UCC Financing Statements
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1 Rich Maxwell Woods Rogers PLC Greg Feldmann Skyline Capital Strategies, LLC UCC Financing Statements Perfection of Liens Filing in the Right Location Getting the Name of the Debtor Correct Standard search must be conducted using the filing office s standard search logic Best Practice Use name as provided in Articles of Incorporation Tyringham Holdings, Inc. 1
2 UCC Financing Statements Correctly Describing the Collateral Sufficiency of financing statement Security agreement vs. financing statement All Owners of Collateral Should Sign Correcting Problems UCC Financing Statements IRS 45 Day Rule Priority of Federal Tax Liens Generally Used For Secured Interests That Change Inventory, A/R Requirements (burden is on the person asserting) Security agreement must predate the federal tax lien; The holder of the interest must make disbursements no later than 45 days after the filing of the federal tax lien; The collateral securing those disbursements must be acquired within those 45 days; and The holder cannot have actual knowledge or notice. 2
3 Breaking a Blanket Lien in Inventory When? Supplier of goods on credit when the bank or other lender has a blanket lien on inventory. Definition of Inventory Under UCC is Very Broad And Includes Work In Progress. PMSI provides the seller of goods on credit with priority over other creditors. Exception for PMSI for Inventory Under Virginia Code 8.9A- 324(b) PMSI is perfected when the debtor receives possession of the inventory; and PMSI sends proper notice to the holder of the conflicting security interest. UCC Financing Statements Titled Vehicles 3
4 Landlord Liens What are they? How can we avoid problems with them? Landlord Lien Basics A landlord lien is the interest a landlord has in the property of a person that owes him rent. Lien applies to goods found on the leased premises or that have been there within the past 30 days. Lien secures six months of unpaid rent for residential renters and twelve months of unpaid rent for premises used for agriculture. 4
5 How Landlord Liens are Created Landlord liens are created automatically with commencement of tenancy. Exception: A Landlord s lien on farm products must be perfected by filing a financing statement. Competing Liens All deeds of trust, mortgages, and most other liens created after the commencement of a tenancy (but not before) are subordinate to a landlord s lien. A Trustee in a bankruptcy matter may avoid a landlord s lien. 5
6 Waiver If a lien is created after the commencement of a lease term, the lender should require that the landlord execute a waiver of his lien. If the landlord refuses to waive his lien, the landlord may agree to subordinate his lien. Sometimes, there may already be a provision in the lease agreement between a debtor and his landlord that the landlord s lien will be subordinate to certain lender. Guarantors Ways to Unintentionally Release a Guarantor Guaranty of Collection as opposed to Guaranty of Payment Failure to Notify Guarantor of Default Failure to Notify Guarantor of Foreclosure 6
7 Guarantors Material Alteration of Underlying Debt Impairment of Collateral (Failing to Perfect Security Interests) Release of Co-Guarantors Bankruptcy Recovery of Preferences Bankruptcy Automatic Stay Unsigned or Forged Signatures Equal Credit Opportunity Act Spouse may have a defense as a guarantor if the loan was made relying only of the other spouse s assets and income 7
8 Confession of Judgment What is it? How does it operate? Why is it beneficial? Confession of Judgment Basics By statute, a debtor or her attorney-in-fact may confess to a clerk of court that she owes a debt to a creditor and such confession will be entered as a judgment. Obtaining a judgment by confession is an extraordinary remedy that permits a creditor to obtain an enforceable judgment against a debtor without the need to file suit or to establish any fact other than the existence of a valid instrument permitting the creditor to direct an attorney-in-fact to confess the judgment. Safrin v. Travaini Pumps USA, Inc. 8
9 Confession of Judgment Provisions A debtor may authorize someone other than himself to confess judgment by executing a power of attorney. An evidence of debt with a confession of judgment provision must have the statutorily required notice. Other matters to address: natural person debtors, attorney s fees, interest, and costs. Taking Confession of Judgment to Court Provide form containing language required by section of the Virginia Code to clerk of circuit court. Clerk will serve a copy of the confession of judgment order on debtor (and creditor should too) within ten days of the confession. Debtor has 21 days following notice that confession has been entered to move the court to have the judgment set aside or modified. 9
10 Advantages of Confession of Judgment Quick and inexpensive way to reduce a debt to a judgment and open the door to judgment creditor remedies. Generally no need for expensive and time consuming things like pleadings, motions, hearings, coordinating schedules with the court, etc. No need to provide prior notice to debtor. May get ahead of other creditors. Limitations of Confession of Judgment If a debtor files a motion or other pleading within 21 days of the entry of a confessed judgment, then the case proceeds like a normal court case. A confessed judgment may be reduced on any ground which would have been an adequate defense or setoff in an action at law. 10
11 Title Insurance Why is it important? Financial strength of the insurer. What to do if you have a claim. Changing Landscape in the US US title insurers have dropped from 95 in 2008 to 47 as of 2011, a 51% drop Failures Consolidation Critical to know financial strength of provider ability to pay claims Big 4: Fidelity National BBB/Stable First American A-/Stable Old Republic A/Negative Stewart BBB+/Negative Distressed market will continue to define title business in million foreclosures possible 11
12 Why obtain title insurance? Buy peace of mind protection from hidden risks such as: False impersonation of the true owner of the property Forged deed, releases or wills, instruments executed under invalid or expired power of attorney; Undisclosed or missing heirs Mistakes in recording legal documents Misinterpretations of wills Deeds by persons of unsound mind Deeds by minors Deeds by persons supposedly single, but in fact married Fraud Liens for unpaid estate, inheritance, income or gift taxes Rich Maxwell (540) Greg Feldmann (540)
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