Once the loan documents have been signed, it is imperative from the lender’s point of view that a UCC financing statement be filed in the proper location to “perfect” its interest in the collateral. This is a routine task that is easy to overlook in the rush to close a loan. Multi-million dollar loans have been completely uncollectible because someone forgot to file the financing statement. The takeaway is simple: don’t forget to file!
Beyond simply filing the UCC financing statement, there are three fundamental issues that the lender must get right.
First, file in the right place. UCC Article 9 has a simple rule for finding the right place to file the UCC financing statement—file in the state where the debtor is located. For debtors that are business entities, such as corporations or limited liability companies, regardless of where they may have their corporate headquarters, they are deemed located in the state where they filed their organizing documents, such as articles of incorporation or certificate of organization.
Second, get the name of the debtor right. The general rule is that a UCC financing statement is effective only if a searcher could find it by searching the state’s database with the debtor’s correct name. What this means in practice is that you must list the exact legal name of the debtor on the UCC financing statement. This includes commas, periods, spaces, hyphens and all other incidental characters. For corporate entities, the best way to get the name right is to request that the debtor provide you with a good standing certificate from its state of organization, which will list the debtor’s exact legal name. DBA’s are not good enough. There are endless horror stories of misspelled debtor names that spelled disaster for lenders.
Third, get the collateral description right. All UCC financing statements must include an indication of the collateral. If the collateral is all the debtor’s assets, then you can simply list “all assets” in the collateral box (but remember that this approach does not work in the security agreement itself). If the collateral is a subset of the debtor’s assets, consult the signed security agreement and use its collateral description for the financing statement.
When it comes to UCC Article 9, small errors can be catastrophic. It will be well worth your time and money to consult an attorney with UCC expertise.
Clint M. Hanni is Of Counsel to Richards Brandt Miller Nelson. He is a member of the Business Transactions & Corporate Governance, Banking and Finance Law, Business Bankruptcy and Creditor Rights, and Real Estate Transactions & Litigation practice groups.
https://www.richardsbrandt.com/wp-content/uploads/2018/04/UCC-Article-9-part5.jpg545725RBMNhttps://www.richardsbrandt.com/wp-content/uploads/2021/08/logo.pngRBMN2018-04-17 11:40:572021-11-02 14:38:03UCC Article 9: What You Need to Know, Part 5
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Let’s say that you have approached a bank about getting a loan for working capital purposes. You have inventory and accounts receivable to offer as collateral to secure the loan. After agreeing to basic terms, the bank sends you a loan agreement, a promissory note and a security agreement. The bank has assured you that these are all “standard documents” and encourages you to quickly sign and return them so the loan can be funded and you can get your money. Before you sign the security agreement, however, it’s important to understand that there’s really no such thing as a “standard document” when it comes to security agreements. There are only short-form minimalist documents that cover the basic elements necessary for the creation and attachment of a security interest and long-form documents that describe the lender’s remedies in exhausting detail.
The debtor should take care to review the obligations that are secured by the collateral. Generally, the obligations to be secured should be limited to obligations arising under the loan agreement itself. Lenders often will extend the obligations to include any and all obligations owing from the debtor to the lender at any time in the past or future. As a debtor, make sure you are comfortable with this approach or push back to place limits on the secured obligations.
Every security agreement will have a collateral description, and the debtor should review it carefully to confirm the collateral is as agreed. This is less important where the debtor has agreed that all its assets will constitute collateral. It is more important where the debtor has multiple lenders each with different collateral. Lenders often include over-inclusive collateral descriptions and depend on the debtor to trim them back. It is worth being careful on this point. An over-inclusive collateral description can throw the debtor into default under prior loan agreements and result in the waste of time and money to fix.
A security agreement gives the lender the right to seize the debtor’s collateral upon the occurrence of certain listed “events of default.” A debtor should review these events of default carefully to confirm they will not be triggered unexpectedly. For example, it is customary for the debtor’s failure to make a payment to the lender to be deemed an event of default, but only after all cure periods have been exhausted.
A smart debtor will insist that any loan documents it receives be reviewed quickly and efficiently by experienced counsel, even if the lender claims they are “standard documents.”
Clint M. Hanni is Of Counsel to Richards Brandt Miller Nelson. He is a member of the Business Transactions & Corporate Governance, Banking and Finance Law, Business Bankruptcy and Creditor Rights, and Real Estate Transactions & Litigation practice groups.
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Security agreements lie at the heart of loan transactions. If you are a lender, the security agreement is the document that insures you will be repaid. Security agreements are most often stand-alone documents, but they don’t have to be. Language creating a security interest can be embedded in any other agreement, such as a loan agreement, a purchase order, a promissory note or a deed of trust. The key to creating a security interest is including language whereby the debtor “grants a security interest” to the lender in named collateral. Beyond that, there are two elements of utmost importance in a security agreement that, surprisingly, are often overlooked.
First, the security agreement must indicate what the collateral is. There doesn’t have to be an exhaustive description of each separate item of personal property of the debtor that constitutes collateral. It is enough to identify the category or type of collateral, such as equipment, inventory, accounts receivable, deposit accounts and the like. UCC Article 9 identifies the generally recognized types of personal property collateral in which a security interest can be taken. You should always consult a qualified lawyer to review any collateral description in a security agreement to confirm it is adequate (for the lender) and not overreaching (for the debtor).
A common pitfall is to identify the collateral by simply referencing “all assets” of the debtor or “all personal property” of the debtor. Many lenders have tried this, thinking that it will get them the most collateral, only to find out that UCC Article 9 specifically disqualifies this approach. Such lenders end up with no security interest, no collateral and a difficult path to repayment if the debtor becomes insolvent. To create an effective security interest, the collateral must be identified by specific type or category.
The second element of utmost importance is that the security agreement must be signed by the debtor. This is a simple matter, but often overlooked. An unsigned purchase order with embedded language about the creation of a security interest is not sufficient. The mere filing of a UCC financing statement (which, as a rule, is not a signed document) is not sufficient. Without the debtor’s signature on a written (or electronic) security agreement, no security interest will be created.
