explanation of the amount you owe us within the last six months.]
If you need more information about the sale call us at [telephone number] [or write us at [secured party's address] ].
We are sending this notice to the following other people who have an interest in [describe collateral] or who owe money under your agreement:
[Names of all other debtors and obligors, if any]
[End of Form]
(4) A notification in the form of subsection (3) is sufficient, even if additional information appears at the end of the form.
(5) A notification in the form of subsection (3) is sufficient, even if it includes errors in information not required by subsection (1), unless the error is misleading with respect to rights arising under [sections 1 through 125].
(6) If a notification under this section is not in the form of subsection (3), law other than [sections 1 through 125] determines the effect of including information not required by subsection (1).
Section 112. Application of proceeds of disposition -- liability for deficiency and right to surplus. (1) A secured party shall apply or pay over for application the cash proceeds of disposition in the following order to:
(a) the reasonable expenses of retaking, holding, preparing for disposition, processing, and disposing, and to the extent provided for by agreement and not prohibited by law, reasonable attorneys fees and legal expenses incurred by the secured party;
(b) the satisfaction of obligations secured by the security interest or agricultural lien under which the disposition is made;
(c) the satisfaction of obligations secured by any subordinate security interest in or other lien on the collateral if:
(i) the secured party receives from the holder of the subordinate security interest an authenticated demand for proceeds before distribution of the proceeds is completed; and
(ii) if a consignor has an interest in the collateral, the subordinate security interest or lien is senior to the interest of the consignor; and
(d) a secured party that is a consignor of the collateral if the secured party receives from the consignor an authenticated demand for proceeds before distribution of the proceeds is completed.
(2) If requested by a secured party, a holder of a subordinate security interest or other lien shall furnish reasonable proof of the interest or lien within a reasonable time. Unless the holder does so, the secured party need not comply with the holder's demand under subsection (1)(c).
(3) A secured party need not apply or pay over for application noncash proceeds of disposition under this section unless the failure to do so would be commercially unreasonable. A secured party that applies or pays over for application noncash proceeds shall do so in a commercially reasonable manner.
(4) If the security interest under which a disposition is made secures payment or performance of an obligation, after making the payments and applications required by subsection (1) and permitted by subsection (3):
(a) unless subsection (1)(d) requires the secured party to apply or pay over cash proceeds to a consignor, the secured party shall account to and pay a debtor for any surplus; and
(b) the obligor is liable for any deficiency.
(5) If the underlying transaction is a sale of accounts, chattel paper, payment intangibles, or promissory notes:
(a) the debtor is not entitled to any surplus; and
(b) the obligor is not liable for any deficiency.
(6) The surplus or deficiency following a disposition is calculated based on the amount of proceeds that would have been realized in a disposition complying with the requirements of [sections 98 through 125] to a transferee other than the secured party, a person related to the secured party, or a secondary obligor if:
(a) the transferee in the disposition is the secured party, a person related to the secured party, or a secondary obligor; and
(b) the amount of proceeds of the disposition is significantly below the range of proceeds that a complying disposition to a person other than the secured party, a person related to the secured party, or a secondary obligor would have brought.
(7) A secured party that receives cash proceeds of a disposition in good faith and without knowledge that the receipt violates the rights of the holder of a security interest or other lien that is not subordinate to the security interest or agricultural lien under which the disposition is made:
(a) takes the cash proceeds free of the security interest or other lien;
(b) is not obligated to apply the proceeds of the disposition to the satisfaction of obligations secured by the security interest or other lien; and
(c) is not obligated to account to or pay the holder of the security interest or other lien for any surplus.
Section 113. Explanation of calculation of surplus or deficiency. (1) In this section, the following definitions apply:
(a) "Explanation" means a writing that:
(i) states the amount of the surplus or deficiency;
(ii) provides an explanation in accordance with subsection (3) of how the secured party calculated the surplus or deficiency;
(iii) states, if applicable, that future debits, credits, charges, including additional credit service charges or interest rebates, and expenses may affect the amount of the surplus or deficiency; and
(iv) provides a telephone number or mailing address from which additional information concerning the transaction is available.
(b) "Request" means a record:
(i) authenticated by a debtor or consumer obligor;
(ii) requesting that the recipient provide an explanation; and
(iii) sent after disposition of the collateral under [section 107].
(2) In a consumer-goods transaction in which the debtor is entitled to a surplus or a consumer obligor is liable for a deficiency under [section 112], the secured party shall:
(a) send an explanation to the debtor or consumer obligor, as applicable, after the disposition and:
(i) before or when the secured party accounts to the debtor and pays any surplus or first makes written demand on the consumer obligor after the disposition for payment of the deficiency; and
(ii) within 14 days after receipt of a request; or
(b) in the case of a consumer obligor who is liable for a deficiency, within 14 days after receipt of a request, send to the consumer obligor a record waiving the secured party's right to a deficiency.
(3) To comply with subsection (1)(a)(ii), a writing must provide the following information in the following order:
(a) the aggregate amount of obligations secured by the security interest under which the disposition was made, and if the amount reflects a rebate of unearned interest or credit service charge, an indication of that fact, calculated as of a specified date:
(i) if the secured party takes or receives possession of the collateral after default, not more than 35 days before the secured party takes or receives possession; or
(ii) if the secured party takes or receives possession of the collateral before default or does not take possession of the collateral, not more than 35 days before the disposition;
(b) the amount of proceeds of the disposition;
(c) the aggregate amount of the obligations after deducting the amount of proceeds;
(d) the amount, in the aggregate or by type, and types of expenses, including expenses of retaking, holding, preparing for disposition, processing, and disposing of the collateral, and attorneys fees secured by the collateral that are known to the secured party and relate to the current disposition;
(e) the amount, in the aggregate or by type, and types of credits, including rebates of interest or credit service charges, to which the obligor is known to be entitled and that are not reflected in the amount in subsection (3)(a); and
(f) the amount of the surplus or deficiency.
(4) A particular phrasing of the explanation is not required. An explanation complying substantially with the requirements of subsection (1)(a) is sufficient, even if it includes minor errors that are not seriously misleading.
(5) A debtor or consumer obligor is entitled without charge to one response to a request under this section during any 6-month period in which the secured party did not send to the debtor or consumer obligor an explanation pursuant to subsection (2)(a). The secured party may require payment of a charge not exceeding $25 for each additional response.
Section 114. Rights of transferee of collateral. (1) A secured party's disposition of collateral after default:
(a) transfers to a transferee for value all of the debtor's rights in the collateral;
(b) discharges the security interest under which the disposition is made; and
(c) discharges any subordinate security interest or other lien.
(2) A transferee that acts in good faith takes free of the rights and interests described in subsection (1), even if the secured party fails to comply with the requirements of [sections 1 through 125] or any judicial proceedings.
(3) If a transferee does not take free of the rights and interests described in subsection (1), the transferee takes the collateral subject to:
(a) the debtor's rights in the collateral;
(b) the security interest or agricultural lien under which the disposition is made; and
(c) any security interest or other lien.
Section 115. Rights and duties of certain secondary obligors. (1) A secondary obligor acquires the rights and becomes obligated to perform the duties of the secured party after the secondary obligor:
(a) receives an assignment of a secured obligation from the secured party;
(b) receives a transfer of collateral from the secured party and agrees to accept the rights and assume the duties of the secured party; or
(c) is subrogated to the rights of a secured party with respect to collateral.
(2) An assignment, transfer, or subrogation described in subsection (1):
(a) is not a disposition of collateral under [section 107]; and
(b) relieves the secured party of further duties under [sections 1 through 125].
Section 116. Transfer of record or legal title. (1) In this section, "transfer statement" means a record authenticated by a secured party stating:
(a) that the debtor has defaulted in connection with an obligation secured by specified collateral;
(b) that the secured party has exercised its postdefault remedies with respect to the collateral;
(c) that, by reason of the exercise, a transferee has acquired the rights of the debtor in the collateral; and
(d) the name and mailing address of the secured party, debtor, and transferee.
(2) A transfer statement entitles the transferee to the transfer of record of all rights of the debtor in the collateral specified in the statement in any official filing, recording, registration, or certificate of title system covering the collateral. If a transfer statement is presented with the applicable fee and request form to the official or office responsible for maintaining the system, the official or office shall:
(a) accept the transfer statement;
(b) promptly amend its records to reflect the transfer; and
(c) if applicable, issue a new appropriate certificate of title in the name of transferee.
(3) A transfer of the record or legal title to collateral to a secured party under subsection (2) or otherwise is not of itself a disposition of collateral under [sections 1 through 125] and does not of itself relieve the secured party of its duties under [sections 1 through 125].
Section 117. Acceptance of collateral in full or partial satisfaction -- compulsory disposition of collateral. (1) Except as otherwise provided in subsection (7), a secured party may accept collateral in full or partial satisfaction of the obligation it secures only if:
(a) the debtor consents to the acceptance under subsection (3);
(b) the secured party does not receive, within the time set forth in subsection (4), a notification of objection to the proposal authenticated by:
(i) a person to which the secured party was required to send a proposal under [section 118]; or
(ii) any other person, other than the debtor, holding an interest in the collateral subordinate to the security interest that is the subject of the proposal;
(c) if the collateral is consumer goods, the collateral is not in the possession of the debtor when the debtor consents to the acceptance; and
(d) subsection (5) does not require the secured party to dispose of the collateral.
(2) A purported or apparent acceptance of collateral under this section is ineffective unless:
(a) the secured party consents to the acceptance in an authenticated record or sends a proposal to the debtor; and
(b) the conditions of subsection (1) are met.
(3) For purposes of this section:
(a) a debtor consents to an acceptance of collateral in partial satisfaction of the obligation it secures only if the debtor agrees to the terms of the acceptance in a record authenticated after default; and
(b) a debtor consents to an acceptance of collateral in full satisfaction of the obligation it secures only if the debtor agrees to the terms of the acceptance in a record authenticated after default or the secured party:
(i) sends to the debtor after default a proposal that is unconditional or subject only to a condition that collateral not in the possession of the secured party be preserved or maintained;
(ii) in the proposal, proposes to accept collateral in full satisfaction of the obligation it secures; and
(iii) does not receive a notification of objection authenticated by the debtor within 20 days after the proposal is sent.
(4) To be effective under subsection (1)(b), a notification of objection must be received by the secured party:
(a) in the case of a person to which the proposal was sent pursuant to [section 118], within 20 days after notification was sent to that person; and
(b) in other cases:
(i) within 20 days after the last notification was sent pursuant to [section 118]; or
(ii) if a notification was not sent, before the debtor consents to the acceptance under subsection (3).
(5) A secured party that has taken possession of collateral shall dispose of the collateral pursuant to [section 107] within the time specified in subsection (6) if:
(a) 60% of the cash price has been paid in the case of a purchase-money security interest in consumer goods; or
(b) 60% of the principal amount of the obligation secured has been paid in the case of a nonpurchase-money security interest in consumer goods.
(6) To comply with subsection (5), the secured party shall dispose of the collateral:
(a) within 90 days after taking possession; or
(b) within any longer period to which the debtor and all secondary obligors have agreed by authenticating a record including a statement to that effect after default.
(7) In a consumer transaction, a secured party may not accept collateral in partial satisfaction of the obligation it secures.
Section 118. Notification of proposal to accept collateral. (1) A secured party that desires to accept collateral in full or partial satisfaction of the obligation it secures shall send its proposal to:
(a) any person from which the secured party has received, before the debtor consented to the acceptance, an authenticated notification of a claim of an interest in the collateral;
(b) any other secured party or lienholder that, 10 days before the debtor consented to the acceptance, held a security interest in or other lien on the collateral perfected by the filing of a financing statement that:
(i) identified the collateral;
(ii) was indexed under the debtor's name as of that date; and
(iii) was filed in the office or offices in which to file a financing statement against the debtor covering the collateral as of that date; and
(c) any other secured party that, 10 days before the debtor consented to the acceptance, held a security interest in the collateral perfected by compliance with a statute, regulation, or treaty described in [section 30(1)].
(2) A secured party that desires to accept collateral in partial satisfaction of the obligation it secures shall send its proposal to any secondary obligor in addition to the persons described in subsection (1).
Section 119. Effect of acceptance of collateral. (1) A secured party's acceptance of collateral in full or partial satisfaction of the obligation it secures:
(a) discharges the obligation to the extent consented to by the debtor;
(b) transfers to the secured party all of a debtor's rights in the collateral;
(c) discharges the security interest or agricultural lien that is the subject of the debtor's consent and any subordinate security interest or other lien; and
(d) terminates any other subordinate interest.
(2) A subordinate interest is discharged or terminated under subsection (1) whether or not the secured party is required to send or does send its proposal to the holder of the interest. However, any person to which the secured party was required to send, but did not send, its proposal has the remedy provided by [section 122(2)].
Section 120. Right to redeem collateral. (1) A debtor, any secondary obligor, or any other secured party or lienholder may redeem collateral.
(2) To redeem collateral, a person shall tender:
(a) fulfillment of all obligations secured by the collateral; and
(b) the reasonable expenses and attorneys fees described in [section 112(1)(a)].
(3) A redemption may occur at any time before a secured party:
(a) has collected collateral under [section 104];
(b) has disposed of collateral or entered into a contract for its disposition under [section 107]; or
(c) has accepted collateral in full or partial satisfaction of the obligation it secures under [section 119].
Section 121. Waiver. (1) A debtor or secondary obligor may waive the right to notification of disposition of collateral under [section 108] only by authenticating an agreement to that effect entered into and authenticated after default.
(2) A debtor may waive the right to require disposition of collateral under [section 117(5)] only by an agreement to that effect entered into and authenticated after default.
(3) Except in a consumer-goods transaction, a debtor or secondary obligor may waive the right to redeem collateral under [section 120] only by an agreement to that effect after default.
Section 122. Remedies for secured party's failure to comply with chapter. (1) If it is established that a secured party is not proceeding in accordance with [sections 1 through 125], a court may order or restrain collection, enforcement, or disposition of collateral on appropriate terms and conditions.
(2) Subject to subsections (3), (4), and (6), a secured party is liable for damages in the amount of any loss caused by a failure to comply with [sections 1 through 125]. Loss caused by a failure to comply with a request under [section 19] may include loss resulting from the debtor's inability to obtain, or increased costs of, alternative financing.
(3) Except as otherwise provided in [section 125]:
(a) a person that, at the time of the failure, was a debtor, was an obligor, or held a security interest in or other lien on the collateral may recover damages under subsection (2) for its loss; and
(b) if the collateral is consumer goods, a person that was a debtor or a secondary obligor at the time a secured party failed to comply with [sections 98 through 125] may recover for that failure in any event an amount not less than the credit service charge plus 10% of the principal amount of the obligation or the time-price differential plus 10% of the cash price.
