SB117: Bill Text

LRB-1445/1

PJD:wlj:jf

1999 - 2000 LEGISLATURE

1999 Senate BILL 117

April 14, 1999 - Introduced by Senators Huelsman and George, cosponsored by Representatives Cullen and Gundrum. Referred to Committee on Judiciary and Consumer Affairs.

SB117,1,6 An Act to repeal 401.105 (2) (c), chapter 406 (title), 406.101, 406.102 (3) and 409.111; to renumber and amend 406.102 (title), (1), (2), (3m) and (4), 406.103, 406.104, 406.105, 406.107, 406.108, 406.109, 406.110 and 406.111; to amend 402.403 (4), 452.09 (3) (a), 480.08 (2m) (intro.) and 480.14 (4); and to create subchapter IV (title) of chapter 125 [precedes 125.80] of the statutes; relating to: bulk transfers of inventory.

Analysis by the Legislative Reference Bureau

Under current law, the bulk transfer provisions of the uniform commercial code (UCC) generally require a business enterprise to give creditors notice before any transfer of a major part of the value of the business's inventory or a substantial part of the equipment of the business, if the equipment is included with a bulk transfer of inventory. These provisions apply to all business enterprises whose principal business is the sale of merchandise from stock, including retailers of alcohol beverages. This bill removes the bulk transfer provisions from the UCC and makes the bulk transfer provisions applicable only to retailers of alcohol beverages.

The National Conference of Commissioners on Uniform State Laws and the American Law Institute recommended repeal of the UCC bulk transfers law in 1989 and promulgated the official text. The American Bar Association approved the text in 1990.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB117, s. 1 Section 1. Subchapter IV (title) of chapter 125 [precedes 125.80] of the statutes is created to read:

SB117,2,3 Chapter 125

SB117,2,5 SubchaPter IV Bulk transfers by retailers

SB117, s. 2 Section 2. 401.105 (2) (c) of the statutes is repealed.

SB117, s. 3 Section 3. 402.403 (4) of the statutes is amended to read:

SB117,2,9 402.403 (4) The rights of other purchasers of goods and of lien creditors are governed by chs. 406, 407 and 409.

SB117, s. 4 Section 4. Chapter 406 (title) of the statutes is repealed.

SB117, s. 5 Section 5. 406.101 of the statutes is repealed.

SB117, s. 6 Section 6. 406.102 (title), (1), (2), (3m) and (4) of the statutes are renumbered 125.80 (title), (1), (2), (3m) and (4) and amended to read:

SB117,2,19 125.80 (title) "Bulk transfers"; transfers of equipment; enterprises subject to this chapter; bulk transfers subject to Applicability of this chapter subchapter. (1) A "bulk transfer" is any transfer in bulk and not in the ordinary course of the transferor's retailer's business of a major part in value of the retailer's inventory (, as described under s. 409.109) of an enterprise subject to this chapter (4).

SB117,3,3 (2) A transfer of a substantial part of the equipment (, as described under s. 409.109) of such an enterprise (2), of a retailer is a bulk transfer if it is made in connection with a bulk transfer of inventory, but not otherwise.

SB117,3,8 (3m) The sale, transfer or assignment, in bulk, of any stock of merchandise or of fixtures, pertaining to the merchandise, including any sale, transfer or assignment made in consideration of any existing indebtedness, otherwise than in the ordinary course of trade and in the usual conduct of business by retailers of alcohol beverages, is subject to this chapter subchapter.

SB117,3,10 (4) Except as limited by s. 406.103 125.81, all bulk transfers of goods located within this state are subject to this chapter subchapter.

SB117, s. 7 Section 7. 406.102 (3) of the statutes is repealed.

SB117, s. 8 Section 8. 406.103 of the statutes is renumbered 125.81 and amended to read:

SB117,3,14 125.81 (title) Transfers excepted from this chapter subchapter. (1) The following transfers are not subject to this chapter subchapter:

SB117,3,15 (a) Those made to give security for the performance of an obligation ;.

SB117,3,17 (b) General assignments for the benefit of all the creditors of the transferor retailer, and subsequent transfers by the assignee thereunder;.

SB117,3,19 (c) Transfers Except as provided in s. 125.80 (3m), transfers in settlement or realization of a lien or other security interest;.

SB117,3,21 (d) Sales by executors, administrators, receivers, trustees in bankruptcy, or any public officer under judicial process;.

SB117,3,25 (e) Sales made in the course of judicial or administrative proceedings for the dissolution or reorganization of a corporation retailer and of which notice is sent to the creditors of the corporation retailer pursuant to order of the court or administrative agency;.

SB117,4,3 (f) Transfers to a person maintaining a known place of business in this state who becomes bound to pay the debts of the transferor retailer in full and gives public notice of that fact, and who is solvent after becoming so bound;.

SB117,4,8 (g) A transfer to a new business enterprise organized to take over and continue the business, if public notice of the transaction is given and the new enterprise assumes the debts of the transferor retailer and the transferor retailer receives nothing from the transaction except an interest in the new enterprise junior to the claims of creditors;.

SB117,4,9 (h) Transfers of property which that is exempt from execution.

SB117,4,13 (2) Public notice under sub. (1) (f) or (g) may be given by publication of a class 2 notice, under ch. 985, where the transferor retailer had its principal place of business in this state. The notice shall include the names and addresses of the transferor retailer and transferee and the effective date of the transfer.

SB117, s. 9 Section 9. 406.104 of the statutes is renumbered 125.82 and amended to read:

SB117,4,18 125.82 Schedule of property, list of creditors. (1) Except as provided with respect to auction sales ( s. 406.108) under s. 125.85, a bulk transfer subject to this chapter subchapter is ineffective against any creditor of the transferor retailer unless all of the following conditions are met:

SB117,4,20 (a) The transferee requires the transferor retailer to furnish a list of the transferor's retailer's existing creditors prepared as stated in this section; and.

