Statutory Liens. Assignment 37 Priority: Secured Party vs. Statutory Lien Claimants. Problem Common Statutory Liens (Personalty)

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1 Assignment 37 Priority: Secured Party vs. Statutory Lien Claimants Reference: Understanding Secured Transactions Statutory Liens State statutes other than Article 9 sometimes provide certain creditors (who would otherwise be unsecured creditors) a statutory lien upon certain property Typically this lien arises in favor of suppliers of certain favored goods or services E.g., mechanics lien Contractor who provides labor or materials that go into an improvement to land can file for lien against the land if owner fails to pay contracted price, even if owner didn t grant contractor a mortgage/deed of trust Common Statutory Liens (Personalty) Artisan s (Repair) Liens Agricultural Liens Storage Liens Debtor owns a Van Gogh Firstbank has SI, properly perfected Painting is damaged, so Debtor takes it to Morse, who repairs it Debtor fails to pay, so Morse keeps painting, claiming statutory artisan s lien against it Who has first priority in the Van Gogh? Problem

2 Problem 37.1: Who Has First Priority in the Van Gogh? A. Morse s artisan s lien has priority over Firstbank s security interest B. Firstbank s security interest has priority over Morse s artisan s lien Morse s artisan s lien has... 0% Firstbank s security inter... 0% Priority of Certain Liens Arising by Operation of Law. (a) [ Possessory lien. ] In this section, possessory lien means an interest, other than a security interest or an agricultural lien: (1) which 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; (2) which is created by statute or rule of law in favor of the person; and (3) whose effectiveness depends on the person s possession of the goods. (b) [Priority of possessory lien.] 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. Morse has an artisan s lien for reasonable charges incurred in repair [e.g., Cal. Civ. Code 3051, p. 618] Morse s artisan s lien has priority over Firstbank s SI in the painting [ 9-333(b)] Lien is a possessory lien (it depends on Morse retaining possession of painting until paid) [ 9-333(a)] Under Article 9, a possessory lien primes (takes priority over) an Article 9 SI, unless the statute creating the lien says otherwise (Cal. Statute, p. 618, is silent) Rationale for Artisan s Lien Priority Similar in nature to rationale for PM superpriority over prior-in-time creditor Firstbank isn t really harmed by Morse s priority for work on painting If Bank had foreclosed on painting w/out the repair, it likely would ve sold less money (as it needed the repair work due to damage) 2

3 Question 37.1: Which (if any) of these arguments (if true) would be relevant defenses for Firstbank? A. Morse didn t prove his work actually increased the value of the painting B. Morse s work was incompetent C. Both D. Neither Morse didn t prove his wo.. 25% 25% 25% 25% Morse s work was incom... Both Neither Problem 37.2 Widdington owes GMAC $7,000 GMAC has a perfected SI in Widdington s car Security agreement says: Debtor must get GMAC s prior consent to repair in excess of $2,500 Widdington took car to Central Garage, which did $3,500 in repairs, but w/out GMAC s prior consent Widdington failed to pay Central, which claimed an artisan s lien on the car and had car sold for $5,500 Question 37.2: Which statement is correct? A. Central Garage s doesn t have a valid lien, because it didn t get GMAC s consent for the repair B. Central Garage has a valid lien, even though it didn t get GMAC s consent for the repair as required Central Garage s doesn t... 50% 50% Central Garage has a valid... Central Auto Repair has valid lien against the car [WSA , p. 635] Widdington s failure to get GMAC s consent is irrelevant (security agreement can t disable debtor from placing lien on car) [ 9-401(b)] Lien based in policy (custom, avoidance of unjust enrichment, solvency of service providers) Problem

4 If car is sold for $5,500, how should proceeds be distributed? 9-333(b) generally gives priority to statutory lienor But, WSA modifies this priority; Central will have priority only to the extent of $1,500 (no consent) GMAC will have its prior-intime priority for the remaining $4,000 of the sale proceeds Problem 37.2 Problem 37.2: Missouri Missouri: statutory artisan s lien has priority over prior perfected security interest in the vehicle, w/out stated dollar limit Thus, in MO, if vehicle was sold to satisfy lien, Central would receive first $3,500 in proceeds, before distribution of any proceeds to GMAC Landlord s Liens At common law, a landlord had the right of distraint (a lien on all of the tenant s personal property located on premises, to secure tenant s unpaid obligation for rent) Decades ago, most states abolished distraint in favor of a statutory landlord s lien, such as the Oregon statute (p. 621) Landlord s Liens In most states today, the statutory landlord s lien is very limited E.g., NC: landlord s lien is limited only to property left behind by tenant at end of lease E.g., MO: landlord s lien is limited to crops Further, if tenant files for bankruptcy, the bankruptcy trustee can set aside any statutory lien for rent [BC 545(3), (4)] 4

