CO Code § 4-9-109 (2021)
2021 Colorado Code|Title 4 - Uniform Commercial Code|Article 9 - Secured Transactions|Part 1 - General Provisions|§ 4-9-109. Scope

  Except as otherwise provided in subsections (c), (d), and (e) of this section, this article applies to:   A transaction, regardless of its form, that creates a security interest in personal property or fixtures by contract;    An agricultural lien;    A sale of accounts, chattel paper, payment intangibles, or promissory notes;    A consignment;    A security interest arising under section 4-2-401, 4-2-505, 4-2-711 (3), or 4-2.5-508 (5), as provided in section 4-9-110; and    A security interest arising under section 4-4-210 or 4-5-117.5.       The application of this article to a security interest in a secured obligation is not affected by the fact that the obligation is itself secured by a transaction or interest to which this article does not apply.    This article does not apply to the extent that:   A statute, regulation, or treaty of the United States preempts this article;    A statute of this state governs or a constitutional provision provides authority for the creation, perfection, priority, or enforcement of tax liens;    A statute of another state, a foreign country, or a governmental unit of another state or a foreign country, other than a statute generally applicable to security interests, expressly governs creation, perfection, priority, or enforcement of a security interest created by the state, country, or governmental unit; or    The rights of a transferee beneficiary or nominated person under a letter of credit are independent and superior under section 4-5-114.       This article does not apply to:   A landlord's lien, other than an agricultural lien;    A lien, other than an agricultural lien, given by statute or other rule of law for services or materials, but section 4-9-333 applies with respect to priority of the lien;    An assignment of a claim for wages, salary, or other compensation of an employee;    A sale of accounts, chattel paper, payment intangibles, or promissory notes as part of a sale of the business out of which they arose;    An assignment of accounts, chattel paper, payment intangibles, or promissory notes which is for the purpose of collection only;    An assignment of a right to payment under a contract to an assignee that is also obligated to perform under the contract;    An assignment of a single account, payment intangible, or promissory note to an assignee in full or partial satisfaction of a preexisting indebtedness;    A transfer of an interest in or an assignment of a claim under a policy of insurance, other than an assignment by or to a health-care provider of a health-care-insurance receivable and any subsequent assignment of the right to payment, but sections 4-9-315 and 4-9-322 apply with respect to proceeds and priorities in proceeds;    An assignment of a right represented by a judgment, other than a judgment taken on a right to payment that was collateral;    A right of recoupment or set-off, but:   Section 4-9-340 applies with respect to the effectiveness of rights of recoupment or set-off against deposit accounts; and    Section 4-9-404 applies with respect to defenses or claims of an account debtor;       The creation or transfer of an interest in or lien on real property, including a lease or rents thereunder, except to the extent that provision is made for:   Liens on real property in sections 4-9-203 and 4-9-308;    Fixtures in section 4-9-334;    Fixture filings in sections 4-9-501, 4-9-502, 4-9-512, 4-9-516, and 4-9-519; and    Security agreements covering personal and real property in section 4-9-604;       An assignment of a claim arising in tort, other than a commercial tort claim, but sections 4-9-315 and 4-9-322 apply with respect to proceeds and priorities in proceeds;    An assignment of a consumer deposit account in any transaction, but sections 4-9-315 and 4-9-322 apply with respect to proceeds and priorities in proceeds; (13.5) An assignment of a deposit account in transactions where the principal or the maximum line of credit on a revolving loan account do not exceed one hundred thousand dollars, but sections 4-9-315 and 4-9-322 apply with respect to proceeds and priorities in proceeds. A “revolving loan account” means an arrangement between a creditor and a debtor whereby the lender may permit the debtor, from time to time, to purchase or lease on credit or to obtain loans from the creditor.    An assignment of an individual retirement account as defined in 26 U.S.C. sec. 408; or    An assignment of any plan as defined in 26 U.S.C. sec. 401.        (e) The creation, perfection, priority, and enforcement of a security interest, lien, or pledge created by this state or a governmental unit of this state shall be governed by section 11-57-208 (2) , C.R.S., and this article shall not apply to such a security interest, lien, or pledge regardless of whether, pursuant to section 11-57-204 (1) , C.R.S., the state or such governmental unit elected to apply part 2 of article 57 of title 11, C.R.S., to such a security interest, lien, or pledge.   History. Source: L. 2001: Entire article R&RE, p. 1331, § 1, effective July 1.    Editor's note:    The provisions of this section are similar to former §§ 4-9-102 and 4-9-104 as they existed prior to 2001.    