1 July 2017 A garment manufacturer sells clothing to retail stores on credit terms pursuant to which the retail stores have 180 days after delivery of the clothing to pay the purchase price. Not surprisingly, the manufacturer often has cash-flow problems. On February 1, the manufacturer entered into a transaction with a finance company pursuant to which the manufacturer sold to the finance company all of the manufacturer’s outstanding rights to be paid by retail stores for clothing. The transaction was memorialized in a signed writing that described in detail the payment rights that were being sold. The finance company paid the manufacturer the agreed price for these rights that day but did not file a financing statement. On March 15, the manufacturer borrowed money from a bank. Pursuant to the terms of the loan agreement, which was signed by both parties, the manufacturer granted the bank a security interest in all of the manufacturer’s “present and future accounts” to secure the manufacturer’s obligation to repay the loan. On the same day, the bank filed a properly completed financing statement in the appropriate filing office. The financing statement listed the manufacturer as debtor and the bank as secured party. The collateral was indicated as “all of [the manufacturer’s] present and future accounts.” There are no other filed financing statements that list the manufacturer as debtor. On May 25, the manufacturer defaulted on its repayment obligation to the bank. Shortly thereafter, the bank sent signed letters to each of the retail stores to which the manufacturer sold clothing on credit. The letters instructed each retail store to pay to the bank any amounts that the store owed to the manufacturer for clothing purchased on credit. The letter explained that the manufacturer had defaulted on its obligation to the bank and that the bank was exercising its rights as a secured party. The finance company recently learned about the bank’s actions. The finance company informed the bank that the finance company had purchased some of the rights to payment being claimed by the bank. The finance company demanded that the bank cease its efforts to collect on those rights to payment. Meanwhile, some of the retail stores responded to the bank’s letters by refusing to pay the bank. These stores contend that they have no obligations to the bank and that payment to the manufacturer will discharge their payment obligations. © 2017 National Conference of Bar Examiners These materials are copyrighted by the NCBE and are reprinted with the permission of NCBE. These materials are for personal use only and may not be reproduced or distributed in any way. 2 4 1. As between the bank and the finance company, which (if either) has a superior right to the claims against the retail stores for the money the retail stores owe the manufacturer for clothing they bought on credit before February 1? Explain. 2. Are the retail stores correct that they have no obligations to the bank and that paying the manufacturer will discharge their payment obligations? Explain. ANSWER TO MEE 3 1. The Bank has a Superior Claim to the Claims Against the Retail Stores for the Money the Retail Stores Owe the Manufacturer. 1.a. The first issue is whether the bank and/or the financing company have a security interest in the accounts receivable. Article 9 of the UCC governs the law of secured transactions. A security interest is an interest that one party--the secured party--has in the non-real property, known as 6 collateral, of another--the debtor. The security interest is created to provide collateral, similar to a down-payment or insurance--of a loan or other item of value provided by the secured party to the debtor. A security interest is created under Article 9 when a proper security agreement is executed and when attachment occurs. A security agreement is properly executed when there is a contract that (1) identifies the debtor and secured party, (2) identifies the collateral with a description sufficient to reasonably identify the collateral property, (3) grants the secured party an interest in that collateral in exchange for something of value, and (4) is signed by the parties. A description sufficient to meet the requirements of a security agreement can usually constitute the category classification identified by Article 9, including "inventory," "equipment," or "accounts receivable." The collateral can be for both present and future acquired collateral of that category, but the fact that the collateral covers future acquired property must be expressly stated in the security agreement. Attachment occurs when (1) the secured party provides the debtor with something of value, (2) the debtor has rights in the collateral, and (3) a valid security agreement has been created. In this case, the financing company executed a contract that provided the finance company would pay the manufacturer for the rights to all of the manufacturer's current and future accounts receivable (i.e. the debt owed by the customers of the 3 manufacturer for goods sold to them on credit). The agreement identified the collateral according to its UCC description of "accounts" and expressly stated