(4) A debtor whose deficiency is eliminated under [section 123] may recover damages for the loss of any surplus. However, a debtor or secondary obligor whose deficiency is eliminated or reduced under [section 123] may not otherwise recover under subsection (2) of this section for noncompliance with the provisions of [sections 98 through 125] relating to collection, enforcement, disposition, or acceptance.
(5) In addition to any damages recoverable under subsection (2), the debtor, consumer obligor, or person named as a debtor in a filed record, as applicable, may recover $500 in each case from:
(a) a secured party that fails to comply with [section 17];
(b) a secured party that fails to comply with [section 18];
(c) a person that files a record that the person is not entitled to file under [section 79(1)];
(d) a secured party that fails to cause the secured party of record to file or send a termination statement as required by [section 83(1) or (3)];
(e) a secured party that fails to comply with [section 113(2)(a)] and whose failure is part of a pattern, or consistent with a practice, of noncompliance; or
(f) a secured party that fails to comply with [section 113(2)(b)].
(6) A debtor or consumer obligor may recover damages under subsection (2) and, in addition, $500 in each case from a person that, without reasonable cause, fails to comply with a request under [section 19]. A recipient of a request under [section 19] that never claimed an interest in the collateral or obligations that are the subject of a request under that section has a reasonable excuse for failure to comply with the request within the meaning of this subsection.
(7) If a secured party fails to comply with a request regarding a list of collateral or a statement of account under [section 19], the secured party may claim a security interest only as shown in the statement included in the request as against a person that is reasonably misled by the failure.
Section 123. Action in which deficiency or surplus is in issue. (1) In an action arising from a transaction, other than a consumer transaction, in which the amount of a deficiency or surplus is in issue, the following rules apply:
(a) A secured party need not prove compliance with the provisions of [sections 98 through 125] relating to collection, enforcement, disposition, or acceptance unless the debtor or a secondary obligor places the secured party's compliance in issue.
(b) If the secured party's compliance is placed in issue, the secured party has the burden of establishing that the collection, enforcement, disposition, or acceptance was conducted in accordance with [sections 98 through 125].
(c) Except as otherwise provided in [section 125], if a secured party fails to prove that the collection, enforcement, disposition, or acceptance was conducted in accordance with the provisions of [sections 98 through 125] relating to collection, enforcement, disposition, or acceptance, the liability of a debtor or a secondary obligor for a deficiency is limited to an amount by which the sum of the secured obligation, expenses, and attorneys fees exceeds the greater of:
(i) the proceeds of the collection, enforcement, disposition, or acceptance; or
(ii) the amount of proceeds that would have been realized had the noncomplying secured party proceeded in accordance with the provisions of [sections 98 through 125] relating to collection, enforcement, disposition, or acceptance.
(d) For purposes of subsection (1)(c)(ii), the amount of proceeds that would have been realized is equal to the sum of the secured obligation, expenses, and attorneys fees unless the secured party proves that the amount is less than that sum.
(e) If a deficiency or surplus is calculated under [section 112(6)], the debtor or obligor has the burden of establishing that the amount of proceeds of the disposition is significantly below the range of prices that a complying disposition to a person other than the secured party, a person related to the secured party, or a secondary obligor would have brought.
(2) The limitation of the rules in subsection (1) to transactions other than consumer transactions is intended to leave to the court the determination of the proper rules in consumer transactions. The court may not infer from that limitation the nature of the proper rule in consumer transactions and may continue to apply established approaches.
Section 124. Determination of whether conduct was commercially reasonable. (1) The fact that a greater amount could have been obtained by a collection, enforcement, disposition, or acceptance at a different time or in a different method from that selected by the secured party is not of itself sufficient to preclude the secured party from establishing that the collection, enforcement, disposition, or acceptance was made in a commercially reasonable manner.
(2) A disposition of collateral is made in a commercially reasonable manner if the disposition is made:
(a) in the usual manner on any recognized market;
(b) at the price current in any recognized market at the time of the disposition; or
(c) otherwise in conformity with reasonable commercial practices among dealers in the type of property that was the subject of the disposition.
(3) A collection, enforcement, disposition, or acceptance is commercially reasonable if it has been approved:
(a) in a judicial proceeding;
(b) by a bona fide creditors' committee;
(c) by a representative of creditors; or
(d) by an assignee for the benefit of creditors.
(4) Approval under subsection (3) need not be obtained, and lack of approval does not mean that the collection, enforcement, disposition, or acceptance is not commercially reasonable.
Section 125. Nonliability and limitation on liability of secured party -- liability of secondary obligor. (1) Unless a secured party knows that a person is a debtor or obligor, knows the identity of the person, and knows how to communicate with the person:
(a) the secured party is not liable to the person, or to a secured party or lienholder that has filed a financing statement against the person, for failure to comply with [sections 1 through 125]; and
(b) the secured party's failure to comply with [sections 1 through 125] does not affect the liability of the person for a deficiency.
(2) A secured party is not liable because of its status as a secured party:
(a) to a person that is a debtor or obligor, unless the secured party knows:
(i) that the person is a debtor or obligor;
(ii) the identity of the person; and
(iii) how to communicate with the person; or
(b) to a secured party or lienholder that has filed a financing statement against a person, unless the secured party knows:
(i) that the person is a debtor; and
(ii) the identity of the person.
(3) A secured party is not liable to any person, and a person's liability for a deficiency is not affected, because of any act or omission arising out of the secured party's reasonable belief that a transaction is not a consumer-goods transaction or a consumer transaction or that goods are not consumer goods if the secured party's belief is based on its reasonable reliance on:
(a) a debtor's representation concerning the purpose for which collateral was to be used, acquired, or held; or
(b) an obligor's representation concerning the purpose for which a secured obligation was incurred.
(4) A secured party is not liable to any person under [section 122(3)(b)] for its failure to comply with [section 113].
(5) A secured party is not liable under [section 122(3)(b)] more than once with respect to any one secured obligation.
Section 126. Section 2-6-109, MCA, is amended to read:
"2-6-109. Prohibition on distribution or sale of mailing lists -- exceptions -- penalty. (1) Except as provided in subsections (3) through (8), in order to protect the privacy of those who deal with state and local government:
(a) an agency may not distribute or sell for use as a mailing list any list of persons without first securing the permission of those on the list; and
(b) a list of persons prepared by the agency may not be used as a mailing list except by the agency or another agency without first securing the permission of those on the list.
(2) As used in this section, "agency" means any board, bureau, commission, department, division, authority, or officer of the state or a local government.
(3) Except as provided in 30-9-403, this This section does not prevent an individual from compiling a mailing list by
examination of original documents or applications that are otherwise open to public inspection.
(4) This section does not apply to the lists of registered electors and the new voter lists provided for in 13-2-115 and 13-38-103, to lists of the names of employees governed by Title 39, chapter 31, or to lists of persons holding driver's licenses provided for under 61-5-126.
(5) This section does not prevent an agency from providing a list to persons providing prelicensing or continuing educational courses subject to state law or subject to Title 33, chapter 17.
(6) This section does not apply to the right of access either by Montana law enforcement agencies or, by purchase or otherwise, of public records dealing with motor vehicle registration.
(7) This section does not apply to a corporate information list developed by the secretary of state containing the name, address, registered agent, officers, and directors of business, nonprofit, religious, professional, and close corporations authorized to do business in this state.
(8) This section does not apply to the use by the public employees' retirement board of a mailing list of board-administered retirement system participants to send materials on behalf of a retiree organization formed for board-administered retirement system participants and with tax-exempt status under section 501(c)(4) of the Internal Revenue Code, as amended, for a fee determined by rules of the board, provided that the mailing list is not released to the organization.
(9) A person violating the provisions of subsection (1)(b) is guilty of a misdemeanor."
Section 127. Section 7-4-2631, MCA, is amended to read:
"7-4-2631. Fees of county clerk. (1) Except as provided in 7-4-2632, the county clerks must shall charge, for the use of
their respective counties:
(a) for recording and indexing each certificate of location of a quartz or placer mining claim or millsite claim, including a certificate that the instrument has been recorded with seal affixed, $6;
(b) for recording and indexing each affidavit of annual labor on a mining claim, including certificate that the instrument has been recorded with seal affixed:
(i) for the first mining claim in the affidavit, $3; and
(ii) for each additional mining claim included in it, 50 cents;
(c) for filing and indexing each writ of attachment, execution, certificate of sale, lien, or other instrument required by law to be filed and indexed, $5;
(d) for filing of subdivision and townsite plats, $5 plus:
(i) for each lot up to and including 100, 50 cents;
(ii) for each additional lot in excess of 100, 25 cents;
(e) for filing certificates of surveys and amendments thereto, $5 plus 50 cents per tract or lot;
(f) for a copy of a record or paper:
(i) for the first page of any document, 50 cents, and 25 cents for each subsequent page; and
(ii) for each certification with seal affixed, $2;
(g) for searching an index record of files of the office for each year when required in abstracting or otherwise, 50 cents;
(h) for administering an oath with certificate and seal, no charge;
(i) for taking and certifying an acknowledgment, with seal affixed, for signature to it, no charge;
(j) for filing, indexing, or other services provided for by 30-9-401 through 30-9-407 [sections 71 through 97], the fees
prescribed under those sections;
(k) for recording each stock subscription and contract, stock certificate, and articles of incorporation for water users' associations, $3;
(l) for filing a copy of notarial commission and issuing a certificate of official character of such notary public, $2;
(m) for each certified copy of a birth certificate, $5, and for each certified copy of a death certificate, $3;
(n) for filing, recording, or indexing any other instrument not expressly provided for in this section or 7-4-2632, the same fee provided in this section or 7-4-2632 for a similar service.
(2) State agencies submitting documents to be put of record shall pay the fees provided for in this section. If a state agency or political subdivision has requested an account with the county clerk, any applicable fees must be paid on a periodic basis."
Section 128. Section 25-10-302, MCA, is amended to read:
"25-10-302. Inclusion of attorney's fees in bill of costs. The attorney's attorney fees mentioned in 30-9-511
25-10-303, [section 104], 71-1-233, and 71-3-124, and 25-10-303 need not be included in the cost bill if they are made a
part of the judgment."
Section 129. Section 30-1-105, MCA, is amended to read:
"30-1-105. Territorial application of the code -- parties' power to choose applicable law. (1) Except as provided in
this section, when a transaction bears a reasonable relation to this state and also to another state or nation, the parties may
agree that the law either of this state or of the other state or nation shall govern governs their rights and duties. Failing
agreement, this code applies to transactions bearing an appropriate relation to this state.
(2) Where When one of the following provisions of this code specifies the applicable law, that provision governs and a
contrary agreement is effective only to the extent permitted by the law (including the conflict of laws rules) so specified:
Rights of creditors against sold goods. 30-2-402.
Applicability of the Chapter on Leases. 30-2A-105 and 30-2A-106.
Applicability of the Chapter on Bank Deposits and Collections. 30-4-102.
Governing law in the Chapter on Funds Transfers. 30-4A-507.
Letters of Credit. 30-5-136.
Applicability of the Chapter on Investment Securities. 30-8-120.
Perfection provisions of the Chapter on Secured Transactions. 30-9-103.
Law governing perfection, the effect of perfection or nonperfection, and the priority of security interest. [sections 20 through 26]."
Section 130. Section 30-1-201, MCA, is amended to read:
"30-1-201. General definitions. Subject to additional definitions contained in the subsequent chapters of this code
which that are applicable to specific chapters or parts thereof, and unless the context otherwise requires, in this code:
(1) "Action" in the sense of a judicial proceeding includes recoupment, counterclaim, setoff, suit in equity, and any other proceedings in which rights are determined.
(2) "Aggrieved party" means a party entitled to resort to a remedy.
(3) "Agreement" means the bargain of the parties in fact as found in their language or by implication from other circumstances, including course of dealing or usage of trade or course of performance as provided in this code (30-1-205 and 30-2-208). Whether an agreement has legal consequences is determined by the provisions of this code, if applicable; otherwise by the law of contracts (30-1-103).
(4) "Bank" means any person engaged in the business of banking.
(5) "Bearer" means the person in possession of an instrument, document of title, or certificated security payable to bearer or endorsed in blank.
(6) "Bill of lading" means a document evidencing the receipt of goods for shipment issued by a person engaged in the business of transporting or forwarding goods, and includes an airbill. "Airbill" means a document serving for air transportation as a bill of lading does for marine or rail transportation, and includes an air consignment note or air waybill.
(7) "Branch" includes a separately incorporated foreign branch of a bank.
(8) "Burden of establishing" a fact means the burden of persuading the triers of fact that the existence of the fact is more probable than its nonexistence.
(9) "Buyer in ordinary course of business" means a person who that buys goods, in good faith, and without knowledge
that the sale to him is in violation of violates the ownership rights or security interest of a third party another person in the
goods, buys and in the ordinary course from a person, other than a pawnbroker, in the business of selling goods of that kind,
but does not include a pawnbroker. All persons who sell minerals or the like (including oil and gas) at wellhead or
minehead shall be considered to be persons A person buys goods in the ordinary course if the sale to the person comports
with the usual or customary practices in the kind of business in which the seller is engaged or with the seller's own usual or
customary practices. A person that sells oil, gas, or other mineral at the wellhead or minehead is a person in the business of
selling goods of that kind. "Buying" A buyer in ordinary course of business may be buy for cash, or by exchange of other
property, or on secured or unsecured credit and includes receiving may acquire goods or documents of title under a
preexisting contract for sale but does not include a transfer in bulk or as security for or in total or partial satisfaction of a
money debt. Only a buyer that takes possession of the goods or has a right to recover the goods from the seller under
chapter 2 may be a buyer in ordinary course of business. A person that acquires goods in a transfer in bulk or as security for
or in total or partial satisfaction of a money debt is not a buyer in ordinary course of business.
(10) "Conspicuous": A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: Non-Negotiable Bill of Lading) is conspicuous. Language in the body of a form is "conspicuous" if it is in larger or other contrasting type or color. But in a telegram any stated term is "conspicuous". Whether a term or clause is "conspicuous" or not is for decision by the court.
(11) "Contract" means the total legal obligation which results from the parties' agreement as affected by this code and any other applicable rules of law.
(12) "Creditor" includes a general creditor, a secured creditor, a lien creditor and any representative of creditors, including an assignee for the benefit of creditors, a trustee in bankruptcy, a receiver in equity and an executor or administrator of an insolvent debtor's or assignor's estate.
(13) "Defendant" includes a person in the position of defendant in a cross-action or counterclaim.
(14) "Delivery" with respect to instruments, documents of title, chattel paper, or certificated securities means voluntary transfer of possession.
