(a) In this section:

(1) "purchase-money collateral" means goods or software that secures a purchase-money obligation incurred with respect to that collateral; and

(2) "purchase-money obligation" means an obligation of an obligor incurred as all or part of the price of the collateral or for value given to enable the debtor to acquire rights in or the use of the collateral if the value is in fact so used.

(b) A security interest in goods is a purchase-money security interest:

(1) to the extent that the goods are purchase-money collateral with respect to that security interest;

(2) if the security interest is in inventory that is or was purchase-money collateral, and to the extent that the security interest secures a purchase-money obligation incurred with respect to other inventory in which the secured party holds or held a purchase-money security interest; and

(3) to the extent that the security interest secures a purchase-money obligation incurred with respect to software in which the secured party holds or held a purchase-money security interest.

(c) A security interest in software is a purchase-money security interest to the extent that the security interest also secures a purchase-money obligation incurred with respect to goods in which the secured party holds or held a purchase-money security interest if:

(1) the debtor acquired its interest in the software in an integrated transaction in which it acquired an interest in the goods; and

(2) the debtor acquired its interest in the software for the principal purpose of using the software in the goods.

(d) The security interest of a consignor in goods that are the subject of a consignment is a purchase-money security interest in inventory.

(e) In a transaction other than a consumer-goods transaction, if the extent to which a security interest is a purchase-money security interest depends on the application of a payment to a particular obligation, the payment must be applied:

(1) in accordance with any reasonable method of application to which the parties agree;

(2) in the absence of the parties' agreement to a reasonable method, in accordance with any intention of the obligor manifested at or before the time of payment; or

(3) in the absence of an agreement to a reasonable method and a timely manifestation of the obligor's intention, in the following order:

(A) to obligations that are not secured; and

(B) if more than one obligation is secured, to obligations secured by purchase-money security interests in the order in which those obligations were incurred.

(f) In a transaction other than a consumer-goods transaction, a purchase-money security interest does not lose its status as such, even if:

(1) the purchase-money collateral also secures an obligation that is not a purchase-money obligation;

(2) collateral that is not purchase-money collateral also secures the purchase-money obligation; or

(3) the purchase-money obligation has been renewed, refinanced, consolidated or restructured.

(g) In a transaction other than a consumer-goods transaction, a secured party claiming a purchase-money security interest has the burden of establishing the extent to which the security interest is a purchase-money security interest.

(h) The limitation of the rules in Subsections (e), (f) and (g) of this section to transactions other than consumer-goods transactions is intended to leave to the court the determination of the proper rules in consumer-goods transactions. The court may not infer from that limitation the nature of the proper rule in consumer-goods transactions and may continue to apply established approaches.

History: 1978 Comp., § 55-9-103, enacted by Laws 2001, ch. 139, § 3.

OFFICIAL COMMENTS

UCC Official Comments by ALI & the NCCUSL. Reproduced with permission of the PEB for the UCC. All rights reserved.

1. Source. Former section 9-107.

2. Scope of This Section. Under Section 9-309(1), a purchase-money security interest in consumer goods is perfected when it attaches. Sections 9-317 and 9-324 provide special priority rules for purchase-money security interests in a variety of contexts. This section explains when a security interest enjoys purchase-money status.

3. "Purchase-Money Collateral"; "Purchase-Money Obligation"; "Purchase-Money Security Interest." Subsection (a) defines "purchase-money collateral" and "purchase-money obligation." These terms are essential to the description of what constitutes a purchase-money security interest under subsection (b). As used in Subsection (a)(2), the definition of "purchase-money obligation," the "price" of collateral or the "value given to enable" includes obligations for expenses incurred in connection with acquiring rights in the collateral, sales taxes, duties, finance charges, interest, freight charges, costs of storage in transit, demurrage, administrative charges, expenses of collection and enforcement, attorney's [attorney] fees, and other similar obligations.

The concept of "purchase-money security interest" requires a close nexus between the acquisition of collateral and the secured obligation. Thus, a security interest does not qualify as a purchase-money security interest if a debtor acquires property on unsecured credit and subsequently creates the security interest to secure the purchase price.

4. Cross-Collateralization of Purchase-Money Security Interests in Inventory. Subsection (b)(2) deals with the problem of cross-collateralized purchase-money security interests in inventory. Consider a simple example:

Example: Seller (S) sells an item of inventory (Item-1) to Debtor (D), retaining a security interest in Item-1 to secure Item-1's price and all other obligations, existing and future, of D to S. S then sells another item of inventory to D (Item-2), again retaining a security interest in Item-2 to secure Item-2's price as well as all other obligations of D to S. D then pays to S Item-1's price. D then sells Item-2 to a buyer in ordinary course of business, who takes Item-2 free of S's security interest.