Colorado legislative change: Colorado added subsection (e) to the list of exceptions in subsection (a) and added a new subsection (e). In subsection (c)(2), Colorado did not adopt the word “expressly” before the word “governs”, added the phrase “or a constitutional provision provides authority for”, and substituted the phrase “tax liens” for the phrase “a security interest created by this State or a governmental unit of this State”. Colorado added new paragraphs (13.5), (14), and (15) to subsection (d).     OFFICIAL COMMENT   1. Source. Former Sections 9-102, 9-104.   2. Basic Scope Provision. Subsection (a)(1) derives from former Section 9-102(1) and (2). These subsections have been combined and shortened. No change in meaning is intended. Under subsection (a)(1), all consensual security interests in personal property and fixtures are covered by this Article, except for transactions excluded by subsections (c) and (d). As to which transactions give rise to a “security interest,” the definition of that term in Section 1-201 must be consulted. When a security interest is created, this Article applies regardless of the form of the transaction or the name that parties have given to it. Likewise, the subjective intention of the parties with respect to the legal characterization of their transaction is irrelevant to whether this Article applies, as it was to the application of former Article 9 under the proper interpretation of former Section 9-102.   3. Agricultural Liens. Subsection (a)(2) is new. It expands the scope of this Article to cover agricultural liens, as defined in Section 9-102.   4. Sales of Accounts, Chattel Paper, Payment Intangibles, Promissory Notes, and Other Receivables. Under subsection (a)(3), as under former Section 9-102, this Article applies to sales of accounts and chattel paper. This approach generally has been successful in avoiding difficult problems of distinguishing between transactions in which a receivable secures an obligation and those in which the receivable has been sold outright. In many commercial financing transactions the distinction is blurred.   Subsection (a)(3) expands the scope of this Article by including the sale of a “payment intangible” (defined in Section 9-102 as “a general intangible under which the account debtor's principal obligation is a monetary obligation”) and a “promissory note” (also defined in Section 9-102). To a considerable extent, this Article affords these transactions treatment identical to that given sales of accounts and chattel paper. In some respects, however, sales of payment intangibles and promissory notes are treated differently from sales of other receivables. See, e.g., Sections 9-309 (automatic perfection upon attachment), 9-408 (effect of restrictions on assignment). By virtue of the expanded definition of “account” (defined in Section 9-102), this Article now covers sales of (and other security interests in) “health-care-insurance receivables” (also defined in Section 9-102). Although this Article occasionally distinguishes between outright sales of receivables and sales that secure an obligation, neither this Article nor the definition of “security interest” (Section 1-201(37)) delineates how a particular transaction is to be classified. That issue is left to the courts.   5. Transfer of Ownership in Sales of Receivables. A “sale” of an account, chattel paper, a promissory note, or a payment intangible includes a sale of a right in the receivable, such as a sale of a participation interest. The term also includes the sale of an enforcement right. For example, a “[p]erson entitled to enforce” a negotiable promissory note (Section 3-301) may sell its ownership rights in the instrument. See Section 3-203, Comment 1 (“Ownership rights in instruments may be determined by principles of the law of property, independent of Article 3, which do not depend upon whether the instrument was transferred under Section 3-203.”). Also, the right under Section 3-309 to enforce a lost, destroyed, or stolen negotiable promissory note may be sold to a purchaser who could enforce that right by causing the seller to provide the proof required under that section. This Article rejects decisions reaching a contrary result, e.g., Dennis Joslin Co. v. Robinson Broadcasting, 977 F. Supp. 491 (D.D.C. 1997).   Nothing in this section or any other provision of Article 9 prevents the transfer of full and complete ownership of an account, chattel paper, an instrument, or a payment intangible in a transaction of sale. However, as mentioned in Comment 4, neither this Article nor the definition of “security interest” in Section 1-201 provides rules for distinguishing sales transactions from those that create a security interest securing an obligation. This Article applies to both types of transactions. The principal effect of this coverage is to apply this Article's perfection and priority rules to these sales transactions. Use of terminology such as “security interest,” “debtor,” and “collateral” is merely a drafting convention adopted to reach this end, and its use has no relevance to distinguishing sales from other transactions. See PEB Commentary No. 14.   Following a debtor's outright sale and transfer of ownership of a receivable, the debtor-seller retains no legal or equitable rights in the receivable that has been sold. See Section 9-318(a). This is so whether or not the buyer's security interest is perfected. (A security interest arising from the sale of a promissory note or payment intangible is perfected upon attachment without further action. See Section 9-309.) However, if the buyer's interest in accounts or chattel paper is unperfected, a subsequent lien creditor, perfected secured party, or qualified buyer can reach the sold receivable and achieve priority over (or take free of) the buyer's unperfected security interest under Section 9-317. This is so not because the seller of a receivable retains rights in the property sold; it does not. Nor is this so because the seller of a receivable is a “debtor” and the buyer of a receivable is a “secured party” under this Article (they are). It is so for the simple reason that Sections 9-318(b), 9-317, and 9-322 make it so, as did former Sections 9-301 and 9-312. Because the buyer's security interest is unperfected, for purposes of determining the rights of creditors of and purchasers for value from the debtor-seller, under Section 9-318(b) the debtor-seller is deemed to have the rights and title it sold. Section 9-317 subjects the buyer's unperfected interest in accounts and chattel paper to that of the debtor-seller's lien creditor and other persons who qualify under that section.   6. Consignments. Subsection (a)(4) is new. This Article applies to every “consignment.” The term, defined in Section 9-102, includes many but not all “true” consignments (i.e., bailments for the purpose of sale). If a transaction is a “sale or return,” as defined in revised Section 2-326, it is not a “consignment.” In a “sale or return” transaction, the buyer becomes the owner of the goods, and the seller may obtain an enforceable security interest in the goods only by satisfying the requirements of Section 9-203.   Under common law, creditors of a bailee were unable to reach the interest of the bailor (in the case of a consignment, the consignor-owner). Like former Section 2-326 and former Article 9, this Article changes the common-law result; however, it does so in a different manner. For purposes of determining the rights and interests of third-party creditors of, and purchasers of the goods from, the consignee, but not for other purposes, such as remedies of the consignor, the consignee is deemed to acquire under this Article whatever rights and title the consignor had or had power to transfer. See Section 9-319. The interest of a consignor is defined to be a security interest under revised Section 1-201(37), more specifically, a purchase-money security interest in the consignee's inventory. See Section 9-103(d). Thus, the rules pertaining to lien creditors, buyers, and attachment, perfection, and priority of competing security interests apply to consigned goods. The relationship between the consignor and consignee is left to other law. Consignors also have no duties under Part 6. See Section 9-601(g).   Sometimes parties characterize transactions that secure an obligation (other than the bailee's obligation to returned bailed goods) as “consignments.” These transactions are not “consignments” as contemplated by Section 9-109(a)(4). See Section 9-102. This Article applies also to these transactions, by virtue of Section 9-109(a)(1). They create a security interest within the meaning of the first sentence of Section 1-201(37).   This Article does not apply to bailments for sale that fall outside the definition of “consignment” in Section 9-102 and that do not create a security interest that secures an obligation.   7. Security Interest in Obligation Secured by Non-Article 9 Transaction. Subsection (b) is unchanged in substance from former Section 9-102(3). The following example provides an illustration.   Example 1: O borrows $10,000 from M and secures its repayment obligation, evidenced by a promissory note, by granting to M a mortgage on O's land. This Article does not apply to the creation of the real-property mortgage. However, if M sells the promissory note to X or gives a security interest in the note to secure M's own obligation to X, this Article applies to the security interest thereby created in favor of X. The security interest in the promissory note is covered by this Article even though the note is secured by a real-property mortgage. Also, X's security interest in the note gives X an attached security interest in the mortgage lien that secures the note and, if the security interest in the note is perfected, the security interest in the mortgage lien likewise is perfected. See Sections 9-203, 9-308.   It also follows from subsection (b) that an attempt to obtain or perfect a security interest in a secured obligation by complying with non-Article 9 law, as by an assignment of record of a real-property mortgage, would be ineffective. Finally, it is implicit from subsection (b) that one cannot obtain a security interest in a lien, such as a mortgage on real property, that is not also coupled with an equally effective security interest in the secured obligation. This Article rejects cases such as In re Maryville Savings Loan Corp., 743 F.2d 413 (6th Cir. 1984), clarified on reconsideration, 760 F.2d 119.   