that it would cover only the outstanding and present obligations owed. The agreement further identified the manufacturer as the debtor party and the financing company as the secured party, and expressly granted the secured party the rights to the accounts. Therefore, a valid security agreement was created between the manufacturer and the financing company. In addition, attachment occurred because the manufacturer had present rights in the collateral accounts receivable, even if they did not have possession of the money actually owed, and the financing company paid the agreed price to the manufacturer. Therefore, both attachment and a signed security agreement were created between the manufacturer and the financing company in all of the manufacturer’s present and outstanding accounts receivable. In addition, the bank also executed a valid security agreement that identified the manufacturer as the debtor, the bank as the secured party. The agreement provided the bank with an express grant to the rights in all present and future acquired accounts receivable, which is sufficient to satisfy both the requirement of a reasonable description of the collateral and an express grant of after-acquired collateral. The agreement was signed by both parties, and thus constituted a valid security agreement. Lastly, attachment occurred because the manufacturer had present rights in the collateral accounts receivable, and the bank provided the manufacturer with funds for the loan, which is certainly something of value to the manufacturer. Therefore, the bank too had a security interest in the accounts receivable outstanding at the time of the security agreement's execution, as well as all future acquired accounts receivable. 7 1.b. The second issue is whether the bank or the financing company has a priority interest in the accounts receivable collateral that they both have a security interest in. Because it is possible for a debtor to provide the same collateral to multiple secured parties, secured parties are able to perfect their security interests, which provides them with a greater priority over unperfected security interests. This is important when a debtor party defaults on one or both of the security interests he has secured with the same collateral, as it determines the priority rights the secured parties have over the same collateral. A secured party with a perfected interest in collateral has a higher priority over a secured party with an unperfected interest. In order to perfect an interest, the most common method is filing a financing statement with the appropriate Secretary of State's office. A financing statement must be (1) authorized to be filed by the debtor party, (2) identify the secured 4 party and debtor party, and (3) identify the collateral (including through the use of super-generic descriptions). The proper filing of a financing statement acts as constructive notice to the world that the secured party has a collateral interest in the property. In this case, the bank properly filed a financing statement listing the debtor as the manufacturer and the bank as the secured party, and all the manufacturer's present and future accounts as the collateral interest. Assuming it was filed in the correct Secretary of State's office, the bank's interest was thus perfected upon the filing of the financing statement. The financing company, however, did not file a financing statement. Therefore, their interest in the outstanding collateral at the time they signed the security agreement with the manufacturer is unperfected. Because a perfected interest will have priority over an unperfected interest, the bank will have a superior right to the claims against the retail stores for the money owed on the accounts receivable over the financing company. 2. The retail stores are incorrect that they have no obligation to pay the bank and that paying the manufacturer directly will discharge their payment obligations. The issue is whether the retail stores have to comply with the bank's demand that they pay the bank the debts owed, rather than the manufacturer. When a debtor defaults on a security agreement, the secured party is entitled to take possession of the collateral property, either as payment for the debt defaulted on and owed, or to sell in a commercially reasonable manner to satisfy the debt owed. In the case of accounts receivable, the secured party has the right to make a demand on the parties owing the debtor and whom the secured party has a collateral interest in the accounts receivable of. Once such a demand has been reasonably made to the debted parties owing the debtor under an accounts receivable that has been sold to the secured party, they must comply with the lawful demand. 8 In this case, the debtor manufacturer defaulted on the loan with bank. The collateral interest attached to the security agreement the bank had with the merchant provides that the bank has an interest in all present and future- acquired accounts receivable of the merchant. When the debtor manufacturer defaulted on the loan, the bank gave proper notice to the retail stores owing the merchant debts under an accounts receivable system. At such time, the retail stores must comply with the lawful demand of the secured party- bank. Indeed, that is the entire value in purchasing an accounts receivable portfolio. 