As you can see, the requirements of a security agreement are complicated. Before providing a security agreement to a debtor, it’s wise to have it reviewed by a competent attorney with UCC expertise.
Clint M. Hanni is Of Counsel to Richards Brandt Miller Nelson. He is a member of the Business Transactions & Corporate Governance, Banking and Finance Law, Business Bankruptcy and Creditor Rights, and Real Estate Transactions & Litigation practice groups.
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Steven: We are shareholders at the law firm of Richards Brant Miller Nelson in Salt Lake City and this is another episode of Law is Stranger Than Fiction.
Barry: In today’s episode we’re gonna talk about what is lurking under the city streets. Steven…
Steven: Well according to an opinion from the United States District Court for the District of Columbia that was issued late to 2017. “Lurking beneath the city streets lies a purported scourge of our sewer system—non-woven disposable wipes. While unwitting consumers might blithely flush baby or facial wipes down the toilet, little do they know these wipes may bind together in the subterranean realm, creating plumbing clogs of substantial proportions.
Barry: Is there a name for these plumbing clogs of substantial proportions?
Steven: There is… they’re referred to, rather unceremoniously, as Fatberg’s and when they say substantial proportions, they mean it.
Barry: So, I understand that this is a worldwide problem not a problem limited to the United States.
Steven: That is true. There have been large Fatberg’s discovered in Baltimore, London and other eastern cities. They tend to form unwittingly, you know, and then you have a sewer blockage. You then have a sewer spill and all sudden the sewer workers get down there they find these fatbergs, which are for lack of a better term, these wipes full of grease, fat— just kind of congealed into a massive concrete-like ball.
Barry: So, when you say massive I understand that the most recent fatberg in London was a hundred and fifty tons, the weight of a blue whale ,and the size of the playing field at Wembley Stadium. Is that correct?
Steven: That’s what the news story said about it. It took them several weeks to jackhammer the thing out. Now the reason we’re talking about this story and the reason there was a lawsuit where we had a discussion about fatbergs… Back in 2016 the District of Columbia tried to prevent this problem happening in their sewer system. It actually passed a law for labeling on disposable wipes and Kimberly-Clark sued saying that the law targeted them and that their wipes, in fact, did dissolve, etc. This is how we ended up with a judicial opinion describing the scoured line beneath our city streets.
Barry: And so what our municipality is doing to prevent the formation of these massive balls of waste products?
Steven: Well the District of Columbia, as I said, tried to pass a law to not ban disposable wipes but to put labeling on there, that these are not biodegradable, these do not disintegrate in water, do not flush them down the toilet. That didn’t work out very well because Kimberly-Clark actually was successful at getting an injunction against the enactment of this statute. But what they are doing (like in DC), they have a ‘protect your pipes’ campaign, encouraging consumers not to flush things down the toilet that don’t belong down there. Things like that because obviously when there are spills you have these large backups, like they had in Baltimore a few years ago. which they attributed to about 20-tons of fatberg discovered under the city streets of Baltimore.
Barry: And I understand London has done something similar to DC in creating a “Bin It Don’t Block It” campaign,
Steven: Exactly and that’s what you’ll see more and more as cities try to deal with these problems. So now this does raise some issues that might be of interest to our viewers other than the kind of morbid curiosity aspect of it. Cities, states, local municipalities are constantly passing regulations and if you feel a regulation is somehow unconstitutionally harming your industry or your business, please contact the attorneys at Richards Brandt Miller Nelson and for now this is Law is Stranger than Fiction.
https://www.richardsbrandt.com/wp-content/uploads/2018/04/LSTF-Episode-11-Fatberg.jpg10801920RBMNhttps://www.richardsbrandt.com/wp-content/uploads/2021/08/logo.pngRBMN2018-04-03 11:57:592021-09-09 13:28:52Law Is Stranger Than Fiction | Episode 11 Fatberg
Barry: Good afternoon and welcome to this week’s episode of Law is Stranger Than Fiction I’m Barry Sholl one of your co-hosts and a shareholder at the law firm of Richard’s Brant Miller Nelson in Salt Lake City.
Steven: I’m Steven Bergman your other co-host also a shareholder Richard’s Brant Miller Nelson.
Barry: And we are joined today by a very special guest Kendall Moriarty, an associate here at the firm who has a running story that she’d like to share.
Steven: Kendall?
Kendall: It’s a story out of Colorado. A woman would go out on jogs and every week she would stop on the same lawn and go to the bathroom.
Steven: And when you say stop and go to the bathroom… What are we talking about?
Kendall: Number two.
Steven: Okay and you said the same lawn every time?
Kendall: The same lawn.
Steven: So, there’s some regularity going on here?
Kendall: Yes.
Steven: Was she caught doing this by anybody?
Kendall: She was. Actually the children of the homeowner saw her for the first time and reported it to their mother. Who then saw the woman and was able to take photos of her.
Barry: And did the mother have any conversation with the jogger?
Kendall: There may have been a report that she confronted her at one time and the jogger said sorry and ran away.
Steven: Now speaking of this report, did the jogger just stop and squat or did she, you know, have wipes with her or anything like that?
Kendall: I think it was just a stop and squat.
Steven: Okay, was there a restroom nearby that she could have used?
Kendall: So the neighborhood did have a common area with a publicrestroom that this woman was not using. The homeowner left a sign on the property asking her to stop but instead the jogger just varied the times that she jogged in order to not get caught.
Barry: And was she jogging during the day or was she under the cover of darkness?
Kendall: During the day.
Steven: And how long did this go on for?
Kendall: I’m not quite sure but it seemed to happen regularly for several weeks.
Steven: And what kind of legal issues does this particular running case create?
Kendall: Well definitely trespass, probably some nuisance.
Barry: And you mentioned that the children reported this action. It’s possible some indecent exposure?
Kendall: Yes, the police were involved. The homeowner did report the incidents to the police, but the police have been unable to locate to identify the woman and bring any charges.
Steven: Okay has there been any further story or any discussion about why she was doing this?
Kendall: So, after the story hit the news someone went on YouTube and claimed to be a relative and provided possible explanations for whythis woman was jogging and going to the bathroom in public. And one of the reasons was mental illness or something else, and so, but it came out later that that person didn’t actually know the jogger.