8. Federal Preemption. Former Section 9-104(a) excluded from Article 9 “a security interest subject to any statute of the United States, to the extent that such statute governs the rights of parties to and third parties affected by transactions in particular types of property.” Some (erroneously) read the former section to suggest that Article 9 sometimes deferred to federal law even when federal law did not preempt Article 9. Subsection (c)(1) recognizes explicitly that this Article defers to federal law only when and to the extent that it must i.e., when federal law preempts it.   9. Governmental Debtors. Former Section 9-104(e) excluded transfers by governmental debtors. It has been revised and replaced by the exclusions in new paragraphs (2) and (3) of subsection (c). These paragraphs reflect the view that Article 9 should apply to security interests created by a State, foreign country, or a “governmental unit” (defined in Section 9-102) of either except to the extent that another statute governs the issue in question. Under paragraph (2), this Article defers to all statutes of the forum State. (A forum cannot determine whether it should consult the choice-of-law rules in the forum's UCC unless it first determines that its UCC applies to the transaction before it.) Paragraph (3) defers to statutes of another State or a foreign country only to the extent that those statutes contain rules applicable specifically to security interests created by the governmental unit in question.   Example 2: A New Jersey state commission creates a security interest in favor of a New York bank. The validity of the security interest is litigated in New York. The relevant security agreement provides that it is governed by New York law. To the extent that a New Jersey statute contains rules peculiar to creation of security interests by governmental units generally, to creation of security interests by state commissions, or to creation of security interests by this particular state commission, then that law will govern. On the other hand, to the extent that New Jersey law provides that security interests created by governmental units, state commissions, or this state commission are governed by the law generally applicable to secured transactions (i.e., New Jersey's Article 9), then New York's Article 9 will govern.   Example 3: An airline that is an instrumentality of a foreign country creates a security interest in favor of a New York bank. The analysis used in the previous example would apply here. That is, if the matter is litigated in New York, New York law would govern except to the extent that the foreign country enacted a statute applicable to security interests created by governmental units generally or by the airline specifically.   The fact that New York law applies does not necessarily mean that perfection is accomplished by filing in New York. Rather, it means that the court should apply New York's Article 9, including its choice-of-law provisions. Under New York's Section 9-301, perfection is governed by the law of the jurisdiction in which the debtor is located. Section 9-307 determines the debtor's location for choice-of-law purposes.   If a transaction does not bear an appropriate relation to the forum State, then that State's Article 9 will not apply, regardless of whether the transaction would be excluded by paragraph (3).   Example 4: A Belgian governmental unit grants a security interest in its equipment to a Swiss secured party. The equipment is located in Belgium. A dispute arises and, for some reason, an action is brought in a New Mexico state court. Inasmuch as the transaction bears no “appropriate relation” to New Mexico, New Mexico's UCC, including its Article 9, is inapplicable. See Section 1-105(1). New Mexico's Section 9-109(c) on excluded transactions should not come into play. Even if the parties agreed that New Mexico law would govern, the parties' agreement would not be effective because the transaction does not bear a “reasonable relation” to New Mexico. See Section 1-105(1).   Conversely, Article 9 will come into play only if the litigation arises in a UCC jurisdiction or if a foreign choice-of-law rule leads a foreign court to apply the law of a UCC jurisdiction. For example, if issues concerning a security interest granted by a foreign airline to a New York bank are litigated overseas, the court may be bound to apply the law of the debtor's jurisdiction and not New York's Article 9.   10. Certain Statutory and Common-Law Liens; Interests in Real Property. With few exceptions (nonconsensual agricultural liens being one), this Article applies only to consensual security interests in personal property. Following former Section 9-104(b) and (j), paragraphs (1) and (11) of subsection (d) exclude landlord's liens and leases and most other interests in or liens on real property. These exclusions generally reiterate the limitations on coverage (i.e., “by contract,” “in personal property and fixtures”) made explicit in subsection (a)(1). Similarly, most jurisdictions provide special liens to suppliers of many types of services and materials, either by statute or by common law. With the exception of agricultural liens, it is not necessary for this Article to provide general codification of this lien structure, which is determined in large part by local conditions and which is far removed from ordinary commercial financing. As under former Section 9- 104(c), subsection (d)(2) excludes these suppliers' liens (other than agricultural liens) from this Article. However, Section 9-333 provides a rule for determining priorities between certain possessory suppliers' liens and security interests covered by this Article.   