(15) "Document of title" includes bill of lading, dock warrant, dock receipt, warehouse receipt or order for the delivery of goods, and also any other document which in the regular course of business or financing is treated as adequately evidencing that the person in possession of it is entitled to receive, hold and dispose of the document and the goods it covers. To be a document of title a document must purport to be issued by or addressed to a bailee and purport to cover goods in the bailee's possession which are either identified or are fungible portions of an identified mass.
(16) "Fault" means wrongful act, omission or breach.
(17) "Fungible" with respect to goods or securities means goods or securities of which any unit is, by nature or usage of trade, the equivalent of any other like unit. Goods which are not fungible shall be deemed fungible for the purposes of this code to the extent that under a particular agreement or document unlike units are treated as equivalents.
(18) "Genuine" means free of forgery or counterfeiting.
(19) "Good faith" means honesty in fact in the conduct or transaction concerned.
(20) "Holder", with respect to a:
(a) negotiable instrument, means the person in possession if the instrument is payable to bearer or to the person in possession;
(b) certified security, means the person in possession is the registered owner, the security has been indorsed to the person in possession by the registered owner, or the security is in bearer form; or
(c) document of title, means the person in possession if the goods are deliverable to bearer or to the order of the person in possession.
(21) To "honor" is to pay or to accept and pay, or where a credit so engages to purchase or discount a draft complying with the terms of the credit.
(22) "Insolvency proceedings" includes any assignment for the benefit of creditors or other proceedings intended to liquidate or rehabilitate the estate of the person involved.
(23) A person is "insolvent" who either has ceased to pay his debts in the ordinary course of business or cannot pay his debts as they become due or is insolvent within the meaning of the federal bankruptcy law.
(24) "Money" means a medium of exchange authorized or adopted by a domestic or foreign government or intergovernmental organization.
(25) A person has "notice" of a fact when:
(a) he has actual knowledge of it; or
(b) he has received a notice or notification of it; or
(c) from all the facts and circumstances known to him at the time in question he has reason to know that it exists. A person "knows" or has "knowledge" of a fact when he has actual knowledge of it. "Discover" or "learn" or a word or phrase of similar import refers to knowledge rather than to reason to know. The time and circumstances under which a notice or notification may cease to be effective are not determined by this code.
(26) A person "notifies" or "gives" a notice or notification to another by taking such steps as may be reasonably required to inform the other in ordinary course whether or not such other actually comes to know of it. A person "receives" a notice or notification when:
(a) it comes to his attention; or
(b) it is duly delivered at the place of business through which the contract was made or at any other place held out by him as the place for receipt of such communications.
(27) Notice, knowledge or a notice or notification received by an organization is effective for a particular transaction from the time when it is brought to the attention of the individual conducting that transaction, and in any event from the time when it would have been brought to his attention if the organization had exercised due diligence. An organization exercises due diligence if it maintains reasonable routines for communicating significant information to the person conducting the transaction and there is reasonable compliance with the routines. Due diligence does not require an individual acting for the organization to communicate information unless such communication is part of his regular duties or unless he has reason to know of the transaction and that the transaction would be materially affected by the information.
(28) "Organization" includes a corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest, or any other legal or commercial entity.
(29) "Party" as distinct from "third party" means a person who has engaged in a transaction or made an agreement within this code.
(30) "Person" includes an individual or an organization.
(31) "Presumption" or "presumed" means that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its nonexistence.
(32) "Purchase" includes taking by sale, discount, negotiation, mortgage, pledge, lien, security interest, issue or reissue, gift or any other voluntary transaction creating an interest in property.
(33) "Purchaser" means a person who takes by purchase.
(34) "Remedy" means any remedial right to which an aggrieved party is entitled with or without resort to a tribunal.
(35) "Representative" includes an agent, an officer of a corporation or association, and a trustee, executor or administrator of an estate, or any other person empowered to act for another.
(36) "Rights" includes remedies.
(37) (a) "Security interest" means an interest in personal property or fixtures that secures payment or performance of an
obligation. The retention or reservation of title by a seller of goods notwithstanding shipment or delivery to the buyer
(30-2-401) is limited in effect to a reservation of a "security interest". The term also includes any interest of a consignor and
a buyer of accounts, or chattel paper, a payment intangible, or a promissory note in a transaction that is subject to chapter 9.
The special property interest of a buyer of goods on identification of those goods to a contract for sale under 30-2-401 is not
a "security interest", but a buyer may also acquire a "security interest" by complying with chapter 9. Unless a consignment
is intended as security, reservation of title thereunder is not a "security interest", but a consignment in any event is subject
to the provisions on consignment sales (30-2-326). Whether a transaction creates a lease or security interest is determined
by the facts of each case; however, a transaction creates a security interest if the consideration the lessee is to pay the lessor
for the right to possession and use of the goods is an obligation for the term of the lease not subject to termination by the
lessee and:
(i) the original term of the lease is equal to or greater than the remaining economic life of the goods;
(ii) the lessee is bound to renew the lease for the remaining economic life of the goods or is bound to become the owner
of the goods;
(iii) the lessee has an option to renew the lease for the remaining economic life of the goods for no additional
consideration or nominal additional consideration upon compliance with the lease agreement; or
(iv) the lessee has an option to become the owner of the goods for no additional consideration or nominal additional
consideration upon compliance with the lease agreement. Except as otherwise provided in 30-2-505, the right of a seller or
lessor of goods under chapter 2 or 2A to retain or acquire possession of the goods in not a "security interest", but a seller or
lessor may also acquire a "security interest" by complying with chapter 9. The retention or reservation of title by a seller of
goods notwithstanding shipment or delivery to the buyer (30-2-401) is limited in effect to a reservation of a "security
interest".
(b) A transaction does not create a security interest merely because it provides that:
(i) the present value of the consideration the lessee is obligated to pay the lessor for the right to possession and use of
the goods is substantially equal to or is greater than the fair market value of the goods at the time the lease is entered into;
(ii) the lessee assumes risk of loss of the goods or agrees to pay taxes, insurance, filing, recording, or registration fees or
service or maintenance costs with respect to the goods;
(iii) the lessee has an option to renew the lease or to become the owner of the goods;
(iv) the lessee has an option to renew the lease for a fixed rent that is equal to or greater than the reasonably predictable
fair market value for the use of the goods for the term of the renewal at the time the option is to be performed; or
(v) the lessee has an option to become the owner of the goods for a fixed price that is equal to or greater than the
reasonably predictable fair market value of the goods at the time the option is to be performed.
(c) For purposes of this subsection (37):
(i) additional consideration is not nominal if:
(A) when the option to renew the lease is granted to the lessee, the rent is stated to be the fair market rent for the use of
the goods for the term of the renewal determined at the time the option is to be performed; or
(B) when the option to become the owner of the goods is granted to the lessee, the price is stated to be the fair market
value of the goods determined at the time the option is to be performed;
(ii) additional consideration is nominal if it is less than the lessee's reasonably predictable cost of performing under the
lease agreement if the option is not exercised;
(iii) "reasonably predictable" and "remaining economic life of the goods" are to be determined with reference to the facts
and circumstances at the time the transaction is entered into; and
(iv) "present value" means the amount as of a date certain of one or more sums payable in the future, discounted to the
date certain. The discount is determined by the interest rate specified by the parties if the rate is not manifestly unreasonable
at the time the transaction is entered into; otherwise, the discount is determined by a commercially reasonable rate that
takes into account the facts and circumstances of each case at the time the transaction was entered into.
(38) "Send" in connection with any writing or notice means to deposit in the mail or deliver for transmission by any other usual means of communication with postage or cost of transmission provided for and properly addressed, and in the case of an instrument to an address specified thereon or otherwise agreed, or if there be none to any address reasonable under the circumstances. The receipt of any writing or notice within the time at which it would have arrived if properly sent has the effect of a proper sending.
(39) "Signed" includes any symbol executed or adopted by a party with present intention to authenticate a writing.
(40) "Surety" includes guarantor.
(41) "Telegram" includes a message transmitted by radio, teletype, cable, any mechanical method of transmission, or the like.
(42) "Term" means that portion of an agreement which relates to a particular matter.
(43) "Unauthorized" signature means one made without actual, implied, or apparent authority and includes a forgery.
(44) "Value". Except as otherwise provided with respect to negotiable instruments and bank collections (30-3-303, 30-4-208, and 30-4-209), a person gives "value" for rights if he acquires them:
(a) in return for a binding commitment to extend credit or for the extension of immediately available credit whether or not drawn upon and whether or not a charge-back is provided for in the event of difficulties in collection; or
(b) as security for or in total or partial satisfaction of a preexisting claim; or
(c) by accepting delivery pursuant to a preexisting contract for purchase; or
(d) generally, in return for any consideration sufficient to support a simple contract.
(45) "Warehouse receipt" means a receipt issued by a person engaged in the business of storing goods for hire.
(46) "Written" or "writing" includes printing, typewriting, or any other intentional reduction to tangible form."
Section 131. Section 30-1-206, MCA, is amended to read:
"30-1-206. Statute of frauds for kinds of personal property not otherwise covered. (1) Except in the cases described in subsection (2) a contract for the sale of personal property is not enforceable by way of action or defense beyond $5,000 in amount or value of remedy unless there is some writing which indicates that a contract for sale has been made between the parties at a defined or stated price, reasonably identifies the subject matter, and is signed by the party against whom enforcement is sought or by the party's authorized agent.
(2) Subsection (1) of this section does not apply to contracts for the sale of goods (30-2-201) nor of securities
(30-8-123) nor to security agreements (30-9-203) [section 12]."
Section 132. Section 30-2-103, MCA, is amended to read:
"30-2-103. Definitions and index of definitions. (1) In this chapter, unless the context otherwise requires, the following definitions apply:
(a) "Buyer" means a person who buys or contracts to buy goods.
(b) "Good faith", in the case of a merchant, means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.
(c) "Receipt" of goods means taking physical possession of them.
(d) "Seller" means a person who sells or contracts to sell goods.
(2) Other definitions applying to this chapter or to specified parts thereof and the sections in which they appear are:
"Acceptance". 30-2-606.
"Banker's credit". 30-2-325.
"Between merchants". 30-2-104.
"Cancellation". 30-2-106(4).
"Commercial unit". 30-2-105.
"Confirmed credit". 30-2-325.
"Conforming to contract". 30-2-106.
"Contract for sale". 30-2-106.
"Cover". 30-2-712.
"Entrusting". 30-2-403.
"Financing agency". 30-2-104.
"Future goods". 30-2-105.
"Goods". 30-2-105.
"Identification". 30-2-501.
"Installment contract". 30-2-612.
"Letter of credit". 30-2-325.
"Lot". 30-2-105.
"Merchant". 30-2-104.
"Overseas". 30-2-323.
"Person in position of seller". 30-2-707.
"Present sale". 30-2-106.
"Sale". 30-2-106.
"Sale on approval". 30-2-326.
"Sale or return". 30-2-326.
"Termination". 30-2-106.
(3) The following definitions in other chapters apply to this chapter:
"Check". 30-3-104.
"Consignee". 30-7-102.
"Consignor". 30-7-102.
"Consumer goods". 30-9-109 [section 1].
"Dishonor". 30-3-512.
"Draft". 30-3-104.
(4) In addition, chapter 1 contains general definitions and principles of construction and interpretation applicable throughout this chapter."
Section 133. Section 30-2-210, MCA, is amended to read:
"30-2-210. Delegation of performance -- assignment of rights. (1) A party may perform his the party's duty through a
delegate unless otherwise agreed or unless the other party has a substantial interest in having his the party's original
promisor perform or control the acts required by the contract. No delegation of performance relieves the party delegating of
any duty to perform or any liability for breach.
(2) Unless otherwise agreed all rights of either seller or buyer can be assigned except where when the assignment would
materially change the duty of the other party, or increase materially the burden or risk imposed on him the other party by his
the contract, or impair materially his the other party's chance of obtaining return performance. A right to damages for
breach of the whole contract or a right arising out of the assignor's due performance of his the assignor's entire obligation
can be assigned despite agreement otherwise.
(3) The creation, attachment, perfection, or enforcement of a security interest in the seller's interest under a contract is not a transfer that materially changes the duty of or increases materially the burden or risk imposed on the buyer or impairs materially the buyer's chance of obtaining return performance within the purview of subsection (2) unless, and then only to the extent that, enforcement actually results in a delegation of material performance of the seller. Even in that event, the creation, attachment, perfection, and enforcement of the security interest remain effective, but:
(a) the seller is liable to the buyer for damages caused by the delegation to the extent that the damages could not reasonably be prevented by the buyer; and
(b) a court having jurisdiction may grant other appropriate relief, including cancellation of the contract for sale or an injunction against enforcement of the security interest or consummation of the enforcement.
(3)(4) Unless the circumstances indicate the contrary a prohibition of assignment of "the contract" is to be construed as
barring only the delegation to the assignee of the assignor's performance.
(4)(5) An assignment of "the contract" or of "all my rights under the contract" or an assignment in similar general terms
is an assignment of rights and unless the language or the circumstances (as in an assignment for security) indicate the
contrary, it is a delegation of performance of the duties of the assignor and its acceptance by the assignee constitutes a
promise by him the assignee to perform those duties. This promise is enforceable by either the assignor or the other party to
the original contract.
(5)(6) The other party may treat any assignment which that delegates performance as creating reasonable grounds for
insecurity and may without prejudice to his the other party's rights against the assignor demand assurances from the
assignee (30-2-609)."
Section 134. Section 30-2-326, MCA, is amended to read:
"30-2-326. Sale on approval and sale or return -- consignment sales and rights of creditors. (1) Unless otherwise
agreed, if delivered goods may be returned by the buyer even though they conform to the contract, the transaction is:
(a) a "sale on approval" if the goods are delivered primarily for use; and
(b) a "sale or return" if the goods are delivered primarily for resale.
(2) Except as provided in subsection (3), goods Goods held on approval are not subject to the claims of the buyer's
creditors until acceptance; goods held on sale or return are subject to such claims while in the buyer's possession.
(3) Where goods are delivered to a person for sale and such person maintains a place of business at which he deals in
goods of the kind involved, under a name other than the name of the person making delivery, then with respect to claims of
creditors of the person conducting the business the goods are deemed to be on sale or return. The provisions of this
subsection are applicable even though an agreement purports to reserve title to the person making delivery until payment or
resale or uses such words as "on consignment" or "on memorandum". However, this subsection is not applicable if the
person making delivery:
(a) complies with an applicable law providing for a consignor's interest or the like to be evidenced by a sign; or
(b) establishes that the person conducting the business is generally known by his creditors to be substantially engaged in
selling the goods of others; or
(c) complies with the filing provisions of the Chapter on Secured Transactions (Chapter 9).
(4)(3) Any "or return" term of a contract for sale is to be treated as a separate contract for sale within the statute of
frauds section of this chapter (30-2-201) and as contradicting the sale aspect of the contract within the provisions of this
chapter on parol or extrinsic evidence (30-2-202)."
Section 135. Section 30-2-502, MCA, is amended to read:
"30-2-502. Buyer's right to goods on seller's insolvency. (1) Subject to subsection subsections (2) and (3) and even
though the goods have not been shipped a buyer who has paid a part or all of the price of goods in which he the buyer has a
special property under the provisions of the immediately preceding section may on making and keeping good a tender of
any unpaid portion of their price recover them from the seller if:
(a) in the case of goods bought for personal, family, or household purposes, the seller repudiates or fails to deliver as required by the contract; or
(b) in other cases, the seller becomes insolvent within 10 days after receipt of the first installment on their price.
(2) The buyer's right to recover the goods under subsection (1)(a) vests upon acquisition of a special property, even if the seller had not then repudiated or failed to deliver.
(2)(3) If the identification creating his the buyer's special property has been made by the buyer, he the buyer acquires the
right to recover the goods only if they conform to the contract for sale."
Section 136. Section 30-2-716, MCA, is amended to read:
"30-2-716. Buyer's right to specific performance or recovery of goods. (1) Specific performance may be decreed where the goods are unique or in other proper circumstances.
(2) The decree for specific performance may include such terms and conditions as to payment of the price, damages, or other relief as the court may deem just.
(3) The buyer has a right to maintain an action for the recovery of goods identified to the contract if after reasonable
effort he the buyer is unable to effect cover for such goods or the circumstances reasonably indicate that such effort will be
unavailing or if the goods have been shipped under reservation and satisfaction of the security interest in them has been
made or tendered. In the case of goods bought for personal, family, or household purposes, the buyer's right to maintain an
action for recovery of the goods vests upon acquisition of a special property, even if the seller had not then repudiated or
failed to deliver."
Section 137. Section 30-2A-103, MCA, is amended to read:
"30-2A-103. Definitions and index of definitions. (1) In this chapter, unless the context otherwise requires, the following definitions apply:
(a) "Buyer in ordinary course of business" means a person, who in good faith and without knowledge that the sale to
him the buyer is in violation of the ownership rights or security interest or leasehold interest of a third party in the goods,
buys in ordinary course from a person in the business of selling goods of that kind, but the term does not include a
pawnbroker. "Buying" may be for cash or by exchange of other property or on secured or unsecured credit and includes
receiving goods or documents of title under a preexisting contract for sale but does not include a transfer in bulk or as
security for or in total or partial satisfaction of a money debt.
(b) "Cancellation" occurs when either party puts an end to the lease contract for default by the other party.
(c) "Commercial unit" means such a unit of goods as by commercial usage is a single whole for purposes of lease and division of which materially impairs its character or value on the market or in use. A commercial unit may be a single article, as a machine; a set of articles, as a suite of furniture or a line of machinery; a quantity, as a gross or carload; or any other unit treated in use or in the relevant market as a single whole.
(d) "Conforming" goods or performance under a lease contract means goods or performance that is in accordance with the obligations under the lease contract.
(e) "Consumer lease" means a lease that a lessor regularly engaged in the business of leasing or selling makes to a lessee who is an individual and who takes under the lease primarily for a personal, family, or household purpose if the total payments to be made under the lease contract, excluding payments for options to renew or buy, do not exceed $25,000.
(f) "Fault" means wrongful act, omission, breach, or default.
(g) "Finance lease" means a lease with respect to which:
(i) the lessor does not select, manufacture, or supply the goods;
(ii) the lessor acquires the goods or the right to possession and use of the goods in connection with the lease; and
(iii) one of the following occurs:
(A) the lessee receives a copy of the contract by which the lessor acquired the goods or the right to possession and use of the goods before signing the lease contract;
(B) the lessee's approval of the contract by which the lessor acquired the goods or the right to possession and use of the goods is a condition to effectiveness of the lease contract;
(C) the lessee, before signing the lease contract, receives an accurate and complete statement designating the promises and warranties, and any disclaimers of warranties, limitations or modifications of remedies, or liquidated damages, including those of a third party, such as the manufacturer of the goods, provided to the lessor by the person supplying the goods in connection with or as part of the contract by which the lessor acquired the goods or the right to possession and use of the goods; or
(D) if the lease is not a consumer lease, the lessor, before the lessee signs the lease contract, informs the lessee in writing:
(I) of the identity of the person supplying the goods to the lessor, unless the lessee has selected that person and directed the lessor to acquire the goods or the right to possession and use of the goods from that person;
(II) that the lessee is entitled under this chapter to the promises and warranties, including those of any third party, provided to the lessor by the person supplying the goods in connection with or as part of the contract by which the lessor acquired the goods or the right to possession and use of the goods; and
(III) that the lessee may communicate with the person supplying the goods to the lessor and receive an accurate and complete statement of those promises and warranties, including any disclaimers and limitations of them or of remedies.
(h) "Goods" means all things that are movable at the time of identification to the lease contract, or are fixtures (30-2A-309), but the term does not include money, documents, instruments, accounts, chattel paper, general intangibles, or minerals or the like, including oil and gas, before extraction. The term also includes the unborn young of animals.
(i) "Installment lease contract" means a lease contract that authorizes or requires the delivery of goods in separate lots to be separately accepted, even though the lease contract contains a clause "each delivery is a separate lease" or its equivalent.
(j) "Lease" means a transfer of the right to possession and use of goods for a term in return for consideration, but a sale, including a sale on approval or a sale or return, or retention or creation of a security interest is not a lease. Unless the context clearly indicates otherwise, the term includes a sublease.
(k) "Lease agreement" means the bargain, with respect to the lease, of the lessor and the lessee in fact as found in their language or by implication from other circumstances, including course of dealing or usage of trade or course of performance as provided in this chapter. Unless the context clearly indicates otherwise, the term includes a sublease agreement.
(l) "Lease contract" means the total legal obligation that results from the lease agreement as affected by this chapter and any other applicable rules of law. Unless the context clearly indicates otherwise, the term includes a sublease contract.
(m) "Leasehold interest" means the interest of the lessor or the lessee under a lease contract.
(n) "Lessee" means a person who acquires the right to possession and use of goods under a lease. Unless the context clearly indicates otherwise, the term includes a sublessee.
(o) "Lessee in ordinary course of business" means a person, who in good faith and without knowledge that the lease to him is in violation of the ownership rights or security interest or leasehold interest of a third party in the goods, leases in ordinary course from a person in the business of selling or leasing goods of that kind, but the term does not include a pawnbroker. "Leasing" may be for cash or by exchange of other property or on secured or unsecured credit and includes receiving goods or documents of title under a preexisting lease contract but does not include a transfer in bulk or as security for or in total or partial satisfaction of a money debt.
(p) "Lessor" means a person who transfers the right to possession and use of goods under a lease. Unless the context clearly indicates otherwise, the term includes a sublessor.
(q) "Lessor's residual interest" means the lessor's interest in the goods after expiration, termination, or cancellation of the lease contract.
(r) "Lien" means a charge against or interest in goods to secure payment of a debt or performance of an obligation, but the term does not include a security interest.
(s) "Lot" means a parcel or a single article that is the subject matter of a separate lease or delivery, whether or not it is sufficient to perform the lease contract.
(t) "Merchant lessee" means a lessee that is a merchant with respect to goods of the kind subject to the lease.
(u) "Present value" means the amount as of a date certain of one or more sums payable in the future, discounted to the date certain. The discount is determined by the interest rate specified by the parties if the rate was not manifestly unreasonable at the time the transaction was entered into; otherwise, the discount is determined by a commercially reasonable rate that takes into account the facts and circumstances of each case at the time the transaction was entered into.
(v) "Purchase" includes taking by sale, lease, mortgage, security interest, pledge, gift, or any other voluntary transaction creating an interest in goods.
(w) "Sublease" means a lease of goods the right to possession and use of which was acquired by the lessor as a lessee under an existing lease.
(x) "Supplier" means a person from whom a lessor buys or leases goods to be leased under a finance lease.
(y) "Supply contract" means a contract under which a lessor buys or leases goods to be leased.
(z) "Termination" occurs when either party pursuant to a power created by agreement or law puts an end to the lease contract otherwise than for default.
(2) Other definitions applying to this chapter and the sections in which they appear are:
(a) "Accessions". 30-2A-310(1).
(b) "Construction mortgage". 30-2A-309(1)(d).
(c) "Encumbrance". 30-2A-309(1)(e).
(d) "Fixtures". 30-2A-309(1)(a).
(e) "Fixture filing". 30-2A-309(1)(b).
(f) "Purchase money lease". 30-2A-309(1)(c).
(3) The following definitions in other chapters apply to this chapter:
(a) "Account". 30-9-106 [section 1(1)(b)].
(b) "Between merchants". 30-2-104(3).
(c) "Buyer". 30-2-103(1)(a).
(d) "Chattel paper". 30-9-105(1)(b) [section 1(1)(k)].
(e) "Consumer goods". 30-9-109(1) [section 1(1)(w)].
(f) "Document". 30-9-105(1)(f) [section 1(1)(dd)].
(g) "Entrusting". 30-2-403(3).
(h) "General intangibles intangible". 30-9-106 [section 1(1)(pp)].
(i) "Good faith". 30-2-103(1)(b).
(j) "Instrument". 30-9-105(1)(i) [section 1(1)(uu)].
(k) "Merchant". 30-2-104(1).
(l) "Mortgage". 30-9-105(1)(j) [section 1(1)(ccc)].
(m) "Pursuant to commitment". 30-9-105(1)(k).
(n) "Receipt". 30-2-103(1)(c).
(o) "Sale". 30-2-106(1).
(p) "Sale on approval". 30-2-326.
(q) "Sale or return". 30-2-326.
(r) "Seller". 30-2-103(1)(d).
(4) In addition, Title 30, chapter 1, contains general definitions and principles of construction and interpretation applicable throughout this chapter."
Section 138. Section 30-2A-303, MCA, is amended to read:
"30-2A-303. Alienability of party's interest under lease contract or of lessor's residual interest in goods --
delegation of performance -- transfer of rights. (1) As used in this section, "creation of a security interest" includes the
sale of a lease contract that is subject to Title 30, chapter 9, secured transactions, by reason of 30-9-102(1)(b) [section
8(1)(c)].
(2) Except as provided in subsections [section 68] and subsection (3) and (4) of this section, a provision in a lease
agreement that prohibits the voluntary or involuntary transfer, including a transfer by sale, sublease, creation or
enforcement of a security interest, or attachment, levy, or other judicial process, of an interest of a party under the lease
contract or of the lessor's residual interest in the goods or that makes such a transfer an event of default gives rise to the
rights and remedies provided in subsection (5) (4), but a transfer that is prohibited or is an event of default under the lease
agreement is otherwise effective.
(3) (a) A provision in a lease agreement that prohibits the creation or enforcement of a security interest in an interest of
a party under the lease contract or in the lessor's residual interest in the goods or that makes such a transfer an event of
default is not enforceable unless, and then only to the extent that, there is an actual transfer by the lessee of the lessee's right
of possession or use of the goods in violation of the provision or an actual delegation of a material performance of either
party to the lease contract in violation of the provision.
(b) Neither the granting nor the enforcement of a security interest in the lessor's interest under the lease contract or the
lessor's residual interest in the goods is a transfer that materially impairs the prospect of obtaining return performance by,
materially changes the duty of, or materially increases the burden or risk imposed on the lessee within the purview of
subsection (5) unless, and then only to the extent that, there is an actual delegation of a material performance of the lessor.
(4)(3) A provision in a lease agreement that prohibits a transfer of a right to damages for default with respect to the
whole lease contract or of a right to payment arising out of the transferor's due performance of the transferor's entire
obligation or that makes such a transfer an event of default is not enforceable, and such a transfer is not a transfer that
materially impairs the prospect of obtaining return performance by, materially changes the duty of, or materially increases
the burden or risk imposed on the other party to the lease contract within the purview of subsection (5) (4).
(5)(4) Subject to subsections (3) and (4) [section 68] and subsection (3) of this section:
(a) if a transfer is made which that is made an event of default under a lease agreement, the party to the lease contract
not making the transfer, unless that party waives the default or otherwise agrees, has the rights and remedies described in
30-2A-501;
(b) if subsection (5)(a) (4)(a) is not applicable and if a transfer is made that is prohibited under a lease agreement or that
materially impairs the prospect of obtaining return performance by, materially changes the duty of, or materially increases
the burden or risk imposed on the other party to the lease contract, unless the party not making the transfer agrees at any
time to the transfer in the lease contract or otherwise, then, except as limited by contract:
(i) the transferor is liable to the party not making the transfer for damages caused by the transfer to the extent that the damages could not reasonably be prevented by the party not making the transfer; and
(ii) a court having jurisdiction may grant other appropriate relief, including cancellation of the lease contract or an injunction against the transfer.
(6)(5) A transfer of "the lease" or of "all my rights under the lease" or a transfer in similar general terms is a transfer of
rights, and unless the language or the circumstances, as in a transfer for security, indicate the contrary, the transfer is a
delegation of duties by the transferor to the transferee. Acceptance by the transferee constitutes a promise by the transferee
to perform those duties. The promise is enforceable by either the transferor or the other party to the lease contract.
(7)(6) Unless otherwise agreed by the lessor and the lessee, a delegation of performance does not relieve the transferor
as against the other party of any duty to perform or of any liability for default.
(8)(7) In a consumer lease, to prohibit the transfer of an interest of a party under the lease contract or to make a transfer
an event of default, the language must be specific, by a writing, and conspicuous."
Section 139. Section 30-2A-307, MCA, is amended to read:
"30-2A-307. Priority of liens arising by attachment or levy on, security interests in, and other claims to goods. (1) Except as otherwise provided in 30-2A-306, a creditor of a lessee takes subject to the lease contract.
(2) Except as otherwise provided in 30-2A-306, 30-2A-308, and subsections subsection (3) and (4) of this section, a
creditor of a lessor takes subject to the lease contract unless:
(a) the creditor holds a lien that attached to the goods before the lease contract became enforceable;
(b) the creditor holds a security interest in the goods and the lessee did not give value and receive delivery of the goods
without knowledge of the security interest; or
(c) the creditor holds a security interest in the goods that was perfected (30-9-303) before the lease contract became
enforceable.
(3) A lessee in the ordinary course of business takes the leasehold interest free of a security interest in the goods created
by the lessor even though the security interest is perfected (30-9-303) and the lessee knows of its existence.