5 Therefore, the retail stores are incorrect in asserting that they can pay the manufacturer instead of the bank, and must comply with the bank's lawful request for direct payment to satisfy the defaulted debt owed by the manufacturer. ANSWER TO MEE 3 1. Bank v. Finance Company. The bank has a superior right to the claims against the retail stores for the money the retail stores owe the manufacturer for clothing they bought on credit before February 1. The issue is whether the bank or the finance company has priority in the retail store accounts. Secured transactions are governed by Article 9 of the Uniform Commercial Code ("UCC"). Under Article 9 of the UCC, a creditor has rights in collateral against a debtor if that creditor has attached her security interest to the collateral. Attachment occurs when: (1) the creditor gives value to the debtor; (2) there is a contract or agreement between the creditor and the debtor indicating that the creditor will obtain a security interest in specific collateral; and (3) the debtor has rights in the collateral (which is typically achieved through possession or ownership). Furthermore, a creditor may also have rights against third party claimants in the same collateral if they perfected their security interest. Typically, for intangible goods such as accounts receivable, perfection is achieved by filing a financing statement in the appropriate public office. In a priority dispute, perfected attached creditors have priority and superior rights over unperfected attached creditors in the same goods. Here, the finance company is an unperfected attached creditor in the outstanding retail store clothing accounts that existed on February 1. The finance company attached its security interest to these accounts when it (1) paid the manufacturer the agreed price for the rights; (2) created a contract between the manufacturer and the finance company that was signed by both parties memorializing the security interest the finance company would take in the accounts as collateral; and (3) the manufacturer has rights in the accounts as the owner of those accounts receivable from the retail clothing stores. Therefore, the finance company attached its security interest to these accounts. However, the finance company failed to perfect its security interest because it did not file a 9 financing statement putting others on notice of its security interest. It also does not have possession or control over these accounts. On the other hand, the bank is a perfected attached creditor in all of the manufacturer's accounts, both existing before and after March 15. The bank 6 attached its security interest to these accounts. The bank gave the manufacturer money in exchange for this security interest. The bank and the manufacturer entered into a signed agreement that described the security interest that the bank was taking in the present and future accounts of the manufacturer as collateral, creating a contract describing the security interest. Furthermore, as stated earlier, the manufacturer has rights as the possessor and owner of these accounts with the retail clothing store. Therefore, the bank attached its security interest to these accounts. The bank also perfected its security interest by filing a financing statement. The financing statement must include the name and address of the debtor, the name and address of the creditor, and a description of the collateral that a security interest was taken in. This description in the financing statement can be super generic as long as it allows others to be put on notice of a security interest and make a reasonable follow-up. Here, all these requirements were met because the manufacturer is listed, the bank is listed, and the collateral is described as all of the manufacturer's present and future accounts. Therefore, the bank is a perfected attached creditor. Furthermore, it should be noted that the bank obtained an after-acquired collateral clause in its security agreement, which is permissible and enforceable as a security interest in all good except for consumer goods. Here, accounts receivable are not consumer goods, and therefore it is enforceable. This overlaps with the security interest of the finance company because the bank's interest includes all of the existing retail clothing store accounts that were present on February 1. Because a perfected attached creditor has priority over an unperfected attached creditor in the same collateral, the bank has a superior claim. Therefore, the bank has a superior right to the claims against the retail stores for the money the retail stores owe to the manufacturer for clothing they bought on credit before February 1. 