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Aira 6 19-13 webinar rra9 ppt
1. JULY 1, 2013 AMENDMENTS TO UCC
ARTICLE 9: EFFECT ON INSOLVENCY &
RESTRUCTURING ADVISORS
Webinar, June 19, 2013
Hon. William Houston Brown
Lawrence R. Ahern, III
2. Panelists:
William Houston Brown
Bankruptcy Judge, W.D. Tenn., 1987-2006
Lawrence R. Ahern, III
Adjunct Professor of Law, Vanderbilt University
Partners, Brown & Ahern
ADR & Legal Consulting to Professionals
WBrown@BrownAhern.com
(970) 319-2103
LAhern@BrownAhern.com
(615) 579-2542
3. INTRODUCTION
Why do you care?
Interplay of Article 9 of the UCC
Perfection defeats lien creditor
Trustee/DIP is hypothetical judgment creditor with lien
on personal property
May "avoid" unperfected security interest
Importance to restructuring, workouts,
bankruptcy
Determines secured status
Secured status determines leverage in Chapter 11
4. INTRODUCTION (Cont'd)
Article 9 & Bankruptcy (Cont'd)
Perfection constitutes "transfer" for preference
purposes
Trustee/DIP may avoid perfection within
preference period
90 days
1 year to or for benefit of insider
5. INTRODUCTION (Cont'd)
Name of debtor
Filing provides notice of security interest
Indexed by name
Trustee/DIP may show wrong name is "seriously
misleading"
Unperfected
Article 9 strict
Search in correct name
"Search logic" strict
Must reveal filing
6. INDIVIDUAL DEBTOR'S NAME
Guidance lacking in 2001 statute
Naming individuals more problematic than
entities
Court decisions
Harsh outcomes
Inconsistent
States had started to enact "safe harbor"
legislation
7. INTRODUCTION (Cont'd)
New rules
Most states have adopted
Uniform effective date July 1, 2013
Will change the way restructuring advisors and
other professionals will evaluate secured claims
Upcoming AIRA Journal Articles
8. INDIVIDUAL DEBTOR (Cont'd)
Legislative status
http://csctransactionwatch.com
Majority have chosen Alternative A
Two alternatives
§503(a)(4)
Alternative A = "Only if"
Alternative B = "Safe harbor"
9. ALTERNATIVE A – "ONLY IF"
If debtor has current driver's license
Or ID issued by licensing authority
Name on license sufficient to name debtor
Only if license/ID does not exist
Two more alternatives
Individual name
First personal name and surname
10. ALT. B – "SAFE HARBOR"
Three equally sufficient safe harbors
Individual name
First personal name and surname
Name on unexpired driver's license
So, if license/ID exists
Works under either alternative
Problem for searchers
Must search all possibilities
11. OBSERVATIONS
If license/ID exists
Works under either alternative
Alternative B
Additional searching
Alternative A
License names not always fit with UCC-1
Fields; order of names
12. HYPOTHETICAL # 1
Name: Brooks L. Dickerson
Individual owner of construction company
Known in community: "Louie" Dickerson
Equipment filing: "Louie" Dickerson
Peoples Bank v. Bryan Bros. Cattle Co., 504
F.3d 549 (5th Cir. 2007); § 9-506 Cmt. 2; see
also UCC § 9-503 Cmt. 2.d.
13. HYPOTHETICAL # 2
Name: Jane Doe Smith, nee Jane Patricia
Doe
Individual owner of retail business
Driver's license issued after marriage
Inventory filing used name on old license
Effect of name change on filing
Distinguish between existing and after-acquired
collateral
4-month window to file correctly
14. HYPOTHETICAL # 3
Name: James McGinty, now Roger
McGuinn
Alternative A state
Driver's license: James McGinty
Court order changed James McGinty's name to
Roger McGuinn
No new license
But filing in name of Roger McGuinn
§ 9-507 Cmt. 4.
15. HYPOTHETICAL # 3A
Name: James McGinty / Roger McGuinn
(Cont'd)
Individual owner of retail business
What if driver's license expires?
Name change rules (again):
Collateral acquired by debtor more than four
months after change
Not covered by after-acquired property clause
16. HYPOTHETICAL # 3B
Name: McGinty/McGuinn (Cont'd)
Individual owner of a construction business
What if McGinty/McGuinn moves to a new state?
Only license is issued by former state
Location change rules:
Must re-perfect within four months after change
Unperfected if not re-filed
Not limited to after-acquired property clause
17. REGISTERED ORGANIZATION
Institutional "birth certificate”
Document filed as public record
Corp., LLC, etc.
Two problems
Database/website inconsistent with public
record?
Public document have internal inconsistencies?
18. REGISTERED ORG. (Cont'd)
Database/document inconsistency
New definition: "public organic record"
= source of name
Inconsistency within public organic
record
Look to text provision stating name
Not caption, signature block, etc.
19. HYPOTHETICAL # 4
Spearing Tool
Charter: "Spearing Tool Manufacturing
Company"
Secretary of State website: "Spearing Tool Mfg.
Co."
Sec'y of State issues Good Standing Certificate
("Spearing Tool Mfg. Co.")
Filing: "Spearing Tool Mfg. Co.”
In re Spearing Tool and Mfg. Co., Inc., 412 F.3d
653 (6th Cir. 2005), cert. denied, 127 S. Ct. 41
(2006).
20. HYPOTHETICAL # 5
C. W. Mining Company
Title of "public organic record": "Articles of
Incorporation of CW Mining Company"
Paragraph 1 of "public organic record": "The
name of this corporation shall be C. W. Mining
Company.” (periods; spaces)
Filing: "CW Mining Company”
Rushton v. Standard Industries, Inc. (In re C.W.
Mining Co.), 2009 WL 2601246, 69 UCC Rep.
Serv. 2d 830 (Bankr. D. Utah Aug. 24, 2009).
21. Transition Rules
General effectiveness rule
New rules apply to existing transactions
But 5 years to get filings right
Ties to general 5-year effectiveness of UCC-1s
Filings that lapse during transition
Must be re-filed in the correct name
22. JULY 1, 2013 AMENDMENTS TO UCC
ARTICLE 9: EFFECT ON INSOLVENCY &
RESTRUCTURING ADVISORS
QUESTIONS?
23. Panelists:
William Houston Brown
Bankruptcy Judge, W.D. Tenn., 1987-2006
Lawrence R. Ahern, III
Adjunct Professor of Law, Vanderbilt University
Partners, Brown & Ahern
ADR & Legal Consulting to Professionals
WBrown@BrownAhern.com
(970) 319-2103
LAhern@BrownAhern.com
(615) 579-2542
Editor's Notes
Judge Bill Brown and Larry Ahern practice together, doing mediation and other alternate dispute resolution and legal consulting with professionals. Judge Brown retired from the bankruptcy bench in the Western District of Tenn. In 2006. He teaches at the Federal Judicial Center. Mr. Ahern practiced bankruptcy and did commercial transactions for 40 years before joining Judge Brown, and he teaching Secured Transactions at Vanderbilt. Both of them are frequent speakers and they are authors and co-authors of numerous books and articles.