Steven: Okay and has there been any further reports of this woman’s activities since the story first came out?
Kendall: So, since November it seems that the jogging and the incidents have stopped.
Steven: Okay.
Barry: Now Steven you practice a lot of real estate law… what issues might a homeowner encounter– one would hope not involving a jogger.
Steven: Hopefully, you know, you as a property owner don’t have to encounter joggers using your property as a restroom, but other issues that are a little bit more common would be things like boundary disputes with your neighbors or access issues when you know neighbor’s property prevents you from accessing your property or vice versa or questions of easements– things like that and myself and other attorneys here at Richards Brandt Miller Nelson are very experienced in, those kind of real estate law issues. And if you do have such an issue please give us a call. For now, Kendall, thank you for coming in and sharing this running story with us. We appreciate that. I’m Steven Bergman.
Barry: And I’m Barry Scholl and this is…
Together: Law is Stranger Than Fiction
https://www.richardsbrandt.com/wp-content/uploads/2018/03/LSTF-Episode-10-Pooping-Jogger.jpg10801920RBMNhttps://www.richardsbrandt.com/wp-content/uploads/2021/08/logo.pngRBMN2018-03-15 16:09:382021-09-09 13:29:37Law Is Stranger Than Fiction | Episode 10 Pooping Jogger
What is a security interest?
At the heart of UCC Article 9 is the concept of a “security interest.” The UCC itself defines a security interest as “an interest in personal property or fixtures which secures payment or performance of an obligation.” The definition goes on for another eight lines, but the gist of it is that a lender receives security for its loan by getting an interest in the debtor’s collateral. In other words, a security interest is a type of lien that allows a lender to take collateral from a debtor that defaults on an obligation. Under UCC Article 9, a security interest only attaches to personal property collateral. Personal property essentially includes everything but land and buildings (the latter are called real property).
When it comes to security interests, two important concepts come into play. First, in order to be of any effect, a security interest must be created and attach to personal property. Second, in order to be enforceable against a debtor, a security interest must be properly perfected.
In order for a security interest to be created and attach to collateral, there are three basic requirements. The debtor (the one owing the obligation) must sign a security agreement, which will be discussed in more detail in future blog segments. The secured party (the one receiving the obligation) must give value to the debtor, for example, in the form of a loan. Lastly, the debtor must have rights in the collateral, which generally means that the debtor owns or is leasing the collateral.
Even though a security interest has attached to collateral, it is of little value until it has been perfected, or in other words, can be legally enforced, a matter of great importance for lenders. The way to perfect a security interest depends on the type of collateral. For most types of collateral, perfection of a security interest is generally done by filing a UCC financing statement with the central filing authority in the state, which is often the secretary of state. In Utah, the place to file is the Division of Corporations and Commercial Code. For certain types of collateral, the only way to perfect a security interest is for the lender to take control or take possession. In other cases, the lender can perfect its security interest in any one of several ways, but with possibly differing priorities. It is possible, for example, for two lenders to perfect a security interest in the same collateral, but with different resulting priorities. If you are a lender wanting to perfect a first priority security interest in collateral, it is essential to consult a lawyer with expertise in UCC Article 9 so that you perfect the security interest in the proper manner and comply with other legal requirements for a legally enforceable interest.
Clint M. Hanni is Of Counsel to Richards Brandt Miller Nelson. He is a member of the Business Transactions & Corporate Governance, Banking and Finance Law, Business Bankruptcy and Creditor Rights, and Real Estate Transactions & Litigation practice groups.
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Barry: Good afternoon and welcome to this week’s edition of Law is Stranger than Fiction I’m Barry Scholl, one of the co-hosts and a shareholder at the law firm of Richards Brandt Miller Nelson in Salt Lake City.
Steven: I’m your other co-host Steven Bergman. I’m also a shareholder at Richards Brandt Miller Nelson.
Barry: And today Steven’s gonna introduce us to a somewhat alarming concept that was new to both of us, known as Pet leasing. Steven take it away.
Steven: Thank you. It’s new to a lot of people actually. I learned about this from a Federal Trade Commission consumer warning to be very careful when purchasing a pet if you’re not buying the pet outright for cash at the time read very carefully the contract that the pet store gives to you. Because unfortunately a number of people have ended up, what they think was buying a pet, and ended up instead actually signing a lease agreement on a pet.
Barry: So, wait a minute, you’re telling me that it’s possible to lease a dog, a cat, a ferret, a parrot, whatever it might be, in the same way that you might lease a wide screen TV?
Steven: Well for these stores that were doing it, pretty much yeah that’s what was going on. You know, instead of paying, you know, the say $1,000 or $1,300 whatever the animal in question might cost, they were agreeing to make payments typically, over a two year period. The payments would come out to far greater than he purchase price would have been at the time. And the contract that these people sign probably not reading very carefully, because they’re so enamored with whatever animal they’re trying to take home, specifically says if you miss a payment the animal can be repossessed, if something happens to the animal you’re still on the hook for the payments, things like that.
Barry: So, wait a minute, let me interrupt you here, so if Fluffy gets out of the house and runs into the street and is inadvertently involved in a fatal accident such that Fluffy crosses the «Rainbow Bridge,» does that mean that the consumer is still on the hook to make the remaining payment?
Steven: Unfortunately, that’s what it does mean in these contracts, which are you know quite unfavorable for the people buying the pets. They are bound to make the payments whether or not they still have the dog or cat in question, or parrot, or ferret, or whatever it might be.
Barry: So this really is like leasing a car?
Steven: Sadly it is. You know I mean people get attached to cars but I think they get a little bit more attached to their pets and so you know f you’re looking to buy a pet be very careful. If you see an offer of like you can pay for the pet over time.
Barry: Now this seems at the very least like a controversial concept, are state’s stepping in to do anything about this?
Steven: Fortunately the answer is yes. Recently both the state of California and the state of Nevada have passed bills that make it illegal to sign contracts for pet leasing. Basically in California it says a contract for the purchase of a dog or cat with payments over time is void and is against public policy. So, now Barry you do a lot of contract law. What kind of things would you advise somebody if they were looking at a contract?
Barry: Well first understand the contract and if you don’t understand the contract invest a little bit in consulting with a qualified lawyer to be sure that you’re not inadvertently leasing a pet, instead of purchasing the pet on an installment plan. The other is to make sure you read the contract. I would imagine that some of these consumers were so enamored with Fido that they just signed where the pet store owner indicated and scooped up the pet and happily left the store, completely unaware that they were leasing a pet.
Steven: That is very true. Some of the stories about this talked about how people had no idea that they had signed a lease agreement for their animal, which is a really sad thing when you think about it.
Barry: Very much so.
Steven: So well that’s it for today’s episode my name is Steven Bergman.
Barry: And my name is Barry Scholl
Together: And Law is Stranger than Fiction.
https://www.richardsbrandt.com/wp-content/uploads/2018/03/LSTF-Episode-9-Pet-Leasing.jpg10801920RBMNhttps://www.richardsbrandt.com/wp-content/uploads/2021/08/logo.pngRBMN2018-03-08 15:01:502021-09-09 13:29:56Law Is Stranger Than Fiction | Episode 9 Pet Leasing
If you’re a business owner, you’ve been using the Uniform Commercial Code (UCC) even if you’ve never heard of it. The UCC is a model body of law adopted by all 50 states and US territories in a generally uniform manner that governs commercial business transactions, although there are slight differences between the states. The UCC is divided up into eleven separate sections or “Articles” that each govern a different set of transactions.
What kind of transactions are governed by the UCC? Here’s a short list: selling goods, leasing equipment, issuing promissory notes, sending purchase orders, writing checks, opening bank accounts, shipping goods, and finance transactions where a loan is secured by collateral. This blog series will deal with finance transactions, which are covered by UCC Article 9.
As a business owner, why should you care about UCC Article 9? The answer is simple: whenever you enter into a financing arrangement, equipment lease or any transaction where an obligation is secured by collateral, UCC Article 9 is there in the background to protect you as long as the documents and agreements comply with its provisions. If you are entering into a transaction where you will provide financing, you’ll need to have a basic understanding of how UCC Article 9 helps protect your interest in the collateral. As you might expect, UCC Article 9 is a complicated statute, and you’ll need the help of a professional to navigate it. If you’re a lender, you’ll want to make sure the documents you are using have been vetted by an attorney so they comply with the UCC in your state. If you’re a borrower, you’ll want to hire a lawyer to confirm the documents aren’t overreaching and include the protections offered by the UCC.
Because UCC Article 9 touches so many different kinds of transactions, a general understanding of how it works and what to look for will benefit you regardless of whether you’re a lender, borrower, buyer or seller.
Clint M. Hanni is Of Counsel to Richards Brandt Miller Nelson. He is a member of the Business Transactions & Corporate Governance, Banking and Finance Law, Business Bankruptcy and Creditor Rights, and Real Estate Transactions & Litigation practice groups.
https://www.richardsbrandt.com/wp-content/uploads/2018/03/UCC-Article-9.jpg545725RBMNhttps://www.richardsbrandt.com/wp-content/uploads/2021/08/logo.pngRBMN2018-03-07 08:13:342021-09-09 13:19:11UCC Article 9: What You Need to Know, Part 1
Steven: Good afternoon and welcome to Law is Stranger than Fiction. I’m one of your co-hosts Steven Bergman a shareholder in the Salt Lake City law firm of Richards Brandt Miller Nelson.
Barry: And I’m your other co-host, Barry Scholl, also a shareholder at the firm of Richards Brandt Miller Nelson.
Steven: And today’s episode takes us back into the realm of employment law. Specifically, in this case we’re talking about a former law school professor who claims that he was retaliated against by the law school. And the way that they retaliated against him was by giving him a raise of $666 dollars and thereby humiliating him by giving him a raise that was the signifier of the «Mark of the Beast,» in religious circles.
Barry: Did he bring litigation into all of this?
Steven: He did. He filed a law suit in Federal Court over it actually and made a number of claims, including the retaliation claim for getting a $666 dollar raise.
Barry: And what was the outcome?
Steven: At the trial court level, not surprisingly, not very good for the law professor. He lost, the District Court found that he had not established that he was retaliated against and he’d not established that the raise of $666 was unlawful retaliation.
Barry: And was that the end of the matter?
Steven: No, he actually appealed the case and took it to the Sixth Circuit Court of Appeals.
Barry: So, wait a minute, he was arguing that he was retaliated against because he received araise of 666 dollars and he took this to the Sixth Circuit Court of Appeals?
Steven: I don’t think he chose the Sixth Circuit. It just happens to be that this case took place in Ohio and that Ohio is part of the Sixth Circuit. But you think if there’s any circuit that might be somewhat sympathetic to a claim based on the 666 dollar raise, it might be the sixth circuit.
Barry: Okay and what was his argument?
Steven: On appeal, again, he raised the retaliation claim he had been trying to unionize some of the law professors at the school and claimed that his First Amendment rights were being infringed because they retaliated against him by only giving him this 666 dollar raise.
Barry: Now I understand that originally the raise was slightly more 727 dollars, a figure that was far as we know has no religious significance. How did the school arrive at the figure of 666 dollars?
Steven: Well in question the Dean of the School explained that in that particular year they had broken the professors at the school into three tiers. And a top tier got $5,000 raised the second tier got a $3,000 raise, the third tier split what was left over. Because of the size of the pool and the number of professors who ended up in the third tier, it ended up being 666 dollars when they divided it.
Barry: And is that professor, still having lost on appeal, is he still presumably teaching law?
Steven: He is not. He actually retired a couple years prior to this case being decided and his wife was also teaching school and who had also received a 666 dollar raise was laid off because the school is actually experiencing declining enrollment.
Barry: Okay, now I know you practice employment law. Presumably employers won’t see a case involving the «Mark of the Beast.» What are some issues they might encounter?
Steven: Well, obviously if you’ve got an employee who is taking advantage of the First Amendment right, trying to organize, trying to unionize, you can’t retaliate against that employee. You have to treat them equally– the way you treat all the other employees. And that’s what ultimately protected the school in this case. They could demonstrate that while the raise several anti-union professors also got the same raise because it was decided not by an arbitrary number meant to embarrass the professor but by simply dividing the raised pool among the number of professors involved. So now, if you’re an employer and you have an employee that’s trying to unionize or trying to engage in activities that you think might be questionable and you don’t know what to do, contact the attorneys of Richards Brandt Miller Nelson. We’re here to help and we look forward to doing so. For now, I’m Steven Bergman.
Barry: And I’m Barry Scholl and this is…
Together: Law is Stranger than Fiction
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UCC Article 9: What You Need to Know, Part 5
Clint M. Hanni
April 2018
UCC Financing Statements
Once the loan documents have been signed, it is imperative from the lender’s point of view that a UCC financing statement be filed in the proper location to “perfect” its interest in the collateral. This is a routine task that is easy to overlook in the rush to close a loan. Multi-million dollar loans have been completely uncollectible because someone forgot to file the financing statement. The takeaway is simple: don’t forget to file!
Beyond simply filing the UCC financing statement, there are three fundamental issues that the lender must get right.
First, file in the right place. UCC Article 9 has a simple rule for finding the right place to file the UCC financing statement—file in the state where the debtor is located. For debtors that are business entities, such as corporations or limited liability companies, regardless of where they may have their corporate headquarters, they are deemed located in the state where they filed their organizing documents, such as articles of incorporation or certificate of organization.
Second, get the name of the debtor right. The general rule is that a UCC financing statement is effective only if a searcher could find it by searching the state’s database with the debtor’s correct name. What this means in practice is that you must list the exact legal name of the debtor on the UCC financing statement. This includes commas, periods, spaces, hyphens and all other incidental characters. For corporate entities, the best way to get the name right is to request that the debtor provide you with a good standing certificate from its state of organization, which will list the debtor’s exact legal name. DBA’s are not good enough. There are endless horror stories of misspelled debtor names that spelled disaster for lenders.
Third, get the collateral description right. All UCC financing statements must include an indication of the collateral. If the collateral is all the debtor’s assets, then you can simply list “all assets” in the collateral box (but remember that this approach does not work in the security agreement itself). If the collateral is a subset of the debtor’s assets, consult the signed security agreement and use its collateral description for the financing statement.
When it comes to UCC Article 9, small errors can be catastrophic. It will be well worth your time and money to consult an attorney with UCC expertise.
Clint M. Hanni is Of Counsel to Richards Brandt Miller Nelson. He is a member of the Business Transactions & Corporate Governance, Banking and Finance Law, Business Bankruptcy and Creditor Rights, and Real Estate Transactions & Litigation practice groups.
Law Is Stranger Than Fiction | Episode 12 Big Brother
good afternoon and welcome to today’s
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episode of law is stranger than fiction
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I’m one of your co-hosts Barry shoal
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I’m your other co-host Steven Bergman we
00:15
are shareholders in the Salt Lake City
00:16
law firm of Richards brandt miller
00:18
nelson in today’s episode of law is
00:20
stranger than fiction involves a
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situation where big brother is always
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watching even if it turns out your big
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brother Barry that’s right Steven
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today’s story involves a former Utah
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policeman who was charged with theft by
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extortion after threatening to reveal
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incriminating photos of his ex-wife to
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discourage her from pursuing his pension
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as part of a divorce proceeding now I’m
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assuming this had something to do with
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him being caught on camera making these
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threats yes on his own police camera was
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it like his dashboard camera that you
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see or is it on his body there was a
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body cam and what was he
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doing that the body cam caught him
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confessing to extorting his soon-to-be
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ex-wife well he was responding to a
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domestic violence complaint and talking
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to the suspect sort of on the job therapy
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as it were wait stop for a
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second he was talking to the suspect yes
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let’s see if I get this straight
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so on the job police officer is called
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to a domestic violence scene
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presumably he separates the two parties
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and he’s talking to the suspect the
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person who he might be arresting for
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committing domestic violence that about
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sums it up and he starts confessing to
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him about his own actions towards his
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ex-wife that’s right he confessed to
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this domestic violence suspect that it
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sucks you got to play dirty games like
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that but that he had incriminating
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photos of his ex-wife that she didn’t
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want revealed and that he had used those
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photos or the threat of revealing those
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photos to discourage her from pursuing
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his pension did he like later try to
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explain himself to superiors by saying I
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was trying to establish rapport with the
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suspect so he’d admit what he was doing
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no okay
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and so what happened to this police
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officer well he was charged with theft
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by extortion and later resigned from the
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police force I’m assuming he didn’t turn
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his own camera in and say hey look what
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I said on camera how did this get
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discovered I believe it was just part of a
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standard review of footage from body
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cams and it was discovered there and
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then reported by one of his peers and
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did he give any explanation for why he
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was making a confession of a crime
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knowing he was recording himself none at
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all so the officer had texted his
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soon-to-be ex-wife a copy of the photo
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and threatened to reveal and share the
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photo she said she was embarrassed and
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didn’t want family members to be exposed
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to the photo and investigators
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interviewed her she admitted the the
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circumstances and subsequently
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investigators went through his ex-wife’s
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phone and through text messages and
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confirmed several dates when the photo
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was used to threaten his ex-wife so not
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only did this guy record himself
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confessing to committing a crime he sent
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incriminating evidence by text message
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to the target and created his own
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evidentiary trail his ex-wife the target
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yes some quality police work right there
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anyway how much was this over $5,000
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okay so he essentially risked his career
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trying to prevent splitting $5,000 with
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his ex-wife that’s correct
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this is an example of probably a
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divorce getting a little too down and
03:58
dirty if you are going through a divorce
04:01
or you need help in a family law
04:03
situation please contact the attorneys
04:05
at Richard’s Brandt Miller Nelson we
04:07
have a number of family law attorneys
04:08
who can assist you and for now this is
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law is stranger than fiction
UCC Article 9: What You Need to Know, Part 4
Clint M. Hanni
April 2018
Security Agreements – For Debtors
Let’s say that you have approached a bank about getting a loan for working capital purposes. You have inventory and accounts receivable to offer as collateral to secure the loan. After agreeing to basic terms, the bank sends you a loan agreement, a promissory note and a security agreement. The bank has assured you that these are all “standard documents” and encourages you to quickly sign and return them so the loan can be funded and you can get your money. Before you sign the security agreement, however, it’s important to understand that there’s really no such thing as a “standard document” when it comes to security agreements. There are only short-form minimalist documents that cover the basic elements necessary for the creation and attachment of a security interest and long-form documents that describe the lender’s remedies in exhausting detail.
