409.332(2)
(2) Transferee of funds from deposit account. A transferee of funds from a deposit account takes the funds free of a security interest in the deposit account unless the transferee acts in collusion with the debtor in violating the rights of the secured party.
409.332 History
History: 2001 a. 10.
409.333
409.333
Priority of certain liens arising by operation of law. 409.333(1)(1)
Possessory lien. In this section, "possessory lien" means an interest, other than a security interest or an agricultural lien:
409.333(1)(a)
(a) Which secures payment or performance of an obligation for services or materials furnished with respect to goods by a person in the ordinary course of the person's business;
409.333(1)(b)
(b) Which is created by statute or rule of law in favor of the person; and
409.333(1)(c)
(c) Whose effectiveness depends on the person's possession of the goods.
409.333(2)
(2) Priority of possessory lien. A possessory lien on goods has priority over a security interest in the goods unless the lien is created by a statute that expressly provides otherwise.
409.333 History
History: 2001 a. 10.
409.333 Annotation
A lien under s. 779.43 (3) is contingent on possession and is a possessory lien under sub. (1) with priority over a security interest. Premier Community Bank v. Schuh, 2010 WI App 111, ___ Wis. 2d___, ___ N.W.2d ___,
09-1722.
409.334
409.334
Priority of security interests in fixtures and crops. 409.334(1)(1)
Security interest in fixtures under this chapter. A security interest under this chapter may be created in goods that are fixtures or may continue in goods that become fixtures. A security interest does not exist under this chapter in ordinary building materials incorporated into an improvement on land.
409.334(2)
(2) Security interest in fixtures under real property law. This chapter does not prevent creation of an encumbrance upon fixtures under real property law.
409.334(3)
(3) General rule: subordination of security interest in fixtures. In cases not governed by
subs. (4) to
(8), a security interest in fixtures is subordinate to a conflicting interest of an encumbrancer or owner of the related real property other than the debtor.
409.334(4)
(4) Fixtures purchase-money priority. Except as otherwise provided in
sub. (8), a perfected security interest in fixtures has priority over a conflicting interest of an encumbrancer or owner of the real property if the debtor has an interest of record in or is in possession of the real property and:
409.334(4)(a)
(a) The security interest is a purchase-money security interest;
409.334(4)(b)
(b) The interest of the encumbrancer or owner arises before the goods become fixtures; and
409.334(4)(c)
(c) The security interest is perfected by a fixture filing before the goods become fixtures or within 20 days thereafter.
409.334(5)
(5) Priority of security interest in fixtures over interests in real property. A perfected security interest in fixtures has priority over a conflicting interest of an encumbrancer or owner of the real property if:
409.334(5)(a)
(a) The debtor has an interest of record in the real property or is in possession of the real property and the security interest:
409.334(5)(a)1.
1. Is perfected by a fixture filing before the interest of the encumbrancer or owner is of record; and
409.334(5)(a)2.
2. Has priority over any conflicting interest of a predecessor in title of the encumbrancer or owner;
409.334(5)(b)
(b) Before the goods become fixtures, the security interest is perfected by any method permitted by this chapter and the fixtures are readily removable:
409.334(5)(b)2.
2. Equipment that is not primarily used or leased for use in the operation of the real property; or
409.334(5)(b)3.
3. Replacements of domestic appliances that are consumer goods;
409.334(5)(c)
(c) The conflicting interest is a lien on the real property obtained by legal or equitable proceedings after the security interest was perfected by any method permitted by this chapter; or
409.334(5)(d)1.
1. Created in a manufactured home in a manufactured-home transaction; and
409.334(6)
(6) Priority based on consent, disclaimer, or right to remove. A security interest in fixtures, whether or not perfected, has priority over a conflicting interest of an encumbrancer or owner of the real property if:
409.334(6)(a)
(a) The encumbrancer or owner has, in an authenticated record, consented to the security interest or disclaimed an interest in the goods as fixtures; or
409.334(6)(b)
(b) The debtor has a right to remove the goods as against the encumbrancer or owner.
409.334(7)
(7) Continuation of sub. (6) priority. The priority of the security interest under
sub. (6) (b) continues for a reasonable time if the debtor's right to remove the goods as against the encumbrancer or owner terminates.
409.334(8)
(8) Priority of construction mortgage. A mortgage is a construction mortgage to the extent that it secures an obligation incurred for the construction of an improvement on land, including the acquisition cost of the land, if a recorded record of the mortgage so indicates. Except as otherwise provided in
subs. (5) and
(6), a security interest in fixtures is subordinate to a construction mortgage if a record of the mortgage is recorded before the goods become fixtures and the goods become fixtures before the completion of the construction. A mortgage has this priority to the same extent as a construction mortgage to the extent that it is given to refinance a construction mortgage.
409.334(9)
(9) Priority of security interest in crops. A perfected security interest in crops growing on real property has priority over a conflicting interest of an encumbrancer or owner of the real property if the debtor has an interest of record in or is in possession of the real property.
409.334 History
History: 2001 a. 10.
409.335(1)(1)
Creation of security interest in accession. A security interest may be created in an accession and continues in collateral that becomes an accession.
409.335(2)
(2) Perfection of security interest. If a security interest is perfected when the collateral becomes an accession, the security interest remains perfected in the collateral.
409.335(3)
(3) Priority of security interest. Except as otherwise provided in
sub. (4), the other provisions of this subchapter determine the priority of a security interest in an accession.
409.335(4)
(4) Compliance with certificate-of-title statute. A security interest in an accession is subordinate to a security interest in the whole which is perfected by compliance with the requirements of a certificate-of-title statute under
s. 409.311 (2).
409.335(5)
(5) Removal of accession after default. After default, subject to
subch. VI, a secured party may remove an accession from other goods if the security interest in the accession has priority over the claims of every person having an interest in the whole.
409.335(6)
(6) Reimbursement following removal. A secured party that removes an accession from other goods under
sub. (5) shall promptly reimburse any holder of a security interest or other lien on, or owner of, the whole or of the other goods, other than the debtor, for the cost of repair of any physical injury to the whole or the other goods. The secured party need not reimburse the holder or owner for any diminution in value of the whole or the other goods caused by the absence of the accession removed or by any necessity for replacing it. A person entitled to reimbursement may refuse permission to remove an accession until the secured party gives adequate assurance for the performance of the obligation to reimburse.
409.335 History
History: 2001 a. 10.
409.336(1)(1)
Commingled goods. In this section, "commingled goods" means goods that are physically united with other goods in such a manner that their identity is lost in a product or mass.
409.336(2)
(2) No security interest in commingled goods as such. A security interest does not exist in commingled goods as such. However, a security interest may attach to a product or mass that results when goods become commingled goods.
409.336(3)
(3) Attachment of security interest to product or mass. If collateral becomes commingled goods, a security interest attaches to the product or mass.
409.336(4)
(4) Perfection of security interest. If a security interest in collateral is perfected before the collateral becomes commingled goods, the security interest that attaches to the product or mass under
sub. (3) is perfected.
409.336(5)
(5) Priority of security interest. Except as otherwise provided in
sub. (6), the other provisions of this subchapter determine the priority of a security interest that attaches to the product or mass under
sub. (3).
409.336(6)
(6) Conflicting security interests in product or mass. If more than one security interest attaches to the product or mass under
sub. (3), the following rules determine priority:
409.336(6)(a)
(a) A security interest that is perfected under
sub. (4) has priority over a security interest that is unperfected at the time the collateral becomes commingled goods.
409.336(6)(b)
(b) If more than one security interest is perfected under
sub. (4), the security interests rank equally in proportion to the value of the collateral at the time it became commingled goods.
409.336 History
History: 2001 a. 10.
409.337
409.337
Priority of security interests in goods covered by certificate of title. If, while a security interest in goods is perfected by any method under the law of another jurisdiction, this state issues a certificate of title that does not show that the goods are subject to the security interest or contain a statement that they may be subject to security interests not shown on the certificate:
409.337(1)
(1) A buyer of the goods, other than a person in the business of selling goods of that kind, takes free of the security interest if the buyer gives value and receives delivery of the goods after issuance of the certificate and without knowledge of the security interest; and
409.337(2)
(2) The security interest is subordinate to a conflicting security interest in the goods that attaches, and is perfected under
s. 409.311 (2), after issuance of the certificate and without the conflicting secured party's knowledge of the security interest.