(4) A lessee other than a lessee in the ordinary course of business takes the leasehold interest free of a security interest
to the extent that it secures future advances made after the secured party acquires knowledge of the lease or more than 45
days after the lease contract becomes enforceable, whichever occurs first, unless the future advances are made pursuant to a
commitment entered into without knowledge of the lease and before the expiration of the 45-day period.
(3) Except as otherwise provided in [sections 36, 40, and 42], a lessee takes a leasehold interest subject to a security interest held by a creditor of the lessor."
Section 140. Section 30-2A-309, MCA, is amended to read:
"30-2A-309. Lessor's and lessee's rights when goods become fixtures. (1) In this section:
(a) goods are "fixtures" when they become so related to particular real estate that an interest in them arises under real estate law;
(b) a "fixture filing" is the filing, in the office where a mortgage on the real estate would be filed or recorded, of a
financing statement covering goods that are or are to become fixtures and conforming to the requirements of 30-9-402(5)
[section 72(1) and (2)];
(c) a lease is a "purchase money lease" unless the lessee has possession or use of the goods or the right to possession or use of the goods before the lease agreement is enforceable;
(d) a mortgage is a "construction mortgage" to the extent it secures an obligation incurred for the construction of an improvement on land, including the acquisition cost of the land, if the recorded writing so indicates; and
(e) "encumbrance" includes real estate mortgages and other liens on real estate and all other rights in real estate that are not ownership interests.
(2) Under this chapter, a lease may be of goods that are fixtures or may continue in goods that become fixtures, but no lease exists under this chapter of ordinary building materials incorporated into an improvement on land.
(3) This chapter does not prevent creation of a lease of fixtures pursuant to real estate law.
(4) The perfected interest of a lessor of fixtures has priority over a conflicting interest of an encumbrancer or owner of the real estate if:
(a) the lease is a purchase money lease, the conflicting interest of the encumbrancer or owner arises before the goods become fixtures, the interest of the lessor is perfected by a fixture filing before the goods become fixtures or within 10 days thereafter, and the lessee has an interest of record in the real estate or is in possession of the real estate; or
(b) the interest of the lessor is perfected by a fixture filing before the interest of the encumbrancer or owner is of record, the lessor's interest has priority over any conflicting interest of a predecessor in title of the encumbrancer or owner, and the lessee has an interest of record in the real estate or is in possession of the real estate.
(5) The interest of a lessor of fixtures, whether or not perfected, has priority over the conflicting interest of an encumbrancer or owner of the real estate if:
(a) the fixtures are readily removable factory or office machines, readily removable equipment that is not primarily used or leased for use in the operation of the real estate, or readily removable replacements of domestic appliances that are goods subject to a consumer lease, and before the goods become fixtures the lease contract is enforceable;
(b) the conflicting interest is a lien on the real estate obtained by legal or equitable proceedings after the lease contract is enforceable;
(c) the encumbrancer or owner has consented in writing to the lease or has disclaimed an interest in the goods as fixtures; or
(d) the lessee has a right to remove the goods as against the encumbrancer or owner. If the lessee's right to remove terminates, the priority of the interest of the lessor continues for a reasonable time.
(6) Notwithstanding the provisions of subsection (4)(a) but otherwise subject to the provisions of subsections (4) and (5), the interest of a lessor of fixtures, including the lessor's residual interest, is subordinate to the conflicting interest of an encumbrancer of the real estate under a construction mortgage recorded before the goods become fixtures if the goods become fixtures before the completion of the construction. To the extent given to refinance a construction mortgage, the conflicting interest of an encumbrancer of the real estate under a mortgage has this priority to the same extent as the encumbrancer of the real estate under the construction mortgage.
(7) In cases not within the provisions of subsections (1) through (6), priority between the interest of a lessor of fixtures, including the lessor's residual interest, and the conflicting interest of an encumbrancer or owner of the real estate who is not the lessee is determined by the priority rules governing conflicting interests in real estate.
(8) If the interest of a lessor of fixtures, including the lessor's residual interest, has priority over all conflicting interests of all owners and encumbrancers of the real estate, the lessor or the lessee may, on default, expiration, termination, or cancellation of the lease agreement but subject to the lease agreement and this chapter or if necessary to enforce other rights and remedies of the lessor or lessee under this chapter, remove the goods from the real estate, free and clear of all conflicting interests of all owners and encumbrancers of the real estate. However, the lessor or lessee shall reimburse any encumbrancer or owner of the real estate who is not the lessee and who has not otherwise agreed to the cost of repair of any physical injury, but not for any diminution in value of the real estate caused by the absence of the goods removed or by any necessity of replacing them. A person entitled to reimbursement may refuse permission to remove until the party seeking removal gives adequate security for the performance of this obligation.
(9) Even though the lease agreement does not create a security interest, the interest of a lessor of fixtures, including the lessor's residual interest, is perfected by filing a financing statement as a fixture filing for leased goods that are or are to become fixtures in accordance with the relevant provisions of the chapter on secured transactions (Title 30, chapter 9)."
Section 141. Section 30-4-208, MCA, is amended to read:
"30-4-208. Security interest of collecting bank in items, accompanying documents, and proceeds. (1) A collecting bank has a security interest in an item and any accompanying documents or the proceeds of either:
(a) in case of an item deposited in an account, to the extent to which credit given for the item has been withdrawn or applied;
(b) in case of an item for which it has given credit available for withdrawal as of right, to the extent of the credit given, whether or not the credit is drawn upon or there is a right of charge-back; or
(c) if it makes an advance on or against the item.
(2) If credit given for several items received at one time or pursuant to a single agreement is withdrawn or applied in part, the security interest remains upon all the items, any accompanying documents, or the proceeds of either. For the purpose of this section, credits first given are first withdrawn.
(3) Receipt by a collecting bank of a final settlement for an item is a realization on its security interest in the item, accompanying documents and proceeds. To the extent and so long as the bank does not receive final settlement for the item or give up possession of the item or accompanying documents for purposes other than collection, the security interest continues and is subject to the provisions of chapter 9 except that:
(a) no security agreement is necessary to make the security interest enforceable (30-9-203) ([section 12(2)(c)(i)]); and
(b) no filing is required to perfect the security interest; and
(c) the security interest has priority over conflicting perfected security interests in the item, accompanying documents or proceeds."
Section 142. Section 30-7-503, MCA, is amended to read:
"30-7-503. Document of title to goods defeated in certain cases. (1) A document of title confers no right in goods against a person who before issuance of the document had a legal interest or a perfected security interest in them and who neither:
(a) delivered or entrusted them or any document of title covering them to the bailor or his the bailor's nominee with
actual or apparent authority to ship, store or sell or with power to obtain delivery under this chapter (30-7-403) or with
power of disposition under this code (30-2-403 and 30-9-307 [section 39]) or other statute or rule of law; nor
(b) acquiesced in the procurement by the bailor or his the bailor's nominee of any document of title.
(2) Title to goods based upon an unaccepted delivery order is subject to the rights of anyone to whom a negotiable warehouse receipt or bill of lading covering the goods has been duly negotiated. Such a title may be defeated under the next section to the same extent as the rights of the issuer or a transferee from the issuer.
(3) Title to goods based upon a bill of lading issued to a freight forwarder is subject to the rights of anyone to whom a
bill issued by the freight forwarder is duly negotiated; but delivery by the carrier in accordance with Part part 4 of this
chapter pursuant to its own bill of lading discharges the carrier's obligation to deliver."
Section 143. Section 30-8-113, MCA, is amended to read:
"30-8-113. Rules for determining whether certain obligations and interests are securities or financial assets. (1) A share or similar equity interest issued by a corporation, business trust, joint stock company, or similar entity is a security.
(2) An "investment company security" is a security. "Investment company security" means a share or similar equity interest issued by an entity that is registered as an investment company under the federal investment company laws, an interest in a unit investment trust that is so registered, or a face-amount certificate issued by a face-amount certificate company that is so registered. Investment company security does not include an insurance policy or endowment policy or annuity contract issued by an insurance company.
(3) An interest in a partnership or limited liability company is not a security unless it is dealt in or traded on securities exchanges or in securities markets, its terms expressly provide that it is a security governed by this chapter, or it is an investment company security. However, an interest in a partnership or limited liability company is a financial asset if it is held in a securities account.
(4) A writing that is a security certificate is governed by this chapter and not by chapter 3, even though it also meets the requirements of that chapter. However, a negotiable instrument governed by chapter 3 is a financial asset if it is held in a securities account.
(5) An option or similar obligation issued by a clearing corporation to its participants is not a security, but is a financial asset.
(6) A commodity contract, as defined in 30-9-115 [section 1], is not a security or a financial asset."
Section 144. Section 30-8-116, MCA, is amended to read:
"30-8-116. Control. (1) A purchaser has "control" of a certificated security in bearer form if the certificated security is delivered to the purchaser.
(2) A purchaser has "control" of a certificated security in registered form if the certificated security is delivered to the purchaser and:
(a) the certificate is indorsed to the purchaser or in blank by an effective indorsement; or
(b) the certificate is registered in the name of the purchaser, upon original issue or registration of transfer by the issuer.
(3) A purchaser has "control" of an uncertificated security if:
(a) the uncertificated security is delivered to the purchaser; or
(b) the issuer has agreed that it will comply with instructions originated by the purchaser without further consent by the registered owner.
(4) A purchaser has "control" of a security entitlement if:
(a) the purchaser becomes the entitlement holder; or
(b) the securities intermediary has agreed that it will comply with entitlement orders originated by the purchaser without further consent by the entitlement holder; or
(c) another person has control of the security entitlement on behalf of the purchaser or, having previously acquired control of the security entitlement, acknowledges that it has control on behalf of the purchaser.
(5) If an interest in a security entitlement is granted by the entitlement holder to the entitlement holder's own securities intermediary, the securities intermediary has control.
(6) A purchaser who has satisfied the requirements of subsection (3)(b) or (4)(b) has control even if the registered
owner in the case of subsection (3)(b) or the entitlement holder in the case of subsection (4)(b) retains the right to make
substitutions for the uncertificated security or security entitlement, to originate instructions or entitlement orders to the
issuer or securities intermediary, or otherwise to deal with the uncertificated security or security entitlement.
(7) An issuer or a securities intermediary may not enter into an agreement of the kind described in subsection (3)(b) or (4)(b) without the consent of the registered owner or entitlement holder, but an issuer or a securities intermediary is not required to enter into such an agreement even though the registered owner or entitlement holder so directs. An issuer or securities intermediary that has entered into such an agreement is not required to confirm the existence of the agreement to another party unless requested to do so by the registered owner or entitlement holder."
Section 145. Section 30-8-120, MCA, is amended to read:
"30-8-120. Applicability -- choice of law. (1) The local law of the issuer's jurisdiction, as specified in subsection (4), governs:
(a) the validity of a security;
(b) the rights and duties of the issuer with respect to registration of transfer;
(c) the effectiveness of registration of transfer by the issuer;
(d) whether the issuer owes any duties to an adverse claimant to a security; and
(e) whether an adverse claim can be asserted against a person to whom transfer of a certificated or uncertificated security is registered or a person who obtains control of an uncertificated security.
(2) The local law of the securities intermediary's jurisdiction, as specified in subsection (5), governs:
(a) acquisition of a security entitlement from the securities intermediary;
(b) the rights and duties of the securities intermediary and entitlement holder arising out of a security entitlement;
(c) whether the securities intermediary owes any duties to an adverse claimant to a security entitlement; and
(d) whether an adverse claim can be asserted against a person who acquires a security entitlement from the securities intermediary or a person who purchases a security entitlement or interest therein from an entitlement holder.
(3) The local law of the jurisdiction in which a security certificate is located at the time of delivery governs whether an adverse claim can be asserted against a person to whom the security certificate is delivered.
(4) "Issuer's jurisdiction" means the jurisdiction under which the issuer of the security is organized or, if permitted by the law of that jurisdiction, the law of another jurisdiction specified by the issuer. An issuer organized under the law of this state may specify the law of another jurisdiction as the law governing the matters specified in subsections (1)(b) through (1)(e).
(5) The following rules determine a "securities intermediary's jurisdiction" for purposes of this section:
(a) If an agreement between the securities intermediary and its entitlement holder specifies that it is governed by the law
of a particular jurisdiction governing the securities account expressly provides that a particular jurisdiction is the security
intermediary's jurisdiction for the purposes of this part, this chapter, or chapters 1 through 9 of this title, that jurisdiction is
the securities intermediary's jurisdiction.
(b) If subsection (5)(a) does not apply and an agreement between the securities intermediary and its entitlement holder expressly provides that the agreement is governed by the law of a particular jurisdiction, that jurisdiction is the securities intermediary's jurisdiction.
(b)(c) If neither subsection (5)(a) nor (5)(b) applies and an agreement between the securities intermediary and its
entitlement holder does not specify the governing law as provided in subsection (5)(a), but governing the securities account
expressly specifies provides that the securities account is maintained at an office in a particular jurisdiction, that jurisdiction
is the securities intermediary's jurisdiction.
(c)(d) If an agreement between the securities intermediary and its entitlement holder does not specify a jurisdiction as
provided in subsection (5)(a), or (5)(b), or (5)(c) does not apply, the securities intermediary's jurisdiction is the jurisdiction
in which is located the office identified in an account statement as the office serving the entitlement holder's account is
located.
(d)(e) If an agreement between the securities intermediary and its entitlement holder does not specify a jurisdiction as
provided in subsection (5)(a), or (5)(b), and an account statement does not identify an office serving the entitlement holder's
account as provided in subsection (5)(c), or (5)(d) does not apply the securities intermediary's jurisdiction is the jurisdiction
in which is located the chief executive office of the securities intermediary is located.
(6) A securities intermediary's jurisdiction is not determined by the physical location of certificates representing financial assets, or by the jurisdiction in which is organized the issuer of the financial asset with respect to which an entitlement holder has a security entitlement, or by the location of facilities for data processing or other recordkeeping concerning the account."
Section 146. Section 30-8-331, MCA, is amended to read:
"30-8-331. Delivery. (1) Delivery of a certificated security to a purchaser occurs when:
(a) the purchaser acquires possession of the security certificate;
(b) another person, other than a securities intermediary, either acquires possession of the security certificate on behalf of the purchaser or, having previously acquired possession of the certificate, acknowledges that it holds for the purchaser; or
(c) a securities intermediary acting on behalf of the purchaser acquires possession of the security certificate, only if the
certificate is in registered form and has been is:
(i) registered in the name of the purchaser;
(ii) payable to the order of the purchaser; or
(iii) specially indorsed to the purchaser by an effective indorsement and has not been indorsed to the securities intermediary or in blank.