11. Wage and Similar Claims. As under former Section 9-104(d), subsection (d)(3) excludes assignments of claims for wages and the like from this Article. These assignments present important social issues that other law addresses. The Federal Trade Commission has ruled that, with some exceptions, the taking of an assignment of wages or other earnings is an unfair act or practice under the Federal Trade Commission Act. See 16 C.F.R. Part 444. State statutes also may regulate such assignments.   12. Certain Sales and Assignments of Receivables; Judgments. In general this Article covers security interests in (including sales of) accounts, chattel paper, payment intangibles, and promissory notes. Paragraphs (4), (5), (6), and (7) of subsection (d) exclude from the Article certain sales and assignments of receivables that, by their nature, do not concern commercial financing transactions. These paragraphs add to the exclusions in former Section 9-104(f) analogous sales and assignments of payment intangibles and promissory notes. For similar reasons, subsection (d)(9) retains the exclusion of assignments of judgments under former Section 9-104(h) (other than judgments taken on a right to payment that itself was collateral under this Article).   13. Insurance. Subsection (d)(8) narrows somewhat the broad exclusion of interests in insurance policies under former Section 9-104(g). This Article now covers assignments by or to a health-care provider of “health-care-insurance receivables” (defined in Section 9-102).   14. Set-Off. Subsection (d)(10) adds two exceptions to the general exclusion of set-off rights from Article 9 under former Section 9-104(i). The first takes account of new Section 9-340, which regulates the effectiveness of a set-off against a deposit account that stands as collateral. The second recognizes Section 9-404, which affords the obligor on an account, chattel paper, or general intangible the right to raise claims and defenses against an assignee (secured party).   15. Tort Claims. Subsection (d)(12) narrows somewhat the broad exclusion of transfers of tort claims under former Section 9-104(k). This Article now applies to assignments of “commercial tort claims” (defined in Section 9-102) as well as to security interests in tort claims that constitute proceeds of other collateral (e.g., a right to payment for negligent destruction of the debtor's inventory). Note that once a claim arising in tort has been settled and reduced to a contractual obligation to pay, the right to payment becomes a payment intangible and ceases to be a claim arising in tort.   This Article contains two special rules governing creation of a security interest in tort claims. First, a description of collateral in a security agreement as “all tort claims” is insufficient to meet the requirement for attachment. See Section 9-108(e). Second, no security interest attaches under an after-acquired property clause to a tort claim. See Section 9-204(b). In addition, this Article does not determine whom the tortfeasor must pay to discharge its obligation. Inasmuch as a tortfeasor is not an “account debtor,” the rules governing waiver of defenses and discharge of an obligation by an obligor (Sections 9-403, 9-404, 9-405, and 9-406) are inapplicable to tort-claim collateral.   16. Deposit Accounts. Except in consumer transactions, deposit accounts may be taken as original collateral under this Article. Under former Section 9-104(l), deposit accounts were excluded as original collateral, leaving security interests in deposit accounts to be governed by the common law. The common law is nonuniform, often difficult to discover and comprehend, and frequently costly to implement. As a consequence, debtors who wished to use deposit accounts as collateral sometimes were precluded from doing so as a practical matter. By excluding deposit accounts from the Article's scope as original collateral in consumer transactions, subsection (d)(13) leaves those transactions to law other than this Article. However, in both consumer and non-consumer transactions, sections 9-315 and 9-322 apply to deposit accounts as proceeds and with respect to priorities in proceeds.   This Article contains several safeguards to protect debtors against inadvertently encumbering deposit accounts and to reduce the likelihood that a secured party will realize a windfall from a debtor's deposit accounts. For example, because “deposit account” is a separate type of collateral, a security agreement covering general intangibles will not adequately describe deposit accounts. Rather, a security agreement must reasonably identify the deposit accounts that are the subject of a security interest, e.g., by using the term “deposit accounts.” See Section 9-108. To perfect a security interest in a deposit account as original collateral, a secured party (other than the bank with which the deposit account is maintained) must obtain “control” of the account either by obtaining the bank's authenticated agreement or by becoming the bank's customer with respect to the deposit account. See Sections 9-312(b)(1), 9-104. Either of these steps requires the debtor's consent.   