Under subsection (b)(2), S's security interest in Item-1 securing Item-2's unpaid price would be a purchase-money security interest. This is so because S has a purchase-money security interest in Item-1, Item-1 secures the price of (a "purchase-money obligation incurred with respect to") Item-2 ("other inventory"), and Item-2 itself was subject to a purchase-money security interest. Note that, to the extent Item-1 secures the price of Item-2, S's security interest in Item-1 would not be a purchase-money security interest under Subsection (b)(1). The security interest in Item-1 is a purchase-money security interest under Subsection (b)(1) only to the extent that Item-1 is "purchase-money collateral," i.e., only to the extent that Item-1 "secures a purchase-money obligation incurred with respect to that collateral" (i.e., Item-1). See Subsection (a)(1).

5. Purchase-Money Security Interests in Goods and Software. Subsections (b) and (c) limit purchase-money security interests to security interests in goods, including fixtures, and software. Otherwise, no change in meaning from former Section 9-107 is intended. The second sentence of former Section 9-115(5)(f) made the purchase-money priority rule (former Section 9-312(4)) inapplicable to investment property. This section's limitation makes that provision unnecessary.

Subsection (c) describes the limited circumstances under which a security interest in goods may be accompanied by a purchase-money security interest in software. The software must be acquired by the debtor in a transaction integrated with the transaction in which the debtor acquired the goods, and the debtor must acquire the software for the principal purpose of using the software in the goods. "Software" is defined in Section 9-102.

6. Consignments. Under former Section 9-114, the priority of the consignor's interest is similar to that of a purchase-money security interest. Subsection (d) achieves this result more directly, by defining the interest of a "consignor," defined in Section 9-102, to be a purchase-money security interest in inventory for purposes of this article. This drafting convention obviates any need to set forth special priority rules applicable to the interest of a consignor. Rather, the priority of the consignor's interest as against the rights of lien creditors of the consignee, competing secured parties, and purchasers of the goods from the consignee can be determined by reference to the priority rules generally applicable to inventory, such as Sections 9-317, 9-320, 9-322, and 9-324. For other purposes, including the rights and duties of the consignor and consignee as between themselves, the consignor would remain the owner of goods.

7. Provisions Applicable Only to Non-Consumer-Goods Transactions.

a. "Dual-Status" Rule. For transactions other than consumer-goods transactions, this article approves what some cases have called the "dual-status" rule, under which a security interest may be a purchase-money security interest to some extent and a nonpurchase-money security interest to some extent. (Concerning consumer-goods transactions, see Subsection (h) and comment 8.) Some courts have found this rule to be explicit or implicit in the words "to the extent," found in former Section 9-107 and continued in Subsections (b)(1) and (b)(2). The rule is made explicit in subsection (e). For nonconsumer-goods transactions, this article rejects the "transformation" rule adopted by some cases, under which any cross-collateralization, refinancing, or the like destroys the purchase-money status entirely.

Consider, for example, what happens when a $10,000 loan secured by a purchase-money security interest is refinanced by the original lender, and, as part of the transaction, the debtor borrows an additional $2,000 secured by the collateral. Subsection (f) resolves any doubt that the security interest remains a purchase-money security interest. Under Subsection (b), however, it enjoys purchase-money status only to the extent of $10,000.

b. Allocation of Payments. Continuing with the example, if the debtor makes a $1,000 payment on the $12,000 obligation, then one must determine the extent to which the security interest remains a purchase-money security interest - $9,000 or $10,000. Subsection (e)(1) expresses the overriding principle, applicable in cases other than consumer-goods transactions, for determining the extent to which a security interest is a purchase-money security interest under these circumstances: Freedom of contract, as limited by principle of reasonableness. An unconscionable method of application, for example, is not a reasonable one and so would not be given effect under Subsection (e)(1). In the absence of agreement, Subsection (e)(2) permits the obligor to determine how payments should be allocated. If the obligor fails to manifest its intention, obligations that are not secured will be paid first. (As used in this article, the concept of "obligations that are not secured" means obligations for which the debtor has not created a security interest. This concept is different from and should not be confused with the concept of an "unsecured claim" as it appears in Bankruptcy Code section 506(a).) The obligor may prefer this approach, because unsecured debt is likely to carry a higher interest rate than secured debt. A creditor who would prefer to be secured rather than unsecured also would prefer this approach.

After the unsecured debt is paid, payments are to be applied first toward the obligations secured by purchase-money security interests. In the event that there is more than one such obligation, payments first received are to be applied to obligations first incurred. See Subsection (e)(3). Once these obligations are paid, there are no purchase-money security interests and no additional allocation rules are needed.