(2) Delivery of an uncertificated security to a purchaser occurs when:
(a) the issuer registers the purchaser as the registered owner, upon original issue or registration of transfer; or
(b) another person, other than a securities intermediary, either becomes the registered owner of the uncertificated security on behalf of the purchaser or, having previously become the registered owner, acknowledges that it holds for the purchaser."
Section 147. Section 30-8-332, MCA, is amended to read:
"30-8-332. Rights of purchaser. (1) Except as otherwise provided in subsections (2) and (3), upon delivery a
purchaser of a certificated or uncertificated security to a purchaser, the purchaser acquires all rights in the security that the
transferor had or had power to transfer.
(2) A purchaser of a limited interest acquires rights only to the extent of the interest purchased.
(3) A purchaser of a certificated security who as a previous holder had notice of an adverse claim does not improve its position by taking from a protected purchaser."
Section 148. Section 30-8-510, MCA, is amended to read:
"30-8-510. Rights of purchaser of security entitlement from entitlement holder. (1) An In an action not covered by
the priority rules in chapter 9 or the rules stated in subsection (3), an action based on an adverse claim to a financial asset or
security entitlement, whether framed in conversion, replevin, constructive trust, equitable lien, or other theory, may not be
asserted against a person who purchases a security entitlement, or an interest therein, from an entitlement holder if the
purchaser gives value, does not have notice of the adverse claim, and obtains control.
(2) If an adverse claim could not have been asserted against an entitlement holder under 30-8-502, the adverse claim cannot be asserted against a person who purchases a security entitlement, or an interest therein, from the entitlement holder.
(3) In a case not covered by the priority rules in chapter 9, a purchaser for value of a security entitlement, or an interest
therein, who obtains control has priority over a purchaser of a security entitlement, or an interest therein, who does not
obtain control. Purchasers Except as otherwise provided in subsection (4), purchasers who have control rank equally,
except that a according to the priority in time of:
(a) the purchaser's becoming the person for whom the securities account, in which the security entitlement is carried, is maintained if the purchaser obtained control under 30-8-116(4)(a);
(b) the securities intermediary's agreement to comply with the purchaser's entitlement orders with respect to security entitlements carried or to be carried in the securities account in which the security entitlement is carried if the purchaser obtained control under 30-8-116(4)(b); or
(c) if the purchaser obtained control through another person under 30-8-116(4)(c), the time on which priority would be based under this subsection (3) if the other person were the secured party.
(4) A securities intermediary as purchaser has priority over a conflicting purchaser who has control unless otherwise agreed by the securities intermediary."
Section 149. Section 40-5-242, MCA, is amended to read:
"40-5-242. Notice of support lien -- civil liability upon failure to honor support lien or to comply with warrant for distraint. (1) The department may, at any time after asserting a support lien, serve a notice of the lien on any person, firm, corporation, association, or political subdivision or department of the state in possession of any real or personal property that is due, owing, or belonging to an obligor. For this purpose, personal property includes the obligor's share of a decedent's estate, workers' compensation benefits, and any proceeds or potential proceeds from suits at law. Except as provided in subsections (1)(a) and (1)(b), the department may not impose a lien under this section upon a self-sufficiency trust established pursuant to Title 53, chapter 18, part 1, or upon the assets of a self-sufficiency trust established pursuant to Title 53, chapter 18, part 1.
(a) The department may impose a lien under this section upon a self-sufficiency trust or upon the assets of a self-sufficiency trust established pursuant to Title 53, chapter 18, part 1, if the department is required by federal law to recover or collect from the trust or its assets as a condition of receiving federal financial participation for the child support enforcement program or the FAIM financial assistance program.
(b) To the extent otherwise permitted by this section, the department is not precluded from asserting a claim or imposing a lien upon real or personal property prior to transfer of the property to the trust. If the department imposes a lien upon property prior to transfer to a self-sufficiency trust, any transfer of the property to the trust is subject to the lien.
(2) Except as provided in subsection (3), a person or entity is liable to the department in an amount equal to 100% of the value of a support lien or warrant for distraint or the value of real or personal property subject to a support lien or distrained by a warrant for distraint, whichever is less, together with costs, interest, and reasonable attorney fees, if the person or entity:
(a) pays over, releases, sells, transfers, or conveys real or personal property subject to a support lien, to or for the benefit of the obligor, after the person or entity receives actual notice of filing of the support lien; or
(b) fails or refuses to surrender upon demand property of an obligor when presented with a warrant for distraint by a sheriff or levying officer under the provisions of 40-5-247.
(3) A person or entity is not liable to the department under this section when:
(a) a written release or waiver of the support lien or warrant for distraint issued by the department has been delivered to the person or entity;
(b) a determination has been made in an adjudicative proceeding, either administrative or judicial, that a support lien does not exist or that the lien has been satisfied; or
(c) the property subject to a support lien has been transferred to, paid over to, or repossessed by a person or entity holding:
(i) a prior perfected lien;
(ii) a mortgage, the proceeds of which were used by the obligor to purchase real property; or
(iii) a perfected purchase money security interest, as defined described by 30-9-107 [section 20]."
Section 150. Section 40-5-248, MCA, is amended to read:
"40-5-248. Lien against real and personal property -- effect of lien -- interest -- warrant for distraint. (1) There is a support lien on the real and personal property of an obligor:
(a) when the department has entered a final decision in a contested case under this chapter that finds the obligor owes a sum certain debt either to this department or to an obligee, or both; or
(b) upon registration under 40-5-271 of a support order that includes finding that the obligor owes a sum certain amount of delinquent support.
(2) A support lien is for the amount required to satisfy:
(a) the sum certain debt shown in a final decision in a contested case under this chapter or the sum certain support debt included in any support order registered under 40-5-271;
(b) interest claimed under this section; and
(c) any fees that may be due under 40-5-210.
(3) A support lien has the priority of a secured creditor from the date the lien is perfected as provided by this section; however, the lien is subordinate to:
(a) any prior perfected lien or security interest;
(b) a mortgage, the proceeds of which are used by an obligor to purchase real property; or
(c) any perfected purchase money security interest, as defined described in 30-9-107 [section 20].
(4) Support liens remain in effect until the delinquency upon which the lien is based is satisfied or until 2 years after the child to whom the support lien is related attains the age of majority, whichever occurs first.
(5) The lien applies to all real and personal property owned by the obligor if it can be located in the state. The lien applies to all real and personal property that the obligor can afterward acquire. Except as provided in subsections (5)(a) and (5)(b), the department may not impose a lien under this section upon a self-sufficiency trust established pursuant to Title 53, chapter 18, part 1, or upon the assets of a self-sufficiency trust established pursuant to Title 53, chapter 18, part 1.
(a) The department may impose a lien under this section upon a self-sufficiency trust or upon the assets of a self-sufficiency trust established pursuant to Title 53, chapter 18, part 1, if the department is required by federal law to recover or collect from the trust or its assets as a condition of receiving federal financial participation for the child support enforcement program or the FAIM financial assistance program.
(b) To the extent otherwise permitted by this section, the department is not precluded from asserting a claim or imposing a lien upon real or personal property prior to transfer of the property to the trust. If the department imposes a lien upon property prior to transfer to a self-sufficiency trust, any transfer of the property to the trust is subject to the lien.
(6) The department shall keep a record of support liens asserted under this section in the registry of support orders established by 40-5-271.
(7) A support lien is perfected:
(a) as to real property, upon filing a notice of support lien with the clerk of the district court in the county or counties in which the real property is or may be located at the time of filing or at any time in the future;
(b) as to motor vehicles or other items for which a certificate of ownership is issued by the department of justice, upon filing a notice of support lien with the department of justice in accordance with the provisions of Titles 23 and 61;
(c) as to all other personal property, upon filing a notice of support lien in the place required to perfect a security
interest under 30-9-401 [section 20]. The county clerk and recorder or the secretary of state, as appropriate, shall cause the
notice of support lien to be marked, held, and indexed as if the notice of support lien were a financing statement within the
meaning of the Uniform Commercial Code.
(8) A buyer, in the ordinary course of business, who buys an obligor's personal property for value and who buys in good faith and without knowledge of the support lien takes the property free of the support lien.
(9) (a) The department may charge interest on the support lien at the rate of 1% per month.
(b) Interest accrues at the close of the business day on the last day of each month and is calculated by multiplying the unpaid balance of the lien, including prior accrued interest existing at the end of the day, by the applicable rate of interest.
(c) A provision of this section may not be construed to require the department to maintain interest balance due accounts. The department may waive interest if waiver would facilitate the collection of the debt.
(d) Interest under this subsection (9) is in addition to and not in substitution for any other interest accrued or accruing under any other provision of law.
(10) (a) Upon receiving payment in full of the amount of the lien plus interest and fees, if any, the department shall take all necessary steps to release the support lien.
(b) Upon receiving partial payment of the support lien or if the department determines that a release or partial release of the lien will facilitate the collection of support arrearages, the department may release or partially release the support lien. The department may release the support lien if it determines that the lien is unenforceable.
(11) A support lien under this section is in addition to any other lien created by law.
(12) A support lien under this section may not be discharged in bankruptcy.
(13) Support liens provided for by this section may be enforced or collected through the warrant for distraint provided for by 40-5-247."
Section 151. Section 69-8-503, MCA, is amended to read:
"69-8-503. Transition costs financing. (1) A utility may, after July 1, 1997, apply to the commission for a determination that certain transition costs may be recovered through the issuance of transition bonds. If transition bonds are issued, cost savings associated with and resulting from the bonds must benefit customers. After the issuance of a financing order, the utility retains sole discretion regarding whether to sell, assign, or otherwise transfer or pledge transition property or to cause the transition bonds to be issued, including the right to defer or postpone the sale, assignment, transfer, pledge, or issuance. If transition bonds are not issued within 4 years of the issuance of the financing order, the financing order must terminate. The utility may apply for an extension or renewal of a financing order.
(2) (a) The commission may issue financing orders in accordance with this section to facilitate the recovery, reimbursement, financing, or refinancing of transition costs and the acquisition of transition property. A financing order may be adopted only upon the application of a utility and may only become effective in accordance with its terms after the utility files with the commission the utility's written consent to all terms and conditions of the financing order. A financing order may specify how amounts collected from a customer are allocated between fixed transition amounts and other charges.
(b) A financing order must include, without limitation, a procedure for the expeditious approval by the commission of periodic adjustments to nonbypassable rates and charges associated with fixed transition amounts included in the order to ensure recovery of all transition costs and the costs of capital associated with the proposed recovery, reimbursement, financing, or refinancing of transition costs and the acquisition of transition property including the costs of issuing, servicing, and retiring the transition bonds contemplated by the financing order. The order must set forth the term over which the transition bonds are to be paid, but those terms may not exceed 20 years. These adjustments may not impose fixed transition amounts upon customer classes that were not subject to the fixed transition amounts in the pertinent financing order.
(3) (a) Notwithstanding any other provision of law, and except as otherwise provided in this section with respect to transition property that has been made the basis for the issuance of transition bonds and upon the issuance of transition bonds, the financing orders and the fixed transition amounts must be irrevocable.
(b) If transition bonds have been issued, the commission may not by rescinding, altering, or amending the financing order or otherwise:
(i) revalue or revise for ratemaking purposes the transition costs or the costs of recovering, reimbursing, financing, or refinancing the transition costs and acquiring transition property;
(ii) determine that the fixed transition amounts or rates are unjust or unreasonable; or
(iii) in any way reduce or impair the value of transition property either directly or indirectly by taking fixed transition amounts into account when setting other rates for the utility.
(c) The total amount of the transition property may not be subject to reduction, impairment, postponement, or termination.
(d) Except as otherwise provided in this section, the state pledges and agrees with the assignees and pledgees of transition property and transition bondholders that the state may not limit or alter the fixed transition amounts, transition property, financing orders, or any right under the bonds until the bonds, together with the interest on the bonds, are fully met and discharged. The board, as agent for the state, is authorized to include this pledge and undertaking for the state in these bonds.
(e) Notwithstanding any other provision of this section, the commission shall approve those adjustments to the fixed transition amounts as may be necessary to ensure timely recovery of all transition costs that are the subject of the pertinent financing order and the costs of capital associated with the recovery, reimbursement, financing, or refinancing of transition costs and acquiring transition property including the costs of issuing, servicing, and retiring the transition bonds contemplated by the financing order. The adjustments may not impose fixed transition amounts upon customer classes that were not subject to the fixed transition amounts in the pertinent financing order.
(4) (a) Financing orders do not constitute a debt or liability of the state or of any political subdivision of the state if issued through the board and do not constitute a pledge of the full faith and credit of the state or any of the state's political subdivisions if issued through the board. The financing orders are payable solely from the funds provided under this section. The bonds and offering documents must contain on their face a statement to the following effect:
This bond may not constitute an indebtedness or a loan of credit of the state of Montana or any political subdivision of the state of Montana within any constitutional or statutory provision. Neither the full faith and credit nor the taxing power of the state of Montana is pledged to the payment of the principal or interest on this bond, and neither the state of Montana nor any political subdivision of the state of Montana is obligated, directly, indirectly, or contingently, to levy or to pledge any form of taxation or to make any appropriation for the payment of this bond. This bond is a limited obligation of the issuer, payable solely out of the transition property or the proceeds of that property specifically pledged for its payment and not otherwise.
(b) The issuance of bonds under this section may not directly, indirectly, or contingently obligate the state or any political subdivision of the state to levy or to pledge any form of taxation or to make any appropriation for bond payment.
(5) The commission shall establish procedures for the expeditious processing of applications for financing orders, including the approval or disapproval of applications within 120 days after a utility submits a complete application. The commission shall provide in any financing order for a procedure for the expeditious approval by the commission of periodic adjustments to the fixed transition amounts that are the subject of the pertinent financing order pursuant to subsection (2). The commission shall determine on each anniversary of the issuance of the financing order and at additional intervals as may be provided for in the financing order whether the adjustments are required and shall provide for the adjustments, if required, to be approved within 60 days of each anniversary of the issuance of the financing order or of each additional interval provided for in the financing order.
(6) Fixed transition amounts become transition property when and to the extent that a financing order authorizing the fixed transition amounts has become effective in accordance with subsection (2), and the transition property must thereafter continuously exist as property for all purposes with all of the rights and privileges of this chapter for the period and to the extent provided in the financing order or until the transition bonds are paid in full including all principal, interest, premium, costs, and arrearages on the transition bonds.
(7) Transition bonds may be issued upon commission approval in the pertinent financing order. Transition bonds must specify that they do not provide recourse to the credit or any assets of the utility, other than the transition property as specified in the pertinent financing order.