SB117,4,22 (b) The parties prepare a schedule of the property transferred sufficient to identify it; and.

SB117,5,2 (c) The transferee preserves the list and schedule for 6 months next following the transfer and permits inspection of either or both and copying therefrom at all reasonable hours by any creditor of the transferor retailer, or files the list and schedule with the department of financial institutions.

SB117,5,12 (2) The list of creditors must be signed and sworn to or affirmed by the transferor retailer or the transferor's retailer's agent. It must contain the names and business addresses of all creditors of the transferor retailer, with the amounts when known, and also the names of all persons who are known to the transferor retailer to assert claims against the transferor retailer even though such claims are disputed. If the transferor retailer is the obligor of an outstanding issue of bonds, debentures or the like as to which there is an indenture trustee, the list of creditors need include only the name and address of the indenture trustee and the aggregate outstanding principal amount of the issue. The list of creditors shall include the name and address of the clerk of the municipality in which the property was last assessed.

SB117,5,15 (3) Responsibility for the completeness and accuracy of the list of creditors rests on the transferor retailer, and the transfer is not rendered ineffective by errors or omissions therein unless the transferee is shown to have had knowledge.

SB117, s. 10 Section 10. 406.105 of the statutes is renumbered 123.83 and amended to read:

SB117,5,24 123.83 Notice to creditors. In addition to the requirements of s. 406.104 125.82, any bulk transfer subject to this chapter subchapter except one made by auction sale ( s. 406.108) under s. 125.85 is ineffective against any creditor of the transferor retailer unless at least 10 days before the transferee takes possession of the goods or pays the major part of the purchase price, whichever happens first, the transferee gives notice of the transfer in the manner and to the persons specified in s. 406.107 125.84.

SB117, s. 11 Section 11. 406.107 of the statutes is renumbered 125.84, and 125.84 (1), (2) (intro.), (a), (b) and (c) and (3), as renumbered, are amended to read:

SB117,6,4 125.84 (1) The notice to creditors ( s. 406.105) under s. 125.83 shall state all of the following:

SB117,6,5 (a) That a bulk transfer is about to be made; and.

SB117,6,8 (b) The names and business addresses of the transferor retailer and transferee, and all other business names and addresses used by the transferor retailer within 3 years last past so far as known to the transferee; and.

SB117,6,11 (c) Whether or not all the debts of the transferor retailer are to be paid in full as they fall due as a result of the transaction, and if so, the address to which creditors should send their bills.

SB117,6,14 (2) (intro.) If the debts of the transferor retailer are not to be paid in full as they fall due or if the transferee is in doubt on that point then the notice shall also state further all of the following:

SB117,6,16 (a) The location and general description of the property to be transferred and the estimated total of the transferor's retailer's debts;.

SB117,6,18 (b) The address where the schedule of property and list of creditors (s. 406.104) under s. 125.82 may be inspected;.

SB117,6,20 (c) Whether the transfer is to pay existing debts and if so the amount of such debts and to whom owing;.

SB117,6,24 (3) The notice in any case shall be delivered personally or sent by registered mail or certified mail to all the persons shown on the list of creditors furnished by the transferor ( s. 406.104) retailer under s. 125.82 and to all other persons who are known to the transferee to hold or assert claims against the transferor retailer.

SB117, s. 12 Section 12. 406.108 of the statutes is renumbered 125.85 and amended to read:

SB117,7,5 125.85 Auction sales; "auctioneer". (1) A bulk transfer is subject to this chapter subchapter even though it is by sale at auction, but only in the manner and with the results stated in this section.

SB117,7,8 (2) The transferor retailer shall furnish a list of the transferor's retailer's creditors and assist in the preparation of a schedule of the property to be sold, both prepared as stated in s. 406.104 125.82.

SB117,7,11 (3) The person or persons other than the transferor retailer who direct, control or are responsible for the auction are collectively called the "auctioneer". The auctioneer shall do all of the following:

SB117,7,13 (a) Receive and retain the list of creditors and prepare and retain the schedule of property for the period stated in s. 406.104; and 125.82.

SB117,7,17 (b) Give notice of the auction personally or by registered or certified mail at least 10 days before it occurs to all persons shown on the list of creditors and to all other persons who are known to the auctioneer to hold or assert claims against the transferor retailer.

SB117,7,23 (4) Failure of the auctioneer to perform any of these duties does not affect the validity of the sale or the title of the purchasers, but if the auctioneer knows that the auction constitutes a bulk transfer such failure renders the auctioneer liable to the creditors of the transferor retailer as a class for the sums owing to them from the transferor retailer up to but not exceeding the net proceeds of the auction. If the auctioneer consists of several persons their liability is joint and several.

SB117, s. 13 Section 13. 406.109 of the statutes is renumbered 125.86 and amended to read:

SB117,8,5 125.86 What creditors protected. The creditors of the transferor retailer mentioned in this chapter subchapter are those holding claims based on transactions or events occurring before the bulk transfer, but creditors who become such after notice to creditors is given ( ss. 406.105 and 406.107) under ss. 125.83 and 125.84 are not entitled to notice.

SB117, s. 14 Section 14. 406.110 of the statutes is renumbered 125.87, and 125.87 (intro.), as renumbered, is amended to read:

SB117,8,10 125.87 Subsequent transfers. (intro.) When the title of a transferee to property is subject to a defect by reason of the transferee's noncompliance with the requirements of this chapter subchapter, then: