Law Commons^™

The Perfection And Priority Rules For Security Interests In Copyrights, Patents, And Trademarks: The Current Structural Dissonance And Proposed Legislative Cures, Thomas M. Ward

Maine Law Review

The structural legal dissonance that undermines the effective financing of federal intellectual property rights (patents, trademarks registrations, copyrights, and maskworks) is rooted in the prominence of title in both the early conceptual history of personal property financing and in the language of the federal tract recording acts. While genuine ownership transfers have always represented the prototype under the federal intellectual property recording statutes, transfers intended for security were also originally included because of the early judicial thinking about the importance of title to the validity (against third parties) of a “mortgage” right in intangible personal property. As products of their …

Security Assistance In Africa: The Case For Less, Kersti Larsdotter

The US Army War College Quarterly: Parameters

No abstract provided.

A Sea Change In Creditor Priorities, Kristen Van De Biezenbos

University of Michigan Journal of Law Reform

This Article argues that the operation of maritime law undermines a primary justification for creditor priorities under U.S. law. Under current law, when a debtor becomes insolvent, its secured creditors will be paid the full amount of their debt to the extent of their security interest, even if that leaves nothing to pay unsecured creditors. This is controversial with respect to involuntary unsecured creditors, particularly those with tort claims against the debtor. Defenders of this scheme of priorities have argued that allowing greater priority to involuntary creditors would hinder the availability or increase the cost of credit. However, involuntary creditors …

Effects Of The New Bankruptcy Code On Creditors With Secured Claims In Residential Real Property, Richard Mednick

Pepperdine Law Review

The sweeping changes brought about by the Bankruptcy Reform Act of 1978 may have a profound effect on the secured interests of lenders. The rights of a creditor against a debtor, and the procedure that he must follow vary with the chapter of the new Bankruptcy Code under which the debtor files his claim. Richard Mednick, a Judge on the Bankruptcy Court for the Central District of California, explains the procedures required and the interest affected by the most commonly invoked chapters of the new code. Judge Mednick strongly urges that creditors become familiar with these changes, as some new …

Bringing Manufactured Housing Into The Real Estate Finance System, Ann M. Burkhart

Pepperdine Law Review

Eight percent of the United States population - more than 23 million people - live in manufactured homes (also called mobile homes). In some years, more than 30% of the new homes sold have been manufactured. Moreover, manufactured housing is the most important form of unsubsidized affordable housing in this country. Up to two-thirds of the new affordable homes built each year have been manufactured. However, the manufactured housing industry currently is struggling to survive a meltdown in its sales and finance markets. A tremendous obstacle to the industry’s recovery is that most manufactured homes are characterized as personal property, …

They Came From "Beyond The Pale": Security Interests In Tort Claims, Harold R. Weinberg

Kentucky Law Journal

No abstract provided.

Preserving Purchase Money Security Interests And Allocating Payments, Lynda Kay Chandler

University of Michigan Journal of Law Reform

This Note explores the rationale underlying the courts' conflicting decisions in light of the purposes of the UCC. It concludes that the language of the UCC and its goals of uniformity and simplification require that a PMSI should not be entirely destroyed because a creditor also has a security interest in items the debtor acquired after the purchase money transaction or because a creditor extends additional credit. The best solution is to permit the creditor to retain a PMSI, to the extent of the purchase money loan, in those goods that the creditor's loan helped to purchase.

Part I is …

The Transformation Rule Under Section 522 Of The Bankruptcy Code Of 1978, Raymond B. Check

Michigan Law Review

This Note rejects the statutory arguments that have been advanced in favor of the transformation rule, and argues that the rule is inconsistent with both the policies motivating section 522 of the Bankruptcy Code and the overall purposes of the U.C.C. priority system. Part I examines the treatment of purchase money security in the U.C.C. scheme. It also describes the exemption provisions of the 1978 Bankruptcy Code and the legislative concerns that shaped those provisions. Part II summarizes the judicial adoption of the transformation rule and the statutory basis relied upon by courts in applying it. Part III argues that …

Avoiding Liens Under The New Bankruptcy Code: Construction And Application Of Section 522(F), Judy Toyer

University of Michigan Journal of Law Reform

This Note argues that strict construction of section 522(f)(2) is most consistent with congressional intent. Part I discusses the congressional rationale behind lien avoidance. Part II examines present efforts to apply section 522(f)(2), and concludes that judicial interpretation to date has proved largely inadequate. Finally, Part III proposes new judicial guidelines and statutory amendments designed to standardize application of the lien avoidance provision in a manner consistent with the congressional intent behind the Reform Act.

