“Guarantee” means any property of the debtor used to secure the debt owed to the secured party. For example, in a mortgage contract, security is the house itself. However, collateral is often other types of assets, such as the debtor`s inventory, equipment, accounts payable or real estate. If the debtor defaults on repayment, the secured party may retain or sell the security. Often, it is also a good idea to require the debtor to maintain the security. The secured party may seek insurance against all reasonable risks associated with the warranty, such as fire, theft, damage and other losses. This article discusses errors that often occur in collateral contracts and financing statements that can compromise the validity or priority of a secured party`s participation in a warranty. A security will be useful to you, even if the privilege of another lender is prior. First of all, the security always gives you a “hammer” that allows you to quickly attract the debtor`s attention. Prosecuting a judgment can take months. However, a security interest in the devices can allow you to immediately repossess the devices.
A trade receivable security right may allow you to contact the debtor`s customer for direct payment even before default if that right is included in your security agreement. According to UCC, the secured creditor always has the right to directly collect a receivable for default. In some cases, perfection may be achieved at the moment the security right is attached. Typically, this is done in conjunction with a purchase-money security right (PMSI), where the debtor purchases the item on credit from the secured party or the debtor receives a loan from the bank (which acts as a secured party) to purchase an item from a seller. Sometimes the description of the guarantee simply misidenifies the nature of the guarantee, as in Farmers State Bank v. Graham.5 In this case, the bank claimed security on the debtor`s claim for breach of contract against a third party. However, the financial statements only included receivables, machinery, equipment and revenues. The court held that a breach of contract claim was properly characterized as “general intangible” and not a “receivable” and, therefore, the interest to the creditor`s detriment was not affected.
For example, a clause may inadvertently bind security to a specific location. With respect to Sterling United, Inc., the court reviewed a financial statement that referred to “all of the debtor`s assets, including but not limited to all equipment, furniture [etc.] … and are located in or in connection with the operation of the premises at [the debtor`s business address]. 9 Where the debtor moved to another address before filing for bankruptcy, the receiver challenged the financing statement as `seriously misleading`, arguing that the language relating to the specific place of business limited the description of `all assets`. The court called the financing statement “unnecessarily confusing” because a simple description of “all of the debtor`s assets” would have sufficed.10 Three main conditions must be met for a security right to be considered enforceable: Here, you have the option of including one or more co-signers to secure repayment of the debt in the event that a debtor is unable to pay some or all of the outstanding debt. settle. A separate co-signer agreement is automatically attached for each co-signer, which must be signed with the secured party and each notary or witness. A security right can be enhanced in many types of security by possession. A pawnshop depends on this type of security. The debtor brings jewelry, a stereo system or other collateral to the pawnshop. The debtor then signs a security agreement, and the pawnshop retains the collateral. The pawnshop does not have to submit a UCC financing statement. This arrangement might work well for you on short-term loans.
Mere possession can enhance security rights in assets, shares, bonds and negotiable instruments. Second, the secured party must “perfect” its security interests. This means that the secured party has taken steps to ensure that no other creditor has a prior claim on the security right and that the secured party will be able to enforce the security in the event that the debtor becomes insolvent or declares bankruptcy. Although the law does not require the development of a security right, this is often the only way for the secured party to be sure that its security right is safe from other creditors. A security right in the playground equipment could be filed either at the central location or in the area (county) where the property is located.  In general, furniture is property (materials) that could be removed without damaging the property, and it is a kind of hybrid between personal property and real estate. Examples would be lighting fixtures or HVAC devices. You need to remember to check the county land records and the state capital to see if there are any previous privileges on schedules. You must “perfect” your security interest to ensure that it is enforceable against third parties. A security right is effective against the debtor, whether or not it is perfected.
If you have an agreement that provides for security in the devices, you can repossess these devices by default, whether or not you have taken all the necessary steps to perfect your interest. The problem arises when a person other than the debtor appears on the premises. What happens if the debtor sells the equipment to someone else? What happens if another creditor asserts a security right in the same equipment? Since default represents such a serious risk, debtors should be aware of their obligations when entering into security agreements. However, for a security right in a receivable that does not constitute “a substantial part of the debtor`s unpaid receivable”, it is not necessary to file a financing statement. This is obviously a vague standard. If you have the choice, it is preferable to register a financing statement to perfect this security. However, if you receive a written agreement that assigns you a single claim, it is probably not necessary to file a financing statement. The allocation of funds in the annexes is an example of a simple allocation of claims. A creditor must have a security arrangement with the debtor in order to have a valid security right. The security agreement must: There will come a time when your customer will need you urgently.
They may have exceeded their credit limit or be in default with the loan agreement. They may need additional materials to complete a project, and they cannot be paid for the project until it is completed. You may have already threatened legal action. In the case of a purchase-money security right in inventory, the security right must be refined before the debtor comes into possession, and the buyer must inform all previously secured parties of the intention to acquire a purchase-money security right in the inventory before the debtor is taken into possession. If the assets you are selling are in your debtor`s inventory, you will need to search UCC filings to determine if another creditor has a competing security right in the debtor`s inventory. The financing statements submitted will give you the name and address of the previously secured party. You must send a notice to all previously secured parties describing the goods you wish to sell and indicate that you intend to retain a security right in them. If the refund details are already included in a separate agreement – such as. B a promissory note or loan agreement – simply indicate the name of the contract and the date of its effective date.
If this is not the case, you can include repayment terms in your security agreement, including if the repayment is monthly, at the request of the secured party or in a single lump sum payment. The UCC recognizes that the description by type is not sufficient for commercial tort claims, commodity accounts, security interests or consumer transactions. .