The debtor should take care to review the obligations that are secured by the collateral. Generally, the obligations to be secured should be limited to obligations arising under the loan agreement itself. Lenders often will extend the obligations to include any and all obligations owing from the debtor to the lender at any time in the past or future. As a debtor, make sure you are comfortable with this approach or push back to place limits on the secured obligations.
Every security agreement will have a collateral description, and the debtor should review it carefully to confirm the collateral is as agreed. This is less important where the debtor has agreed that all its assets will constitute collateral. It is more important where the debtor has multiple lenders each with different collateral. Lenders often include over-inclusive collateral descriptions and depend on the debtor to trim them back. It is worth being careful on this point. An over-inclusive collateral description can throw the debtor into default under prior loan agreements and result in the waste of time and money to fix.
A security agreement gives the lender the right to seize the debtor’s collateral upon the occurrence of certain listed “events of default.” A debtor should review these events of default carefully to confirm they will not be triggered unexpectedly. For example, it is customary for the debtor’s failure to make a payment to the lender to be deemed an event of default, but only after all cure periods have been exhausted.
A smart debtor will insist that any loan documents it receives be reviewed quickly and efficiently by experienced counsel, even if the lender claims they are “standard documents.”
Clint M. Hanni is Of Counsel to Richards Brandt Miller Nelson. He is a member of the Business Transactions & Corporate Governance, Banking and Finance Law, Business Bankruptcy and Creditor Rights, and Real Estate Transactions & Litigation practice groups.
UCC Article 9: What You Need to Know, Part 3
Clint M. Hanni
March 2018
Security Agreements – For Lenders
Security agreements lie at the heart of loan transactions. If you are a lender, the security agreement is the document that insures you will be repaid. Security agreements are most often stand-alone documents, but they don’t have to be. Language creating a security interest can be embedded in any other agreement, such as a loan agreement, a purchase order, a promissory note or a deed of trust. The key to creating a security interest is including language whereby the debtor “grants a security interest” to the lender in named collateral. Beyond that, there are two elements of utmost importance in a security agreement that, surprisingly, are often overlooked.
First, the security agreement must indicate what the collateral is. There doesn’t have to be an exhaustive description of each separate item of personal property of the debtor that constitutes collateral. It is enough to identify the category or type of collateral, such as equipment, inventory, accounts receivable, deposit accounts and the like. UCC Article 9 identifies the generally recognized types of personal property collateral in which a security interest can be taken. You should always consult a qualified lawyer to review any collateral description in a security agreement to confirm it is adequate (for the lender) and not overreaching (for the debtor).
A common pitfall is to identify the collateral by simply referencing “all assets” of the debtor or “all personal property” of the debtor. Many lenders have tried this, thinking that it will get them the most collateral, only to find out that UCC Article 9 specifically disqualifies this approach. Such lenders end up with no security interest, no collateral and a difficult path to repayment if the debtor becomes insolvent. To create an effective security interest, the collateral must be identified by specific type or category.
The second element of utmost importance is that the security agreement must be signed by the debtor. This is a simple matter, but often overlooked. An unsigned purchase order with embedded language about the creation of a security interest is not sufficient. The mere filing of a UCC financing statement (which, as a rule, is not a signed document) is not sufficient. Without the debtor’s signature on a written (or electronic) security agreement, no security interest will be created.
As you can see, the requirements of a security agreement are complicated. Before providing a security agreement to a debtor, it’s wise to have it reviewed by a competent attorney with UCC expertise.
Clint M. Hanni is Of Counsel to Richards Brandt Miller Nelson. He is a member of the Business Transactions & Corporate Governance, Banking and Finance Law, Business Bankruptcy and Creditor Rights, and Real Estate Transactions & Litigation practice groups.
Law Is Stranger Than Fiction | Episode 11 Fatberg
Steven: Good Afternoon, my name is Steven Bergman
Barry: And my name is Barry Scholl.
Steven: We are shareholders at the law firm of Richards Brant Miller Nelson in Salt Lake City and this is another episode of Law is Stranger Than Fiction.
Barry: In today’s episode we’re gonna talk about what is lurking under the city streets. Steven…
Steven: Well according to an opinion from the United States District Court for the District of Columbia that was issued late to 2017. “Lurking beneath the city streets lies a purported scourge of our sewer system—non-woven disposable wipes. While unwitting consumers might blithely flush baby or facial wipes down the toilet, little do they know these wipes may bind together in the subterranean realm, creating plumbing clogs of substantial proportions.
Barry: Is there a name for these plumbing clogs of substantial proportions?
Steven: There is… they’re referred to, rather unceremoniously, as Fatberg’s and when they say substantial proportions, they mean it.
Barry: So, I understand that this is a worldwide problem not a problem limited to the United States.
Steven: That is true. There have been large Fatberg’s discovered in Baltimore, London and other eastern cities. They tend to form unwittingly, you know, and then you have a sewer blockage. You then have a sewer spill and all sudden the sewer workers get down there they find these fatbergs, which are for lack of a better term, these wipes full of grease, fat— just kind of congealed into a massive concrete-like ball.
Barry: So, when you say massive I understand that the most recent fatberg in London was a hundred and fifty tons, the weight of a blue whale ,and the size of the playing field at Wembley Stadium. Is that correct?
Steven: That’s what the news story said about it. It took them several weeks to jackhammer the thing out. Now the reason we’re talking about this story and the reason there was a lawsuit where we had a discussion about fatbergs… Back in 2016 the District of Columbia tried to prevent this problem happening in their sewer system. It actually passed a law for labeling on disposable wipes and Kimberly-Clark sued saying that the law targeted them and that their wipes, in fact, did dissolve, etc. This is how we ended up with a judicial opinion describing the scoured line beneath our city streets.
