(a) Except as otherwise provided in this section and Section 55-9-309 NMSA 1978, a security interest is perfected if it has attached and all of the applicable requirements for perfection in Sections 55-9-310 through 55-9-316 NMSA 1978 have been satisfied. A security interest is perfected when it attaches if the applicable requirements are satisfied before the security interest attaches.

(b) An agricultural lien is perfected if it has become effective and all of the applicable requirements for perfection in Section 55-9-310 NMSA 1978 have been satisfied. An agricultural lien is perfected when it becomes effective if the applicable requirements are satisfied before the agricultural lien becomes effective.

(c) A security interest or agricultural lien is perfected continuously if it is originally perfected by one method under Chapter 55, Article 9 NMSA 1978 and is later perfected by another method under that article, without an intermediate period when it was unperfected.

(d) Perfection of a security interest in collateral also perfects a security interest in a supporting obligation for the collateral.

(e) Perfection of a security interest in a right to payment or performance also perfects a security interest in a security interest, mortgage or other lien on personal or real property securing the right.

(f) Perfection of a security interest in a securities account also perfects a security interest in the security entitlements carried in the securities account.

(g) Perfection of a security interest in a commodity account also perfects a security interest in the commodity contracts carried in the commodity account.

History: 1978 Comp., § 55-9-308, enacted by Laws 2001, ch. 139, § 28.

OFFICIAL COMMENTS

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

1. Source. Former sections 9-115(2) and 9-303.

2. General Rule. This article uses the term "attach" to describe the point at which property becomes subject to a security interest. The requisites for attachment are stated in section 9-203. When it attaches, a security interest may be either perfected or unperfected. "Perfected" means that the security interest has attached and the secured party has taken all the steps required by this article as specified in sections 9-310 through 9-316. A perfected security interest may still be or become subordinate to other interests. See, e.g., sections 9-320 and 9-322. However, in general, after perfection the secured party is protected against creditors and transferees of the debtor and, in particular, against any representative of creditors in insolvency proceedings instituted by or against the debtor. See, e.g., section 9-317.

Subsection (a) explains that the time of perfection is when the security interest has attached and any necessary steps for perfection, such as taking possession or filing, have been taken. The "except" clause refers to the perfection-upon-attachment rules appearing in section 9-309. It also reflects that other subsections of this section, e.g., subsection (d), contain automatic perfection rules. If the steps for perfection have been taken in advance, as when the secured party files a financing statement before giving value or before the debtor acquires rights in the collateral, then the security interest is perfected when it attaches.

3. Agricultural Liens. Subsection (b) is new. It describes the elements of perfection of an agricultural lien.

4. Continuous Perfection. The following example illustrates the operation of subsection (c):

Example 1: Debtor, an importer, creates a security interest in goods that it imports and the documents of title that cover the goods. The secured party, Bank, takes possession of a negotiable bill of lading covering certain imported goods and thereby perfects its security interest in the bill of lading and the goods. See sections 9-312(c)(1) and 9-313(a). Bank releases the bill of lading to the debtor for the purpose of procuring the goods from the carrier and selling them. Under section 9-312(f), Bank continues to have a perfected security interest in the document and goods for 20 days. Bank files a financing statement covering the collateral before the expiration of the 20-day period. Its security interest now continues perfected for as long as the filing is good.

If the successive stages of Bank's security interest succeed each other without an intervening gap, the security interest is "perfected continuously," and the date of perfection is when the security interest first became perfected (i.e., when Bank received possession of the bill of lading). If, however, there is a gap between stages - for example, if Bank does not file until after the expiration of the 20-day period specified in section 9-312(f) and leaves the collateral in the debtor's possession - then, the chain being broken, the perfection is no longer continuous. The date of perfection would now be the date of filing (after expiration of the 20-day period). Bank's security interest would be vulnerable to any interests arising during the gap period which under section 9-317 take priority over an unperfected security interest.

5. Supporting Obligations. Subsection (d) is new. It provides for automatic perfection of a security interest in a supporting obligation for collateral if the security interest in the collateral is perfected. This is unlikely to effect any change in the law prior to adoption of this article.

Example 2: Buyer is obligated to pay Debtor for goods sold. Buyer's president guarantees the obligation. Debtor creates a security interest in the right to payment (account) in favor of Lender. Under section 9-203(f), the security interest attaches to Debtor's rights under the guarantee (supporting obligation). Under subsection (d), perfection of the security interest in the account constitutes perfection of the security interest in Debtor's rights under the guarantee.

6. Rights to Payment Secured by Lien. Subsection (e) is new. It deals with the situation in which a security interest is created in a right to payment that is secured by a security interest, mortgage, or other lien.

Example 3: Owner gives to Mortgagee a mortgage on Blackacre to secure a loan. Owner's obligation to pay is evidenced by a promissory note. In need of working capital, Mortgagee borrows from Financer and creates a security interest in the note in favor of Financer. Section 9-203(g) adopts the traditional view that the mortgage follows the note; i.e., the transferee of the note acquires the mortgage, as well. This subsection adopts a similar principle: Perfection of a security interest in the right to payment constitutes perfection of a security interest in the mortgage securing it.

An important consequence of the rules in section 9-203(g) and subsection (e) is that, by acquiring a perfected security interest in a mortgage (or other secured) note, the secured party acquires a security interest in the mortgage (or other lien) that is senior to the rights of a person who becomes a lien creditor of the mortgagee (article 9 debtor). See section 9-317(a)(2). This result helps prevent the separation of the mortgage (or other lien) from the note.

Under this article, attachment and perfection of a security interest in a secured right to payment do not of themselves affect the obligation to pay. For example, if the obligation is evidenced by a negotiable note, then article 3 dictates the person whom the maker must pay to discharge the note and any lien securing it. See section 3-602. If the right to payment is a payment intangible, then section 9-406 determines whom the account debtor must pay.

Similarly, this article does not determine who has the power to release a mortgage of record. That issue is determined by real property law.

7. Investment Property. Subsections (f) and (g) follow former section 9-115(2).

Repeals and reenactments. — Laws 2001, ch. 139, § 28 repealed former 55-9-308 NMSA 1978, as amended by Laws 1985, ch. 193, § 22, and enacted a new section, effective July 1, 2001.

Decisions under former 55-9-115 and 55-9-303 NMSA 1978. — In light of the similarity of this section and former Section 55-9-115 and 55-9-303 NMSA 1978, annotations decided under former 55-9-115 and 55-9-303 NMSA 1978 have been included in the annotations in this section.

Steps required for perfection may be taken in any order. — If a financing statement is filed, value is extended, and a security agreement is executed, then there is a security interest in the described collateral. These steps can be taken in any order and priority is given to the security interest which is filed first, even if that security interest has not attached at the time of filing. Waterfield v. Burnett (In re Burnett), 21 B.R. 752 (Bankr. D.N.M. 1982) (decided under former law).

Attachment and perfection upon delivery of goods to debtor. — Since vendor from whom business owner purchased inventory provided delivery of the items in its own trucks and at its own risk, and all sales were for cash on delivery, business owner acquired rights in the collateral when it was delivered, and the bank's security interest in his inventory "now owned or hereafter acquired" attached at that point and was perfected. National Inv. Trust v. First Nat'l Bank, 1975-NMSC-065, 88 N.M. 514, 543 P.2d 482 (decided under former law).

Law reviews. — For article, "Buyers and Sellers of Goods in Bankruptcy," see 1 N.M. L. Rev. 435 (1971).