This Article also contains new rules that determine which State's law governs perfection and priority of a security interest in a deposit account (Section 9-304), priority of conflicting security interests in and set-off rights against a deposit account (Sections 9-327, 9-340), the rights of transferees of funds from an encumbered deposit account (Section 9-332), the obligations of the bank (Section 9-341), enforcement of security interests in a deposit account (Section 9-607(c)), and the duty of a secured party to terminate control of a deposit account (Section 9-208(b)).   ANNOTATION   Law reviews. For comment on Ware v. Barr appearing below, see 25 Rocky Mt. L. Rev. 98 (1952). For comment on Exch. Nat'l Bank v. Hough appearing below, see 31 Rocky Mt. L. Rev. 232 (1959). For note, “Filing Under the Uniform Commercial Code Act 9”, see 38 U. Colo. L. Rev. 598 (1966). For comment on Rosenthal v. Whitehead appearing below, see 39 U. Colo. L. Rev. 167 (1966). For note, “The Landlord's Lien in Colorado Practice and Under the Bankruptcy Act”, see 40 U. Colo. L. Rev. 402 (1968). For article, “The Rights of Landlords in Tenants' Personal Property”, see 57 Den. L.J. 685 (1980). For article “Commercial Law”, see 59 Den. L.J. 227 (1982). For article, “Secured Transactions — Part I: Attachment, Perfection and Priorities”, see 11 Colo. Law. 2939 (1982). For article, “Setoff and Security Interests In Deposit Accounts”, see 17 Colo. Law. 2108 (1988). For article, “Mastering the Maze of Secured Transactions - Part 1”, see 21 Colo. Law. 2329 (1992).   Annotator's note. Since § 4-9-109 is similar to §§ 4-9-102 and 4-9-104 as they existed prior to the 2001 repeal and reenactment of this article, relevant cases construing those provisions have been included in the annotations to this section.   The law pertaining to the assignment of contract rights is set forth in this section. Farmers Acceptance Corp. v. DeLozier, 178 Colo. 291 , 496 P.2d 1016 (1972).   A court cannot through ancillary proceedings place a judgment creditor in a better or more favorable position than he would be in if levy were made upon the property. Hilst v. Bennett, 175 Colo. 78 , 485 P.2d 880 (1971).   A court cannot require posting of bond. In ancillary proceedings in aid of execution on a judgment there is no jurisdiction in the courts to require a creditor to post a bond to secure payment of the judgment. Hilst v. Bennett, 175 Colo. 78 , 485 P.2d 880 (1971).   For cases which construe provisions prior to U.C.C. concerning chattel mortgages, see Machette v. Wanless, 1 Colo. 225 (1870); Machette v. Wanless, 2 Colo. 169 (1873); Chapin v. Whitsett, 3 Colo. 315 (1877); Crane v. Chandler, 5 Colo. 21 (1879); George v. Tufts, 5 Colo. 162 (1879); Horner v. Stout, 5 Colo. 166 (1879); Cook v. Mann, 6 Colo. 21 (1881); Tabor v. Sampson, 7 Colo. 426 , 4 P. 45 (1884); Wilcox v. Jackson, 7 Colo. 521 , 4 P. 966 (1884); Frank v. Denver & R.G. Ry., 23 F. 123 (D. Colo. 1885 ); Wilson v. Voight, 9 Colo. 614 , 13 P. 726 (1886); Brasher v. Christophe, 10 Colo. 284 , 15 P. 403 (1887); Gerow v. Castello, 11 Colo. 560 , 19 P. 505 (1888); Atchison v. Graham, 14 Colo. 21 7, 23 P. 876 (1890); Harbison v. Tufts, 1 Colo. App. 140, 27 P. 1014 (1891); Newman v. People ex rel. McHenry, 4 Colo. App. 46, 34 P. 1006 (1893); Foster v. Cramer, 19 Colo. 405 , 35 P. 747 (1894); Colo. Sav. Bank v. Metro. Theater Co., 20 Colo. 313 , 36 P. 902 (1894); Jones v. Clark, 20 Colo. 353 , 38 P. 371 (1894); Roberts v. Johnson, 5 Colo. App. 406, 39 P. 596 (1895); Citizens' Coal & Coke Co. v. Stanley, 6 Colo. App. 181, 40 P. 693 (1895); Bank v. Hastings, 7 Colo. App. 129, 42 P. 691 (1895); Edinger v. Grace, 8 Colo. App. 21, 44 P. 855 (1896); Mumford v. Harris, 8 Colo. App. 51, 44 P. 772 (1896); Stanley v. Citizens' Coal & Coke Co., 24 Colo. 103 , 49 P. 35 (1897); Burchinell v. Gorsline, 11 Colo. App. 22, 52 P. 413 (1898); Crocker v. Burns, 13 Colo. App. 54, 56 P. 199 (1899); Nichols v. Chittenden, 14 Colo. App. 49, 59 P. 954 (1899); First Congregational Church v. Grand Rapids Sch. Furn. Co., 15 Colo. App. 46, 60 P. 948 (1900); McGovney v. Gwillin, 16 Colo. App. 284, 65 P. 346 (1901); Morse v. Morrison, 16 Colo. App. 449, 66 P. 169 (1901); Clark v. Bright, 30 Colo. 199 , 69 P. 506 (1902); Richardson v. Longmont Supply Ditch Co., 19 Colo. App. 483, 76 P. 546 (1904); Fischback v. Garrison Milling & Elevator Co., 20 Colo. App. 448, 79 P. 749 (1905); Cassell v. Deisher, 39 Colo. 367 , 89 P. 773 (1907); Klug v. Munce, 40 Colo. 276 , 90 P. 603 (1907); Street v. Sederburg, 41 Colo. 128 , 92 P. 29 (1907); Hurt v. Hubbard, 41 Colo. 505 , 92 P. 908 (1907); Simonson v. McHenry, 41 Colo. 508 , 92 P. 906 (1907); Sigel-Campion Live Stock Comm'n Co. v. Holly, 44 Colo. 580 , 101 P. 68 (1908); Fischbach v. Garrison Milling & Elevator Co., 46 Colo. 29 , 102 P. 895 (1909); Bradford v. Roberts, 46 Colo. 330 , 104 P. 391 (1909); Babbitt v. Bent County Bank, 50 Colo. 258 , 108 P. 1003 (1911); Owen v. Owens, 51 Colo. 93 , 117 P. 