(8) (a) A utility may sell, assign, or transfer all or portions of the utility's interest in transition property to an assignee. A utility or an assignee may further sell, assign, or transfer the utility's interest in that transition property to one or more assignees in connection with the issuance of transition bonds to the extent approved in the pertinent financing order.
(b) A utility or an assignee may pledge transition property as collateral for transition bonds to the extent approved in the pertinent financing order and may provide for a security interest in the transition property as provided in this section.
(c) Transition property may be sold, assigned, or transferred for the benefit of:
(i) transition bondholders in connection with the exercise of remedies upon a default; or
(ii) any person acquiring the transition property after a sale, assignment, or transfer pursuant to this section.
(9) (a) To the extent that any interest in transition property is sold, assigned, transferred, or pledged as collateral, the commission shall authorize the utility to contract with any assignee so that the utility will, subject to the utility's rights under subsection (18):
(i) continue to operate the utility's system and to provide service to the utility's customers;
(ii) collect amounts in respect of the fixed transition amounts for the benefit and account of the assignee; and
(iii) account for and remit these amounts to or for the account of the assignee.
(b) Contracting with the assignee in accordance with the commission's authorization may not impair or negate the characterization of the sale, assignment, transfer, or pledge as a true sale, an absolute assignment or transfer, or a grant of a security interest, as applicable.
(10) Notwithstanding any other provision of law, any provision under this section or under a financing order requiring that the commission take or refrain from taking action with respect to the subject matter of a financing order binds the commission and any successor commission or agency exercising functions similar to the commission, and the commission or any successor commission or agency may not rescind, alter, or amend that requirement in a financing order.
(11) A pledge or any other security interest in transition property is valid, is enforceable against the pledgor and third parties, including judgment lien creditors, subject only to the rights of any third parties holding security interests in the transition property perfected in the manner described in this section, and attaches only when all of the following have taken place:
(a) the commission has issued the financing order authorizing the fixed transition amounts included in the transition property;
(b) value has been given by the pledgees of the transition property; and
(c) the pledgor has signed a security agreement or other financing-related agreement covering the transition property.
(12) (a) A valid and enforceable security interest in transition property is perfected only when it has attached and when a financing statement has been filed with the secretary of state in accordance with procedures that the secretary of state may establish. The financing statement must name the pledgor of the transition property as debtor and identify the transition property.
(b) Any description of the transition property is sufficient if the description refers to the financing order creating the transition property.
(c) The commission may require other filings with respect to the security interest in accordance with procedures the commission may establish, except that these filings may not affect the perfection of the security interest.
(13) A perfected security interest in transition property is a continuously perfected security interest in all revenue and proceeds arising with respect to the transition property, whether or not the revenue or proceeds have accrued. Conflicting security interests must rank according to priority in time of perfection. Transition property constitutes property for all purposes, including for contracts securing transition bonds, whether or not the revenue and proceeds arising with respect to the transition property have accrued.
(14) (a) Subject to the terms of the security agreement covering the transition property and the rights of any third parties holding security interests in the transition property perfected in the manner described in this section, the validity and relative priority of a security interest created under this section is not defeated or adversely affected by:
(i) the commingling of revenue arising with respect to the transition property with other funds of the utility that is the pledgor or transferor of the transition property; or
(ii) any security interest of any third party in a deposit account of that utility perfected under Title 30, chapter 9, part 3, into which the revenue is deposited.
(b) Subject to the terms of the security agreement, upon compliance with the requirements of this section, a pledgee of the transition property has a perfected security interest in all cash and deposit accounts of the utility in which revenue arising with respect to the transition property has been commingled with other funds, but the perfected security interest must be limited to an amount no greater than the amount of the revenue with respect to the transition property received by the utility within 12 months before any default under the security agreement or the institution of insolvency proceedings by or against the utility, less payments from the revenue to the pledgees during that 12-month period.
(15) (a) If a default occurs under the security agreement covering the transition property, a pledgee of the transition
property, subject to the terms of the security agreement, has all rights and remedies of a secured party upon default under
Title 30, chapter 9, part 5 [sections 98 through 125], and is entitled to foreclose or otherwise enforce the pledgee's security
interest in the transition property, subject to the rights of any third parties holding prior security interests in the transition
property perfected in the manner provided in this section.
(b) The commission may require in the financing order creating the transition property that in the event of default by the utility in payment of revenue arising with respect to the transition property, the commission and any successor to the commission, upon the application by a pledgee or assignee of the transition property and without limiting any other remedies available to the pledgees or transferees by reason of the default shall order the sequestration and payment to the pledgee or assignee of the proceeds of the transition property. An order must remain in full force and effect notwithstanding any bankruptcy, reorganization, or other insolvency proceedings with respect to the public utility or a debtor, pledgor, or transferor of the transition property.
(c) Any sum in excess of amounts necessary to pay principal, premium, if any, interest, costs, and arrearages on the transition bonds and other costs arising under the security agreement must be remitted to the debtor or to the pledgor as provided in the security agreement.
(16) (a) A transfer of transition property by a utility to an assignee or by the assignee to another assignee that the parties have in the governing documentation expressly stated to be a sale or other absolute transfer in a transaction approved or authorized in a financing order must be treated as an absolute transfer of all of the transferors right, title, and interest, as in a true sale, and not as a pledge or other financing of the transition property, other than for federal and state income and franchise tax purposes.
(b) Granting to transition bondholders a preferred right to revenue of the utility or the provision by the utility or an assignee of other credit enhancement with respect to transition bonds may not impair or negate the characterization of any transfer as a true sale, other than for federal and state income and franchise tax purposes.
(c) Notwithstanding the provisions of this subsection (16), for state tax purposes, a transfer must be treated as a pledge or other financing unless the governing documentation of transfer specifically states that the transfer is intended to be treated otherwise. The characterization of the transfer as a true sale or other absolute transfer in the governing documentation of a transfer is not intended to prejudice the characterization of the transfer as a pledge or other financing for federal tax purposes.
(17) A sale, assignment, or other transfer of transition property may only be considered perfected as against any third person, including any judicial lien creditor, when both of the following have taken place:
(a) the financing order authorizing the fixed transition amounts included in the transition property has become effective in accordance with subsection (2); and
(b) an assignment of the transition property, in writing, has been executed and delivered to the transferee.
(18) (a) As between bona fide assignees of the same right for value without notice, the assignee first filing a financing statement with the secretary of state in accordance with procedures that the secretary of state may establish has priority. The financing statement must name the assignor of the transition property as debtor and must identify the transition property. Any description of the transition property is sufficient if the description refers to the financing order creating the transition property. The commission may require the assignor or the assignee to make other filings with respect to the transfer in accordance with procedures that the commission may establish, but these filings may not affect the perfection of the transfer.
(b) Any successor to the utility, whether pursuant to any bankruptcy, reorganization, or other insolvency proceeding or pursuant to any merger, sale, or transfer, by operation of law or otherwise, shall perform and satisfy all obligations of the utility pursuant to this section in the same manner and to the same extent as the utility, including but not limited to collecting and paying to the assignee or pledgee, as the case may be, revenue arising with respect to the transition property sold, assigned, transferred, or pledged to secure transition bonds.
(19) Transition property or any right, title, or interest of a utility, assignee, or pledgee described in the definition of
transition property, whether before or after the issuance of a financing order, does not constitute an account or general
intangibles under 30-9-106 as those terms are defined in [section 1]. Any right, title, or interest pertaining to a financing
order, including the interest pertaining to a financing order, along with the associated transition property and any revenue,
collections, claims, payments, money, or proceeds of or arising from fixed transition amounts pursuant to the financing
order, may not be considered proceeds of any right, title, or interest other than in the order and the transition property
arising from the order.
(20) The lien under this section is enforceable against the pledgor and all third parties, including judicial lien creditors, subject only to the rights of any third parties holding security interests in the transition property previously perfected in the manner described in this section if value has been given by the purchasers of transition bonds. A perfected lien in transition property is a continuously perfected security interest in all revenue and proceeds arising with respect to the associated transition property, whether or not revenue has been accrued. Transition property constitutes property for the purposes of contracts securing transition bonds, whether or not the related revenue has accrued. The lien created under this section is perfected and ranks before any lien, including any judicial lien, that subsequently attaches to the transition property, to the fixed transition costs, and to the financing order and any rights created by the order or any proceeds of the order. The relative priority of a lien created under this section is not defeated or adversely affected by changes to the financing order or to the fixed transition amounts payable by any customer.
(21) The commission shall establish and maintain a separate system of records to reflect the date and time of receipt of all filings made under this section and may provide that transfers of transition property to an assignee be filed in accordance with the same system.
(22) Any sale, assignment, or other transfer of transition property or any pledge of transition property is exempt from any state or local sales, income, transfers, gains, receipts, or similar taxes.
(23) The transition bonds issued under this chapter are exempt from the provisions of Title 30, chapter 10, but copies of all prospectus and disclosure documents must be deposited for public inspection with the state securities commissioner.
(24) The granting, perfection, and priority of security interests with respect to transition property and the proceeds thereof are governed by this section rather than by Title 30, chapter 9.
(25) Upon the payment in full of transition bond principal and interest, the utility shall discontinue charging and collecting the competitive transition charge associated with that portion of the utility's approved transition costs.
(26) The commission may, by order or rule and subject to terms and conditions that it may prescribe, exempt any security or class of securities for which an application is required under this title or any public utility or class of public utility from the provisions of this title if it finds that the application of this title to the security, class of security, public utility, or class of public utility is not required by the public interest."
Section 152. Section 70-24-430, MCA, is amended to read:
"70-24-430. Disposition of personal property abandoned by tenant after termination. (1) If a tenancy terminates in any manner except by court order and the landlord reasonably believes that the tenant has abandoned all personal property that the tenant has left on the premises and a period of time of at least 5 days has elapsed since the occurrence of events upon which the landlord formed that belief, the landlord may remove the property from the premises.
(2) The landlord shall inventory and store all goods, chattels, and personal property of the tenant in a place of safekeeping and shall exercise reasonable care for the property. The landlord may charge a reasonable storage and labor charge if the property is stored by the landlord, plus the cost of removal of the property to the place of storage. The landlord may store the property in a commercial storage company, in which case the storage cost includes the actual storage charge plus the cost of removal of the property to the place of storage.
(3) After complying with subsections (1) and (2), the landlord shall:
(a) make a reasonable attempt to notify the tenant in writing that the property must be removed from the place of safekeeping;
(b) notify the local law enforcement office of the property held by the landlord;
(c) make a reasonable effort to determine if the property is secured or otherwise encumbered; and
(d) send a notice by certified mail to the last-known address of the tenant, stating that at a specified time, not less than 15 days after mailing the notice, the property will be disposed of if not removed.
(4) The landlord may dispose of the property after complying with subsection (3) by:
(a) selling all or part of the property at a public or private sale; or
(b) destroying or otherwise disposing of all or part of the property if the landlord reasonably believes that the value of the property is so low that the cost of storage or sale exceeds the reasonable value of the property.
(5) If the tenant, upon receipt of the notice provided in subsection (3), responds in writing to the landlord on or before the day specified in the notice that the tenant intends to remove the property and does not do so within 7 days after delivery of the tenant's response, the tenant's property is conclusively presumed to be abandoned. If the tenant removes the property, the landlord is entitled to storage costs for the period that the property remains in safekeeping, plus the cost of removal of the property to the place of storage. Reasonable storage costs are allowed a landlord who stores the property, and actual storage costs are allowed a landlord who stores the property in a commercial storage company. A landlord is entitled to payment of the storage costs allowed under this subsection before the tenant may remove the property.
(6) The landlord is not responsible for any loss to the tenant resulting from storage unless the loss is caused by the landlord's purposeful or negligent act. On the event of purposeful violation, the landlord is liable for actual damages.
(7) A public or private sale authorized by this section must be conducted under the provisions of 30-9-504(3) [section
98] or the sheriff's sale provisions of Title 25, chapter 13, part 7.
(8) The landlord may deduct from the proceeds of the sale the reasonable costs of notice, storage, labor, and sale and any delinquent rent or damages owing on the premises and shall remit to the tenant the remaining proceeds, if any, together with an itemized accounting. If the tenant cannot after due diligence be found, the remaining proceeds must be deposited with the county treasurer of the county in which the sale occurred and, if not claimed within 3 years, must revert to the general fund of the county available for general purposes."
Section 153. Section 71-3-125, MCA, is amended to read:
"71-3-125. Filing of agricultural lien statements. (1) Unless a statement of an agricultural lien has been filed in the office of the secretary of state as provided in this chapter, a buyer who, in ordinary course of business as defined in 30-1-201(9), buys a farm product takes it free of any lien created by this chapter even though the lien is otherwise perfected.
(2) A statement of an agricultural lien is sufficient if it:
(a) gives the names and addresses of the debtor and lienor;
(b) describes the type of lien and its statutory authority;
(c) describes the collateral;
(d) contains the notation by the secretary of state of the date of filing and filing number;
(e) is signed by the lienor;
(f) describes the service or product furnished. If the collateral is farm products, the statement must state the county in which the farm products are located, designated by type of farm product.
(g) states the price or wage agreed upon or, if the price or wage was not agreed upon, the reasonable value of the service or product furnished;
(h) states the amount remaining unpaid;
(i) states the terms and period of employment if it is a farm laborer's lien filed pursuant to part 4 of this chapter;
(j) describes the land upon which seed or grain was or will be sown, planted, or used if it is a lien for seed or grain filed pursuant to part 7 of this chapter;
(k) describes the land upon which the grain or crops were grown and the place the grain or crops are presently stored if it is a thresher's lien filed pursuant to part 8 of this chapter;
(l) describes the land upon which the service was performed if it is a lien for spraying or dusting filed pursuant to part 9 of this chapter; and
(m) states the starting date of insurance coverage if it is a lien filed pursuant to part 7 of this chapter.
(3) The agricultural lien statement must be in the form prescribed by the secretary of state.
(4) The secretary of state shall:
(a) record the agricultural lien statement on the centralized computer system as set forth in 30-9-403 [section 72]; and
(b) establish fees for such recordings as set forth in 30-9-403 [section 95].
(5) For the purposes of this section, an agricultural lien means a lien under part 4, 7, 8, or 9 of this chapter.
(6) A statement of an agricultural lien or continuation statement that has been filed at the office of the county clerk and recorder lapses on March 31, 1990, unless prior to that date there is filed in the office of the secretary of state a certified copy of the statement and all related documents on file with the county clerk and recorder."