5 Landlords and Security for Rent Lease can grant landlord an Article 9 SI in tenant s personal property to secure payment of rent Would give landlord a consensual SI in described collateral; if perfected, basic Article 9 priority rules apply Problem: tenants may be reluctant to agree (granting SI may place a tenant in default under already existing loan agreements, or restrict the tenant s access to credit) Agricultural Liens An agricultural lien is a nonpossessory lien on farm products, granted by a separate state statute (other than Article 9), to secure farm-related debts that would otherwise be unsecured [ 9-102(a)(5)] E.g., seed suppliers (cost of goods supplied) E.g., farm landlords (cost of unpaid rent) Unlike other statutory liens, an agricultural lien is not dependent on the lienor s possession Problem 2 Putnam County Bank (PCB) has SI in all of Jethro Bodine s equipment and farm products (present and after-acquired), perfected by filing Bodine buys $100,000 of seeds/fertilizer from Russell Feed & Supply on account Bodine fails to pay for the seeds/fertilizer when due Does Russell Feed & Supply have an agricultural lien on Bodine s soybean crop? Article 9 defines such a statutory lien as an agricultural lien [ 9-102(a)(5)] and brings it under Article 9, but only for questions of perfection and priority For attachment: agricultural lienor must comply w/ the state statute creating the statutory lien (i.e., there s no need for a security agreement ) Agricultural lien arose as soon as Russell supplied the seed [Kan. Stat (a), (c)], and attached to his growing/grown soybean crop [ (a)] 5

6 Article 9 governs perfection and priority of agricultural liens [ 9-109(a)(2)] Agricultural lien is perfected by filing a UCC- 1 financing statement [ 9-310(a)] If ag lien is not perfected, it may lose priority to a conflicting SI [ 9-322(a)(1)] or it may be cut off in favor of good faith buyer [ 9-317(b)] Priority: first-to-file-or perfect [ 9-322(a)(1)], unless the ag lien statute gives the ag lien priority over a conflicting SI [ 9-322(g)] Perfecting an Agricultural Lien Note: to perfect an agricultural lien, the agricultural lienor must file a UCC-1 in the state where the farm products are located (i.e., where crop is growing) [ 9-302] By contrast, an Article 9 SI in farm products is perfected by filing in the state where the debtor is located [ 9-301(1)] These could be different states! [Important when searching records re: a farming debtor] KS Agricultural Lien Statute: Notification Requirement KSA requires Russell to give a liennotification statement to PCB (which holds a prior perfected SI in Bodine s farm products) What s the purpose of this? What happens if Russell fails to do it? If complied with, KS ag lien statute gives the ag lienor (like Russell) superpriority over a prior secured party (like PCB) [Kan. Stat (f)] Article 9 recognizes this superpriority, if it is granted by the ag lien statute [ 9-322(g)] But, to get this superpriority, Russell must comply with the statute s notification requirement If Russell doesn t, it doesn t get superpriority [Kan. Stat (a)], and thus PCB would instead get priority based on first-to-file-or-perfect [ 9-322(a)(1)] 6

7 Ag Lien Scenario Ag Lien Superpriority: Rationale Rationale is similar to notification requirement for PM priority as to inventory [ 9-324(b)] Russell is an enabling lender as his credit enables Bodine to plant a crop (but, at time of sale, Bodine can t grant a PMSI in a not-yet-existent crop) Giving Russell priority over PCB wouldn t harm PCB as a practical matter, unless PCB was also advancing credit to Bodine against the same seeds When Bodine approaches Russell to buy seed, Russell will first send a lien-notification to PCB, before it actually makes any sale to Bodine [ (b)] PCB then has three options: (1) W/in 5 days, it can loan Bodine the money to pay Russell s bill, and thus keep its first-in-time priority (i.e., Russell gets paid in cash and thus has no ag lien) [ (c), (d)], or (2) W/in 5 days, it can respond that it will NOT loan funds to pay Russell s bill (in which case Russell won t extend credit to Bodine) [ (c), (d)], or (3) If it does not respond within 5 days, Russell can proceed with the sale to Bodine, and Russell s ag lien will take priority over PCB s SI in the crop [ (e)] 7

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