2023 New Mexico Statutes › Chapter 55 - Uniform Commercial Code › Article 9 - Secured Transactions › Part 1 - GENERAL PROVISIONS › Subpart 1 - SHORT TITLE, DEFINITIONS, ANDGENERAL CONCEPTS › Section 55-9-102 - Definitions and index of definitions.

(a) In Chapter 55, Article 9 NMSA 1978:
(1) "accession" means goods that are physically united with other goods in such a manner that the identity of the original goods is not lost;
(2) "account", except as used in "account for":
(A) means a right to payment of a monetary obligation, whether or not earned by performance:
(i) for property that has been or is to be sold, leased, licensed, assigned or otherwise disposed of;
(ii) for services rendered or to be rendered;
(iii) for a policy of insurance issued or to be issued;
(iv) for a secondary obligation incurred or to be incurred;
(v) for energy provided or to be provided;
(vi) for the use or hire of a vessel under a charter or other contract;
(vii) arising out of the use of a credit or charge card or information contained on or for use with the card; or
(viii) as winnings in a lottery or other game of chance operated or sponsored by a state, governmental unit of a state or person licensed or authorized to operate the game by a state or governmental unit of a state; and
(B) includes health-care-insurance receivables; but
(C) does not include:
(i) rights to payment evidenced by chattel paper or an instrument;
(ii) commercial tort claims;
(iii) deposit accounts;
(iv) investment property;
(v) letter-of-credit rights or letters of credit; or
(vi) rights to payment for money or funds advanced or sold, other than rights arising out of the use of a credit or charge card or information contained on or for use with the card;
(3) "account debtor" means a person obligated on an account, chattel paper or general intangible. The term does not include persons obligated to pay a negotiable instrument, even if the instrument constitutes part of chattel paper;
(4) "accounting", except as used in "accounting for", means a record:
(A) authenticated by a secured party;
(B) indicating the aggregate unpaid secured obligations as of a date not more than thirty-five days earlier or thirty-five days later than the date of the record; and
(C) identifying the components of the obligations in reasonable detail;
(5) "agricultural lien" means an interest in farm products:
(A) that secures payment or performance of an obligation for:
(i) goods or services furnished in connection with a debtor's farming operation; or
(ii) rent on real property leased by a debtor in connection with its farming operation;
(B) that is created by statute in favor of a person that:
(i) in the ordinary course of its business furnished goods or services to a debtor in connection with a debtor's farming operation; or
(ii) leased real property to a debtor in connection with the debtor's farming operation; and
(C) whose effectiveness does not depend on the person's possession of the personal property;
(6) "as-extracted collateral" means:
(A) oil, gas or other minerals that are subject to a security interest that:
(i) is created by a debtor having an interest in the minerals before extraction; and
(ii) attaches to the minerals as extracted; or
(B) accounts arising out of the sale at the wellhead or minehead of oil, gas or other minerals in which the debtor had an interest before extraction;
(7) "authenticate" means to:
(A) sign; or
(B) with present intent to adopt or accept a record, to attach to or logically associate with the record an electronic sound, symbol or process;
(8) "bank" means an organization that is engaged in the business of banking and includes savings banks, savings and loan associations, credit unions and trust companies;
(9) "cash proceeds" means proceeds that are money, checks, deposit accounts or the like;
(10) "certificate of title" means a certificate of title with respect to which a statute provides for the security interest in question to be indicated on the certificate as a condition or result of the security interest's obtaining priority over the rights of a lien creditor with respect to the collateral. The term includes another record maintained as an alternative to a certificate of title by the governmental unit that issues certificates of title if a statute permits the security interest in question to be indicated on the record as a condition or result of the security interest's obtaining priority over the rights of a lien creditor with respect to the collateral;
(11) "chattel paper" means a record or records that evidence both a monetary obligation and a security interest in specific goods, a security interest in specific goods and software used in the goods, a security interest in specific goods and license of software used in the goods, a lease of specific goods or a lease of specific goods and license of software used in the goods. In this paragraph, "monetary obligation" means a monetary obligation secured by the goods or owed under a lease of the goods and includes a monetary obligation with respect to software used in the goods. The term does not include:
(A) charters or other contracts involving the use or hire of a vessel; or
(B) records that evidence a right to payment arising out of the use of a credit or charge card or information contained on or for use with the card. If a transaction is evidenced by records that include an instrument or series of instruments, the group of records taken together constitutes chattel paper;
(12) "collateral" means the property subject to a security interest or agricultural lien and includes:
(A) proceeds to which a security interest attaches;
(B) accounts, chattel paper, payment intangibles and promissory notes that have been sold; and
(C) goods that are the subject of a consignment;
(13) "commercial tort claim" means a claim arising in tort with respect to which:
(A) the claimant is an organization; or
(B) the claimant is an individual and the claim:
(i) arose in the course of the claimant's business or profession; and
(ii) does not include damages arising out of personal injury to or the death of an individual;
(14) "commodity account" means an account maintained by a commodity intermediary in which a commodity contract is carried for a commodity customer;
(15) "commodity contract" means a commodity futures contract, an option on a commodity futures contract, a commodity option or another contract if the contract or option is:
(A) traded on or subject to the rules of a board of trade that has been designated as a contract market for such a contract pursuant to federal commodities laws; or
(B) traded on a foreign commodity board of trade, exchange or market, and is carried on the books of a commodity intermediary for a commodity customer;
(16) "commodity customer" means a person for which a commodity intermediary carries a commodity contract on its books;
(17) "commodity intermediary" means a person that:
(A) is registered as a futures commission merchant under federal commodities law; or
(B) in the ordinary course of its business provides clearance or settlement services for a board of trade that has been designated as a contract market pursuant to federal commodities law;
(18) "communicate" means:
(A) to send a written or other tangible record;
(B) to transmit a record by any means agreed upon by the persons sending and receiving the record; or
(C) in the case of transmission of a record to or by a filing office, to transmit a record by any means prescribed by filing-office rule;
(19) "consignee" means a merchant to which goods are delivered in a consignment;
(20) "consignment" means a transaction, regardless of its form, in which a person delivers goods to a merchant for the purpose of sale and:
(A) the merchant:
(i) deals in goods of that kind under a name other than the name of the person making delivery;
(ii) is not an auctioneer; and
(iii) is not generally known by its creditors to be substantially engaged in selling the goods of others;
(B) with respect to each delivery, the aggregate value of the goods is one thousand dollars ($1,000) or more at the time of delivery;
(C) the goods are not consumer goods immediately before delivery; and
(D) the transaction does not create a security interest that secures an obligation;
(21) "consignor" means a person that delivers goods to a consignee in a consignment;
(22) "consumer debtor" means a debtor in a consumer transaction;
(23) "consumer goods" means goods that are used or bought for use primarily for personal, family or household purposes;
(24) "consumer-goods transaction" means a consumer transaction in which:
(A) an individual incurs an obligation primarily for personal, family or household purposes; and
(B) a security interest in consumer goods secures the obligation;
(25) "consumer obligor" means an obligor who is an individual and who incurred the obligation as part of a transaction entered into primarily for personal, family or household purposes;
(26) "consumer transaction" means a transaction in which:
(A) an individual incurs an obligation primarily for personal, family or household purposes;
(B) a security interest secures the obligation; and
(C) the collateral is held or acquired primarily for personal, family or household purposes. The term includes consumer-goods transactions;
(27) "continuation statement" means an amendment of a financing statement that:
(A) identifies, by its file number, the initial financing statement to which it relates; and
(B) indicates that it is a continuation statement for, or that it is filed to continue the effectiveness of, the identified financing statement;
(28) "debtor" means:
(A) a person having an interest, other than a security interest or other lien, in the collateral, whether or not the person is an obligor;
(B) a seller of accounts, chattel paper, payment intangibles or promissory notes; or
(C) a consignee;
(29) "deposit account" means a demand, time, savings, passbook or similar account maintained with a bank. The term does not include investment property or accounts evidenced by an instrument;
(30) "document" means a document of title or a receipt of the type described in Subsection (b) of Section 55-7-201 NMSA 1978;
(31) "electronic chattel paper" means chattel paper evidenced by a record or records consisting of information stored in an electronic medium;
(32) "encumbrance" means a right, other than an ownership interest, in real property. The term includes mortgages and other liens on real property;
(33) "equipment" means goods other than inventory, farm products or consumer goods;
(34) "farm products" means goods, other than standing timber, with respect to which the debtor is engaged in a farming operation and that are:
(A) crops grown, growing or to be grown, including:
(i) crops produced on trees, vines and bushes; and
(ii) aquatic goods produced in aquacultural operations;
(B) livestock, born or unborn, including aquatic goods produced in aquacultural operations;
(C) supplies used or produced in a farming operation; or
(D) products of crops or livestock in their unmanufactured states;
(35) "farming operation" means raising, cultivating, propagating, fattening, grazing or any other farming, livestock or aquacultural operation;
(36) "file number" means the number assigned to an initial financing statement pursuant to Subsection (a) of Section 55-9-519 NMSA 1978;
(37) "filing office" means an office designated in Section 55-9-501 NMSA 1978 as the place to file a financing statement;
(38) "filing-office rule" means a rule adopted pursuant to Section 55-9-526 NMSA 1978;
(39) "financing statement" means a record or records composed of an initial financing statement and any filed record relating to the initial financing statement;
(40) "fixture filing" means the filing of a financing statement covering goods that are or are to become fixtures and satisfying Subsections (a) and (b) of Section 55-9-502 NMSA 1978. The term includes the filing of a financing statement covering goods of a transmitting utility that are or are to become fixtures;
(41) "fixtures" means goods that have become so related to particular real property that an interest in them arises under real property law;
(42) "general intangible" means any personal property, including things in action, other than accounts, chattel paper, commercial tort claims, deposit accounts, documents, goods, instruments, investment property, letter-of-credit rights, letters of credit, money and oil, gas or other minerals before extraction. The term includes payment intangibles and software;
(43) "good faith" means honesty in fact and the observance of reasonable commercial standards of fair dealing;
(44) "goods" means all things that are movable when a security interest attaches and:
(A) includes:
(i) fixtures;
(ii) standing timber that is to be cut and removed under a conveyance or contract for sale;
(iii) the unborn young of animals;
(iv) crops grown, growing or to be grown, even if the crops are produced on trees, vines or bushes;
(v) manufactured homes; and
(vi) a computer program embedded in goods and any supporting information provided in connection with a transaction relating to the program if the program is associated with the goods in such a manner that it customarily is considered part of the goods, or by becoming the owner of the goods, a person acquires a right to use the program in connection with the goods; but
(B) does not include:
(i) a computer program embedded in goods that consist solely of the medium in which the program is embedded; or
(ii) accounts, chattel paper, commercial tort claims, deposit accounts, documents, general intangibles, instruments, investment property, letter-of-credit rights, letters of credit, money or oil, gas or other minerals before extraction;
(45) "governmental unit" means a subdivision, agency, department, county, parish, municipality or other unit of the government of the United States, a state or a foreign country. The term includes an organization having a separate corporate existence if the organization is eligible to issue debt on which interest is exempt from income taxation under the laws of the United States;
(46) "health-care-insurance receivable" means an interest in or claim under a policy of insurance that is a right to payment of a monetary obligation for health care goods or services provided or to be provided;
(47) "instrument" means a negotiable instrument or any other writing that evidences a right to the payment of a monetary obligation, is not itself a security agreement or lease and is of a type that in ordinary course of business is transferred by delivery with any necessary indorsement or assignment. The term does not include:
(A) investment property;
(B) letters of credit; or
(C) writings that evidence a right to payment arising out of the use of a credit or charge card or information contained on or for use with the card;
(48) "inventory" means goods, other than farm products, that:
(A) are leased by a person as lessor;
(B) are held by a person for sale or lease or to be furnished under a contract of service;
(C) are furnished by a person under a contract of service; or
(D) consist of raw materials, work in process or materials used or consumed in a business;
(49) "investment property" means a security, whether certificated or uncertificated, security entitlement, securities account, commodity contract or commodity account;
(50) "jurisdiction of organization", with respect to a registered organization, means the jurisdiction under whose law the organization is formed or organized;
(51) "letter-of-credit right" means a right to payment or performance under a letter of credit, whether or not the beneficiary has demanded or is at the time entitled to demand payment or performance. The term does not include the right of a beneficiary to demand payment or performance under a letter of credit;
(52) "lien creditor" means:
(A) a creditor that has acquired a lien on the property involved by attachment, levy or the like;
(B) an assignee for benefit of creditors from the time of assignment;
(C) a trustee in bankruptcy from the date of the filing of the petition; or
(D) a receiver in equity from the time of appointment;
(53) "manufactured home" means a structure, transportable in one or more sections, which, in the traveling mode, is eight body feet or more in width or forty body feet or more in length, or, when erected on site, is three hundred twenty or more square feet, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air-conditioning and electrical systems contained therein. The term includes any structure that meets all of the requirements of this paragraph except the size requirements and with respect to which the manufacturer voluntarily files a certification required by the United States secretary of housing and urban development and complies with the standards established under 42 USCA;
(54) "manufactured-home transaction" means a secured transaction:
(A) that creates a purchase-money security interest in a manufactured home, other than a manufactured home held as inventory; or
(B) in which a manufactured home, other than a manufactured home held as inventory, is the primary collateral;
(55) "mortgage" means a consensual interest in real property, including fixtures, that secures payment or performance of an obligation;
(56) "new debtor" means a person that becomes bound as debtor under Subsection (d) of Section 55-9-203 NMSA 1978 by a security agreement previously entered into by another person;
(57) "new value" means:
(A) money;
(B) money's worth in property, services or new credit; or
(C) release by a transferee of an interest in property previously transferred to the transferee. The term does not include an obligation substituted for another obligation;
(58) "noncash proceeds" means proceeds other than cash proceeds;
(59) "obligor" means a person that, with respect to an obligation secured by a security interest in or an agricultural lien on the collateral:
(A) owes payment or other performance of the obligation;
(B) has provided property other than the collateral to secure payment or other performance of the obligation; or
(C) is otherwise accountable in whole or in part for payment or other performance of the obligation. The term does not include issuers or nominated persons under a letter of credit;
(60) "original debtor", except as used in Subsection (c) of Section 55-9-310 NMSA 1978, means a person that, as debtor, entered into a security agreement to which a new debtor has become bound under Subsection (d) of Section 55-9-203 NMSA 1978;
(61) "payment intangible" means a general intangible under which the account debtor's principal obligation is a monetary obligation;
(62) "person related to", with respect to an individual, means:
(A) the spouse of the individual;
(B) a brother, brother-in-law, sister or sister-in-law of the individual;
(C) an ancestor or lineal descendant of the individual or the individual's spouse; or
(D) any other relative, by blood or marriage, of the individual or the individual's spouse who shares the same home with the individual;
(63) "person related to", with respect to an organization, means:
(A) a person directly or indirectly controlling, controlled by or under common control with the organization;
(B) an officer or director of, or a person performing similar functions with respect to, the organization;
(C) an officer or director of, or a person performing similar functions with respect to, a person described in Subparagraph (A) of this paragraph;
(D) the spouse of an individual described in Subparagraph (A), (B) or (C) of this paragraph; or
(E) an individual who is related by blood or marriage to an individual described in Subparagraph (A), (B), (C) or (D) of this paragraph and shares the same home with the individual;
(64) "proceeds", except as used in Subsection (b) of Section 55-9-609 NMSA 1978, means:
(A) whatever is acquired upon the sale, lease, license, exchange or other disposition of collateral;
(B) whatever is collected on, or distributed on account of, collateral;
(C) rights arising out of collateral;
(D) to the extent of the value of collateral, claims arising out of the loss, nonconformity or interference with the use of, defects or infringement of rights in, or damage to, the collateral; or
(E) to the extent of the value of collateral and to the extent payable to the debtor or the secured party, insurance payable by reason of the loss or nonconformity of, defects or infringement of rights in, or damage to, the collateral;
(65) "promissory note" means an instrument that evidences a promise to pay a monetary obligation, does not evidence an order to pay and does not contain an acknowledgment by a bank that the bank has received for deposit a sum of money or funds;
(66) "proposal" means a record authenticated by a secured party, which record includes the terms on which the secured party is willing to accept collateral in full or partial satisfaction of the obligation it secures pursuant to Sections 55-9-620 through 55-9-622 NMSA 1978;
(67) "public-finance transaction" means a secured transaction in connection with which:
(A) debt securities are issued;
(B) all or a portion of the securities issued have an initial stated maturity of at least twenty years; and
(C) the debtor, obligor, secured party, account debtor or other person obligated on collateral, assignor or assignee of a secured obligation or assignor or assignee of a security interest is a state or a governmental unit of a state;
(68) "public organic record" means a record that is available to the public for inspection and is:
(A) a record consisting of the record initially filed with or issued by a state or the United States to form or organize an organization and any record filed with or issued by the state or the United States that amends or restates the initial record;
(B) an organic record of a business trust consisting of the record initially filed with a state and any record filed with the state that amends or restates the initial record if a statute of the state governing business trusts requires that the record be filed with the state; or
(C) a record consisting of legislation enacted by the legislature of a state or the congress of the United States that forms or organizes an organization; any record amending the legislation; and any record filed with or issued by the state or the United States that amends or restates the name of the organization;
(69) "pursuant to commitment", with respect to an advance made or other value given by a secured party, means pursuant to the secured party's obligation, whether or not a subsequent event of default or other event not within the secured party's control has relieved or may relieve the secured party from its obligation;
(70) "record", except as used in "for record", "of record", "record or legal title" and "record owner", means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;
(71) "registered organization" means an organization formed or organized solely under the law of a single state or the United States by the filing of a public organic record with, the issuance of a public organic record by or the enactment of legislation by the state or the United States. The term includes a business trust that is formed or organized under the law of a single state if a statute of the state governing business trusts requires that the business trust's organic record be filed with the state;
(72) "secondary obligor" means an obligor to the extent that:
(A) the obligor's obligation is secondary; or
(B) the obligor has a right of recourse with respect to an obligation secured by collateral against the debtor, another obligor or property of either;
(73) "secured party" means:
(A) a person in whose favor a security interest is created or provided for under a security agreement, whether or not any obligation to be secured is outstanding;
(B) a person that holds an agricultural lien;
(C) a consignor;
(D) a person to which accounts, chattel paper, payment intangibles or promissory notes have been sold;
(E) a trustee, indenture trustee, agent, collateral agent or other representative in whose favor a security interest or agricultural lien is created or provided for; or
(F) a person that holds a security interest arising under Section 55-2-401, Section 55-2-505, Subsection (3) of Section 55-2-711, Subsection (5) of Section 55-2A-508, Section 55-4-210 or Section 55-5-118 NMSA 1978;
(74) "security agreement" means an agreement that creates or provides for a security interest;
(75) "send", in connection with a record or notification, means:
(A) to deposit in the mail, deliver for transmission or transmit by any other usual means of communication, with postage or cost of transmission provided for, addressed to any address reasonable under the circumstances; or
(B) to cause the record or notification to be received within the time that it would have been received if properly sent under Subparagraph (A) of this paragraph;
(76) "software" means a computer program and any supporting information provided in connection with a transaction relating to the program. The term does not include a computer program that is included in the definition of goods;
(77) "state" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States;
(78) "supporting obligation" means a letter-of-credit right or secondary obligation that supports the payment or performance of an account, chattel paper, a document, a general intangible, an instrument or investment property;
(79) "tangible chattel paper" means chattel paper evidenced by a record or records consisting of information that is inscribed on a tangible medium;
(80) "termination statement" means an amendment of a financing statement that:
(A) identifies, by its file number, the initial financing statement to which it relates; and
(B) indicates either that it is a termination statement or that the identified financing statement is no longer effective; and
(81) "transmitting utility" means an organization primarily engaged in the business of:
(A) operating a railroad, subway, street railway or trolley bus;
(B) transmitting communications electrically, electromagnetically or by light;
(C) transmitting goods by pipeline or sewer; or
(D) transmitting or producing and transmitting electricity, steam, gas or water.
(b) "Control", as provided in Section 55-7-106 NMSA 1978, and the following definitions in other articles apply to this article:
"applicant"
Section 55-5-102 NMSA 1978;
"beneficiary"
Section 55-5-102 NMSA 1978;
"broker"
Section 55-8-102 NMSA 1978;
"certificated security"
Section 55-8-102 NMSA 1978;
"check"
Section 55-3-104 NMSA 1978;
"clearing corporation"
Section 55-8-102 NMSA 1978;
"contract for sale"
Section 55-2-106 NMSA 1978;
"customer"
Section 55-4-104 NMSA 1978;
"entitlement holder"
Section 55-8-102 NMSA 1978;
"financial asset"
Section 55-8-102 NMSA 1978;
"holder in due course"
Section 55-3-302 NMSA 1978;
"issuer" (with respect to a letter of credit or letter-of-credit right)
Section 55-5-102 NMSA 1978;
"issuer" (with respect to a security)
Section 55-8-201 NMSA 1978;
"issuer" (with respect to documents of title)
Section 55-7-102 NMSA 1978;
"lease"
Section 55-2A-103 NMSA 1978;
"lease agreement"
Section 55-2A-103 NMSA 1978;
"lease contract"
Section 55-2A-103 NMSA 1978;
"leasehold interest"
Section 55-2A-103 NMSA 1978;
"lessee"
Section 55-2A-103 NMSA 1978;
"lessee in ordinary course of business"
Section 55-2A-103 NMSA 1978;
"lessor"
Section 55-2A-103 NMSA 1978;
"lessor's residual interest"
Section 55-2A-103 NMSA 1978;
"letter of credit"
Section 55-5-102 NMSA 1978;
"merchant"
Section 55-2-104 NMSA 1978;
"negotiable instrument"
Section 55-3-104 NMSA 1978;
"nominated person"
Section 55-5-102 NMSA 1978;
"note"
Section 55-3-104 NMSA 1978;
"proceeds of a letter of credit"
Section 55-5-114 NMSA 1978;
"prove"
Section 55-3-103 NMSA 1978;
"sale"
Section 55-2-106 NMSA 1978;
"securities account"
Section 55-8-501 NMSA 1978;
"securities intermediary"
Section 55-8-102 NMSA 1978;
"security"
Section 55-8-102 NMSA 1978;
"security certificate"
Section 55-8-102 NMSA 1978;
"security entitlement"
Section 55-8-102 NMSA 1978; and
"uncertificated security"
Section 55-8-102 NMSA 1978.
(c) Chapter 55, Article 1 NMSA 1978 contains general definitions and principles of construction and interpretation applicable throughout Chapter 55, Article 9 NMSA 1978.
History:
1978 Comp., § 55-9-102, enacted by Laws 2001, ch. 139, § 2; 2005, ch. 144, § 94; 2013, ch. 137, § 3; 2021, ch. 86, § 1.
OFFICIAL COMMENTS
UCC Official Comments by ALI & the NCCUSL. Reproduced with permission of the PEB for the UCC. All rights reserved.
1.
Source.
All terms that are defined in Article 9 and used in more than one section are consolidated in this section. Note that the definition of "security interest" is found in Section 1-201, not in this Article. Many of the definitions in this section derive from those in pre-1998 Section 9-105. Other definitions were added by the 1998 Revisions or modified or added by the 2022 Article 9 Revisions.
2.
Parties to Secured Transactions.
a.
"Debtor"; "Obligor"; "Secondary Obligor."
Determining whether a person was a "debtor" under pre-1998 Section 9-105(1)(d) required a close examination of the context in which the term was used. To reduce the need for this examination, the 1998 Revisions redefined "debtor" and added new defined terms, "secondary obligor" and "obligor." In the context of Part 6 (default and enforcement), these definitions distinguish among three classes of persons: (i) those persons who may have a stake in the proper enforcement of a security interest by virtue of their non-lien property interest (typically, an ownership interest) in the collateral, (ii) those persons who may have a stake in the proper enforcement of the security interest because of their obligation to pay the secured debt, and (iii) those persons who have an obligation to pay the secured debt but have no stake in the proper enforcement of the security interest. Persons in the first class are debtors. Persons in the second class are secondary obligors if any portion of the obligation is secondary or if the obligor has a right of recourse against the debtor or another obligor with respect to an obligation secured by collateral. One must consult the law of suretyship to determine whether an obligation is secondary. The Restatement (3d), Suretyship and Guaranty § 1 (1996), contains a useful explanation of the concept. Obligors in the third class are neither debtors nor secondary obligors. With one exception (Section 9-616, as it relates to a consumer obligor), the rights and duties provided by Part 6 affect non-debtor obligors only if they are "secondary obligors."
By including in the definition of "debtor" all persons with a property interest (other than a security interest in or other lien on collateral), the definition includes transferees of collateral, whether or not the secured party knows of the transfer or the transferee's identity. Exculpatory provisions in Part 6 protect the secured party in that circumstance.
See
Sections 9-605 and 9-628. The definition renders unnecessary pre-1998 Section 9-112, which governed situations in which collateral was not owned by the debtor. The definition also includes a "consignee," as defined in this section, as well as a seller of accounts, chattel paper, payment intangibles, or promissory notes.
Secured parties and other lienholders are excluded from the definition of "debtor" because the interests of those parties normally derive from and encumber a debtor's interest. However, if in a separate secured transaction a secured party grants, as debtor, a security interest in its own interest (
i.e.
, its security interest and any obligation that it secures), the secured party is a debtor in that transaction. This typically occurs when a secured party with a security interest in specific goods assigns chattel paper.
Consider the following examples:
Example 1:
Behnfeldt borrows money and grants a security interest in her Miata to secure the debt. Behnfeldt is a debtor and an obligor.
Example 2:
Behnfeldt borrows money and grants a security interest in her Miata to secure the debt. Bruno cosigns a negotiable note as maker. As before, Behnfeldt is the debtor and an obligor. As an accommodation party (
see
section 3-419), Bruno is a secondary obligor. Bruno has this status even if the note states that her obligation is a primary obligation and that she waives all suretyship defenses.
Example 3:
Behnfeldt borrows money on an unsecured basis. Bruno cosigns the note and grants a security interest in her Honda to secure her obligation. Inasmuch as Behnfeldt does not have a property interest in the Honda, Behnfeldt is not a debtor. Having granted the security interest, Bruno is the debtor. Because Behnfeldt is a principal obligor, she is not a secondary obligor. Whatever the outcome of enforcement of the security interest against the Honda or Bruno's secondary obligation, Bruno will look to Behnfeldt for her losses. The enforcement will not affect Behnfeldt's aggregate obligations.
When the principal obligor (borrower) and the secondary obligor (surety) each has granted a security interest in different collateral, the status of each is determined by the collateral involved.
Example 4:
Behnfeldt borrows money and grants a security interest in her Miata to secure the debt. Bruno cosigns the note and grants a security interest in her Honda to secure her obligation. When the secured party enforces the security interest in Behnfeldt's Miata, Behnfeldt is the debtor, and Bruno is a secondary obligor. When the secured party enforces the security interest in the Honda, Bruno is the "debtor." As in Example 3, Behnfeldt is an obligor, but not a secondary obligor.
If a security interest is granted by a protected series of a limited liability company formed, for example, under the Uniform Protected Series Act (2017), the debtor is the protected series.
See
PEB Commentary No. 23. The 2022 definition of "person" in Section 1-201(b)(27) includes a protected series.
b.
"Secured Party."
The secured party is the person in whose favor the security interest has been created, as determined by reference to the security agreement. This definition controls, among other things, which person has the duties and potential liability that part 6 imposes upon a secured party. The definition of "secured party" also includes a "consignee," a person to which accounts, chattel paper, payment intangibles, or promissory notes have been sold, and the holder of an agricultural lien.
The definition of "secured party" clarifies the status of various types of representatives. Consider, for example, a multi-bank facility under which Bank A, Bank B, and Bank C are lenders and Bank A serves as the collateral agent. If the security interest is granted to the banks, then they are the secured parties. If the security interest is granted to Bank A as collateral agent, then Bank A is the secured party.
b.1.
"Assignee"; "Assignor."
Instead of referring to a "debtor," "secured party," and "security interest," all of which are defined terms, several provisions of Article 9, including Part 4, refer to the "assignment" or the "transfer" of property interests and some refer to an "assignor," "assignee," or "assigned contract." None of those terms are defined in the UCC. Some courts have read the undefined terms in an unduly narrow way. In 2020, the Permanent Editorial Board for the UCC issued a Commentary clarifying the meanings of these terms and amended the official comments accordingly. PEB Commentary No. 21. This Article generally follows common usage by using the terms "assignment" and "assign" to refer to transfers of rights to payment, claims, and liens and other security interests. It generally uses the term "transfer" to refer to other transfers of interests in property. Except when used in connection with a letter-of-credit transaction (see Section 9-107, Comment 4), no significance should be placed on the use of one term or the other. Depending on the substance of the transaction, each term as used in this Article refers to the assignment or transfer of an outright ownership interest or to the assignment or transfer of a limited interest, such as a security interest, or both.
The 2022 Article 9 Revisions added new definitions of "assignee" and "assignor." Paragraph 7A defines "assignee" as a person in whose favor a security interest securing an obligation is created or to which an account, chattel paper, a payment intangible, or a promissory note has been sold. Paragraph 7B defines "assignor" as creating a security interest securing an obligation or that sells an account, chattel paper, a payment intangible, or a promissory note. These definitions incorporate the essence of the 2020 PEB Commentary into the statutory text. The definitions also specify that an "assignor" includes a secured party that transfers a security interest to another person and an "assignee" includes a person to which a security interest has been transferred by a secured party. By their terms, the defined terms "assignee" and "assignor" contemplate assignments in particular contexts. However, several references in this article to "assigned," "assignment" and "assignee" include transfers in broader contexts than those addressed in the defined terms. See, e.g., subsection (a)(2) ("assigned," in definition of "account") and (a)(47) ("assignment," in definition of "instrument") and Sections 9-109, 9-408, 9-409, and 9-519.
Absent a contrary agreement, an assignee obtains the rights and powers of an assignor as against an account debtor on assigned collateral (e.g., under Section 9-406) and as between the assignee and the assignor (debtor) (e.g., under Section 9-607). See also Restatement (Second) of Contracts § 317(1) (1981) (emphasis added):
An assignment of a right is a manifestation of the assignor's intention to transfer it by virtue of which the assignor's right to performance by the obligor is extinguished in whole or in part and the assignee acquires a right to such performance.
Several provisions of this Article and its official comments also refer to the "transfer" of property interests. Although that term and its cognates are not defined, depending on the context it may include an "assignment." Moreover, a transfer of property is not limited to transactions of "purchase" and may include the transfer of a limited interest. See also Section 9-332, Comment 2A.
c.
Other Parties.
A "consumer obligor" is defined as the obligor in a consumer transaction. Definitions of "new debtor" and "original debtor" are used in the special rules found in sections 9-326 and 9-508.
3.
Definitions Relating to Creation of a Security Interest.
a.
"Collateral."
As under pre-1998 Section 9-105, "collateral" is the property subject to a security interest and includes accounts, and chattel paper, payment intangibles, and promissory notes that have been sold. The 1998 Revisions expanded the term to include proceeds subject to a security interest and also broadened the scope of the Article to include as collateral property subject to an agricultural lien as well as payment intangibles and promissory notes that have been sold.
b.
"Security Agreement."
The definition of "security agreement" is substantially the same as under pre-1998 Section 9-105 an agreement that creates or provides for a security interest. However, the term frequently was used colloquially in pre-1998 Article 9 to refer to the document or writing that contained a debtor's security agreement. The 1998 Article 9 eliminated that usage, reserving the term for the more precise meaning specified in the definition.
Whether an agreement creates a security interest depends not on whether the parties intend that the law characterize the transaction as a security interest but rather on whether the transaction falls within the definition of "security interest" in section 1-201. Thus, an agreement that the parties characterize as a "lease" of goods may be a "security agreement," notwithstanding the parties' stated intention that the law treat the transaction as a lease and not as a secured transaction.
4.
Goods-Related Definitions.
a.
"Goods"; "Consumer Goods"; "Equipment"; "Farm Products"; "Farming Operation"; "Inventory."
The definition of "goods" is substantially the same as the definition in pre-1998 Section 9-105. This Article also retains the four mutually-exclusive "types" of collateral that consist of goods: "consumer goods," "equipment," "farm products," and "inventory." The revisions are primarily for clarification.
The classes of goods are mutually exclusive. For example, the same property cannot simultaneously be both equipment and inventory. In borderline cases a physician's car or a farmer's truck that might be either consumer goods or equipment the principal use to which the property is put is determinative. Goods can fall into different classes at different times. For example, a radio may be inventory in the hands of a dealer and consumer goods in the hands of a consumer. As under pre-1998 Article 9, goods are "equipment" if they do not fall into another category.
The definition of "consumer goods" follows pre-1998 Section 9-109. The classification turns on whether the debtor uses or bought the goods for use "primarily for personal, family, or household purposes."
Goods are inventory if they are leased by a lessor or held by a person for sale or lease. The revised definition of "inventory" makes clear that the term includes goods leased by the debtor to others as well as goods held for lease. (The same result should have obtained under the pre-1998 definition.) Goods to be furnished or furnished under a service contract, raw materials, and work in process also are inventory. Implicit in the definition is the criterion that the sales or leases are or will be in the ordinary course of business. For example, machinery used in manufacturing is equipment, not inventory, even though it is the policy of the debtor to sell machinery when it becomes obsolete or worn. Inventory also includes goods that are consumed in a business (e.g., fuel used in operations). In general, goods used in a business are equipment if they are fixed assets or have, as identifiable units, a relatively long period of use, but are inventory, even though not held for sale or lease, if they are used up or consumed in a short period of time in producing a product or providing a service.
Goods are "farm products" if the debtor is engaged in farming operations with respect to the goods. Animals in a herd of livestock are covered whether the debtor acquires them by purchase or as a result of natural increase. Products of crops or livestock remain farm products as long as they have not been subjected to a manufacturing process. The terms "crops" and "livestock" are not defined. The new definition of "farming operations" is for clarification only.
Crops, livestock, and their products cease to be "farm products" when the debtor ceases to be engaged in farming operations with respect to them. If, for example, they come into the possession of a marketing agency for sale or distribution or of a manufacturer or processor as raw materials, they become inventory. Products of crops or livestock, even though they remain in the possession of a person engaged in farming operations, lose their status as farm products if they are subjected to a manufacturing process. What is and what is not a manufacturing process is not specified in this Article. At one end of the spectrum, some processes are so closely connected with farming such as pasteurizing milk or boiling sap to produce maple syrup or sugar that they would not constitute manufacturing. On the other hand an extensive canning operation would be manufacturing. Once farm products have been subjected to a manufacturing process, they normally become inventory.
The revised definition of "farm products" clarifies the distinction between crops and standing timber and makes clear that aquatic goods produced in aquacultural operations may be either crops or livestock. Although aquatic goods that are vegetable in nature often would be crops and those that are animal would be livestock, this article leaves the courts free to classify the goods on a case-by-case basis.
See
section 9-324, comment 11.
The definitions of "goods" and "software" are also mutually exclusive. Computer programs usually constitute "software," and, as such, are not "goods" as this Article uses the terms. However, under the circumstances specified in the definition of "goods," computer programs embedded in goods are part of the "goods" and are not "software."
b.
"Accession"; "Manufactured Home"; "Manufactured-Home Transaction."
Other specialized definitions of goods include "accession" (see the special priority and enforcement rules in section 9-335) and "manufactured home" (
see
section 9-515, permitting a financing statement in a "manufactured-home transaction" to be effective for 30 years). The definition of "manufactured home" borrows from the federal Manufactured Housing Act, 42 U.S.C. section 5401 et seq., and is intended to have the same meaning.
c.
"As-Extracted Collateral."
Under this Article, oil, gas, and other minerals that have not been extracted from the ground are treated as real property, to which this Article does not apply. Upon extraction, minerals become personal property (goods) and eligible to be collateral under this Article. See the definition of "goods," which excludes "oil, gas, and other minerals before extraction." To take account of financing practices reflecting the shift from real to personal property, this Article contains special rules for perfecting security interests in minerals which attach upon extraction and in accounts resulting from the sale of minerals at the wellhead or minehead. See, e.g., Sections 9-301(4) (law governing perfection and priority); 9-501 (place of filing), 9-502 (contents of financing statement), 9-519 (indexing of records). The new term, "as-extracted collateral," added by the 1998 Revisions, refers to the minerals and related accounts to which the special rules apply. The term "at the wellhead" encompasses arrangements based on a sale of the product (goods) at the moment that it issues from the ground and is measured, without technical distinctions as to whether title passes at the "Christmas tree" of a well, the far side of a gathering tank, or at some other point. The term "at . . . the minehead" is comparable.
The following examples explain the operation of these provisions.
Example 5:
Debtor owns an interest in oil that is to be extracted. To secure Debtor's obligations to Lender, Debtor enters into a signed agreement granting Lender an interest in the oil. Although Lender may acquire an interest in the oil under real-property law, Lender does not acquire a security interest under this Article until the oil becomes personal property, i.e., until it is extracted and becomes "goods" to which this Article applies. Because Debtor had an interest in the oil before extraction and Lender's security interest attached to the oil as extracted, the oil is "as-extracted collateral."
Example 6:
Debtor owns an interest in oil that is to be extracted and contracts to sell the oil to Buyer at the wellhead. In a signed agreement, Debtor agrees to sell to Lender the right to payment from Buyer. This right to payment is an account that constitutes "as-extracted collateral." If Lender then resells the account to Financer, Financer acquires a security interest. However, inasmuch as the debtor-seller in that transaction, Lender, had no interest in the oil before extraction, Financer's collateral (the account it owns) is not "as-extracted collateral."
Example 7:
Under the facts of example 6, before extraction, Buyer grants a security interest in the oil to Bank. Although Bank's security interest attaches when the oil is extracted, Bank's security interest is not in "as-extracted collateral," inasmuch as its debtor, Buyer, did not have an interest in the oil before extraction.
5.
Receivables-related Definitions.
a.
"Account"; "Health-Care-Insurance Receivable"; "As-Extracted Collateral."
The definition of "account" has been expanded and reformulated. It is no longer limited to rights to payment relating to goods or services. Many categories of rights to payment that were classified as general intangibles under pre-1998 Article 9 are accounts under this Article. Thus, if they are sold, a financing statement must be filed to perfect the buyer's interest in them. As used in the definition of "account," a right to payment "arising out of the use of a credit or charge card or information contained on or for use with the card" is the right of a card issuer to payment from its cardholder. A credit-card or charge-card transaction may give rise to other rights to payments; however, those other rights do not "arise out of the use" of the card or information contained on or for use with the card. Among the types of property that are expressly excluded from the definition is "a right to payment for money or funds advanced or sold." As used in the exclusion from the definition of "account," "funds" is a broader concept than money (although the term is not defined). For example, when a bank-lender credits a borrower's deposit account for the amount of a loan, the bank's advance of funds is not a transaction giving rise to an account. The 2022 Article 9 Revisions amended the definition of "money" in Section 1-201(b)(24) and added a new, more narrow, definition of "money" in Section 9-102(a)(54A). See Comment 12A.
The definition of "health-care-insurance receivable" is new. It is a subset of the definition of "account." However, the rules generally applicable to account debtors on accounts do not apply to insurers obligated on health-care-insurance receivables.
See
Sections 9-404(e), 9-405(d), 9-406(i) [55-9-404, 55-9-405, 55-9-406 NMSA 1978, respectively].
Note that certain accounts also are "as-extracted collateral."
See
Comment 4.c., Examples 6 and 7.
The 2022 Article 9 Revisions amended the definition of "account" to reflect the 2022 revised definition of "chattel paper," discussed in Comment 5.b. The revised definition of "account" also includes some additional exceptions that accommodate the use of the term "account" in other provisions. These new exceptions were implicit in the former definition. Moreover, the exceptions for the defined terms "commodity account" and "deposit account" implicitly apply to all uses of those terms in this Article.
b.
"Chattel Paper."
"Chattel paper" consists of a monetary obligation that is either secured by specific goods or arises in connection with a lease of specific goods, in each case if the obligation and security interest or lease is evidenced by a record. The monetary obligation itself need not be related to the goods. For example, a loan secured by specific goods and evidenced by one or more records creates chattel paper regardless of the purpose of the loan.
Rights to payment arising out of charters of vessels or the use of credit or charge cards are expressly excluded from the definition of chattel paper; they are accounts. The term "charter" as used in this section includes bareboat charters, time charters, successive voyage charters, contracts of affreightment, contracts of carriage, and all other arrangements for the use of vessels.
What distinguishes chattel paper from other rights to payment is the fact that creditor has an interest in specific goods to enforce the right to payment. For example, the fact that a secured party also has an interest in other property does not prevent the right to payment from being chattel paper, provided that the specific goods are the primary collateral.
Example 8.
To secure a loan, Borrower grants Lender a security interest in a specified item of equipment and a deposit account. The loan and the security interest are evidenced by one or more records. The right to payment is chattel paper, assuming the equipment is the primary collateral.
In Example 8, the inclusion of some incidental collateral, such as a deposit account, does not prevent characterization of the right to payment as chattel paper. Another typical example would be the inclusion of after-acquired replacement parts to be installed on the specific goods. On the other hand, to be chattel paper, a right to payment must be accompanied by a security interest in specific goods or a lease of specific goods. A right to payment secured by a security interest in rotating collateral is not chattel paper.
Example 9.
To secure a loan, Borrower grants Lender a security interest in all of Borrower's existing and after-acquired inventory. The loan and the security interest are evidenced by one or more records. The right to payment is not chattel paper.
Example 10.
To secure a loan, Borrower grants Lender a security interest in a specifically described item of equipment, which is not the primary collateral, and also in all of Borrower's existing and after-acquired equipment. The loan and the security interest are evidenced by one or more records. The right to payment is not chattel paper.
Example 9 is the easy case because no "specific goods" are identified. As to Example 10, it is true that the monetary obligation is secured by "specific goods" and the definition of chattel paper does not specify that the obligation must be secured only by specific goods. However, if the right to payment in Example 10 were to be characterized as chattel paper, it would be possible to convert virtually any monetary obligation evidenced by records and secured by any collateral into chattel paper merely by including as collateral a specific item of goods (whether inventory, equipment, consumer goods, or farm products). The special rules for chattel paper contemplate that specific goods are the primary collateral, even if some incidental property also might be included. If additional goods or other property are included and the specific goods are not the primary collateral, then classification as chattel paper would not be appropriate. Of course, there may be close cases. In those situations, parties should take appropriate precautions.
A right to payment arising from a lease of specific goods gives rise to chattel paper only if the predominant purpose of the transaction is to provide the lessee the right to possession and use of the goods. Therefore, under paragraph (11)(B)(ii), when a lease of specific goods is combined with an obligation to provide or right to receive other property or services, the resulting right to payment will be chattel paper only if the goods aspect of the transaction predominates.
Example 11.
Customer and Car Dealer enter into a transaction, evidenced by one or more records, pursuant to which, in exchange for a payment of $2,000 per month: (i) Customer is entitled to possession of a specific vehicle for 36 months; (ii) Car Dealer will provide round-the-clock monitoring of the vehicle's location and condition, and alert authorities to provide road-side assistance in the event of a malfunction or accident; and (iii) Car Dealer will, from time to time, remotely update the vehicle's operating system. The value of the right to possess and use the vehicle is significantly greater than the value of the monitoring service and updates. Because the goods aspect of the transaction predominates, under paragraph (11)(B)(ii) Customer's monetary obligation, including the portion attributable to Car Dealer's obligation to provide monitoring and updates, constitutes chattel paper.
Example 12.
Customer and Cableco enter into a transaction, evidenced by one or more records, pursuant to which, in exchange for a payment of $200 per month, Cableco will provide Customer with specified television programming and a device needed to access the programming (a "lease" of the device). If the components of the transaction were priced separately, the price for the programming would be substantially more than the price for possession and use of the device. Because the goods aspect of this transaction does not predominate, under paragraph (11)(B)(ii) Customer's monetary obligation does not constitute chattel paper.
The 2022 revision to the definition of chattel paper omits the references to "software used in the goods" and a "license of software used in the goods" as superfluous, inasmuch as there is no reason to single out software. Other types of property may secure an obligation or be included in a transaction involving a lease, as discussed above. See also Sections 2-102 (scope of Article 2); 2-106(5) (defining "hybrid transaction"); 2A-102 (scope of Article 2A); 2A-103(aa) (definition of "hybrid lease"). These references were omitted from the definition of chattel paper for clarification and did not result in any change in the scope of the definition.
The 2022 revision to the definition of "chattel paper" also changed the language from "a record or records that evidence a monetary obligation" to "a right to payment of a monetary obligation . . . evidenced by a record." This semantic change was for clarification purposes only; it does not imply a change in meaning. Chattel paper is and has always been a right to payment of a monetary obligation. Because the revised definition is based on the obligation, rather than the record, the definition no longer includes the following statement, which was included in the previous definition: "If a transaction is evidenced by records that include an instrument or series of instruments, the group of records taken together constitutes chattel paper." The omission of that statement also does not imply a change in meaning, except that writings evidencing chattel paper are excluded from the definition of "instrument" under Section 9-102(a)(47). Although the definition refers to "a record," chattel paper can be evidenced by one or more records because, under Section 1-106, unless the statutory context otherwise requires, words in the singular number include the plural.
Finally, the revised definition of "chattel paper" and the approach to perfection of a security interest by possession and control under Section 9-314A have eliminated the need to have separate definitions of "electronic chattel paper" and "tangible chattel paper" in Section 9-102. Consequently, those definitions have been deleted.
c.
"Instrument"; "Promissory Note."
The definition of "instrument" includes a negotiable instrument. As under pre-1998 Section 9-105, it also includes any other right to payment of a monetary obligation that is evidenced by a writing of a type that in ordinary course of business is transferred by delivery (and, if necessary, an indorsement or assignment). The 2022 revised definition of "instrument" explicitly excludes a writing that evidences a right to payment that is chattel paper. This revision clarifies and makes explicit the understanding before the revision that an obligation on an instrument that evidences chattel paper is to be treated (e.g., under Section 9-330) as an obligation on chattel paper and not on an instrument. With that exception, the fact that an instrument is secured by a security interest or encumbrance on property does not change the character of the instrument as such or convert the combination of the instrument and collateral into a separate classification of personal property. The definition also makes clear that rights to payment arising out of credit-card transactions are not instruments. The definition of "promissory note," added in the 1998 Revisions, was necessitated by the inclusion of sales of promissory notes within the scope of Article 9. It explicitly excludes obligations arising out of "orders" to pay (e.g., checks) as opposed to "promises" to pay. See Section 3-104. Under the 2022 Article 9 Revisions, Sections 9-406(d) and 9-408(g) adopt a modified meaning of "promissory note" as that term is used in Sections 9-406(d) and Sections 9-408(a) through (d). See Comment 5.h.; see also Sections 9-406, Comment 5; 9-408, Comment 11.
d.
"General Intangible"; "Payment Intangible."
"General intangible" is the residual category of personal property, including things in action, that is not included in the other defined types of collateral. Examples are various categories of intellectual property and the right to payment of a loan of funds that is not evidenced by chattel paper or an instrument. As used in the definition of "general intangible," "things in action" includes rights that arise under a license of intellectual property, including the right to exploit the intellectual property without liability for infringement. The definition was revised in 1998 to exclude commercial tort claims, deposit accounts, and letter-of-credit rights. Each of the three is a separate type of collateral. One important consequence of this exclusion is that tortfeasors (commercial tort claims), banks (deposit accounts), and persons obligated on letters of credit (letter-of-credit rights) are not "account debtors" having the rights and obligations set forth in Sections 9-404, 9-405, and 9-406. In particular, tortfeasors, banks, and persons obligated on letters of credit are not obligated to pay an assignee (secured party) upon receipt of the notification described in Section 9-404(a). See Comment 5.h. Another important consequence relates to the adequacy of the description in the security agreement. See Section 9-108.
"Payment intangible" is a subset of the definition of "general intangible" The sale of a payment intangible is subject to this Article. See Section 9-109(a)(3). Virtually any intangible right could give rise to a right to payment of money once one hypothesizes, for example, that the account debtor is in breach of its obligation. The term "payment intangible," however, embraces only those general intangibles "under which the account debtor's principal obligation is a monetary obligation." (Emphasis added.) A debtor's right to payment from another person of amounts received by the other person on the debtor's behalf, including the right of a merchant in a credit-card, debit-card, prepaid-card, or other payment-card transaction to payment of amounts received by its bank from the card system in settlement of the transaction, is a "payment intangible." (In contrast, the right of a credit-card issuer to payment arising out of the use of a credit card is an "account.") If a bank is the obligor on a monetary obligation not evidenced by an instrument or chattel paper, the obligation or the right to payment of the obligation may be a deposit account, an account, a payment intangible, or another type of collateral depending on the facts and circumstances. Of course, the classification of a monetary obligation or a right to payment of the obligation for purposes of this Article would not necessarily affect the application of laws regulating, for example, banking, securities, commodities, money transmission, and taxation.
In classifying intangible collateral, a court should begin by identifying the particular rights that have been assigned. The account debtor (promisor) under a particular contract may owe several types of monetary obligations as well as other, nonmonetary obligations. If the promisee's right to payment of money is assigned separately, the right is an account or payment intangible, depending on how the account debtor's obligation arose. When all the promisee's rights are assigned together, an account, a payment intangible, and a general intangible all may be involved, depending on the nature of the rights.
A right to the payment of money is frequently buttressed by ancillary rights, such as rights arising from covenants in a purchase agreement, note, or mortgage requiring insurance on the collateral or forbidding removal of the collateral, rights arising from covenants to preserve the creditworthiness of the promisor, and the lessor's rights with respect to leased goods that arise upon the lessee's default (
see
Section 2A-523 [55-2A-523 NMSA 1978]). This Article does not treat these ancillary rights separately from the rights to payment to which they relate. For example, attachment and perfection of an assignment of a right to payment of a monetary obligation, whether it be an account or payment intangible, also carries these ancillary rights. Thus, an assignment of the lessor's right to payment under a lease also transfers the lessor's rights with respect to the leased goods under Section 2A-523. If, taken together, the lessor's rights to payment and with respect to the leased goods are evidenced by chattel paper, then, contrary to
In re Commercial Money Center, Inc.
, 350 B.R. 465 (Bankr. App. 9th Cir. 2006), an assignment of the lessor's right to payment constitutes an assignment of the chattel paper. Although an agreement excluding the lessor's rights with respect to the leased goods from an assignment of the lessor's right to payment may be effective between the parties, the agreement does not affect the characterization of the collateral to the prejudice of creditors of, and purchasers from, the assignor.
Every "payment intangible" is also a "general intangible." Likewise, "software" is a "general intangible" for purposes of this Article.
See
Comment 25. Accordingly, except as otherwise provided, statutory provisions applicable to general intangibles apply to payment intangibles and software.
d.1.
"Controllable Account"; "Controllable Payment Intangible."
Article 9 affords special treatment for security interests in controllable accounts and controllable payment intangibles, i.e., those accounts and payment intangibles that are evidenced by a controllable electronic record and as to which the account debtor (obligor) undertakes to pay the person having control of the controllable electronic record. Of course, a person would be an account debtor only if it were actually obligated on the account or payment intangible evidenced by the controllable electronic record. Although the definitions refer to a controllable electronic record that "provides" for an account debtor's undertaking, an account debtor's promise to pay normally would arise and be evidenced apart from the controllable electronic record itself. However, the definitions contemplate that a controllable electronic record evidencing an account or payment intangible (or an associated record) would indicate in some fashion an account debtor's obligation and that the controllable electronic record evidences the account or payment intangible. If a bank is the obligor on a monetary obligation payable to the person in control of a controllable electronic record, the obligation or the right to payment of the obligation may be a deposit account, a controllable account, a controllable payment intangible, or another type of collateral depending on the facts and circumstances. The classification of a monetary obligation or a right to payment of the obligation for purposes of this Article would not necessarily affect the application of laws regulating, for example, banking, securities, commodities, money transmission, and taxation.
An undertaking to pay the "person that has control" means an undertaking to pay the person that has control at the time payment is made. However, an undertaking to pay Smith, even though Smith happens to have control of the relevant controllable electronic record at the time the undertaking was made, is not an undertaking to pay the person that has control.
The special treatment for controllable accounts and controllable payment intangibles includes the following:
Perfection of a security interest in a controllable account or controllable payment intangible can be achieved by filing a financing statement or by obtaining control of the controllable electronic record that evidences the controllable account or controllable payment intangible. Sections 9-312(a); 9-314(a); 9-107A(b).
A security interest in a controllable electronic record, controllable account, or controllable payment intangible that is perfected by control has priority over a conflicting security interest that is perfected by another method. Section 9-326A.
The benefit of the take-free and no-action rules for qualifying purchasers (including secured parties) of controllable electronic records also extends to qualifying purchasers of controllable accounts and controllable payment intangibles, whether or not the qualifying purchaser also purchases the related controllable electronic record. See Section 12-104(a) and Comments 5 through 8.
e.
"Letter-of-Credit Right."
The term "letter-of-credit right" embraces the rights to payment and performance under a letter of credit (defined in section 5-102). However, it does not include a beneficiary's right to demand payment or performance. Transfer of those rights to a transferee beneficiary is governed by article 5.
See
sections 9-107, comment 4, and 9-329, comments 3 and 4.
f.
"Supporting Obligation."
This new term covers the most common types of credit enhancements - suretyship obligations (including guarantees) and letter-of-credit rights that support one of the types of collateral specified in the definition. As explained in comment 2(a), suretyship law determines whether an obligation is "secondary" for purposes of this definition. Section 9-109 generally excludes from this article transfers of interests in insurance policies. However, the regulation of a secondary obligation as an insurance product does not necessarily mean that it is a "policy of insurance" for purposes of the exclusion in section 9-109. Thus, this article may cover a secondary obligation (as a supporting obligation), even if the obligation is issued by a regulated insurance company and the obligation is subject to regulation as an "insurance" product.
This article contains rules explicitly governing attachment, perfection, and priority of security interests in supporting obligations.
See
sections 9-203, 9-308, 9-310, and 9-322. These provisions reflect the principle that a supporting obligation is an incident of the collateral it supports.
Collections of or other distributions under a supporting obligation are "proceeds" of the supported collateral as well as "proceeds" of the supporting obligation itself. See section 9-102 (defining "proceeds") and comment 13(b). As such, the collections and distributions are subject to the priority rules applicable to proceeds generally. See ection 9-322. However, under the special rule governing security interests in a letter-of-credit right, a secured party's failure to obtain control (section 9-107) of a letter-of-credit right supporting collateral may leave its security interest exposed to a priming interest of a party who does take control.
See
Section 9-329 (security interest in a letter-of-credit right perfected by control has priority over a conflicting security interest).
g.
"Commercial Tort Claim."
A tort claim may serve as original collateral under this Article only if it is a "commercial tort claim." See Section 9-109(d). Although security interests in commercial tort claims are within its scope, this Article does not override other applicable law restricting the assignability of a tort claim. See Section 9-401. A security interest in a tort claim also may exist under this Article if the claim is proceeds of other collateral. See Section 9-204(b.1) and Comment 4A.
h.
"Account Debtor."
An "account debtor" is a person obligated on an account, chattel paper, or general intangible. The account debtor's obligation often is a monetary obligation; however, this is not always the case. For example, if a franchisee uses its rights under a franchise agreement (a general intangible) as collateral, then the franchisor is an "account debtor." As a general matter, Article 3, and not Article 9, governs obligations on negotiable instruments. Accordingly, the definition of "account debtor" excludes obligors on negotiable instruments constituting part of chattel paper. The principal effect of this change from the definition in pre-1998 Article 9 is that the rules in Sections 9-403, 9-404, 9-405, and 9-406, dealing with the rights of an assignee and duties of an account debtor, do not apply to an assignment of chattel paper in which the obligation to pay is evidenced by a negotiable instrument. (Section 9-406(d), however, does apply to a negotiable instrument that is a "promissory note," as that term is used in the 2022 revision of subsection (d). See Comment 5.c.) Rather, the rights of an assignee of a negotiable instrument are governed by Article 3. Similarly, the duties of an obligor on a nonnegotiable instrument are governed by non-Article 9 law unless the nonnegotiable instrument is a part of chattel paper, in which case the obligor is an account debtor.
The definition of "account debtor" was revised in 2022 to add the modifier "negotiable" to the second reference to "instrument," making it clear that an obligor on a negotiable instrument is not an account debtor. This amendment (which is intended to clarify and not to change the meaning of the definition) is useful because the definition of "instrument" has been revised to exclude writings that evidence chattel paper. However, the definition of "negotiable instrument" in Section 1-201 continues to apply under Article 9. See Section 9-102(a)(47) and (b); Comment 5.c. Of course, a record or records evidencing chattel paper must evidence either a security agreement or lease agreement in addition to a right to payment of a monetary obligation.
i.
Receivables Under Government Entitlement Programs.
This article does not contain a defined term that encompasses specifically rights to payment or performance under the many and varied government entitlement programs. Depending on the nature of a right under a program, it could be an account, a payment intangible, a general intangible other than a payment intangible, or another type of collateral. The right also might be proceeds of collateral (
e.g.
, crops).
6.
Investment-Property-Related Definitions: "Commodity Account"; "Commodity Contract"; "Commodity Customer"; "Commodity Intermediary"; "Investment Property."
These definitions are substantially the same as the corresponding definitions in pre-1998 Section 9-115. "Investment property" includes securities, both certificated and uncertificated, securities accounts, security entitlements, commodity accounts, and commodity contracts. The term investment property includes a "securities account" in order to facilitate transactions in which a debtor wishes to create a security interest in all of the investment positions held through a particular account rather than in particular positions carried in the account. Pre-1998 Section 9-115 was added in conjunction with Revised Article 8 and contained a variety of rules applicable to security interests in investment property. The 1998 Revisions relocated these rules to the appropriate sections of Article 9. See, e.g., Sections 9-203 (attachment), 9-314 (perfection by control), 9-328 (priority).
The terms "security," "security entitlement," and related terms are defined in Section 8-102, and the term "securities account" is defined in Section 8-501. The terms "commodity account," "commodity contract," "commodity customer," and "commodity intermediary" are defined in this section. Commodity contracts are not "securities" or "financial assets" under Article 8. See Section 8-103(f). Thus, the relationship between commodity intermediaries and commodity customers is not governed by the indirect-holding-system rules of Part 5 of Article 8. For securities, Article 9 contains rules on security interests, and Article 8 contains rules on the rights of transferees, including secured parties, on such matters as the rights of a transferee if the transfer was itself wrongful and gives rise to an adverse claim. For commodity contracts, Article 9 establishes rules on security interests, but questions relating to commodity contracts of the sort dealt with in Article 8 for securities are left to other law.
The indirect-holding-system rules of article 8 are sufficiently flexible to be applied to new developments in the securities and financial markets, where that is appropriate. Accordingly, the definition of "commodity contract" is narrowly drafted to ensure that it does not operate as an obstacle to the application of the article 8 indirect holding system rules to new products. The term "commodity contract" covers those contracts that are traded on or subject to the rules of a designated contract market and foreign commodity contracts that are carried on the books of American commodity intermediaries. The effect of this definition is that the category of commodity contracts that is excluded from article 8 but governed by article 9 is essentially the same as the category of contracts that falls within the exclusive regulatory jurisdiction of the federal Commodity Futures Trading Commission.
Commodity contracts are different from securities or other financial assets. A person who enters into a commodity futures contract is not buying an asset having a certain value and holding it in anticipation of increase in value. Rather the person is entering into a contract to buy or sell a commodity at set price for delivery at a future time. That contract may become advantageous or disadvantageous as the price of the commodity fluctuates during the term of the contract. The rules of the commodity exchanges require that the contracts be marked to market on a daily basis; that is, the customer pays or receives any increment attributable to that day's price change. Because commodity customers may incur obligations on their contracts, they are required to provide collateral at the outset, known as "original margin," and may be required to provide additional amounts, known as "variation margin," during the term of the contract.
The most likely setting in which a person would want to take a security interest in a commodity contract is where a lender who is advancing funds to finance an inventory of a physical commodity requires the borrower to enter into a commodity contract as a hedge against the risk of decline in the value of the commodity. The lender will want to take a security interest in both the commodity itself and the hedging commodity contract. Typically, such arrangements are structured as security interests in the entire commodity account in which the borrower carries the hedging contracts, rather than in individual contracts.
One important effect of including commodity contracts and commodity accounts in article 9 is to provide a clearer legal structure for the analysis of the rights of commodity clearing organizations against their participants and futures commission merchants against their customers. The rules and agreements of commodity clearing organizations generally provide that the clearing organization has the right to liquidate any participant's positions in order to satisfy obligations of the participant to the clearing corporation. Similarly, agreements between futures commission merchants and their customers generally provide that the futures commission merchant has the right to liquidate a customer's positions in order to satisfy obligations of the customer to the futures commission merchant.
The main property that a commodity intermediary holds as collateral for the obligations that the commodity customer may incur under its commodity contracts is not other commodity contracts carried by the customer but the other property that the customer has posted as margin. Typically, this property will be securities. The commodity intermediary's security interest in such securities is governed by the rules of this article on security interests in securities, not the rules on security interests in commodity contracts or commodity accounts.
Although there are significant analytic and regulatory differences between commodities and securities, the development of commodity contracts on financial products in the past few decades has resulted in a system in which the commodity markets and securities markets are closely linked. The rules on security interests in commodity contracts and commodity accounts provide a structure that may be essential in times of stress in the financial markets. Suppose, for example that a firm has a position in a securities market that is hedged by a position in a commodity market, so that payments that the firm is obligated to make with respect to the securities position will be covered by the receipt of funds from the commodity position. Depending upon the settlement cycles of the different markets, it is possible that the firm could find itself in a position where it is obligated to make the payment with respect to the securities position before it receives the matching funds from the commodity position. If cross-margining arrangements have not been developed between the two markets, the firm may need to borrow funds temporarily to make the earlier payment. The rules on security interests in investment property would facilitate the use of positions in one market as collateral for loans needed to cover obligations in the other market.
7.
Consumer-Related Definitions: "Consumer Debtor"; "Consumer Goods"; "Consumer-goods transaction"; "Consumer Obligor"; "Consumer Transaction."
The definition of "consumer goods" (discussed above) is substantially the same as the definition in pre-1998 Section 9-109. The 1998 Revisions added the definitions of "consumer debtor," "consumer obligor," "consumer-goods transaction," and "consumer transaction" in connection with various 1998 and pre-1998 consumer-related provisions and to designate certain provisions that are inapplicable in consumer transactions.
"Consumer-goods transaction" is a subset of "consumer transaction." Under each definition, both the obligation secured and the collateral must have a personal, family, or household purpose. However, "mixed" business and personal transactions also may be characterized as a consumer-goods transaction or consumer transaction. Subparagraph (A) of the definition of consumer-goods transactions and clause (i) of the definition of consumer transaction are primary purposes tests. Under these tests, it is necessary to determine the primary purpose of the obligation or obligations secured. Subparagraph (B) and clause (iii) of these definitions are satisfied if any of the collateral is consumer goods, in the case of a consumer-goods transaction, or "is held or acquired primarily for personal, family, or household purposes," in the case of a consumer transaction. The fact that some of the obligations secured or some of the collateral for the obligation does not satisfy the tests (
e.g.
, some of the collateral is acquired for a business purpose) does not prevent a transaction from being a "consumer transaction" or "consumer-goods transaction."
8.
Filing-Related Definitions: "Continuation Statement"; "File Number"; "Filing Office"; "Filing-office Rule"; "Financing Statement"; "Fixture Filing"; "Manufactured-Home Transaction"; "New Debtor"; "Original Debtor"; "Public-Finance Transaction"; "Termination Statement"; "Transmitting Utility."
* * *
The definition of "transmitting utility" embraces the business of transmitting communications generally to take account of new and future types of communications technology. The term designates a special class of debtors for whom separate filing rules are provided in Part 5, thereby obviating the many local fixture filings that would be necessary under the rules of Section 9-501 for a far-flung public-utility debtor. A transmitting utility will not necessarily be regulated by or operating as such in a jurisdiction where fixtures are located. For example, a utility might own transmission lines in a jurisdiction, although the utility generates no power and has no customers in the jurisdiction. Of course, the definition applies only for purposes of this Article and not for purposes of any other law, regulation, or rule.
9.
Definitions Relating to Medium Neutrality.
a.
"Record."
In general the term "record" replaces the term "writing" and "written." A "record" includes information that is in intangible form (e.g., electronically stored) as well as tangible form (e.g., written on paper). Section 9-102(a)(70).
Given the rapid development and commercial adoption of modern communication and storage technologies, requirements that documents or communications be "written," "in writing," or otherwise in tangible form do not necessarily reflect or aid commercial practices.
A "record" need not be permanent or indestructible, but the term does not include any oral or other communication that is not stored or preserved by any means. The information must be stored on paper or in some other medium. Information that has not been retained other than through human memory does not qualify as a record. Examples of modern technologies commercially used to communicate or store information include, but are not limited to, magnetic media, optical discs, digital voice messaging systems, electronic mail, audio tapes, and photographic media, as well as paper. "Record" is an inclusive term that includes all of these methods of storing or communicating information. Any "writing" is a record. A record may be signed. See Comment 9.b. A record may be created without the knowledge or intent of a particular person.
Like the terms "written" or "in writing," the term "record" does not establish the purposes, permitted uses, or legal effect that a record may have under any particular provision of law. Whatever is filed in the article 9 filing system, including financing statements, continuation statements, and termination statements, whether transmitted in tangible or intangible form, would fall within the definition. However, in some instances, statutes or filing-office rules may require that a paper record be filed. In such cases, even if this article permits the filing of an electronic record, compliance with those statutes or rules is necessary. Similarly, a filer must comply with a statute or rule that requires a particular type of encoding or formatting for an electronic record.
This article sometimes uses the terms "for record," "of record," "record or legal title," and "record owner." Some of these are terms traditionally used in real property law. The definition of "record" in this article now explicitly excepts these usages from the defined term. Also, this article refers to a record that is filed or recorded in real property recording systems to record a mortgage as a "record of a mortgage." This usage recognizes that the defined term "mortgage" means an interest in real property; it does not mean the record that evidences, or is filed or recorded with respect to, the mortgage.
b.
"Sign"; "Communicate"; "Send."
The defined term "authenticate" has been deleted in the 2022 Article 9 Revisions. That term and "authenticated" were generally used in Article 9 instead of "sign" and "signed." However, the 2022 revised definition of "sign" in Section 1-201 encompasses authentication of all records, not just writings. Accordingly, "sign" and "signed" are now used in Article 9. (References to signing of, e.g., an agreement, demand, or notification mean, of course, signing of a record containing an agreement, demand, or notification.) The terms "communicate" and "send" also contemplate the possibility of communication by nonwritten media. These definitions include the act of transmitting both tangible and intangible records. The 2022 Amendments deleted the definition of "send" in this section and added a corresponding definition to Section 1-201, replacing the pre-2022 definition in that section.
10.
Scope-Related Definitions.
a.
Expanded Scope of Article: "Agricultural Lien"; "Consignment"; "Payment Intangible"; "Promissory Note."
These definitions reflect the expanded scope of 1998 Article 9, as provided in Section 9-109(a).
b.
Reduced Scope of Exclusions: "Governmental Unit"; "Health-Care-Insurance Receivable"; "Commercial Tort Claims."
These definitions reflect the reduced scope of the 1998 exclusions, provided in Section 9-109(c) and (d), of transfers by governmental debtors and assignments of interests in insurance policies and commercial tort claims.
11.
Choice-of-Law-Related Definitions: "Certificate of Title"; "Governmental Unit"; "Jurisdiction of Organization"; "Public Organic Record;" "Registered Organization"; "State."
These definitions reflect the changes in the law governing perfection and priority of security interests and agricultural liens provided in Part 3, Subpart 1 of the 1998 Revisions.
Statutes often require applicants for a certificate of title to identify all security interests on the application and require the issuing agency to indicate the identified security interests on the certificate. Some of these statutes provide that priority over the rights of a lien creditor (
i.e.
, perfection of a security interest) in goods covered by the certificate occurs upon indication of the security interest on the certificate; that is, they provide for the indication of the security interest on the certificate as a "condition" of perfection. Other statutes contemplate that perfection is achieved upon the occurrence of another act,
e.g.
, delivery of the application to the issuing agency, that "results" in the indication of the security interest on the certificate. A certificate governed by either type of statute can qualify as a "certificate of title" under this Article. The statute providing for the indication of a security interest need not expressly state the connection between the indication and perfection. For example, a certificate issued pursuant to a statute that requires applicants to identify security interests, requires the issuing agency to indicate the identified security interests on the certificate, but is silent concerning the legal consequences of the indication would be a "certificate of title" if, under a judicial interpretation of the statute, perfection of a security interest is a legal consequence of the indication. Likewise, a certificate would be a "certificate of title" if another statute provides, expressly or as interpreted, the requisite connection between the indication and perfection.
The first sentence of the definition of "certificate of title" includes certificates consisting of tangible records, of electronic records, and of combinations of tangible and electronic records.
In many States, a certificate of title covering goods that are encumbered by a security interest is delivered to the secured party by the issuing authority. To eliminate the need for the issuance of a paper certificate under these circumstances, several States have revised their certificate-of-title statutes to permit or require a State agency to maintain an electronic record that evidences ownership of the goods and in which a security interest in the goods may be noted. The second sentence of the definition provides that such a record is a "certificate of title" if it is in fact maintained as an alternative to the issuance of a paper certificate of title, regardless of whether the certificate-of-title statute provides that the record is a certificate of title and even if the statute does not expressly state that the record is maintained instead of issuing a paper certificate.
Not every organization that may provide information about itself in the public records is a "registered organization." For example, a general partnership is not a "registered organization," even if it files a statement of partnership authority under Section 303 of the Uniform Partnership Act (1994) or an assumed name ("dba") certificate. This is because such a partnership is not formed or organized by the filing of a record with, or the issuance of a record by, a State or the United States. In contrast, corporations, limited liability companies, and limited partnerships ordinarily are "registered organizations."
Not every record concerning a registered organization that is filed with, or issued by, a State or the United States is a "public organic record." For example, a certificate of good standing issued with respect to a corporation or a published index of domestic corporations would not be a "public organic record" because its issuance or publication does not form or organize the corporations named.
When collateral is held in a trust, one must look to non-UCC law to determine whether the trust is a "registered organization." Non-UCC law typically distinguishes between statutory trusts and common-law trusts. A statutory trust is formed by the filing of a record, commonly referred to as a certificate of trust, in a public office pursuant to a statute.
See, e.g.
, Uniform Statutory Trust Entity Act § 201 (2009); Delaware Statutory Trust Act, Del. Code Ann. tit. 12, § 3801 et seq. A statutory trust is a juridical entity, separate from its trustee and beneficial owners, that may sue and be sued, own property, and transact business in its own name. Inasmuch as a statutory trust is a "legal or commercial entity," it qualifies as a "person other than an individual," and therefore as an "organization," under Section 1-201 [55-1-201 NMSA 1978]. A statutory trust that is formed by the filing of a record in a public office is a "registered organization," and the filed record is a "public organic record" of the statutory trust, if the filed record is available to the public for inspection. (The requirement that a record be "available to the public for inspection" is satisfied if a copy of the relevant record is available for public inspection.)
Unlike a statutory trust, a common-law trust—whether its purpose is donative or commercial—arises from private action without the filing of a record in a public office.
See
Uniform Trust Code § 401 (2000); Restatement (Third) of Trusts § 10 (2003). Moreover, under traditional law, a common-law trust is not itself a juridical entity and therefore must sue and be sued, own property, and transact business in the name of the trustee acting in the capacity of trustee. A common-law trust that is a "business trust," i.e., that has a business or commercial purpose, is an "organization" under Section 1-201 [55-1-201 NMSA 1978]. However, such a trust would not be a "registered organization" if, as is typically the case, the filing of a public record is not needed to form it.
In some states, however, the trustee of a common-law trust that has a commercial or business purpose is required by statute to file a record in a public office following the trust's formation.
See, e.g.
, Mass. Gen. Laws Ch. 182, § 2; Fla. Stat. Ann. § 609.02. A business trust that is required to file its organic record in a public office is a "registered organization" under the second sentence of the definition if the filed record is available to the public for inspection. Any organic record required to be filed, and filed, with respect to a common-law business trust after the trust is formed is a "public organic record" of the trust. Some statutes require a trust or other organization to file, after formation or organization, a record other than an organic record.
See, e.g.
, N.Y. Gen Assn's Law § 18 (requiring associations doing business within New York to file a certificate designating the secretary of state as an agent upon whom process may be served). This requirement does not render the organization a "registered organization" under the second sentence of the definition, and the record is not a "public organic record."
12.
Deposit-Account-Related Definitions: "Deposit Account"; "Bank."
The 1998 revised definition of "deposit account" incorporates the definition of "bank," which is new. The new definition derives from the definitions of "bank" in Sections 4-105(1) and 4A-105(a)(2), which focus on whether the organization is "engaged in the business of banking."
Deposit accounts evidenced by Article 9 "instruments" are excluded from the term "deposit account." In contrast, pre-1998 Section 9-105 excluded from the definition "an account evidenced by a certificate of deposit." The revised definition clarifies the proper treatment of nonnegotiable or uncertificated certificates of deposit. Under the definition, an uncertificated certificate of deposit would be a deposit account (assuming there is no writing evidencing the bank's obligation to pay) whereas a nonnegotiable certificate of deposit would be a deposit account only if it is not an "instrument" as defined in this section (a question that turns on whether the nonnegotiable certificate of deposit is "of a type that in ordinary course of business is transferred by delivery with any necessary indorsement or assignment.")
A deposit account evidenced by an instrument is subject to the rules applicable to instruments generally. As a consequence, a security interest in such an instrument cannot be perfected by "control" (see Section 9-104), and the special priority rules applicable to deposit accounts (see Sections 9-327 and 9-340) do not apply. If a bank is the obligor on a monetary obligation not evidenced by an instrument or chattel paper, the obligation or the right to payment of the obligation may be a deposit account, an account, a payment intangible, or another type of collateral depending on the facts and circumstances. Of course, the classification of a monetary obligation or a right to payment of the obligation for purposes of this Article would not necessarily affect the application of laws regulating, for example, banking, securities, commodities, money transmission, and taxation.
The term "deposit account" does not include "investment property," such as securities and security entitlements. Thus, the term also does not include shares in a money-market mutual fund, even if the shares are redeemable by check.
12A.
Money-Related Definitions and Terms: "Money"; "Electronic Money"; "Tangible Money"; "Funds"; "Monetary Obligation."
The Article 9 definition of "money" in subsection (a)(54A), added by the 2022 Article 9 Revisions, is a subset of the definition of "money" as defined in Section 1-201(b)(24). It follows that cryptocurrencies, such as bitcoin, that are not "money" as defined in Section 1-201 because they were in existence and used before adoption by a government, also are not Article 9 money. An obligation to pay in such cryptocurrencies would not be an account, chattel paper, or a payment intangible or an obligation on an instrument because the obligation would not be a "monetary obligation" or an obligation to pay money. One purpose of the Article 9 definition is to ensure that even if some deposit accounts were to become "money" as defined in Article 1, the provisions relating to perfection and priority for security interests in deposit accounts, and not those for money, will apply to that collateral. Some countries may authorize or adopt deposit accounts with a central bank as a form of "money." See Section 9-101, Comment 4.c. However, the Article 9 provisions governing "deposit accounts" would remain suitable for such accounts with a central bank, even if a government has adopted these accounts as money. The 2022 Article 9 Revisions leave Article 9's treatment of deposit accounts largely unchanged. However, for purposes of Article 9 and in the interest of clarity, the definition of "money" in Section 9-102(a)(31A) excludes deposit accounts. Under this definition, deposit accounts would not be money for Article 9 purposes even if they were to become money under the Article 1 definition. Another purpose of the Article 9 definition of "money" is to exclude from that definition money (as defined in Section 1-201(b)(24)) in an electronic form that cannot be subjected to control under Section 9-105A. Such property would be a general intangible, governed by the perfection and priority rules for that type of collateral.
Some countries may authorize or adopt intangible tokens as a medium of exchange that would be "money" as defined in both Article 1 and Article 9. See Section 9-101, Comment 4.c. Such intangible tokens would be "electronic money," as defined in Section 9-102(a)(31A). A security interest in electronic money as original collateral can be perfected only by control. Sections 9-312(b)(4); 9-314; 9-105A. The requirements for obtaining control of electronic money are essentially the same as those for obtaining control of a controllable electronic record under Article 12. Sections 9-105A; 12-105. The definition of "tangible money" in Section 9-102(a)(79A) uses the word "tangible" with its normal meaning (as something that has physical or corporeal existence, such as goods).
"Monetary obligation" as used in the Uniform Commercial Code (including in Article 9) is not a defined term. The term contemplates an obligation to pay "money" as defined in Section 1-201(b)(24). Consequently, for example, a right to payment of money in an electronic form that cannot be subjected to control, excluded from the Article 9 definition of "money" in subsection (a)(54A), would be a monetary obligation. It follows that such a right to payment could be an account, chattel paper, a payment intangible, or an instrument—including a negotiable instrument, which is defined to include a promise to pay "money" as the term is defined in Section 1-201. See Section 3-104(a) (defining "negotiable instrument"). Also, the term "funds" (like "monetary obligation," an undefined term), as used in the Uniform Commercial Code includes a right to payment of money as defined in Section 1-201(b)(24). As mentioned above, because cryptocurrencies such as bitcoin are not "money" as defined in Section 1-201 (unless they were not in existence and used before adoption by a government), a cryptocurrency or an obligation to pay in cryptocurrency would not be a "monetary obligation" or "funds."
13.
Proceeds-Related Definitions: "Cash Proceeds"; "Noncash Proceeds"; "Proceeds."
The revised definition of "proceeds" expanded the definition beyond that contained in pre-1998 Section 9-306 and resolves ambiguities in the former definition.
a.
Distributions on Account of Collateral.
The phrase "whatever is collected on, or distributed on account of, collateral," in subparagraph (B), is broad enough to cover cash or stock dividends distributed on account of securities or other investment property that is original collateral. Compare pre-1998 Section 9-306 ("Any payments or distributions made with respect to investment property collateral are proceeds."). This section rejects the holding of Hastie v. FDIC, 2 F.3d 1042 (10th Cir. 1993) (postpetition cash dividends on stock subject to a prepetition pledge are not "proceeds" under Bankruptcy Code Section 552(b)), to the extent the holding relies on the Article 9 definition of "proceeds."
b.
Distributions on Account of Supporting Obligations.
Under subparagraph (B), collections on and distributions on account of collateral consisting of various credit-support arrangements ("supporting obligations," as defined in Section 9-102) also are proceeds. Consequently, they are afforded treatment identical to proceeds collected from or distributed by the obligor on the underlying (supported) right to payment or other collateral. Proceeds of supporting obligations also are proceeds of the underlying rights to payment or other collateral.
c.
Proceeds of Proceeds.
The definition of "proceeds" no longer provides that proceeds of proceeds are themselves proceeds. That idea is expressed in the revised definition of "collateral" in section 9-102. No change in meaning is intended.
d.
Proceeds Received by Person Who Did Not Create Security Interest.
When collateral is sold subject to a security interest and the buyer then resells the collateral, a question arose under pre-1998 Article 9 concerning whether the "debtor" had "received" what the buyer received on resale and, therefore, whether those receipts were "proceeds" under pre-1998 Section 9-306(2). This Article contains no requirement that property be "received" by the debtor for the property to qualify as proceeds. It is necessary only that the property be traceable, directly or indirectly, to the original collateral.
e.
Cash Proceeds and Noncash Proceeds.
The definition of "cash proceeds" is substantially the same as the corresponding definition in pre-1998 Section 9-306. The phrase "and the like" covers property that is functionally equivalent to "money, checks, or deposit accounts," such as some money-market accounts that are securities or part of securities entitlements. Proceeds other than cash proceeds are noncash proceeds.
f.
Forks and Airdrops for Controllable Electronic Records.
Sometimes there occurs a change in the software (code) of a system (sometimes referred to as a "protocol" or "platform") in which a controllable electronic record is recorded. When such a change occurs in a blockchain platform, the blockchain may remain intact, no new blockchain may result, and the change sometimes is colloquially referred to as a "soft fork." If, instead, such a change results in a new, separate blockchain that exists alongside the original blockchain and a new controllable electronic record is created, the change is sometimes referred to as a "hard fork." But the terms "fork," "soft fork," and "hard fork" are ambiguous and not used consistently. Even in a hard fork situation the pre-fork controllable electronic record typically would remain intact (although its value might be affected). A person in control of the original record may not automatically obtain control of a new record. Additional steps may be required for the person in control of the original record to obtain control of the new record.
Depending on the nature and structure of the fork, a new controllable electronic record arising under a hard fork may be property "distributed on account of" the original record or "rights arising out of" the original record, thereby constituting proceeds of the original record under subparagraph (B) or (C), or both, of the definition of "proceeds." If the new record is identifiable "proceeds," then the rules on attachment, perfection, priority under Sections 9-203(f), 9-315, and 9-322 would apply. If a security interest in the original record is perfected by control, the creation of the new record in connection with a hard fork typically results in the secured party obtaining control (or having the opportunity to obtain control) of the new record. If that is not the case and perfection of the security interest in the original record is only by control, however, then perfection would continue in the new record only until the 21st day after the security interest attaches to the new record, unless one of the exceptions under subsection (d) applies. Section 9-315(c), (d). For this reason, a secured party may wish also to perfect its security interest by filing so that the perfection would continue thereafter in any proceeds under Section 9-315(d)(1). A secured party that does so may, to ensure the priority of its perfected security interest, also wish to consider obtaining a release or subordination from any earlier filed secured party whose financing statement covers the same type of property. Even if that is achieved, a security interest in the record that is perfected by control (even if control is later obtained) would have priority over a security interest perfected only by filing. Section 9-326A.
New controllable electronic records also may be provided to persons in control of existing records by way of an "airdrop" that does not involve a fork in an existing blockchain. Depending on the circumstances, these new records may or may not be proceeds of the existing, original record.
If the original record were a financial asset credited to a securities account, the new record might become proceeds of a security entitlement for the reasons described above. Concerning the duties, if any, of a securities intermediary with respect to such a distribution,
see
Section 8-505, Comment 4.
This discussion focuses on forks and airdrops related to controllable electronic records in the context of blockchain technology, the prevailing relevant technology in 2022. In determining whether property may be proceeds of collateral in the contexts of other and future technologies, the principles and policies reflected in this discussion should be considered.
14.
Consignment-Related Definitions: "Consignee"; "Consignment"; "Consignor."
The definition of "consignment," added by the 1998 Revisions, excludes, in subparagraphs (B) and (C), transactions for which filing would be inappropriate or of insufficient benefit to justify the costs. A consignment excluded from the application of this Article by one of those subparagraphs may still be a true consignment; however, it is governed by non-Article 9 law. The definition also excludes, in subparagraph (D), what have been called "consignments intended for security." These "consignments" are not bailments but secured transactions. Accordingly, all of Article 9 applies to them.