Barry: And so what our municipality is doing to prevent the formation of these massive balls of waste products?
Steven: Well the District of Columbia, as I said, tried to pass a law to not ban disposable wipes but to put labeling on there, that these are not biodegradable, these do not disintegrate in water, do not flush them down the toilet. That didn’t work out very well because Kimberly-Clark actually was successful at getting an injunction against the enactment of this statute. But what they are doing (like in DC), they have a ‘protect your pipes’ campaign, encouraging consumers not to flush things down the toilet that don’t belong down there. Things like that because obviously when there are spills you have these large backups, like they had in Baltimore a few years ago. which they attributed to about 20-tons of fatberg discovered under the city streets of Baltimore.
Barry: And I understand London has done something similar to DC in creating a “Bin It Don’t Block It” campaign,
Steven: Exactly and that’s what you’ll see more and more as cities try to deal with these problems. So now this does raise some issues that might be of interest to our viewers other than the kind of morbid curiosity aspect of it. Cities, states, local municipalities are constantly passing regulations and if you feel a regulation is somehow unconstitutionally harming your industry or your business, please contact the attorneys at Richards Brandt Miller Nelson and for now this is Law is Stranger than Fiction.
Law Is Stranger Than Fiction | Episode 10 Pooping Jogger
Barry: Good afternoon and welcome to this week’s episode of Law is Stranger Than Fiction I’m Barry Sholl one of your co-hosts and a shareholder at the law firm of Richard’s Brant Miller Nelson in Salt Lake City.
Steven: I’m Steven Bergman your other co-host also a shareholder Richard’s Brant Miller Nelson.
Barry: And we are joined today by a very special guest Kendall Moriarty, an associate here at the firm who has a running story that she’d like to share.
Steven: Kendall?
Kendall: It’s a story out of Colorado. A woman would go out on jogs and every week she would stop on the same lawn and go to the bathroom.
Steven: And when you say stop and go to the bathroom… What are we talking about?
Kendall: Number two.
Steven: Okay and you said the same lawn every time?
Kendall: The same lawn.
Steven: So, there’s some regularity going on here?
Kendall: Yes.
Steven: Was she caught doing this by anybody?
Kendall: She was. Actually the children of the homeowner saw her for the first time and reported it to their mother. Who then saw the woman and was able to take photos of her.
Barry: And did the mother have any conversation with the jogger?
Kendall: There may have been a report that she confronted her at one time and the jogger said sorry and ran away.
Steven: Now speaking of this report, did the jogger just stop and squat or did she, you know, have wipes with her or anything like that?
Kendall: I think it was just a stop and squat.
Steven: Okay, was there a restroom nearby that she could have used?
Kendall: So the neighborhood did have a common area with a publicrestroom that this woman was not using. The homeowner left a sign on the property asking her to stop but instead the jogger just varied the times that she jogged in order to not get caught.
Barry: And was she jogging during the day or was she under the cover of darkness?
Kendall: During the day.
Steven: And how long did this go on for?
Kendall: I’m not quite sure but it seemed to happen regularly for several weeks.
Steven: And what kind of legal issues does this particular running case create?
Kendall: Well definitely trespass, probably some nuisance.
Barry: And you mentioned that the children reported this action. It’s possible some indecent exposure?
Kendall: Yes, the police were involved. The homeowner did report the incidents to the police, but the police have been unable to locate to identify the woman and bring any charges.
Steven: Okay has there been any further story or any discussion about why she was doing this?
Kendall: So, after the story hit the news someone went on YouTube and claimed to be a relative and provided possible explanations for whythis woman was jogging and going to the bathroom in public. And one of the reasons was mental illness or something else, and so, but it came out later that that person didn’t actually know the jogger.
Steven: Okay and has there been any further reports of this woman’s activities since the story first came out?
Kendall: So, since November it seems that the jogging and the incidents have stopped.
Steven: Okay.
Barry: Now Steven you practice a lot of real estate law… what issues might a homeowner encounter– one would hope not involving a jogger.
Steven: Hopefully, you know, you as a property owner don’t have to encounter joggers using your property as a restroom, but other issues that are a little bit more common would be things like boundary disputes with your neighbors or access issues when you know neighbor’s property prevents you from accessing your property or vice versa or questions of easements– things like that and myself and other attorneys here at Richards Brandt Miller Nelson are very experienced in, those kind of real estate law issues. And if you do have such an issue please give us a call. For now, Kendall, thank you for coming in and sharing this running story with us. We appreciate that. I’m Steven Bergman.
Barry: And I’m Barry Scholl and this is…
Together: Law is Stranger Than Fiction
UCC Article 9: What You Need to Know, Part 2
March 2018
What is a security interest?
At the heart of UCC Article 9 is the concept of a “security interest.” The UCC itself defines a security interest as “an interest in personal property or fixtures which secures payment or performance of an obligation.” The definition goes on for another eight lines, but the gist of it is that a lender receives security for its loan by getting an interest in the debtor’s collateral. In other words, a security interest is a type of lien that allows a lender to take collateral from a debtor that defaults on an obligation. Under UCC Article 9, a security interest only attaches to personal property collateral. Personal property essentially includes everything but land and buildings (the latter are called real property).
When it comes to security interests, two important concepts come into play. First, in order to be of any effect, a security interest must be created and attach to personal property. Second, in order to be enforceable against a debtor, a security interest must be properly perfected.
In order for a security interest to be created and attach to collateral, there are three basic requirements. The debtor (the one owing the obligation) must sign a security agreement, which will be discussed in more detail in future blog segments. The secured party (the one receiving the obligation) must give value to the debtor, for example, in the form of a loan. Lastly, the debtor must have rights in the collateral, which generally means that the debtor owns or is leasing the collateral.
