409.207 Annotation
Pledged securities - the pledgee's duty to preserve value under the UCC. 62 MLR 391 (1979).
409.208
409.208
Request for statement of account or list of collateral. 409.208(1)(1) A debtor may sign a statement indicating what the debtor believes to be the aggregate amount of unpaid indebtedness as of a specified date and may send it to the secured party with a request that the statement be approved or corrected and returned to the debtor. When the security agreement or any other record kept by the secured party identifies the collateral a debtor may similarly request the secured party to approve or correct a list of the collateral.
409.208(2)
(2) The secured party must comply with such a request within 2 weeks after receipt by sending a written correction or approval. If the secured party claims a security interest in all of a particular type of collateral owned by the debtor the secured party may indicate that fact in the secured party's reply and need not approve or correct an itemized list of such collateral. If the secured party without reasonable excuse fails to comply the secured party is liable for any loss caused to the debtor thereby; and if the debtor has properly included in the request a good faith statement of the obligation or a list of the collateral or both the secured party may claim a security interest only as shown in the statement against persons misled by the secured party's failure to comply. If the secured party no longer has an interest in the obligation or collateral at the time the request is received the secured party must disclose the name and address of any successor in interest known to the secured party and the secured party is liable for any loss caused to the debtor as a result of failure to disclose. A successor in interest is not subject to this section until a request is received by the successor in interest.
409.208(3)
(3) A debtor is entitled to such a statement once every 6 months without charge. The secured party may require payment of a charge not exceeding $10 for each additional statement furnished.
409.208 History
History: 1991 a. 316.
RIGHTS OF THIRD PARTIES; PERFECTED AND UNPERFECTED SECURITY INTERESTS; RULES OF PRIORITY
409.301
409.301
Persons who take priority over unperfected security interests; rights of "lien creditor". 409.301(1)
(1) Except as otherwise provided in
sub. (2), an unperfected security interest is subordinate to the rights of:
409.301(1)(b)
(b) A person who becomes a lien creditor before the security interest is perfected;
409.301(1)(c)
(c) In the case of goods, instruments, documents and chattel paper, a person who is not a secured party and who is a transferee in bulk or other buyer not in ordinary course of business, or is a buyer of farm products in ordinary course of business, to the extent that that person gives value and receives delivery of the collateral without knowledge of the security interest and before it is perfected;
409.301(1)(d)
(d) In the case of accounts, general intangibles and investment property, a person who is not a secured party and who is a transferee to the extent that that person gives value without knowledge of the security interest and before it is perfected.
409.301(2)
(2) If the secured party files with respect to a purchase money security interest before or within 20 days after the debtor receives possession of the collateral, the secured party takes priority over the rights of a transferee in bulk or of a lien creditor which arise between the time the security interest attaches and the time of filing.
409.301(3)
(3) A "lien creditor" means a creditor who has acquired a lien on the property involved by attachment, levy or the like and includes an assignee for benefit of creditors from the time of assignment, and a trustee in bankruptcy from the date of the filing of the petition or a receiver in equity from the time of appointment.
409.301(4)
(4) A person who becomes a lien creditor while a security interest is perfected takes subject to the security interest only to the extent that it secures advances made before that person becomes a lien creditor or within 45 days thereafter or made without knowledge of the lien or pursuant to a commitment entered into without knowledge of the lien.
409.301 Annotation
A lien creditor haas priority over an unperfected security interest. Whether the lien creditor has knowledge of the security is immaterial. Muggli Dental Studio v. Taylor,
142 Wis. 2d 696,
419 N.W.2d 322 (Ct. App. 1987).
409.302
409.302
When filing is required to perfect security interest; security interests to which filing provisions of this chapter do not apply. 409.302(1)
(1) A financing statement must be filed to perfect all security interests except the following:
409.302(1)(a)
(a) A security interest in collateral in possession of the secured party under
s. 409.305;
409.302(1)(b)
(b) A security interest temporarily perfected in instruments, certificated securities, or documents without delivery under
s. 409.304 or in proceeds for a 10-day period under
s. 409.306;
409.302(1)(c)
(c) A security interest created by an assignment of a beneficial interest in a trust or a decedent's estate;
409.302(1)(d)
(d) A purchase money security interest in consumer goods; but fixture filing is required for priority over conflicting interests in fixtures to the extent provided in
s. 409.313;
409.302(1)(e)
(e) An assignment of accounts which does not alone or in conjunction with other assignments to the same assignee transfer a significant part of the outstanding accounts of the assignor;
409.302(1)(g)
(g) An assignment for the benefit of all the creditors of the transferor, and subsequent transfers by the assignee thereunder; or
409.302(2)
(2) If a secured party assigns a perfected security interest, no filing under this chapter is required in order to continue the perfected status of the security interest against creditors of and transferees from the original debtor.
