(a) A consignor, lessor, or other bailor of goods, a licensor or a buyer of a payment intangible or promissory note may file a financing statement, or may comply with a statute, regulation or treaty described in Subsection (a) of Section 55-9-311 NMSA 1978, using the terms "consignor", "consignee", "lessor", "lessee", "bailor", "bailee", "licensor", "licensee", "owner", "registered owner", "buyer", "seller" or words of similar import, instead of the terms "secured party" and "debtor".

(b) Sections 55-9-501 through 55-9-526 NMSA 1978 apply to the filing of a financing statement under Subsection (a) of this section and, as appropriate, to compliance that is equivalent to filing a financing statement under Subsection (b) of Section 55-9-311 NMSA 1978, but the filing or compliance is not of itself a factor in determining whether the collateral secures an obligation. If it is determined for another reason that the collateral secures an obligation, a security interest held by the consignor, lessor, bailor, licensor, owner or buyer which attaches to the collateral is perfected by the filing or compliance.

History: 1978 Comp., § 55-9-505, enacted by Laws 2001, ch. 139, § 76.

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 9-408.

2. Precautionary Filing. Occasionally, doubts arise concerning whether a transaction creates a relationship to which this article or its filing provisions apply. For example, questions may arise over whether a "lease" of equipment in fact creates a security interest or whether the "sale" of payment intangibles in fact secures an obligation, thereby requiring action to perfect the security interest. This section, which derives from former section 9-408, affords the option of filing of a financing statement with appropriate changes of terminology but without affecting the substantive question of classification of the transaction.

3. Changes from Former Section 9-408. This section expands the rule of former Section 9-408 [55-9-408 NMSA 1978] to embrace more generally other bailments and transactions, as well as sales transactions, primarily sales of payment intangibles and promissory notes. It provides the same benefits for compliance with a statute or treaty described in Section 9-311(a) [55-9-311(a) NMSA 1978] that former Section 9-408 [55-9-408 NMSA 1978] provided for filing, in connection with the use of terms such as "lessor," consignor," etc. The references to "owner" and "registered owner" are intended to address, for example, the situation where a putative lessor is the registered owner of an automobile covered by a certificate of title and the transaction is determined to create a security interest. Although this section provides that the security interest is perfected, the relevant certificate-of-title statute may expressly provide to the contrary or may be ambiguous. If so, it may be necessary or advisable to amend the certificate-of-title statute to ensure that perfection of the security interest will be achieved.

As did former Section 1-201 [55-1-201 NMSA 1978], former Article 9 referred to transactions, including leases and consignments, "intended as security." This misleading phrase created the erroneous impression that the parties to a transaction can dictate how the law will classify it (e.g., as a bailment or as a security interest) and thus affect the rights of third parties. This Article deletes the phrase wherever it appears. Subsection (b) expresses the principle more precisely by referring to a security interest that "secures an obligation."

4. Consignments. Although a "true" consignment is a bailment, the filing and priority provisions of former Article 9 applied to "true" consignments. See former Sections 2-326(3), 9-114 [55-2-32655-9-114 NMSA 1978]. A consignment "intended as security" created a security interest that was in all respects subject to former Article 9. This Article subsumes most true consignments under the rubric of "security interest." See Sections 9-102 [55-9-102 NMSA 1978] (definition of "consignment"), 9-109(a)(4) [55-9-109(a)(4) NMSA 1978], 1-201(b)(35) [55-1-201(b)(35) NMSA 1978] (definition of "security interest"). Nevertheless, it maintains the distinction between a (true) "consignment," as to which only certain aspects of Article 9 apply, and a so-called consignment that actually "secures an obligation," to which Article 9 applies in full. The revisions to this section reflect the change in terminology.

Repeals and reenactments. — Laws 2001, ch. 139, § 76 repealed former 55-9-505 NMSA 1978, as amended by Laws 1985, ch. 193, § 37, and enacted a new section, effective July 1, 2001.