Even though a security interest has attached to collateral, it is of little value until it has been perfected, or in other words, can be legally enforced, a matter of great importance for lenders. The way to perfect a security interest depends on the type of collateral. For most types of collateral, perfection of a security interest is generally done by filing a UCC financing statement with the central filing authority in the state, which is often the secretary of state. In Utah, the place to file is the Division of Corporations and Commercial Code. For certain types of collateral, the only way to perfect a security interest is for the lender to take control or take possession. In other cases, the lender can perfect its security interest in any one of several ways, but with possibly differing priorities. It is possible, for example, for two lenders to perfect a security interest in the same collateral, but with different resulting priorities. If you are a lender wanting to perfect a first priority security interest in collateral, it is essential to consult a lawyer with expertise in UCC Article 9 so that you perfect the security interest in the proper manner and comply with other legal requirements for a legally enforceable interest.
Clint M. Hanni is Of Counsel to Richards Brandt Miller Nelson. He is a member of the Business Transactions & Corporate Governance, Banking and Finance Law, Business Bankruptcy and Creditor Rights, and Real Estate Transactions & Litigation practice groups.
Law Is Stranger Than Fiction | Episode 9 Pet Leasing
Barry: Good afternoon and welcome to this week’s edition of Law is Stranger than Fiction I’m Barry Scholl, one of the co-hosts and a shareholder at the law firm of Richards Brandt Miller Nelson in Salt Lake City.
Steven: I’m your other co-host Steven Bergman. I’m also a shareholder at Richards Brandt Miller Nelson.
Barry: And today Steven’s gonna introduce us to a somewhat alarming concept that was new to both of us, known as Pet leasing. Steven take it away.
Steven: Thank you. It’s new to a lot of people actually. I learned about this from a Federal Trade Commission consumer warning to be very careful when purchasing a pet if you’re not buying the pet outright for cash at the time read very carefully the contract that the pet store gives to you. Because unfortunately a number of people have ended up, what they think was buying a pet, and ended up instead actually signing a lease agreement on a pet.
Barry: So, wait a minute, you’re telling me that it’s possible to lease a dog, a cat, a ferret, a parrot, whatever it might be, in the same way that you might lease a wide screen TV?
Steven: Well for these stores that were doing it, pretty much yeah that’s what was going on. You know, instead of paying, you know, the say $1,000 or $1,300 whatever the animal in question might cost, they were agreeing to make payments typically, over a two year period. The payments would come out to far greater than he purchase price would have been at the time. And the contract that these people sign probably not reading very carefully, because they’re so enamored with whatever animal they’re trying to take home, specifically says if you miss a payment the animal can be repossessed, if something happens to the animal you’re still on the hook for the payments, things like that.
Barry: So, wait a minute, let me interrupt you here, so if Fluffy gets out of the house and runs into the street and is inadvertently involved in a fatal accident such that Fluffy crosses the «Rainbow Bridge,» does that mean that the consumer is still on the hook to make the remaining payment?
Steven: Unfortunately, that’s what it does mean in these contracts, which are you know quite unfavorable for the people buying the pets. They are bound to make the payments whether or not they still have the dog or cat in question, or parrot, or ferret, or whatever it might be.
Barry: So this really is like leasing a car?
Steven: Sadly it is. You know I mean people get attached to cars but I think they get a little bit more attached to their pets and so you know f you’re looking to buy a pet be very careful. If you see an offer of like you can pay for the pet over time.
Barry: Now this seems at the very least like a controversial concept, are state’s stepping in to do anything about this?
Steven: Fortunately the answer is yes. Recently both the state of California and the state of Nevada have passed bills that make it illegal to sign contracts for pet leasing. Basically in California it says a contract for the purchase of a dog or cat with payments over time is void and is against public policy. So, now Barry you do a lot of contract law. What kind of things would you advise somebody if they were looking at a contract?
Barry: Well first understand the contract and if you don’t understand the contract invest a little bit in consulting with a qualified lawyer to be sure that you’re not inadvertently leasing a pet, instead of purchasing the pet on an installment plan. The other is to make sure you read the contract. I would imagine that some of these consumers were so enamored with Fido that they just signed where the pet store owner indicated and scooped up the pet and happily left the store, completely unaware that they were leasing a pet.
Steven: That is very true. Some of the stories about this talked about how people had no idea that they had signed a lease agreement for their animal, which is a really sad thing when you think about it.
Barry: Very much so.
Steven: So well that’s it for today’s episode my name is Steven Bergman.
Barry: And my name is Barry Scholl
Together: And Law is Stranger than Fiction.
UCC Article 9: What You Need to Know, Part 1
Clint M. Hanni
March 2018
Introduction
If you’re a business owner, you’ve been using the Uniform Commercial Code (UCC) even if you’ve never heard of it. The UCC is a model body of law adopted by all 50 states and US territories in a generally uniform manner that governs commercial business transactions, although there are slight differences between the states. The UCC is divided up into eleven separate sections or “Articles” that each govern a different set of transactions.
What kind of transactions are governed by the UCC? Here’s a short list: selling goods, leasing equipment, issuing promissory notes, sending purchase orders, writing checks, opening bank accounts, shipping goods, and finance transactions where a loan is secured by collateral. This blog series will deal with finance transactions, which are covered by UCC Article 9.
As a business owner, why should you care about UCC Article 9? The answer is simple: whenever you enter into a financing arrangement, equipment lease or any transaction where an obligation is secured by collateral, UCC Article 9 is there in the background to protect you as long as the documents and agreements comply with its provisions. If you are entering into a transaction where you will provide financing, you’ll need to have a basic understanding of how UCC Article 9 helps protect your interest in the collateral. As you might expect, UCC Article 9 is a complicated statute, and you’ll need the help of a professional to navigate it. If you’re a lender, you’ll want to make sure the documents you are using have been vetted by an attorney so they comply with the UCC in your state. If you’re a borrower, you’ll want to hire a lawyer to confirm the documents aren’t overreaching and include the protections offered by the UCC.
Because UCC Article 9 touches so many different kinds of transactions, a general understanding of how it works and what to look for will benefit you regardless of whether you’re a lender, borrower, buyer or seller.
Clint M. Hanni is Of Counsel to Richards Brandt Miller Nelson. He is a member of the Business Transactions & Corporate Governance, Banking and Finance Law, Business Bankruptcy and Creditor Rights, and Real Estate Transactions & Litigation practice groups.
Law is Stranger than Fiction | Episode 8 Mark of the Beast