2. Retail Stores v. Bank. The retail stores are incorrect that they have no obligation to the bank and their payment obligations are not discharged by paying the manufacturer. The issue is whether the bank has validly exercised its powers of the accounts receivable. When a default occurs, the secured party may take steps necessary to collect on its rights in the collateral in which it took a security interest. A default is defined by the security agreement. In this case, failure of the manufacturer to repay its obligation to the bank constitutes a default. Strict foreclosure is one method of a creditor may use to enforce its rights. In a strict foreclosure, the secured party takes possession or control of the collateral and keeps it as her own and discharges the debt of the debtor. Here, the bank 7 10 has exercised its right to direct payment on the accounts receivable to go to the bank rather than to the manufacturer. This is done to satisfy the debt. This can be likened to an assignment of rights under contract law. In this case, the bank has been assigned rights in the accounts receivable as a result of the security interest and security agreement between the parties. The assignor is the manufacturer and the assignee is the bank. The obligor is the retailor, who still has the obligation to pay. The retailers have notice of this obligation because the bank has informed them, and they are aware of the assignment taken as a result of the default and security interest in the goods. The retailers cannot refuse to pay. The retailors do not have any interest in the account receivable that is free and clear of the security interest, and their obligation is outstanding. They can only assert those defenses against the bank that it would have against the manufacturer. Therefore, the debt is not discharged by paying the manufacturer because it has notice that an assignment of the account has been made to the bank. It must pay the bank to satisfy its obligations. 8 July 2018 MEE QUESTION 3 In 2015, a man purchased a convenience store that sells gasoline and snack-type grocery items. The man’s store is located within two miles of three other convenience stores that are larger and contain small dining areas. When he bought the store, the man planned to expand it as soon as he could in order to offer the same services and products as the other three stores in the area. In 2017, the local zoning board passed an ordinance that rezoned the district in which all four stores are located from “light commercial” to “residential.” Convenience stores are not “residential” uses. The zoning ordinance contained typical language protecting existing nonconforming uses. In early 2018, the man decided to expand his store by 1,100 square feet to add a small dining area. To finance this expansion, he obtained a $200,000 loan commitment from a local bank, with the funds to be disbursed at such times and in such amounts as the bank determined to be appropriate if, in the bank’s good-faith judgment, there was “satisfactory progress” being made on the project. Documents reflecting this commitment were signed by the man and the bank, and a mortgage to secure the repayment of the loan was promptly and properly filed in the local land records office. Two weeks after obtaining the loan commitment, the man signed a contract with a general contractor for construction of the store expansion. In compliance with its loan commitment, the bank disbursed $50,000 to the man, who, in turn, paid that sum to the general contractor. Construction began immediately thereafter. © 2018 National Conference of Bar Examiners These materials are copyrighted by the NCBE and are reprinted with the permission of NCBE. These materials are for personal use only and may not be reproduced or distributed in any way. 3 Four weeks into the project, a plumbing subcontractor installed all the plumbing fixtures. After the general contractor failed to pay the $20,000 agreed price to the subcontractor, the subcontractor immediately filed a mechanic’s lien against the man’s property in the local land records office to secure its claim for $20,000. Eight weeks into the project, the bank disbursed an additional $40,000 to the man, who, in turn, paid $40,000 to the general contractor. The general contractor used these funds to pay various creditors, but not the plumbing subcontractor. 9 Two weeks ago, a bank loan officer learned for the first time about the mechanic’s lien. The next day, when the man approached the bank about making another disbursement, the loan officer refused. The man asserts that, under the loan agreement, the bank is obligated to disburse further funds. 1. Is the expansion project a nonconforming use? Explain. 2. Assuming that the expansion project does not violate the zoning classification, is the bank obligated to disburse further funds? Explain. 