409.302(3)
(3) The filing provisions of this chapter are not necessary or effective to perfect a security interest in property subject to any of the following:
409.302(3)(a)
(a) A statute or treaty of the United States which provides for a national or international registration or a national or international certificate of title or which specifies a place of filing different from that specified in this chapter for filing of the security interest.
409.302(3)(b)
(b) The following vehicle title statutes:
ss. 342.19
and
342.20; but during any period in which collateral is inventory held for sale by a person who is in the business of selling goods of that kind, the filing provisions of
ss. 409.401 to
409.408 apply to a security interest in that collateral created by that person as debtor.
409.302(3)(bm)
(bm) The following boat title statutes:
ss. 30.57,
30.572 and
30.573; but during any period in which collateral is inventory held for sale by a person who is in the business of selling goods of that kind, the filing provisions of
ss. 409.401 to
409.408 apply to a security interest in that collateral created by that person as debtor.
409.302(3)(c)
(c) A certificate of title statute of another jurisdiction under the law of which indication of a security interest on the certificate is required as a condition of perfection (
s. 409.103 (2)).
409.302(4)
(4) Compliance with a statute or treaty described in
sub. (3) is equivalent to the filing of a financing statement under this chapter, and a security interest in property subject to the statute or treaty can be perfected only by compliance therewith except as provided in
s. 409.103 on multiple state transactions. Duration and renewal of perfection of a security interest perfected by compliance with the statute or treaty are governed by the provisions of the statute or treaty; in other respects the security interest is subject to this chapter.
409.302 Annotation
Legislative Council Note, 1973: The language of sub. (3) (intro.) has been changed from that contained in the official text in order to conform more closely to the stylistic approach of present s. 409.302 (3) without making a substantive change. Filing under the vehicle title statutes specified in sub. (3) (b) is the exclusive method of perfection with respect to mobile homes and certain other vehicles. Sub. (3) (b) is a restatement of present s. 409.302 (5). Sub. (3) (d) is not contained in the official text. It is a restatement of present s. 409.302 (3) (intro.) and (b). The provisions of sub. (5) are incorporated into s. 409.302 (3) (b). (Bill 177-S)
409.303
409.303
When security interest is perfected; continuity of perfection. 409.303(1)(1) A security interest is perfected when it has attached and when all of the applicable steps required for perfection have been taken. Such steps are specified in
ss. 409.115,
409.302,
409.304,
409.305 and
409.306. If such steps are taken before the security interest attaches, it is perfected at the time when it attaches.
409.303(2)
(2) If a security interest is originally perfected in any way permitted under this chapter and is subsequently perfected in some other way under this chapter, without an intermediate period when it was unperfected, the security interest shall be deemed to be perfected continuously for the purposes of this chapter.
409.303 History
History: 1997 a. 297.
409.303 Annotation
A bank with a security interest perfected by filing a financing statements as required by ss. 409.303 (1) and 409.302 (1) had priority under ss. 409.312 (5) (a) over a chattel mortgage that was filed almost 2 years after the the bank filed its financing statements, even though the bank subsequently refiled a financing statement. Burlington National Bank v. Strauss,
50 Wis. 2d 270,
184 N.W.2d 122 (1971).
409.304
409.304
Perfection of security interest in instruments, documents and goods covered by documents; perfection by permissive filing; temporary perfection without filing or transfer of possession. 409.304(1)
(1) A security interest in chattel paper or negotiable documents may be perfected by filing. A security interest in money or instruments, other than instruments which constitute part of chattel paper, can be perfected only by the secured party's taking possession, except as provided in
subs. (4) and
(5) and
s. 409.306 (2) and
(3) on proceeds.
409.304(2)
(2) During the period that goods are in the possession of the issuer of a negotiable document therefor, a security interest in the goods is perfected by perfecting a security interest in the document, and any security interest in the goods otherwise perfected during such period is subject thereto.
409.304(3)
(3) A security interest in goods in the possession of a bailee other than one who has issued a negotiable document therefor is perfected by issuance of a document in the name of the secured party or by the bailee's receipt of notification of the secured party's interest or by filing as to the goods.
409.304(4)
(4) A security interest in instruments, certificated securities or negotiable documents is perfected without filing or the taking of possession for a period of 21 days from the time it attaches to the extent that it arises for new value given under a written security agreement.
409.304(5)
(5) A security interest remains perfected for a period of 21 days without filing where a secured party having a perfected security interest in an instrument, a certificated security, a negotiable document or goods in possession of a bailee other than one who has issued a negotiable document therefor:
409.304(5)(a)
(a) Makes available to the debtor the goods or documents representing the goods for the purpose of ultimate sale or exchange or for the purpose of loading, unloading, storing, shipping, transshipping, manufacturing, processing or otherwise dealing with them in a manner preliminary to their sale or exchange but priority between conflicting security interests in the goods is subject to
s. 409.312 (3); or
409.304(5)(b)
(b) Delivers the instrument or certificated security to the debtor for the purpose of ultimate sale or exchange or of presentation, collection, renewal or registration of transfer.
409.304(6)
(6) After the 21-day period in
subs. (4) and
(5) perfection depends upon compliance with applicable provisions of this chapter.
409.305
409.305
When possession by secured party perfects security interest without filing. A security interest in letters of credit and advices of credit (
s. 405.116 (2) (a)), goods, instruments, money, negotiable documents or chattel paper may be perfected by the secured party's taking possession of the collateral. If such collateral other than goods covered by a negotiable document is held by a bailee, the secured party is deemed to have possession from the time the bailee receives notification of the secured party's interest. A security interest is perfected by possession from the time possession is taken without relation back and continues only so long as possession is retained, unless otherwise specified in this chapter. The security interest may be otherwise perfected as provided in this chapter before or after the period of possession by the secured party.
409.305 Annotation
Police seizure of collateral does not interrupt possession by a secured party. Return of Property in State v. Pippin,
176 Wis. 2d 418,
500 N.W.2d 407 (Ct. App. 1993).
409.306
409.306
"Proceeds"; secured party's rights on disposition of collateral. 409.306(1)
(1) "Proceeds" includes whatever is received upon the sale, exchange, collection or other disposition of collateral or proceeds. Insurance payable by reason of loss or damage to the collateral is proceeds, except to the extent that it is payable to a person other than a party to the security agreement. Any payments or distributions made with respect to investment property collateral are proceeds. Money, checks, deposit accounts, and the like are "cash proceeds". All other proceeds are "noncash proceeds".
409.306(2)
(2) Except where this chapter otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof unless the disposition was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor.
409.306(3)(a)(a) Subject to
sub. (3m), the security interest in proceeds is a continuously perfected security interest if the interest in the original collateral was perfected but it ceases to be a perfected security interest and becomes unperfected 10 days after receipt of the proceeds by the debtor unless:
409.306(3)(a)1.
1. A filed financing statement covers the original collateral and the proceeds are collateral in which a security interest may be perfected by filing in the office or offices where the financing statement has been filed and, if the proceeds are acquired with cash proceeds, the description of collateral in the financing statement indicates the types of property constituting the proceeds;
409.306(3)(a)2.
2. A filed financing statement covers the original collateral and the proceeds are identifiable cash proceeds;
409.306(3)(a)3.
3. The original collateral was investment property and the proceeds are identifiable cash proceeds; or
409.306(3)(a)4.
4. The security interest in the proceeds is perfected before the expiration of the 10-day period.
409.306(3)(b)
(b) Except as provided in this section, a security interest in proceeds may be perfected only by the methods or under the circumstances permitted in this chapter for original collateral of the same type.
409.306(3m)
(3m) If proceeds are acquired with cash proceeds from the sale of the original collateral or the sale of noncash proceeds of the original collateral and are of a type of property not described in the original financing statement, a buyer for value of such noncash proceeds who buys without knowledge of the fact that the property was purchased with cash proceeds of the original collateral and before filing of the financing statement describing such noncash proceeds, takes free of the original security interest in such proceeds.
409.306(4)
(4) In the event of insolvency proceedings instituted by or against a debtor, a secured party with a perfected security interest in proceeds has a perfected security interest only in the following proceeds:
409.306(4)(a)
(a) In identifiable noncash proceeds and in separate deposit accounts containing only proceeds;
409.306(4)(b)
(b) In identifiable cash proceeds in the form of money which is neither commingled with other money nor deposited in a deposit account prior to the insolvency proceedings;
409.306(4)(c)
(c) In identifiable cash proceeds in the form of checks and the like which are not deposited in a deposit account prior to the insolvency proceedings; and
409.306(4)(d)
(d) In all cash and deposit accounts of the debtor in which proceeds have been commingled with other funds, but the perfected security interest under this paragraph is:
409.306(4)(d)2.
2. Limited to an amount not greater than the amount of any cash proceeds received by the debtor within 10 days before the institution of the insolvency proceedings less the sum of a) the payments to the secured party on account of cash proceeds received by the debtor during such period and b) the cash proceeds received by the debtor during such period to which the secured party is entitled under
pars. (a) to
(c).
409.306(5)
(5) If a sale of goods results in an account or chattel paper which is transferred by the seller to a secured party, and if the goods are returned to or are repossessed by the seller or the secured party, the following rules determine priorities:
409.306(5)(a)
(a) If the goods were collateral at the time of sale for an indebtedness of the seller which is still unpaid, the original security interest attaches again to the goods and continues as a perfected security interest if it was perfected at the time when the goods were sold. If the security interest was originally perfected by a filing which is still effective, nothing further is required to continue the perfected status; in any other case, the secured party must take possession of the returned or repossessed goods or must file.
409.306(5)(b)
(b) An unpaid transferee of the chattel paper has a security interest in the goods against the transferor. Such security interest is prior to a security interest asserted under
par. (a) to the extent that the transferee of the chattel paper was entitled to priority under
s. 409.308.
409.306(5)(c)
(c) An unpaid transferee of the account has a security interest in the goods against the transferor. Such security interest is subordinate to a security interest asserted under
par. (a).
409.306(5)(d)
(d) A security interest of an unpaid transferee asserted under
par. (b) or
(c) must be perfected for protection against creditors of the transferor and purchasers of the returned or repossessed goods.
409.306 Annotation
Legislative Council Note, 1973: The official text amended sub. (3) so as to provide that the security interest in proceeds continues to be perfected if a filed financing statement covered the original collateral and the proceeds are collateral in which a security interest could be perfected by a filing in the office where the financing statement was filed. In addition, if the property constituting the proceeds was acquired with cash proceeds obtained through the sale of the original collateral, the security interest would cover these acquired proceeds only if they were a type of property described in the financing statement. The Special Committee rejected the proposed change and decided to retain present sub. (3) but amended sub. (3) to reflect the intent of new s. 409.203 (3) which provides that a security agreement gives the secured party the rights to proceeds under s. 409.306 unless otherwise agreed. Sub. (3), as amended, makes it clear that perfection of a security interest in the original collateral constitutes perfection of the security interest in proceeds unless coverage of proceeds is disclaimed in the security agreement under s. 409.203 (3). An exception to the rule of sub. (3) is provided in sub. (3m).
409.306 Annotation
Sub. (3m) was created by the Special Committee to protect an innocent buyer for value who acquires proceeds purchased with cash proceeds from the sale of the original collateral or the sale of noncash proceeds of the original collateral. This subsection provides that a buyer under these circumstances is not subject to a security interest in the original collateral if the goods he is acquiring are not a type of property described in the financing statement covering the original collateral. This buyer is not considered innocent if he has knowledge of the fact that the property was purchased with cash proceeds from the sale of the original collateral or if he makes his purchase after a financing statement describing this property has been filed.
409.306 Annotation
For example, a bank finances the purchase of a tractor by first buyer. The bank takes a security interest in the tractor and files a financing statement which covers both the tractor and proceeds. First buyer sells the tractor without authorization from the bank. The bank has a continuing security interest in the tractor and in the cash proceeds first buyer received from the sale [409.306 (2) and 409.306 (3)]. Next, the cash proceeds are used by first buyer to purchase an oil painting. Even though the oil painting is not property of a type described in the financing statement covering the tractor, it is considered "proceeds" of the tractor and the bank has a security interest in the oil painting while it is in the hands of first buyer. However, if first buyer sells the oil painting for value to second buyer who has no knowledge of the bank's security interest in the oil painting because the painting was not the type of property described in the financing statement covering the tractor and a financing statement describing the oil painting has not been filed, then under sub. (3m) second buyer takes free of the bank's security interest in the oil painting and the bank has a security interest only in the proceeds which first buyer received from the sale of the painting and in the tractor. This buyer is not considered innocent if he has knowledge of the fact that the property was purchased with cash proceeds from the sale of the original collateral or if he makes his purchase after a financing statement describing this property has been filed. (Bill 177-S)
409.306 Annotation
If a security agreement does not explicitly provide that transfer of collateral constitutes default and the secured party is not entitled to immediate possession, sale of collateral is not a conversion. Production Credit Association of Chippewa Falls v. Equity Coop Livestock,
82 Wis. 2d 5,
261 N.W.2d 127 (1978).
409.306 Annotation
The rights of a security holder in collateral survive the transfer of the collateral under s. 409.311 made without the secured party's consent. Production Credit Association of Madison v. Nowatzski,
90 Wis. 2d 344,
280 N.W.2d 118 (1979).
409.306 Annotation
A condition imposed by a secured party on authorization to sell collateral is ineffective unless performance of the condition is within the buyer's control. Production Credit Association of Baraboo v. Pillsbury Co.
132 Wis. 2d 243, 392 N.W.2d (Ct. App. 1986).
409.306 Annotation
Commingling funds in a bank account does not defeat a security interest in proceeds. Rights to a payment made in the ordinary course of business that would defeat a secured party's interest in proceeds are discussed. Textron Financial Corp. v. Firstar Bank Wisconsin,
217 Wis. 2d 582,
579 N.W.2d 48 (Ct. App. 1998).
