May 14, 2020

Uniform Commercial Code Article 9

Uniform Commercial Code Article 9

Priorities Disputes in Motor Vehicles and in Other Certificated Goods
      Richard L. Epling, 41(2): 361–76 (Feb. 1986)
The Article examines the priorities conflicts that often arise when a dealer in automobiles, mobile homes, trucks, or other certificated goods becomes insolvent and unable to pay its debts. Priorities conflicts between and among the dealer's suppliers, secured floorplan lender, customers and purchasers, and bankruptcy trustee are examined. The effect of physical possession of the title certificate or manufacturer's statement of origin by various claimants is given particular scrutiny.

Legislative Process and Commercial Law: Lessons from the Copyright Act of 1976 and the Uniform Commercial Code
      Harold R. Weinberg and William J. Woodward, Jr., 48(2): 437–82 (Feb. 1993)
Recent cases hold that the Copyright Act partially preempts U.C.C. Article 9, and these holdings contribute to the unsatisfactory state of the law governing the use of intellectual property in secured financing. The authors trace these developments in the copyright area to a lengthy federal legislative process that took little account of twentieth century developments in the state law of secured financing, most notably U.C.C. Article 9. The authors conclude with suggestions for better coordinating federal and state law in order to reduce preemption questions in the future.

Putting Uniformity into—and Improving the Operation of—the Uniform Commercial Code: The New National Financing Statement Form
      Harry C. Sigman, 51(3): 721–43 (May 1996)
U.C.C. Article 9 does not prescribe a specific form of financing statement, and filers have been forced to cope with the diversity of forms adopted by filing officers. This Article presents an in-depth discussion of the newly devised national form already available and acceptable for filing in three-fourths of the states. Frequency of use, as well as the form's greatly improved formatting, should result in a substantial decrease in errors and significantly enhance the efficiency of the filing process for both filers and filing officers.

Collateralizing Nonassignable Contracts, Licenses, and Permits: Half a Loaf Is Better than No Loaf
      Timothy J. Boyce, 52(2): 559–75 (Feb. 1997)
The issue of whether, and to what extent, to recognize a security interest in nonassignable contracts, permits, and licenses has long vexed lenders, borrowers, and the grantors of such licenses and permits. This Article analyzes case law, especially in the context of Federal Communications Commission broadcast licenses, as well as proposed revisions to the U.C.C., to suggest that an acceptable compromise position can be reached which protects both the core interests of lenders in adequately collateralizing their loans and of grantors of such licenses and permits in restricting those with whom they deal.

The Default Provisions of Revised Article 9 of the Uniform Commercial Code: Part I
      Timothy R. Zinnecker, 54(3): 1113–79 (May 1999)
The two sponsors of the U.C.C. (NCCUSL and the ALI) recently approved revised Article 9, which governs security interests in personal property and fixtures. The most extensive changes have been made to the default provisions, which are examined in detail in this Article (presented in two parts). The Article provides comparative analysis of current and revised default provisions, offers drafting advice where appropriate, discusses perceived statutory weaknesses, and raises issues that may survive enactment.

The Default Provisions of Revised Article 9 of the Uniform Commercial Code: Part II
      Timothy R. Zinnecker, 54(4): 1737–1826 (Aug. 1999)

Revised U.C.C. Article 9's Transition Rules: Insuring a Soft Landing
      Harry C. Sigman and Edwin E. Smith, 55(3): 1065–1113 (May 2000)
Revised Article 9 of the U.C.C. is scheduled to become effective on July 1, 2001. It has already been enacted in 15 states, and it is anticipated that it will be enacted timely throughout the country. This Article discusses the transition provisions in depth and suggests practical steps that should be taken by secured parties even before the effective date. The second segment of this Article will appear in the August 2000 issue of The Business Lawyer .

Revised UCC Article 9's Transition Rules: Insuring a Soft Landing—Part II
      Harry C. Sigman and Edwin E. Smith, 55(4): 1763–1800 (Aug. 2000)
Revised Article 9 of the U.C.C. is scheduled to become effective on July 1, 2001. The statute has already been enacted by over half of the states, as well as the District of Columbia, and has been or is expected to be introduced for enactment in the balance of the states in early 2001. This is the second segment of a two-part paper discussing the transition rules of Revised Article 9.

PEB Report: Article 9 Perfection Choice of Law Analysis Where Revised Article 9 Is Not in Effect in All States by July 1, 2001
      Permanent Editorial Board for the Uniform Commercial Code, The American Law Institute, and the National Conference of Commissioners on Uniform State Laws , 56(4): 1725 (Aug. 2001)

Toward Facilitating Cross-Border Secured Financing and Securitization: An Analysis of the United Nations Convention on the Assignment of Receivables in International Trade
      Harry C. Sigman and Edwin E. Smith, 57(2): 727 (Feb. 2002)
The United Nations Convention on the Assignment of Receivables in International Trade has recently been adopted and is now open for signature. The Convention promulgates substantive and choice of law rules that will, if the Convention becomes effective in a sufficient number of countries, significantly improve the feasibility of cross-border transactions involving the assignment of receivables. The Convention will achieve this by reducing or eliminating obstacles to efficient commercial practices and by providing greater certainty on many issues. The authors explain the Convention's provisions and discuss relevant provisions of Revised U.C.C. Article 9 to facilitate comparison and to assist counsel to understand how the Convention might affect transactions having a U.S. connection.