3. Does the mechanic’s lien have priority, in whole or in part, over the bank’s mortgage? Explain. ANSWER TO MEE 3 1. Expansion project is not a nonconforming use because non-conforming use is only limited to the extent of original use and does not permit substantial expansion after the enactment of zoning code The issue is whether the expansion project after the enactment of zoning ordinance ceases to be a nonconforming use protected under the zoning ordinance and thus violates the zoning ordinance. Government has broad power to enact zoning statute to promote an area's morale, heath, safety and general welfare. Valid use that existed prior to the zoning code that does not comply with the zoning code is sometimes protected under the category of "nonconforming use" and does not constitute a violation of zoning code. However, the non-conforming use is limited to the extent of its prior usage and cannot be substantially expanded. A substantial expansion of the use would cause the use to lose the protection status of "nonconforming use" and violates zoning code. Here, the local zoning board passed an ordinance that rezoned the district from light commercial to residential. The zoning ordinance contains typical language protecting existing nonconforming uses. Convenience stores are not residential use. Because the man's convenience store existed prior to the passage of zoning code, it was protected and man can continue operate the store under the zoning statute. However, the man can not substantially expand it to add a dining area. Here, the man planned to expand his store by 1110 square feet. The expansion was substantial enough to lose the protection of "nonconforming use" and thus violate the zoning statute. 8 2. Bank is not obligated to further funds because this decision is made in goodfaith judgment. 10 The issue is whether bank is obligated to disburse further funds under the contract. A party owes the other party to the contract a duty of good faith and fair dealing. Here, the loan contract specifically states that funds would be disbursed at such times and in such amounts as the bank determined to be appropriate, if, in the bank's good-faith judgment, there was satisfactory progress being made on the project. Thus, bank has discretion as to determine whether or not to disburse the funds under the contract. Because general contractor failed to pay the plumbing subcontractor, the plumbing subcontractor has filed a mechanic lien against the man's property in the local lands office. Bank's interest in the loan is also secured by the man's property. "Satisfactory progress being made on the project" is undefined and ambiguous. Bank may feel unsafe about its interest in man's property due to the mechanic lien and thus deem the progress made on the project is unsatisfactory. Bank may also no longer trust or have confidence in man's ability to finish the project due to the existence of mechanic lien. Thus, bank's decision to reject making another disbursement is made in good-faith and supported by valid reasons. Bank has no obligation to disburse further funds 3. Mechanic's lien has priority as to the $40,000 loan provided by the bank, but is subordinate to the $50,000 loan by the bank. The issue is whether the mechanic's lien has priority over bank's mortgage. Man's obligation to repay the loan is secured by a mortgage. Thus, bank has a security interest in man's property. There are 3 requirements for a valid security interest to exist: 1) the debtor has rights 2) secured party has given value and 3) secured party has authenticated a security agreement indicating the collateral. All 3 requirements are satisfied here. The man has rights in his property, the bank extended value by making a $200,000 loan commitment to the man and they signed a mortgage agreement. This interest is also perfected because the loan was promptly and properly filed in the local records office. Mechanic also has a lien interest in the man's property. Between a lien creditor and a perfected security interest, security interest will prevail as long as the interest is perfected before the person becomes the lien creditor. For the $50,000 loan made to the man two weeks after obtaining the loan commitment, bank will have priority because the interest arises before the mechanic filed a lien against man's property. Mechanic had notice of bank's mortgage as mortgage is properly filed in the local records office. 11 However, mechanic will have priority over the $40,000 loan made by the bank eight weeks into the project. If the future advance is obligated/mandatory, then disbursement of future advance will relate back to the date the security interest is perfected and has priority to other liens that arise after the security interest is perfected. However, if the future advance is only 9 optional, then future advance will not have priority over liens that arise before the future advance is made. Here, bank's loan contract states that bank has discretion to disburse funds as long as the decision is made in good-faith. Thus, it's not mandatory for bank to disburse fund to the man. The $40,000 disbursement will not relate back to the date when interest is perfected. Instead, because it arises after the mechanic lien arises; it will lose to mechanic lien. Some jurisdictions adopt rule that mechanic lien will have priority over all other security interest in the collateral. Mechanic lien is usually a lien that arises because mechanic has performed some work but is unpaid for it. As a result, mechanic filed a lien to secure the payment obligation. In these jurisdictions, mechanic lien will have priority over other security interests. If the state in the current case adopts this rule, then mechanic's lien will have priority over the bank's mortgage, for $20,000 amount. ANSWER TO MEE 3 1. Nonconforming Use The expansion constitutes nonconforming use. At