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Chapter 35: Secured Transactions in Personal Property

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Intent to Create Security Interest. Description of Collateral ... or raw materials, work in. progress, or materials. consumed in a business. Farm Products ... – PowerPoint PPT presentation

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Title: Chapter 35: Secured Transactions in Personal Property


1
  • Chapter 35 Secured Transactions in Personal
    Property

2
Definitions
  • A security interest is an interest in personal
    property or fixtures that secures payment or
    performance of an obligation.
  • The property that is subject to the interest is
    called the collateral, and the party holding the
    interest is called the secured party.
  • Attachment is the creation of a security
    interest.
  • To secure protection against third parties
    claims to the collateral, the secured party must
    perfect the security interest.

3
Creation of Security Interests
4
Classes of Collateral
  • Tangible collateral is divided into classes
    (based on the debtors intended use, not on
    physical characteristics)
  • consumer goods,
  • equipment,
  • inventory,
  • general intangibles,
  • farm products, and
  • fixtures.

5
Classes of Tangible Collateral
6
Perfection
  • Perfection of a security interest is not required
    for its validity, but it does provide the
    creditor with certain superior rights and
    priorities over creditors with an interest in the
    same collateral.
  • Perfection can be obtained through possession
    filing automatically, as in the case of a PMSI
    in consumer goods or temporarily, when statutory
    protections are provided for creditors for
    limited periods of time.

7
Perfection of Security Interests
Possession -- Creditor Retains Possession of
Collateral PMSI in Consumer Goods -- Automatic
Perfection Motor Vehicles -- Notation in Title
Registration
8
Priority Among Creditors
  • Unperfected, unsecured creditors have the lowest
    priority and are paid only if sufficient assets
    remain after priority creditors are paid.
  • Secured creditors have the right to take the
    collateral on a priority basis, based on whose
    interest was the first to attach.
  • A perfected secured creditor takes priority over
    an unperfected secured creditor.

9
Priority Among Creditors
  • Multiple perfected secured creditors with
    interests in the same collateral take priority
    generally on a first-to-perfect basis.
  • Exceptions include PMSI inventory creditors who
    file a financing statement before delivery and
    notify all existing creditors, and equipment
    creditors who perfect within ten days of
    attachment of their interests.

10
Priorities of Conflicting Interests
Neither -- equal
Secured
One whose interestattached first
Perfected Secured
One who perfected first
11
Proceeds When Creditor Sells Collateral
When secured party repossesses collateral
securing a debt, he may dispose of it by
12
Priorities When Debtor Sells Collateral
  • A buyer in the ordinary course of business always
    takes priority even over perfected secured
    creditors.
  • A buyer not in the ordinary course of business
    will lose out to a perfected secured creditor but
    will extinguish the rights of an unperfected
    secured creditor (unless the buyer had knowledge
    of the security interest).

13
Creditors Right to Repossess
  • Upon default, a secured party may repossess the
    collateral from the buyer if this can be done
    without a breach of the peace.
  • If a breach of the peace might occur, the secured
    party must use court action to regain the
    collateral.

14
Creditors Duty in Sale of Collateral
  • If the buyer has paid 60 percent or more of the
    cash price of the consumer goods, the seller must
    resell them within 90 days after repossession
    unless the buyer, after default, has waived this
    right in writing.
  • Notice to the debtor of the sale of the
    collateral is usually required.
  • A debtor may redeem the collateral prior to the
    time the secured party disposes of it or
    contracts to resell it.

15
Priorities When Debtor Sells Collateral
When a debtor sells the collateral securing a
debt, who has priority in the collateral the
buyer or the creditor?
What kind of buyer?
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