Special Report of The TriBar Opinion committee: U.C.C. Security Interest Opinions A- Revised Article 9 
    The TriBar Opinion committee , 58(4): 1453-1520 (Aug. 2003)

Framework for Control over Electronic Chattel PaperÂ-Compliance with UCC § 9–105
      Working Group on Transferability of Electronic Financial Assets, a Joint Working Group of the committee on Cyberspace Law and the committee on the Uniform Commercial Code of the ABA Section of Business Law and The Open Group Security Forum, 61(2):721—744 (February 2006)

Initial Report of the Joint Task Force on Deposit Accounts Control Agreements
      Joint Task Force on Deposit Account Control Agreements, ABA Section of Business Law, 61(2):745—796 (February 2006)

Report of the Model First Lien/Second Lien Intercreditor Agreement Task Force
      committee on Commercial Finance, ABA Section of Business Law, 65(3): 809–884 (May 2010)

Article 9 of the UCC: Reconciling Fundamental Property Principles and Plain Language
     Thomas E. Plank; 68(2): 439-506 (February 2013) 
Article 9 of the Uniform Commercial Code, which governs (i) the grant of a security interest in personal property to secure payment or performance of an obligation—a “true security interest”—and (ii) the sale of receivables, incorporates the primary property law principle of nemo dat quod non habet—one cannot transfer an interest in property that one does not have—and its corollary —a transferee can receive what the transferor has and no more. For good policy reasons, however, Article 9 also enacts the innovative exception to nemo dat, the Filing Priority Principle codified in the “first-to-file-or-perfect rule,” that permits a secured party who first files a financing statement to obtain a superior security interest over a secured party who first obtains a security interest and would otherwise prevail under nemo dat. For true security interests, the plain language of Article 9 effectuates the policies of nemo dat and the Filing Priority Principle.

U.C.C. Article 9, Filing-Based Priority, and Fundamental Property Principles: A Reply to Professor Plank
     Steven L. Harris and Charles W. Mooney, Jr., 69(1): 79-92 (November 2013)
Uniform Commercial Code Article 9 generally follows the common law principle that one cannot give rights in property that one does not have (nemo dat quod non habet). In many circumstances, however, the priority rules under Article 9, including its rule awarding priority to the first security interest that is perfected or as to which a financing statement has been filed, trump nemo dat and enable a debtor to grant a senior security interest in property that the debtor previously had encumbered. In this article, Professors Steven Harris and Charles Mooney argue that, properly understood, the first-to-file-or-perfect rule confers upon a debtor the power to create a security interest in accounts and other rights to payment that the debtor has already sold and in which it retains no interest. In doing so, the authors take issue with Professor Thomas Plank, whose argument to the contrary appeared in the February 2013 issue of The Business Lawyer.

Task Force Introductory Report and Background Considerations Model Intellectual Property Security Agreement
     Model Intellectual Property Security Agreement Task Force, Commercial Finance committee and Uniform Commercial Code committee, ABA Business Law Section, 771(3): 849-932 (Summer 2016)

Securities on Blockchain and the Uniform Commercial Code
     Reade Ryan and Mayme Donohue; 73(1): 85-108 (Winter 2017/2018)
This article initially provides a high-level description of blockchain technology intended to be accessible to those without a technical background, and illustratively describes an existing blockchain system that already evidences securities issued and being traded. The article then sets forth and analyzes how Article 8 of the Uniform Commercial Code covers blockchain securities as “uncertificated securities.” Finally, the article provides guidance to corporate lawyers faced with giving a legal opinion relating to the issuance and sale of securities on a blockchain.

Oil and Gas Rights in Bankruptcy: Beware the Many Pitfalls for Interest Holders and Creditors
     Richard L. Epling, 74(1) 127-150 (Winter 2018/2019)
Lenders, vendors, pipelines, storage facilities and other businesses that lend money to or do business with the working interest owner/lessors of oil and gas properties often assume that their contractual bargains will prevail over the rights and claims of other participants in the hydrocarbon production process. Such persons often fail to take into account the varied local and state laws affecting the definitions of what is real and personal property, the requirements for perfection and certain overriding priorities granted to field operators, suppliers and vendors in certain cases. Bankruptcy is the crucible for testing these conflicting rights and claims, and there have been some instructive recent developments in several key court decisions.

The Business Lawyer at 75 and Secured Transactions Under Article 9 of the Uniform Commercial Code
     Jonathan C. Lipson and Steven O. Weise75(1): 1575-1596 (Winter 2019-2020)
In honor of the seventy-fifth anniversary of The Business Lawyer (TBL), we reviewed the roughly 400 papers published in TBL on secured transactions since inception, in 1946. We find that, while TBL has always provided excellent coverage of secured credit, earlier works were more likely to focus on questions of policy than those published more recently, which tend to be more technical. This is curious, both because secured transactions have been the subject of sometimes ferocious academic debates in other journals about their distributive effects, and because TBL often includes policy-oriented scholarship in other business-law fields (e.g., corporate governance). We argue that TBL should actively seek papers on secured credit policy, in part because technologies like distributed ledgers may threaten to render all secured transactions . . . academic.