See
Sections 1-201(b)(35), 9-109(a)(1). The "consignor" is the person who delivers goods to the "consignee" in a consignment.
Under clause (iii) of subparagraph (A), a transaction is not an Article 9 "consignment" if the consignee is "generally known by its creditors to be substantially engaged in selling the goods of others." Clause (iii) does not apply solely because a particular competing claimant knows that the goods are held on consignment.
See
PEB Commentary No. 20.
15.
"Accounting."
This definition describes the record and information that a debtor is entitled to request under Section 9-210. Consistent with the revised definition of "sign" in Section 1-201, the cognate term "signed" replaces the reference to "authenticated" in the pre-2022 text of this definition.
16.
"Document."
The definition of "document" incorporates both tangible and electronic documents of title.
See
Section 1-201(b)(16) [55-1-201(b) NMSA 1978] and Comment 16.
17.
"Encumbrance"; "Mortgage."
The definitions of "encumbrance" and "mortgage" are unchanged in substance from the corresponding definitions in pre-1998 Section 9-105. They are used primarily in the special real-property-related priority and other provisions relating to crops, fixtures, and accessions.
18.
"Fixtures."
This definition is unchanged in substance from the corresponding definition in pre-1998 Section 9-313. See Section 9-334 (priority of security interests in fixtures and crops).
19.
"Good Faith."
The definition of "good faith" added by the 1998 Revisions, which incorporated the concept of "reasonable commercial standards of fair dealing," was deleted by the conforming amendments to the 2001 revision of Article 1. The definition is unnecessary given the revised definition in Section 1-201(b)(20).
20.
"Lien Creditor."
This definition is unchanged in substance from the corresponding definition in pre-1998 Section 9-301.
21.
"New Value."
The 1998 Revisions deleted pre-1998 Section 9-108. Its broad formulation of new value, which embraced the taking of after-acquired collateral for a pre-existing claim, was unnecessary, counterintuitive, and ineffective for its original purpose of sheltering after-acquired collateral from attack as a voidable preference in bankruptcy. The new definition of "new value" derives from Bankruptcy Code Section 547(a). The term is used with respect to temporary perfection of security interests in instruments, certificated securities, or negotiable documents under Section 9-312(e) and with respect to chattel paper priority in Section 9-330.
22.
"Person Related To."
Section 9-615 provides a special method for calculating a deficiency or surplus when "the secured party, a person related to the secured party, or a secondary obligor" acquires the collateral at a foreclosure disposition. Separate definitions of the term are provided with respect to an individual secured party and with respect to a secured party that is an organization. The definitions are patterned on the corresponding definition in section 1.301(32) of the Uniform Consumer Credit Code (1974).
23.
"Proposal."
This definition describes a record that is sufficient to propose to retain collateral in full or partial satisfaction of a secured obligation.
See
Sections 9-620, 9-621, 9-622. Consistent with the revised definition of "sign" in Section 1-201, the 2022 revision of the definition adopts the cognate term "signed" to replace the term "authenticated" used in the pre-2022 text.
24.
"Pursuant to Commitment."
This definition is unchanged in substance from the corresponding definition in pre-1998 Section 9-105. It is used in connection with special priority rules applicable to future advances.
Se
e Section 9-323.
25.
"Software."
The definition of "software" is used in connection with the priority rules applicable to purchase-money security interests.
See
Sections 9-103 and 9-324. Software, like a payment intangible, is a type of general intangible for purposes of this article.
See
comment 4.a., above, regarding the distinction between "goods" and "software."
ANNOTATIONS
Cross references.
— For Farm Products Secured Interest Act,
see
Chapter 56, Article 13 NMSA 1978.
Repeals and reenactments.
— Laws 2001, ch. 139, § 2 repealed former 55-9-102 NMSA 1978, as amended by Laws 1985, ch. 193, § 6, and enacted a new section, effective July 1, 2001.
The 2021 amendment,
effective June 18, 2021, defined "good faith" and "public-finance transaction" for purposes of Chapter 55, Article 9 NMSA 1978, and removed a reference to an article of law related to principles of construction and interpretation of statutes; in Subsection (a)(43)", added "'good faith' means honesty in fact and the observance of reasonable commercial standards of fair dealing", and added Paragraph (a)(67) and redesignated the succeeding paragraphs accordingly; and in Subsection (c), deleted "Chapter 12, Article 2A and".
The 2013 amendment,
effective July 1, 2013, amended and added definitions; in Subparagraph (B) of Paragraph (7) of Subsection (a), deleted "execute or otherwise adopt a symbol, or enerypt or similarly process a record in whole or in part, with the present intent of the authenticating person to identify the person and adopt or accept a record" and added the remainder of the sentence; in Paragraph (10) of Subsection (a), added the second sentence; added Paragraph (67) of Subsection (a); and in Paragraph (70) of Subsection (a), after "organization", added "formed or" and after "United States", deleted "and as to which the state or the United States must maintain a public record showing the organization to have been organized" and added the remainder of the sentence and the second sentence.
The 2005 amendment,
effective January 1, 2006, defines an "agricultural lien" in Subsection (a)(5) to mean an interest in farm products; adds the phrase "or to be provided" at the end of Subsection (a)(46); deletes the definition of "good faith" in Subsection (a)(49); deletes the definition of "public-finance transaction" in former Subsection (a)(67); defines "control" to include the meaning of "control" as provide Section 55-7-106 NMSA 1978 in Subsection (b); and defines "issuer" with respect to document of title by reference to Section 55-7-102 NMSA 1978.
Temporary provision.
— Laws 2005, ch. 144, § 112, adds a temporary provision which provides that Paragraph 5 and 46 of Subsection A of Section 55-9-102 and Section 55-9-304 NMSA 1978 as amended by Sections 94 and 99 of this act shall be construed as declaring the law as it existed prior to the enactment of this act and not as modifying it.
Decisions under former 55-9-105, 55-9-106, 55-9-109, 55-9-112, 55-9-115 and 55-9-301 NMSA 1978.
— In light of the similarity of this section and former Sections 55-9-105, 55-9-106, 55-9-109, 55-9-112, 55-9-115 and 55-9-301 NMSA 1978, annotations decided under former 55-9-105, 55-9-106, 55-9-109, 55-9-112, 55-9-115 and 55-9-301 NMSA 1978 have been included in the annotations in this section.
Agricultural mortgagees retain special position.
— By excluding "farm products" from the classifications of "equipment" and "inventory," in this section and by expressly providing in Section 55-9-307 NMSA 1978 (now Section 55-9-320 NMSA 1978) that a buyer in the ordinary course of business of farm products from a person engaged in farming operations does not take free of a security interest created by the seller, the draftsmen of the code apparently intended to retain the agricultural mortgagee in the special position he achieved under the pre-code case law.
Clovis Nat'l Bank v. Thomas
, 1967-NMSC-061, 77 N.M. 554, 425 P.2d 726 (decided under former law).
Capital retains are a general intangible
and not an account because no "right to payment" exists; thus capital retains are property in which a debtor can grant a security interest.
Valley Fed. Sav. Bank v. Stahl
, 1990-NMSC-060, 110 N.M. 169, 793 P.2d 851 (decided under former law).
"Chattel mortgage" meets the definition of "security agreement"
under this section.
Strevell-Paterson Fin. Co. v. May
, 1967-NMSC-004, 77 N.M. 331, 422 P.2d 366 (decided under former law).
Equipment goods.
— Chapter 11 debtor's rose bushes used to produce successive crops of cut flowers periodically harvested over a life expectancy period of over seven to eight years, not being reaped as an entire crop plant; portable, prefabricated office building the size of a double wide mobile home; and "miscellaneous" computer system used in the standard operation of the floriculturist's business, were all considered equipment goods within the meaning of Subsection (2) (now Paragraph (a)(33)), with secured creditor's interest perfected in all but the rose bushes, since these became affixed to the realty by virtue of their root system (55-9-313 NMSA 1978, now 55-9-334 NMSA 1978), and accordingly required a filing (see 55-9-401 NMSA 1978, now 55-9-501 NMSA 1978 et seq.) which plaintiff failed to execute.
Flores De N.M., Inc. v. Banda Negra Int'l, Inc.
, 151 B.R. 571 (Bankr. D.N.M. 1993) (decided under former law).
"Inventory".
— The definition of inventory anticipates that the inventory will change from day to day in the normal operation of a business such as a retail store.
Kuemmerle v. United N.M. Bank
, 1992-NMSC-028, 113 N.M. 677, 831 P.2d 976 (decided under former law).
Mortgage serving as security interest.
— Although a mortgage, without more, is not sufficient to automatically attach to the proceeds of a separate real estate contract, when a contract vendor offered his interest in the property as security for a loan the mortgage served as a security interest and was perfected upon filing with the county clerk's office where the property was located.
Finch v. Beneficial N.M., Inc.
, 1995-NMSC-068, 120 N.M. 658, 905 P.2d 198 (decided under former law).
"General intangibles ".
— Real estate contract assignments from a debtor to a bank are "general intangibles " under this section and are perfected by filing.
Simpson v. First Nat'l Bank
, 56 B.R. 586 (Bankr. D.N.M. 1986) (decided under former law).
Remedies are accessible to all secured parties
including pawnbrokers dealing in Indian pawn with Indian debtors, and they may avail themselves of the remedies provided by Subsection (2) of 55-9-505 NMSA 1978 (now 55-9-620 NMSA 1978).
Begay v. Foutz & Tanner, Inc.
, 1979-NMCA-136, 95 N.M. 106, 619 P.2d 551,
rev'd on other grounds sub nom.
Reeves v. Foutz & Tanner, Inc.
, 1980-NMSC-095, 94 N.M. 760, 617 P.2d 149 (decided under former law).
Law reviews.
— For comment on Graham v. Stoneham, 73 N.M. 382, 388 P.2d 389 (1963), see 4 Nat. Resources J. 175 (1964).
For note, "Fixtures, Security Interests and Filing: Problems of Title Examination in New Mexico," see 8 Nat. Resources J. 513 (1968).
For article, "The Warehouseman vs. the Secured Party: Who Prevails When the Warehouseman's Lien Covers Goods Subject to a Security Interest?" see 8 Nat. Resources J. 331 (1968).
For comment on Clovis Nat'l Bank v. Thomas, 77 N.M. 554, 425 P.2d 726 (1967), see 8 Nat. Resources J. 183 (1968).
For comment on Strevell-Paterson Fin. Co. v. May, 77 N.M. 331, 422 P.2d 366 (1967), see 8 Nat. Resources J. 713 (1968).
For comment, "New Mexico's Uniform Commercial Code in Oil and Gas Transactions," see 10 Nat. Resources J. 361 (1970).
For article, "Buyers and Sellers of Goods in Bankruptcy," see 1 N.M. L. Rev. 435 (1971).
For note, "Self-Help Repossession Under the Uniform Commercial Code: The Constitutionality of Article 9, Section 503," see 4 N.M. L. Rev. 75 (1973).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 68A Am. Jur. 2d Secured Transactions § 31 et seq.
Chattel mortgage on fruit crops growing or to be grown, 54 A.L.R. 1532.
Construction and application of statutory provision respecting registration of mortgages or other liens on personal property in case of residents of other states, 10 A.L.R.2d 764.
Conflict of laws as to chattel mortgages and conditional sales of chattels, 13 A.L.R.2d 1312.
What constitutes "accounts receivable " under contract selling, assigning, pledging or reserving such items, 41 A.L.R.2d 1395.
Validity of chattel mortgage on stock of goods which mortgagor has right to sell, where mortgagee takes possession of goods before third person's rights attach, 71 A.L.R.2d 1416.
Effect of U.C.C. Article 9 upon conflict, as to funds in debtor's bank account, between secured creditor and bank claiming right of setoff, 3 A.L.R.4th 998.
Conveyance of land as including mature but unharvested crops, 51 A.L.R.4th 1263.
Security interests in liquor licenses, 56 A.L.R.4th 1131.