Ucc--Secured Transactions--Judicial Sales--Purchaser At Judicial Sale Takes Property Subject To Unperfected Security Interest Of Which He Has Knowledge, Michigan Law Review

Michigan Law Review

p>The first question for consideration is the applicability of the "shelter provision" of section 2-403(1) to these cases. This section may be relied upon by different parties depending upon the nature of the sale. When a bankruptcy sale is involved, the buyer may claim, as Armstrong did in Mitchell, that the section allows him to succeed to the trustee's priority over unperfected security interests. When an ordinary judicial sale is involved, however, there is no intermediate transferee with both title to the property and a clear claim to priority, and the secured party may rely on this section …

Preferential Transfers On The Eve Of The Bankruptcy Amendments, Richard M. Kohn

University of Michigan Journal of Law Reform

While secured lenders may have been content to ride the crest of judicial legislation, the only permanent solution to the problem lie in amending either the Bankruptcy Act, the Uniform Commercial Code, or both. This at least is the view taken by the National Bankruptcy Conference's Committee on Coordination of the Uniform Commercial Code and Bankruptcy Act. Since its first meeting in June 1966, the Committee has focused its attention primarily upon the validity, in bankruptcy proceedings, of Article 9 security interests in after-acquired property. In September 1967, the Committee submitted to the Bankruptcy Conference its first draft of a …

Conflicting Perfected Security Interests In Proceeds Under Article 9 Of The Uniform Commercial Code, Michigan Law Review

Michigan Law Review

Section 9-306 gives the inventory financer a "continuously perfected" security interest in the proceeds of the inventory if the security interest in the original collateral was perfected. "Proceeds" is defined as including "whatever is received when collateral or proceeds is sold, exchanged, collected or otherwise disposed of." Thus, the inventory financer may have a security interest in the proceeds of the original collateral or the proceeds of the proceeds. The security interest in the proceeds may be perfected in either of two ways: (1) under section 9-306(3)(a) the security interest is perfected by filing a financing statement that expressly covers …

Uniform Commercial Code's Article 9--When Filing Is Not Required To Perfect A Security Interest, William L. Montague

Kentucky Law Journal

No abstract provided.

Purchaser's Remedies For Absence Of Marketable Title, Lawrence Linville

Michigan Law Review

"Where a person takes upon himself to contract for the sale of an estate, and is not the absolute owner of it, nor has it in his power by the ordinary course of law or equity to make himself so; though the owner offer to make the seller a title, yet equity will not force the buyer to take it, for every seller ought to be a bona fide contractor: and it would lead to infinite mischief if one man were permitted to speculate upon the sale of another's estate."

The apprehensions of Sugden were not groundless, as three quarters …

Mortgages - Subrogation Of One Whose Loan Is Used To Pay A Senior Mortgage, Theodore R. Vogt

Michigan Law Review

S mortgaged the property in question to U, then conveyed the land and certain water rights to H, who gave a second mortgage on the land to M. Thereafter H conveyed the land and water rights to F, who borrowed from Z funds to retire the first mortgage, giving to Z a mortgage which it was agreed between F and Z should be a first mortgage, and transferring to Z the water rights as additional security. In an action by M to foreclose, held, Z was entitled to subrogation to the position of first mortgagee …

Sales - Status Of Title-Retaining Instruments As Against Third Persons

Michigan Law Review

The exploitation of the legal concept of divided property interests in chattels by ingenious draftsman-lawyers has resulted in the variety of title-retaining instruments commonly used today in the creation of vendor-vendee relationships. Among the more familiar forms may be mentioned the conditional sale, bailment lease, chattel mortgage, and trust receipt. The chief motive of the seller in resorting to these devices seems to lie in the belief that the buyer is a poor credit risk, and the particular instrument which a seller will employ in a given situation will depend largely upon the relative legal advantages which he seeks to …

Bill Of Lading As Collateral Security Under Federal Laws, Frederick Thulin

Michigan Law Review

The desirability of the bill of lading as collateral security has been recognized in business transactions for many decades. The foregoing fact arises from the inherent nature of the financing of transactions of foreign or domestic trade.