issue is whether the grandfather clause to the zoning ordinance implies the right to expand nonconforming use. Zoning ordinances are generally constitutional and do not require compensation as long as they do not constitute takings. To avoid a taking, most zoning ordinances include provisions to grandfather-in existing uses that do not conform with the terms of the new ordinance. But such provisions do not generally permit the expansion of the nonconforming use. Here, the zoning ordinance plainly entitles the man to keep his store in its present condition, even though it violates the new zoning ordinance. But the grandfather provision will not permit his expansion of the store because it only applies to continued use. An expansion by more than a thousand square feet would constitute much more than continued use. Because the expansion would constitute more than 12 mere continued use, does not fall within the exception to the zoning ordinance. Hence, because the expansion will not fall within the exception to the zoning ordinance, the expansion project constitutes a non-conforming use. 2. Obligation to Disburse Funds The bank is not obliged to disburse further funds. At issue is whether the existence of a lien permits the bank to excuse its granting of further advances. An optional future advance is one that a creditor may but is not required to make. Typically, the grant of the advance is tied to conditions, which are within the discretion of the creditor. Here, the loan agreement provides that the bank must disburse funds only when, and in such amounts as, it is 10 determines is appropriate based on its good faith judgment of whether there has been satisfactory progress. In light of the subcontractor's lien, the bank has declined to grant the advance. The bank is within its power to do so because it could conclude that the existence of the subcontractor lien and the accompanying disagreement among the parties has frustrated the advancement of the project. Hence, the bank is not obliged to disburse further funds. 3. Priority The mechanic has part priority. At issue is when did the loans occur. The general rule is that creditor's take priority in the order in which they make loans. But where a creditor does not immediately record her loan, this analysis may be changed based on the particular recording act at issue. There is an exception to the general rule for optional future advances. An optional advance is one that a creditor need not make. Typically, each optional advance is treated as a separate loan. The rationale for this rule is to prevent a creditor from obtaining priority over all future creditors without taking on any risk. A creditor will prevail under both a notice and race notice statute if it both loans and records first. Here, the bank made a $200,000 loan commitment to the man but reserved the right to determine if and when it should issue payments based on its good faith belief that there was progress in the project. The subcontractor then attached a lien. Under a traditional loan arrangement, the bank would have had complete priority--no matter the recording system-- because it loaned and recorded first. Under this arraignment, each disbursement constituted an optional advance. As 13 such, each disbursement took priority in the order in which it was made. The bank initially made a disbursement of $50,000. The subcontractor then secured a $20,000 lien and properly recorded it. Finally, the bank disbursed an additional $40,000. When it made this disbursement, the bank had record notice of the attachment of the lien. Hence, if each disbursement is treated as a separate loan, the bank only has priority over the first $50,000 disbursement. The lien creditor has priority over the remainder of the mortgage. July 2016 MEE 4 Two years ago, PT Treatment Inc. (PTT), incorporated in State A, decided to build a new $90 million proton-therapy cancer treatment center in State A. The total cost to PTT for purchasing the land and constructing the building to house the treatment facility was $30 million. PTT financed the purchase and construction with $10 million of its own money and $20 million that it borrowed from Bank. To secure its obligation to Bank, PTT granted Bank a mortgage on the land and all structures erected on the land. The mortgage was properly recorded in the county real estate records office, but it was not identified as a construction mortgage. Two months after the mortgage was recorded, PTT finalized an agreement for the purchase of proton-therapy equipment from Ion Medical Systems (Ion) for $60 million. PTT made a down payment of $14 million and signed a purchase agreement promising to pay the remaining $46 million in semi-annual payments over a 10-year period. The purchase agreement provided that Ion has a security interest in the proton-therapy equipment to secure PTT’s obligation to pay the remaining purchase price. On the same day, Ion filed a properly completed financing statement with the office of the Secretary of State of State A (the central statewide filing office designated by statute), listing “PT Treatment Inc.” as debtor and indicating the proton-therapy equipment as collateral. Shortly thereafter, Ion delivered the equipment to PTT and PTT’s employees installed it. The equipment was attached to the building in such a manner that, under State A law, it is considered a fixture and an interest in the equipment exists in favor of anyone with an interest in the building. The new PTT Cancer Treatment Center opened for business last year. Unfortunately, it has not been an economic success. For a short period, PTT contracted with State A Oncology Associates (Oncology) for the latter’s use of the proton-therapy equipment pursuant to a lease agreement, but Oncology failed to pay the agreed fee for the use of the equipment, so PTT terminated that arrangement. To date, PTT has been unsuccessful in its efforts to collect the 14 amounts that Oncology still owes it. PTT’s own doctors and technicians have not attracted enough business to fully utilize the cancer treatment center or generate sufficient billings to meet PTT’s financial obligations. PTT currently owes Ion more than $30 million and is in default under the security agreement. Ion is concerned that PTT will soon declare bankruptcy. © 2016 National Conference of Bar Examiners These materials are copyrighted by the NCBE and are reprinted with the permission of NCBE. These materials are for personal use only and may not be reproduced or distributed in any way. 6 In a few days, Ion will be sending a technician to the PTT facility to perform regular maintenance on the equipment. Ion is considering instructing the technician to complete the maintenance and then disable the equipment so that it cannot be used by PTT until PTT pays what it owes. 1. In view of PTT’s default, if Ion disables the proton-therapy equipment, will it incur any liability to PTT? Explain. 2. If PTT does not pay its debts to either Bank or Ion, which of them has a superior claim to the proton-therapy equipment? Explain. 3. Does Ion have an enforceable and perfected security interest in any of PTT’s assets other than the proton-therapy equipment? Explain. ANSWER TO MEE 4 1) The issue is whether disabling PTT's proton-therapy equipment would be a viable remedy for Ion to pursue. When a debtor defaults on a security agreement, a secured creditor may pursue a variety of remedies. The creditor may initiate a replevin action to acquire the property, or it may use self-help to repossess the property provided that this does not lead to a breach of the peace. In many jurisdictions, the debtor's mere presence and objection to a self- help repossession is enough to compel the creditor to use legal process. In line with the general disfavoring of self-help methods, a creditor may not extra-legally destroy or deactivate its collateral, particularly when such actions are likely to lead to large consequential damages for the debtor, and may forfeit important rights in any subsequent sale of the property. In this case, Ion would propose to surreptitiously disable (what could be lifesaving) cancer equipment under the guise of performing a routine maintenance. This action is not reasonably calculated to allowing Ion to recoup its security 15 interest; on the contrary, it is likely to cause severe and unforeseen consequential damages to PTT and may even be tortious. As such, Ion would quite possibly be held liable to PTT for such actions, and should use legal process to recover its security interest in the collateral. 12 2) The issue is whether Bank or Ion has a superior claim to the proton- therapy equipment. a) Ion's Interest in the Proton-Therapy machines In order for a security interest to attach, a debtor must (1) have paid value; (2) have rights in the collateral; and (3) there must be a security agreement describing the collateral or the creditor must have possession or control over the collateral. A valid security agreement must be a record authenticated by the debtor that "reasonably describes" the collateral. A transaction in which a seller transfers property to a buyer and retains a security interest in that property as collateral is called a seller "purchase money security interest" (seller PMSI). Tangible property in machinery or other products used for the ordinary functioning of a business is called "equipment". A PMSI in equipment can be perfected by filing a financing statement which gives describes the collateral and gives the name of the debtor in the appropriate state office. PMSIs in equipment will take priority over all other security interests if a financing statement is filed within 20 days of the debtor taking possession of the property. In this case, Ion sold proton therapy equipment to PTT and retained a security interest in the equipment as collateral, thus creating a seller PMSI in equipment. Its interest attached upon the execution of the security agreement, and perfected when it filed financing statement with the state office, giving the proper name of the debtor and adequately describing the collateral. b) Ion's Interest in the Equipment After it Became a Fixture v. the Bank's Interest in the Facility After property becomes a fixture, an interest in the property exists in favor of anyone with an interest in the real property. A holder of a PMSI in the fixture may retain priority over a mortgage holder by a filing a fixture financing statement in the proper real estate records office within 20 days of the property being incorporated as a fixture. If it fails to do so, it retains its security interest, but it is subordinated to the interest of the property's mortgage holder. 16 In this case, though Ion had a PMSI in the equipment, it knew that the equipment was going to be installed as a fixture in the facility and yet failed to file a fixture financing statement in the real estate records office. Therefore, the Bank has priority over Ion in the equipment, which is now a part of the greater facility. Of course, the Bank's interest in the equipment only goes to the extent of the facility's outstanding obligation, and any surplus would still go to Ion. 13 3) The issue is whether Ion has an enforced and perfected security interest in any other PTT assets. A secured creditor's interest automatically attaches in the proceeds of the collateral. While an interest in cash proceeds also perfects automatically, perfection can be maintained in non-cash proceeds via the "same office rule" - if a financing statement for the proceeds can be filed in the same office where the financing statement for the initial collateral was filed, then perfection is maintained throughout. Proceeds can be the product of a sale or a lease of the collateral, and can be either tangible or intangible, the latter including accounts and rights to payment. In this case, PTT contracted with Oncology for its use of the equipment for a period of time, and on the latter's default acquired an interest in a right to payment from Oncology. This right to payment could be characterized as a "proceed" of the equipment in which Ion had a PMSI. Therefore, provided that an interest in PTT's right to receive payment from Oncology could be perfected by filing in the same office as the equipment, Ion would have an enforceable and perfected security interest in any recovery that PTT may receive from Oncology on the lease. ANSWER TO MEE 4 1. Ion can disable the proton-therapy equipment. When a debtor defaults on his payments under an attached security agreement, the secured creditor can repossess the collateral using self-help methods as long as he does not breach the peace. For equipment that is too bulky to be removed for repossession, the secured creditor may render the collateral unusable. A security agreement attaches when (1) the secured party gives value; (2) a security agreement is authenticated by the debtor; and (3) the debtor has rights in the collateral. Here, Ion (the secured creditor) provided PTT (the debtor) with the proton-therapy equipment, PTT signed a purchase agreement that provided for a security interest, and shortly thereafter Ion delivered the equipment. Therefore, the security interest attached when the equipment was delivered. It is undisputed that 17 PTT is in default. Therefore, as long as Ion does not breach the peace, it can render the equipment unusable in order to protect its security interest. 2. Bank has a superior claim to the proton-therapy equipment. The issue is whether Bank's purchase money mortgage has a superior claim to Ion's PMSI in equipment that is a fixture. Generally, security interests in fixtures are considered junior to a security interest in real property unless the security interest in the fixture was a purchase-money security interest (PMSI) and that interest was perfected within 20 days of installation. In order to perfect a security interest in a fixture, the interest must be recorded in the county real estate records office. Generally, PMSIs in equipment have priority over other security interests so long as the security interest was perfected before delivery AND the PMSI secured creditor sent notice to the other secured creditors. Here, state law states the equipment is a fixture and in favor of anyone with an interest in the building. Perfection is required to put other secured creditors on notice that there is a security interest. Without perfection, a secured creditor cannot assert .Bank's mortgage interest is properly recorded and therefore perfected. Ion did not file a statement for the fixture in the county real estate records office, so therefore it is not perfected against Bank's mortgage interest. Ion also did not send notice to Bank of its security interest. Therefore, Bank's interest in the equipment is superior. 3. Ion has an enforceable and perfected security interest in Oncology's lease payments. The issue is whether the amount due on the Oncology lease can be considered proceeds of Ion's equipment. Generally, a security interest automatically attaches to proceeds. This interest must be perfected. Under the same-office rule, if a security interest in the type of proceed can be perfected by filing a statement in the same office as the original collateral, that proceed is automatically perfected. The right to receive payments for a lease is considered an account. An account can be perfected by filing a statement in the statewide filing system. Since Ion has filed a statement for the equipment in the statewide filing system, its interest in the payments due on the Oncology lease is perfected.