409.337 History
History: 2001 a. 10.
409.338
409.338
Priority of security interest or agricultural lien perfected by filed financing statement providing certain incorrect information. If a security interest or agricultural lien is perfected by a filed financing statement providing information described in
s. 409.516 (2) (e) which is incorrect at the time the financing statement is filed:
409.338(1)
(1) The security interest or agricultural lien is subordinate to a conflicting perfected security interest in the collateral to the extent that the holder of the conflicting security interest gives value in reasonable reliance upon the incorrect information; and
409.338(2)
(2) A purchaser, other than a secured party, of the collateral takes free of the security interest or agricultural lien to the extent that, in reasonable reliance upon the incorrect information, the purchaser gives value and, in the case of tangible chattel paper, tangible documents, goods, instruments, or a security certificate, receives delivery of the collateral.
409.338 History
History: 2001 a. 10;
2009 a. 322.
409.339
409.339
Priority subject to subordination. This chapter does not preclude subordination by agreement by a person entitled to priority.
409.339 History
History: 2001 a. 10.
409.340
409.340
Effectiveness of right of recoupment or setoff against deposit account. 409.340(1)
(1)
Exercise of recoupment or setoff. Except as otherwise provided in
sub. (3), a bank with which a deposit account is maintained may exercise any right of recoupment or setoff against a secured party that holds a security interest in the deposit account.
409.340(2)
(2) Recoupment or setoff not affected by security interest. Except as otherwise provided in
sub. (3), the application of this chapter to a security interest in a deposit account does not affect a right of recoupment or setoff of the secured party as to a deposit account maintained with the secured party.
409.340(3)
(3) When setoff ineffective. The exercise by a bank of a setoff against a deposit account is ineffective against a secured party that holds a security interest in the deposit account which is perfected by control under
s. 409.104 (1) (c), if the setoff is based on a claim against the debtor.
409.340 History
History: 2001 a. 10.
409.341
409.341
Bank's rights and duties with respect to deposit account. Except as otherwise provided in
s. 409.340 (3), and unless the bank otherwise agrees in an authenticated record, a bank's rights and duties with respect to a deposit account maintained with the bank are not terminated, suspended, or modified by:
409.341(1)
(1) The creation, attachment, or perfection of a security interest in the deposit account;
409.341(2)
(2) The bank's knowledge of the security interest; or
409.341(3)
(3) The bank's receipt of instructions from the secured party.
409.341 History
History: 2001 a. 10.
409.342
409.342
Bank's right to refuse to enter into or disclose existence of control agreement. This chapter does not require a bank to enter into an agreement of the kind described in
s. 409.104 (1) (b), even if its customer so requests or directs. A bank that has entered into such an agreement is not required to confirm the existence of the agreement to another person unless requested to do so by its customer.
409.342 History
History: 2001 a. 10.
RIGHTS OF 3RD PARTIES
409.401
409.401
Alienability of debtor's rights. 409.401(1)
(1)
Other law governs alienability; exceptions. Except as otherwise provided in
sub. (2) and
ss. 409.406,
409.407,
409.408, and
409.409, whether a debtor's rights in collateral may be voluntarily or involuntarily transferred is governed by law other than this chapter.
409.401(2)
(2) Agreement does not prevent transfer. An agreement between the debtor and secured party which prohibits a transfer of the debtor's rights in collateral or makes the transfer a default does not prevent the transfer from taking effect.
409.401 History
History: 2001 a. 10.
409.401 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).
409.401 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 Madison v. Nowatzski,
90 Wis. 2d 344,
280 N.W.2d 118 (1979).
409.401 Note
NOTE: The above annotated materials cite to the pre-
2001 Wis. Act 10 version of ch. 409.
409.402
409.402
Secured party not obligated on contract of debtor or in tort. The existence of a security interest, agricultural lien, or authority given to a debtor to dispose of or use collateral, without more, does not subject a secured party to liability in contract or tort for the debtor's acts or omissions.
409.402 History
History: 2001 a. 10.
409.403
409.403
Agreement not to assert defenses against assignee.