Section 154. Section 71-3-205, MCA, is amended to read:
"71-3-205. Duties of filing officer. (1) If a notice of federal lien, a refiling of a notice of federal lien, or a notice of revocation of any certificate described in subsection (2) is presented to the filing officer and:
(a) he the filing officer is the secretary of state, he shall cause the notice to must be marked, held, and indexed in
accordance with the provisions of 30-9-403(4) [section 89] as if the notice were a financing statement within the meaning
of the Uniform Commercial Code; or
(b) he the filing officer is any other officer described in 71-3-204, he the filing officer shall endorse thereon his on the
document the filing officer's identification and the date and time of receipt and forthwith file it alphabetically or enter it in
an alphabetical index showing the name and address of the person named in the notice, the date and time of receipt, the title
and address of the official or entity certifying the lien, and the total amount appearing on the notice of lien.
(2) If a certificate of release, nonattachment, discharge, or subordination of any lien is presented to the secretary of state
for filing, he the secretary of state shall:
(a) cause a certificate of release or nonattachment to be marked, held, and indexed as if the certificate were a
termination statement within the meaning of the Uniform Commercial Code, except that the notice of lien to which the
certificate relates shall may not be removed from the files; and
(b) cause a certificate of discharge or subordination to be held, marked, and indexed as if the certificate were a release of collateral within the meaning of the Uniform Commercial Code.
(3) If a refiled notice of federal lien referred to in subsection (1) or any of the certificates or notices referred to in
subsection (2) is presented for filing with any other filing officer specified in 71-3-204, he the filing officer shall
permanently attach the refiled notice or the certificate to the original notice of lien and shall enter the refiled notice or the
certificate, with the date of filing, in any alphabetical lien index on the line where the original notice of lien is entered.
(4) Upon request of any person, the filing officer shall issue his a certificate showing whether there is on file, on the
date and hour stated therein in the certificate, any notice of lien or certificate or notice affecting the lien, filed on or after
July 1, 1967, naming a particular person, and if a notice or certificate is on file, giving the date and hour of filing of each
notice or certificate."
Section 155. Section 71-3-206, MCA, is amended to read:
"71-3-206. Fees. (1) The fee for filing and indexing each notice of lien or certificate or notice affecting the tax lien
must be established and deposited in accordance with the provisions of 30-9-403 [section 89].
(2) The officer shall bill the district directors of internal revenue or other appropriate federal officials on a monthly basis for fees for documents filed by them."
Section 156. Section 71-3-408, MCA, is amended to read:
"71-3-408. Acknowledgment of satisfaction of lien -- penalty. (1) Whenever the indebtedness which that is a lien
upon any of such the crops subject to this part is paid and satisfied, it is the duty of the lienor to acknowledge satisfaction
thereof of the lien and to discharge the lien of record. If any lienor fails to acknowledge satisfaction and discharge said the
lien within 30 days after being requested to do so by a person having a property interest in such the crops, he the lienor is
liable to any person injured thereby by the failure in the amount of such the injury and costs of action.
(2) A termination statement as described in 30-9-404 [section 83] must be filed with the secretary of state with the same
obligations and penalties described in subsection (1)."
Section 157. Section 71-3-704, MCA, is amended to read:
"71-3-704. Acknowledgment of satisfaction of lien -- penalty. (1) Whenever the indebtedness which that is a lien
upon such grain or other crops is paid and satisfied, it is the duty of the lienor to acknowledge satisfaction thereof of the
lien and to discharge the lien of record. If any lienor fails to acknowledge satisfaction and discharge of said the lien as
aforesaid within 30 days after being requested to do so by a person having a property interest in such the grain or other
crops, he the lienor is liable to any person injured thereby by the failure in the amount of such the injury and the costs of the
action.
(2) A termination statement as described in 30-9-404 [section 83] must be filed with the secretary of state with the same
obligations and penalties described in subsection (1)."
Section 158. Section 71-3-713, MCA, is amended to read:
"71-3-713. Acknowledgment of satisfaction of lien -- penalty. (1) Whenever the indebtedness, which that is a lien
upon such grain or other crops, is paid or satisfied on or before November 1 of the current year, it is the duty of the lienor to
acknowledge satisfaction thereof of the lien within 20 days after receiving payment and to discharge the lien of record. If
any lienor fails to acknowledge satisfaction and discharge of said the lien as aforesaid, he the lienor is liable to any person
injured thereby by the failure in the amount of such the injury and the costs of action. If any hail lien is not satisfied on or
before March 1 of the next succeeding year after the insurance was carried on the crop, the same shall be deemed lien is
considered satisfied and released of record.
(2) A termination statement as described in 30-9-404 [section 83] must be filed with the secretary of state with the same
obligations and penalties described in subsection (1)."
Section 159. Section 71-3-808, MCA, is amended to read:
"71-3-808. Acknowledgment of satisfaction of lien -- penalty. (1) Whenever the indebtedness which that is a lien
upon any such grain or other crops is paid and satisfied, it is the duty of the lienor to acknowledge satisfaction thereof of the
lien and to discharge the lien of record; and if any If a lienor fails to acknowledge satisfaction and discharge said the lien as
aforesaid within 30 days after being requested to do so by a person having a property interest in such the grain or other
crops, he the lienor is liable to any person injured thereby by the failure in the amount of such the injury and the costs of
action.
(2) A termination statement as described in 30-9-404 [section 83] must be filed with the secretary of state with the same
obligations and penalties described in subsection (1)."
Section 160. Section 71-3-908, MCA, is amended to read:
"71-3-908. Acknowledgment of satisfaction and discharge of lien -- penalty. (1) Whenever the indebtedness which
that is a lien upon any grain or crops is paid and satisfied, it is the duty of the lienor to acknowledge satisfaction thereof of
the lien and to discharge the lien of record. If any lienor fails to acknowledge satisfaction and discharge said the lien within
30 days after being requested to do so by a person having a property interest in such the grain or crops, he the lienor is
liable to any person injured thereby by the failure in the amount of such the injury and the costs of action.
(2) A termination statement as described in 30-9-404 [section 83] must be filed with the secretary of state with the same
obligations and penalties described in subsection (1)."
Section 161. Security interest of issuer or nominated person. (1) An issuer or nominated person has a security interest in a document presented under a letter of credit and any identifiable proceeds of the collateral to the extent that the issuer or nominated person honors or gives value for the presentation.
(2) Subject to subsection (2)(c), as long as and to the extent that an issuer or nominated person has not been reimbursed or has not otherwise recovered the value given with respect to a security interest in a document under subsection (1), the security interest continues and is subject to chapter 9, but:
(a) a security agreement is not necessary to make the security interest enforceable under [section 12(2)(c)];
(b) if the document is presented in a medium other than a written or other tangible medium, the security interest is perfected; and
(c) if the document is presented in a written or other tangible medium and is not a certificated security, chattel paper, a document of title, an instrument, or a letter of credit, so long as the debtor does not have possession of the document, the security interest is perfected and has priority over a conflicting security interest in the document.
Section 162. Security interest perfected before effective date. (1) If a security interest is enforceable and has priority over the rights of a lien creditor immediately before [this act] takes effect and the applicable requirements for enforceability and perfection under [this act] are satisfied without further action when [this act] takes effect, the security interest is a perfected security interest under [this act].
(2) Except as otherwise provided in [section 166], if a security interest is a perfected security interest under [former chapter 9] immediately before [this act] takes effect but the applicable requirements for enforceability or perfection under [this act] are not satisfied when [this act] takes effect, the security interest:
(a) is a perfected security interest for 1 year after [this act] takes effect;
(b) remains enforceable thereafter only if the security interest becomes enforceable under [section 12] before the year expires; and
(c) remains perfected thereafter only if the applicable requirements for perfection under [this act] are satisfied before the year expires.
Section 163. Security interest unperfected before effective date. A security interest that is enforceable immediately before [this act] takes effect but that is subordinate to the rights of a person that becomes a lien creditor at that time:
(1) remains an enforceable security interest for 1 year after [this act] takes effect;
(2) remains enforceable thereafter if the security interest becomes enforceable under [section 12] when [this act] takes effect or within 1 year thereafter; and
(3) becomes perfected:
(a) without further action, when [this act] takes effect if the applicable requirements for perfection under [this act] are satisfied before or at that time; or
(b) when the applicable requirements for perfection are satisfied if the requirements are satisfied after that time.
Section 164. Effectiveness of action taken before effective date of act. (1) If action other than the filing of a financing statement is taken before [this act] takes effect and the action would have resulted in priority of a security interest over the rights of a lien creditor had the security interest become enforceable before [this act] takes effect, the action is sufficient to perfect a security interest that attaches under [this act] within 1 year after [this act] takes effect. An attached security interest becomes unperfected 1 year after [this act] takes effect unless the security interest becomes a perfected security interest under [this act] before the expiration of that period.
(2) The filing of a financing statement before [this act] takes effect is sufficient to perfect a security interest that attaches after [this act] takes effect to the extent the filing would satisfy the applicable requirements for perfection under [this act].
(3) [This act] does not render ineffective an effective financing statement that is filed before [this act] takes effect in accordance with the law of the jurisdiction governing perfection as provided in [former 30-9-103]. However, except as otherwise provided in subsection (4):
(a) the financing statement ceases to be effective at the earlier of:
(i) the time the financing statement would have ceased to be effective under the law of the jurisdiction in which it is filed; or
(ii) 5 years after [this act] takes effect; and
(b) a continuation statement filed after [this act] takes effect does not continue the effectiveness of the financing statement.
(4) A continuation statement filed after [this act] takes effect and in accordance with the law of the jurisdiction governing perfection as provided in [sections 20 through 61] is effective to continue the effectiveness of a financing statement filed in that jurisdiction before [this act] takes effect.
(5) [This act] does not render ineffective an effective financing statement that was filed before [this act] takes effect and in the office specified in [former 30-9-401]. However, except as otherwise provided in subsection (6):
(a) the financing statement ceases to be effective at the earlier of:
(i) the time the financing statement would have ceased to be effective under [former chapter 9]; or
(ii) 5 years after [this act] takes effect; and
(b) a continuation statement filed after [this act] takes effect does not continue the effectiveness of the financing statement.
(6) A continuation statement filed after [this act] takes effect and in the office specified in [section 71] is effective to continue the effectiveness of a financing statement filed in that office before [this act] takes effect.
(7) A financing statement that includes a financing statement filed before [this act] takes effect and a continuation statement filed after [this act] takes effect is effective only to the extent that it satisfies the requirements of [sections 71 through 97] for an initial financing statement.
Section 165. When initial financing statement suffices as continuation statement. (1) The effectiveness of a financing statement filed before [this act] takes effect may be continued by filing in the office specified in [section 71] an initial financing statement complying with the requirements of subsection (2) if:
(a) the filing of a financing statement in that office is effective to perfect a security interest; and
(b) the preeffective-date financing statement was filed in an office in another state or another office in this state.
(2) To be effective for purposes of subsection (1), an initial financing statement must:
(a) satisfy the requirements of [sections 71 through 97] for an initial financing statement;
(b) identify the preeffective-date financing statement by indicating the office in which the financing statement was filed and providing the dates of filing and file numbers, if any, of the financing statement and of the most recent continuation statement filed with respect to the financing statement; and
(c) indicate that the preeffective-date financing statement remains effective.
Section 166. Persons entitled to file initial financing statement or continuation of statement. A person may file an initial financing statement or a continuation statement under [sections 164 through 169] if:
(1) the secured party of record authorizes the filing; and
(2) the filing is necessary under [sections 164 through 169]:
(a) to continue the effectiveness of a financing statement filed before [this act] takes effect; or
(b) to perfect or continue the perfection of a security interest.
Section 167. Priority. (1) [Former chapter 9] determines the priority of conflicting claims to collateral if the relative priorities of the parties were fixed before [this act] takes effect. In other cases, [this act] determines priority.
(2) For purposes of [section 41(1)], the priority of a security interest that becomes a perfected security interest under [section 165] dates from the time the applicable requirements for perfection are satisfied. This subsection does not apply to conflicting security interests each of which becomes a perfected security interest under [section 165].
Section 168. Repealer. Sections 30-9-102, 30-9-103, 30-9-104, 30-9-105, 30-9-106, 30-9-107, 30-9-108, 30-9-109, 30-9-110, 30-9-112, 30-9-113, 30-9-114, 30-9-115, 30-9-116, 30-9-201, 30-9-202, 30-9-203, 30-9-204, 30-9-205, 30-9-206, 30-9-207, 30-9-208, 30-9-301, 30-9-302, 30-9-303, 30-9-304, 30-9-305, 30-9-306, 30-9-307, 30-9-308, 30-9-309, 30-9-310, 30-9-311, 30-9-312, 30-9-313, 30-9-314, 30-9-315, 30-9-316, 30-9-317, 30-9-318, 30-9-401, 30-9-402, 30-9-403, 30-9-404, 30-9-405, 30-9-406, 30-9-407, 30-9-409, 30-9-410, 30-9-411, 30-9-412, 30-9-421, 30-9-423, 30-9-431, 30-9-501, 30-9-502, 30-9-503, 30-9-504, 30-9-505, 30-9-506, 30-9-507, 30-9-508, and 30-9-511, MCA, are repealed.
Section 169. Savings provisions. (1) Except as otherwise provided in [sections 164 through 169], [this act] applies to a transaction or lien within its scope, even if the transaction or lien was entered into or created before [this act] takes effect.
(2) Except as otherwise provided in subsection (3) and [sections 164 through 169]:
(a) transactions and liens that were not governed by [former chapter 9] were validly entered into or created before [this act] takes effect and would be subject to [this act] if they had been entered into or created after [this act] takes effect, and the rights, duties, and interests flowing from those transactions and liens remain valid after [this act] takes effect; and
(b) the transactions and liens may be terminated, completed, consummated, or enforced as required or permitted by [this act] or by the law that otherwise would apply if [this act] did not take effect.
(3) [This act] does not affect an action, case, or proceeding commenced before [this act] takes effect.
Section 170. Codification instruction. (1) [Sections 1 through 125] are intended to be codified as an integral part of Title 30, chapter 9, and the provisions of Title 30, chapter 9, apply to [sections 1 through 125].
(2) [Section 161] is intended to be codified as an integral part of Title 30, chapter 5, part 1, and the provisions of Title 30, chapter 5, part 1, apply to [section 161].
Section 171. Effective date. [This act] is effective July 1, 2001.
- END -
Latest Version of SB 153 (SB0153.ENR)
Processed for the Web on April 13, 1999 (9:37AM)
New language in a bill appears underlined, deleted material appears stricken.
Sponsor names are handwritten on introduced bills, hence do not appear on the bill until it is reprinted. See the status of the bill for the bill's primary sponsor.
Status of this Bill | 1999 Session | Leg. Branch Home
This bill in WP 5.1 | All versions of all bills in WP 5.1
Prepared by Montana Legislative Services
(406)444-3064