134 (1911); Stumpff v. People, 51 Colo. 202 , 117 P. 134 (1911); Ferris v. Chambers, 51 Colo. 368 , 117 P. 994 (1911); Meador v. Cullison, 52 Colo. 172 , 120 P. 145 (1911); Puzzle Mining & Reduction Co. v. Morse Bros. Mach. & Supply Co., 24 Colo. App. 74, 131 P. 791 (1913); Ellison v. Tuckerman, 24 Colo. App. 322, 134 P. 163 (1913); Booth v. Central Sav. Bank, 58 Colo. 519 , 146 P. 240 (1915); Stitt v. Spengel House Furnishing Co., 58 Colo. 559 , 146 P. 770 (1915); Sorrells v. Sigel-Campion Live Stock Comm'n Co., 27 Colo. App. 154, 148 P. 279 (1915); Thompson v. Rowe, 27 Colo. App. 361, 149 P. 849 (1915); Brown v. People, 61 Colo. 27 , 155 P. 332 (1916); First Nat'l Bank v. Felter, 65 Colo. 370 , 176 P. 496 (1918); Beatrice Creamery Co. v. Sylvester, 65 Colo. 569 , 174 P. 154 (1919); J. D. Best & Co. v. Wolf Co., 67 Colo. 42 , 185 P. 371 (1919); Strauss v. Austgen, 67 Colo. 207 , 184 P. 299 (1919); Cobb v. Int'l State Bank, 67 Colo. 488 , 186 P. 529 (1919); Cobb v. Aiello, 67 Colo. 533 , 186 P. 531 (1919); Lampman v. Lamping, 70 Colo. 167 , 199 P. 418 (1921); Littell v. Brayton Motor & Accessory Co., 70 Colo. 286 , 201 P. 34 (1921); Lowdermilk v. People, 70 Colo. 459 , 202 P. 118 (1921); Lewin v. Telluride Iron Works Co., 272 F. 590 (8th Cir. 1921); Turnbull v. Cole, 70 Colo. 364 , 201 P. 887 (1922); Downer v. Bermingham, 71 Colo. 245 , 205 P. 948 (1922); Metro. State Bank v. Wright, 72 Colo. 106 , 209 P. 804 (1922); Russell v. First Nat'l Bank, 72 Colo. 312 , 211 P. 372 (1922); Broadhead v. Farmers' State Bank, 72 Colo. 430 , 211 P. 376 (1922); Sowards v. Jones, 75 Colo. 25 , 223 P. 747 (1924); Hawkes v. First Nat'l Bank, 75 Colo. 47 , 224 P. 224 (1924); Bogdon v. Fort, 75 Colo. 231 , 225 P. 247 (1924); Anglo-American Mill Co. v. First Nat'l Bank, 76 Colo. 57 , 230 P. 118 (1924); Welty v. Burks, 76 Colo. 365 231 P. 660 (1924); Rhodes v. Harmon, 76 Colo. 565 , 231 P. 222 (1925); First Nat'l Bank v. O'Connell, 77 Colo. 27 5, 236 P. 1002 (1925); Walker v. Mathis, 78 Colo. 384 , 242 P. 68 (1925); Radetsky v. Gramm-Bernstein Motor Truck Co., 4 F.2d 965 (8th Cir. 1925); Burroughs Adding Mach. Co. v. Bogdon, 9 F.2d 54 (8th Cir. 1925); First State Bank v. Fox, 10 F.2d 116 (8th Cir. 1925); Conrad v. Nat'l Bank, 78 Colo. 485 , 242 P. 676 (1926); Wilder v. Colo. Motor Fin. Co., 79 Colo. 97 , 244 P. 596 (1926); Lamon v. Harada, 80 Colo. 89 , 249 P. 267 (1926); Broadbent v. McFerson 80 Colo. 264 , 250 P. 852 (1926); Rocky Mt. Seed Co. v. McArthur, 85 Colo. 1 , 272 P. 1117 (1928); Mosko v. Matthews, 87 Colo. 55 , 284 P. 1021 (1930); McCormick v. First Nat'l Bank, 88 Colo. 599 , 299 P. 7 (1931); Thimmig v. Segal, 89 Colo. 385 , 3 P.2d 303 (1931); Illinois Bldg. Co. v. Patterson, 91 Colo. 391 , 15 P.2d 699 (1932); Blackmer Furn. Co. v. Bingham, 92 Colo. 456 , 21 P.2d 711 (1933); McMinn v. Harrison, 93 Colo. 5 , 23 P.2d 944 (1933); McClain v. Saranac Mach. Co., 94 Colo. 1 45, 28 P.2d 1009 (1934); Conway v. Headquist, 95 Colo. 187 , 34 P.2d 69 (1934); Tolland Co. v. First State Bank, 95 Colo. 321 , 35 P.2d 867 (1934); Int'l Harvester Co. v. McFerson, 95 Colo. 482 , 37 P.2d 390 (1934); Schreiber v. Colt, 80 F.2d 511 (10th Cir. 1935); Prather v. Auto Indus. Corp., 96 Colo. 5 16, 45 P.2d 628 (1935); Stokes v. Kirk, 97 Colo. 96 , 47 P.2d 686 (1935); Thomas v. First Nat'l Bank, 97 Colo. 47 4, 51 P.2d 589 (1935); Fisher v. Norman Apts., 101 Colo. 173 , 72 P.2d 1092 (1937); Stokes v. Kirk, 101 Colo. 591 , 75 P.2d 1041 (1938); Paoli State Bank v. Barker, 108 Colo. 153 , 113 P.2d 1004 (1941); Crosswhite v. People, 110 Colo. 584 , 137 P.2d 399 (1943); Hofmann v. Lamb, 113 Colo. 585 , 160 P.2d 995 (1945); Smith v. Greenberg, 121 Colo. 417 , 218 P.2d 514 (1950); Denver Motor Fin. Co. v. Stevens, 128 Colo. 531 , 265 P.2d 224 (1953); Central Fin. Corp. v. Calvert, 130 Colo. 519 , 276 P.2d 990 (1954); In re Clements, 120 F. Supp. 224 (D. Colo. 1954 ); Rabtoay Gen. Tire Co. v. Colo. Kenworth Corp., 135 Colo. 110 , 309 P.2d 616 (1957); Exch. Nat'l Bank v. Hough, 258 F.2d 785 (10th Cir. 1958); In re Maldonado, 171 F. Supp. 340 (D. Colo. 1959 ); Bank of Denver v. Legler, 142 Colo. 333 , 350 P.2d 1059 (1960); Roylance v. Citizens Sav. Bank, 148 Colo. 42 3, 366 P.2d 557 (1961); Allan v. Diamond T Motor Car Co., 291 F.2d 115 (10th Cir. 1961); Rosenthal v. Whitehead, 159 Colo. 565 , 413 P.2d 909 (1966); McCoy v. People, 165 Colo. 407 , 439 P.2d 347 (1968); Am. Nat'l Bank v. First Nat'l Bank, 28 Colo. App. 486, 476 P.2d 304 (1970); Am. Nat'l Bank v. Etter, 28 Colo. App. 511, 476 P.2d 287 (1970); Am. Nat'l Bank v. Magor, 28 Colo. App. 522, 476 P.2d 267 (1970); Crepeau v. Renewal Guar. Corp., 29 Colo. App. 23, 478 P.2d 698 (1970) (decided under repealed §§ 21-1-1 et seq. and 21-2-1 et seq., C.R.S. 1963, §§ 20-1-1 et seq. and 20-2-1 et seq., CRS 53, CSA, C. 32, § 1 et seq., and laws antecedent to CSA, C. 32, § 1 et seq.).   For cases which construe provisions prior to U.C.C. concerning assignment of accounts receivable, see Ware v. Barr, 126 Colo. 311 , 248 P.2d 1073 (1952); Rabtoay Gen. Tire Co. v. Colo. Kenworth Corp., 135 Colo. 110 , 309 P.2d 616 (1957); In re Mile Hi Restaurants, Inc., 233 F. Supp. 936 (D. Colo. 1964 ); Rottman v. First Nat'l Bank, 401 F.2d 484 (10th Cir. 1969); Matson & Mulhausen Constr. Co. v. Boulevard Nat'l Bank, 28 Colo. App. 427, 475 P.2d 356 (1970); Crepeau v. Renewal Guar. Corp., 29 Colo. App. 23, 478 P.2d 698 (1970); McCormick v. Diamond Shamrock Corp., 175 Colo. 406 , 487 P.2d 1333 (1971) (decided under repealed § 11-2-1 et seq., C.R.S. 1963, § 11-2-1 et seq., CRS 53, and CSA, C. 12A, § 1 et seq.).   Any transaction intended to create a security interest is subject to this article. Colo. Leasing Corp. v. Borquez, 738 P.2d 377 (Colo. App. 1986); Western Group Nurseries v. Pomeranz, 867 P.2d 12 (Colo. App. 1993).   A security interest may be created in numerous types of assets, including contract rights. Young v. Golden State Bank, 39 Colo. App. 45, 560 P.2d 855 (1977).   Right to reclaim is not a species of interest in goods which is the result of a transaction “intended to create a security interest” and is not created by contract as contemplated within the meaning of § 4-9-102 . Guy Martin Buick, Inc. v. Colo. Springs Nat'l Bank, 184 Colo. 166 , 519 P.2d 354 (1974).   Characterization of transaction as “lease” or “sale” is not controlling. Whether a transaction is characterized as a lease or sale is not controlling, but rather it is the intention of the parties to create a security interest which is controlling, that intention to be determined by the facts of each case. H.M.O. Sys. v. Choicecare Health Servs., Inc., 665 P.2d 635 (Colo. App. 1983).   “Lease” agreement being held is a contract of sale creating security interest. Colo. Leasing Corp. v. Borquez, 738 P.2d 377 (Colo. App. 1986).   Profits from motel business are personalty and not an interest in real property. In re M. Vickers, 110 B.R. 332 (Bankr. D. Colo. 1990 ).   Security interest in automobiles do not attach until title certificates are delivered to bank. After the purchaser of some automobiles delivered its check to the seller, but before the certificates of title were transferred to a bank as the purchaser's agent, the purchaser executed a security agreement with the bank, intending to create a security interest in the automobiles to secure repayment of the bank's financing loan, until the certificates of title were properly transferred to the purchaser's agent, no right, title, or interest was created in the purchaser which would enable it to legally convey or encumber the automobiles. Therefore, although the bank and purchaser fully intended that the security interest attach to the automobiles at the time the loan funds were deposited in the purchaser's account, the absence of any legal right, title, or interest by the purchaser in the automobiles prevented the bank's security interest from attaching prior to the time that the certificates of title were delivered. Guy Martin Buick, Inc. v. Colo. Springs Nat'l Bank, 184 Colo. 166 , 519 P.2d 354 (1974).   Security interests in realty paper represent a personal property right to receive payment and are governed by the UCC. Citicorp v. Fremont Nat. Bank, 738 P.2d 29 (Colo. App. 1987).   A seller's right to receive payment by virtue of an installment land sale contract is a personal property right and is governed by this article. Citicorp v. Fremont Nat. Bank, 738 P.2d 29 (Colo. App. 1987).   This article applies to the attachment and perfection of a bank's security interest in note and deed of trust which were delivered pursuant to a loan agreement, even though the deed of trust secured an interest in real estate. Jackson Co. Fed. Savings v. Maduff Mortgage Corp., 608 F. Supp. 588 (D. Colo. 1985 ).   The governmental subdivision or agency exclusion of subsection (e) covers only transactions in which the government is a debtor/borrower. Bowlen v. Fed. Deposit Ins. Corp., 815 P.2d 1013 (Colo. App. 1991).   A leasehold, although enumerated in a security agreement, is not subject to the provisions of the UCC under subsection (j). Hilst v. Bennett, 175 Colo. 78 , 485 P.2d 880 (1971).   This law does not apply to creation, etc., of interest in or lien on real estate. By its very terms the UCC does not apply to the creation or transfer of an interest in or lien on real estate. Fort Collins Prod. Credit Ass'n v. Carroll Dairy, 37 Colo. App. 536, 553 P.2d 95 (1976).   The right to proceeds from an installment land sale contract constitute a security interest to be governed by this article. Citicorp v. Fremont Nat. Bank, 738 P.2d 29 (Colo. App. 1987).   A perfected interest in property cannot be displaced by subsequent attorney's lien. This section provides a first lien to attorney on property of client, but lien is subject to security interest in client's property that was perfected prior to attorney's lien. Colo. Nat. Bank v. Zerobnick & Sander, 768 P.2d 1276 (Colo. App. 1989).   Applied in Welbourne Dev. Co. v. Affiliated Clearance Corp., 28 Colo. App. 313, 472 P.2d 684 (1970); Rocky Mt. Ass'n of Credit Mgt. v. Hessler Mfg. Co., 37 Colo. App. 551, 553 P.2d 840 (1976); Bd. of County Comm'rs v. Berkeley Vill., 40 Colo. App. 431, 580 P.2d 1251 (1978); James v. Ford Motor Credit Co., 638 F.2d 147 (10th Cir. 1980); Jackson v. Sec. Indus. Bank, 4 B.R. 293 (Bankr. D. Colo. 1980 ); Swofford v. Colo. Nat'l Bank, 628 P.2d 184 (Colo. App. 1981); Wiley v. Bank of Fountain Valley, 632 P.2d 282 (Colo. App. 1981); Young v. Golden State Bank, 632 P.2d 1053 (Colo. App. 1981); ITT Diversified Credit Corp. v. Couch, 669 P.2d 1355 (Colo. 1983).