Subsection (f) buttresses the dual-status rule by making it clear that (in a transaction other than a consumer-goods transaction) cross-collateralization and renewals, refinancings, and restructurings do not cause a purchase-money security interest to lose its status as such. The statutory terms "renewed," "refinanced," and "restructured" are not defined. Whether the terms encompass a particular transaction depends upon whether, under the particular facts, the purchase-money character of the security interest fairly can be said to survive. Each term contemplates that an identifiable portion of the purchase-money obligation could be traced to the new obligation resulting from a renewal, refinancing, or restructuring.

c. Burden of Proof. As is the case when the extent of a security interest is in issue, under Subsection (g) the secured party claiming a purchase-money security interest in a transaction other than a consumer-goods transaction has the burden of establishing whether the security interest retains its purchase-money status. This is so whether the determination is to be made following a renewal, refinancing, or restructuring or otherwise.

8. Consumer-Goods Transactions; Characterization Under Other Law. Under Subsection (h), the limitation of Subsections (e), (f), and (g) to transactions other than consumer-goods transactions leaves to the court the determination of the proper rules in consumer-goods transactions. Subsection (h) also instructs the court not to draw any inference from this limitation as to the proper rules for consumer-goods transactions and leaves the court free to continue to apply established approaches to those transactions.

This section addresses only whether a security interest is a "purchase-money security interest" under this article, primarily for purposes of perfection and priority. See, e.g., Sections 9-317 and 9-324. In particular, its adoption of the dual-status rule, allocation of payments rules, and burden of proof standards for non-consumer-goods transactions is not intended to affect or influence characterizations under other statutes. Whether a security interest is a "purchase-money security interest" under other law is determined by that law. For example, decisions under Bankruptcy Code section 522(f) have applied both the dual-status and the transformation rules. The Bankruptcy Code does not expressly adopt the state law definition of "purchase-money security interest." Where federal law does not defer to this article, this article does not, and could not, determine a question of federal law.

The term "at wellhead" is intended to encompass arrangements based on sale of the product as soon as it issues from the ground and is measured, without technical distinctions as to whether title passes at the "Christmas tree" or the far side of a gathering tank or at some other point. The term "at minehead" is a comparable concept.

9. Subsection (6) of Section 9-103 [55-9-103 NMSA 1978] specifies choice of law rules for perfection of security interests in investment property. Paragraph (b) covers security interests in certificated securities. Paragraph (c) covers security interests in uncertificated securities. Paragraph (d) covers security interests in security entitlements and securities accounts. Paragraph (e) covers security interests in commodity contracts and commodity accounts. The approach of each of these paragraphs is essentially the same. They identify the jurisdiction's law that governs questions of perfection and priority on the basis of the same principles that are used in Article 8 to determine other questions concerning that form of investment property. Thus, for certificated securities, the law of the jurisdiction where the certificate is located governs. Cf. Section 8-110(c) [55-8-110 NMSA 1978]. For uncertificated securities, the law of the issuer's jurisdiction governs. Cf. Section 8-110(a). For security entitlements and securities accounts, the law of the securities intermediary's jurisdiction governs. Cf. Section 8-110(b). For commodity contracts and commodity accounts, the law of the commodity intermediary's jurisdiction governs. Since commodity contracts and commodity accounts are not governed by Article 8, paragraph (e) contains rules that specify the commodity intermediary's jurisdiction. These are analogous to the rules in Section 8-110(e) specifying a securities intermediary's jurisdiction.

Under this subsection, if litigation about perfection or priority arises in this State, the relevant choice of law rule of paragraphs (b) through (e) may point to the law of this State or to the law of another State. If the litigation were in a tribunal of a jurisdiction that has not enacted this section, it would follow its own choice of law rules. The choice of law rules prescribed here by statute conform to generally accepted principles of choice of law. The simplicity and clarity in the choice of law rules, coupled with the explicit recognition that the parties to some securities transactions may agree on a governing law, are intended to assure that there will be one clear choice of law regardless of forum.

Paragraph (f) adapts the general choice of law principles of this subsection to cases where a secured party claims perfection on the basis of filing, or by virtue of the automatic perfection rules in Section 9-115(4)(c) [55-9-115 NMSA 1978] and (d). In such a case, the law of the debtor's jurisdiction determines whether the requirements for that form of perfection have been satisfied. The rules in Section 9-103(3) [55-9-103 NMSA 1978] on the debtor's location and effect of change of location apply to cases governed by paragraph (f)*. The main reason for the paragraph (f) rule is to specify the proper filing office. Under the substantive rules of this Act, a security interest in investment property perfected only by filing is enforceable against the debtor or lien creditors, but not against most other claimants. See Sections 9-115(5) and (6), 8-105(e) [55-8-105 NMSA 1978], 8-303 [55-8-303 NMSA 1978], and 8-502 [55-8-502 NMSA 1978]. Because the choice of law rules in this section may, in some circumstances, have the effect of directing a court in a jurisdiction that has adopted this Act to look to the law of another jurisdiction, it is possible that the jurisdiction so specified will be one that has not adopted rules concerning the effect of filing as a method of perfection for investment property. In such cases, or other circumstances where the governing substantive law is not this Act, the effect of filing on the rights of other parties should be interpreted in light of the role of that form of perfection under this Act; that is, the rights of a secured party in investment property as determined under this Act perfected only by filing against another secured party or any other person who purchases or otherwise deals with the investment property should be interpreted to be no greater than the rights of that secured party under this Act. *Amendments in italics approved by the Permanent Editorial Board for Uniform Commercial Code November 4, 1995.

The following examples illustrate these rules:

Example 1. A customer residing in New Jersey maintains a securities account with Able & Co. The agreement between the customer and Able specifies that it is governed by Pennsylvania law. Through the account the customer holds securities of a Massachusetts corporation, which Able holds through a clearing corporation located in New York. The customer obtains a margin loan from Able. Subsection (6)(d) provides that Pennsylvania law -- the law of the securities intermediary's jurisdiction -- governs perfection and priority of the security interest.

Example 2. A customer residing in New Jersey maintains a securities account with Able & Co. The agreement between the customer and Able specifies that it is governed by Pennsylvania law. Through the account the customer holds securities of a Massachusetts corporation, which Able holds through a clearing corporation located in New York. The customer obtains a loan from a lender located in Illinois. The lender takes a security interest and perfects by obtaining an agreement among the debtor, itself, and Able, which satisfies the requirement of Section 8-106(d)(2) [55-8-106 NMSA 1978] to give the lender control. Subsection (6)(d) provides that Pennsylvania law -- the law of the securities intermediary's jurisdiction -- governs perfection and priority of the security interest.

Example 3. A customer residing in New Jersey maintains a securities account with Able & Co. The agreement between the customer and Able specifies that it is governed by Pennsylvania law. Through the account, the customer holds securities of a Massachusetts corporation, which Able holds through a clearing corporation located in New York. The customer borrows from SP1, and SP1 files a financing statement in New Jersey. Later, the customer obtains a loan from SP2. SP2 takes a security interest and perfects by obtaining an agreement among the debtor, itself, and Able, which satisfies the requirement of Section 8-106(d)(2) [55-8-106 NMSA 1978] to give the SP2 control. Subsection (6)(f) provides that perfection of SP1's security interest by filing is governed by the location of the debtor, so the filing in New Jersey was appropriate -- assuming New Jersey has adopted the revisions of Article 9 permitting perfection of security interests in investment property by filing. Subsection (6)(d), however, provides that Pennsylvania law -- the law of the securities intermediary's jurisdiction -- governs all other questions of perfection and priority. Thus, Pennsylvania law governs perfection of SP2's security interest, and Pennsylvania law also governs the priority of the security interests of SP1 and SP2.

Repeals and reenactments. — Laws 2001, ch. 139, § 3 repealed former 55-9-103 NMSA 1978, as amended by Laws 1997, ch. 75, § 20, and enacted a new section, effective July 1, 2001.

Decisions under former Sections 55-9-107 and 55-9-114 NMSA 1978. — In light of the similarity of this section and former Sections 55-9-107 and 55-9-114 NMSA 1978, annotations decided under former Sections 55-9-107 and 55-9-114 NMSA 1978 have been included in the annotations in this section.

Timing of attachment of purchase money security interest. — When defendant agreed to buy equipment from pump company, company agreed to furnish the equipment, and lessee of the equipment agreed that defendant would have an interest in the equipment, security interest attached immediately, not upon actual payment by defendant of purchase price. Therefore, whatever interest lessee acquired in the equipment came impressed with defendant's purchase money security interest therein. Honea v. Laco Auto Leasing, Inc., 1969-NMCA-025, 80 N.M. 300, 454 P.2d 782.

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 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).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Construction and effect of UCC article 9, dealing with secured transactions, etc., 30 A.L.R.3d 9, 67 A.L.R.3d 308, 69 A.L.R.3d 1162, 76 A.L.R.3d 11, 99 A.L.R. 3d 807, 99 A.L.R.3d 1080, 100 A.L.R.3d 10, 100 A.L.R.3d 940, 7 A.L.R.4th 308, 11 A.L.R.4th 241, 90 A.L.R.4th 859, 25 A.L.R.5th 696.