84-9-102. (a) Article 9 definitions. In this article:
(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," means a right to payment of a monetary obligation, whether or not earned by performance, (A) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, (B) for services rendered or to be rendered, (C) for a policy of insurance issued or to be issued, (D) for a secondary obligation incurred or to be incurred, (E) for energy provided or to be provided, (F) for the use or hire of a vessel under a charter or other contract, (G) arising out of the use of a credit or charge card or information contained on or for use with the card, or (H) 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. The term includes health-care-insurance receivables. The term does not include: (A) Rights to payment evidenced by chattel paper or an instrument, (B) commercial tort claims, (C) deposit accounts, (D) investment property, (E) letter-of-credit rights or letters of credit, or (F) 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 35 days earlier or 35 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, other than a security interest, in farm products: (A) Which 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) which 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. Agricultural liens shall not include statutory liens.
(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:
(A) To 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. The term 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 subsection, "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 (i) charters or other contracts involving the use or hire of a vessel or (ii) 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. The term 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 $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 (i) an individual incurs an obligation primarily for personal, family, or household purposes, (ii) a security interest secures the obligation, and (iii) 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 which:
(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 K.S.A. 2024 Supp. 84-7-201(b), and amendments thereto.
(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 which 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 K.S.A. 2024 Supp. 84-9-519(a), and amendments thereto.
(37) "Filing office" means an office designated in K.S.A. 2024 Supp. 84-9-501, and amendments thereto, as the place to file a financing statement.
(38) "Filing-office rule" means a rule adopted pursuant to K.S.A. 2024 Supp. 84-9-526, and amendments thereto.
(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 K.S.A. 2024 Supp. 84-9-502(a) and (b), and amendments thereto. The term includes the filing of a financing statement covering goods of a transmitting utility which 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) Reserved.
(44) "Goods" means all things that are movable when a security interest attaches. The term includes (A) fixtures, (B) standing timber that is to be cut and removed under a conveyance or contract for sale, (C) the unborn young of animals, (D) crops grown, growing, or to be grown, even if the crops are produced on trees, vines, or bushes, and (E) manufactured homes. The term also includes a computer program embedded in goods and any supporting information provided in connection with a transaction relating to the program if (A) the program is associated with the goods in such a manner that it customarily is considered part of the goods, or (B) by becoming the owner of the goods, a person acquires a right to use the program in connection with the goods. The term does not include a computer program embedded in goods that consist solely of the medium in which the program is embedded. The term also does not include 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 which is a right to payment of a monetary obligation for health-care goods or services provided.
(47) "Instrument" means a negotiable instrument, a writing that would otherwise qualify as a certificate of deposit as defined by K.S.A. 84-3-104(j), and amendments thereto, but for the fact that the writing contains a limitation on transfer, 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 (i) investment property, (ii) letters of credit, or (iii) 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, which:
(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 40 body feet or more in length, or, when erected on site, is 320 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 title 42 of the United States code.
(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, which secures payment or performance of an obligation.
(56) "New debtor" means a person that becomes bound as a debtor under K.S.A. 2024 Supp. 84-9-203(d), and amendments thereto, 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 K.S.A. 2024 Supp. 84-9-310(c), and amendments thereto, means a person that, as debtor, entered into a security agreement to which a new debtor has become bound under K.S.A. 2024 Supp. 84-9-203(d), and amendments thereto.
(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);
(D) the spouse of an individual described in subparagraph (A), (B) or (C); or
(E) an individual who is related by blood or marriage to an individual described in subparagraph (A), (B), (C) or (D) and shares the same home with the individual.
(64) "Proceeds" except as used in K.S.A. 2024 Supp. 84-9-609(b), and amendments thereto, means the following property:
(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 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 K.S.A. 2024 Supp. 84-9-620, 84-9-621 and 84-9-622, and amendments thereto.
(67) "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 which 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 which 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 which forms or organizes an organization, any record amending the legislation and any record filed with or issued by the state or the United States which amends or restates the name of the organization.
(68) "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.
(69) "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 which is stored in an electronic or other medium and is retrievable in perceivable form.
(70) "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 law of the state governing business trusts requires that the business trust's organic record be filed with the state. The term also includes a series of a registered organization if the series is an organization formed or organized under the law of a single state and the statute of the state governing the series requires that the public organic record of the series be filed with the state.
(71) "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.
(72) "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 K.S.A. 84-2-401, 84-2-505, 84-2-711(3), 84-2a-508(5), 84-4-210 and 84-5-118, and amendments thereto.
(73) "Security agreement" means an agreement that creates or provides for a security interest.
(74) "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).
(75) "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.
(76) "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.
(77) "Statutory lien" means liens created by K.S.A. 2-1319, 2-2608, 2-3007, 34-239, 47-836, 58-201, 58-203, 58-204, 58-207, 58-218, 58-220, 58-221, 58-241, 58-242, 58-2524, 58-2525, 58-2526, 58-2527 and 58-2528, and K.S.A. 2024 Supp. 84-7-209, and amendments thereto.
(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 which:
(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.
(81) "Transmitting utility" means a person 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) Definitions in other articles. The following definitions in other articles apply to this article:
"Applicant" |
K.S.A. 84-5-102, and amendments thereto |
"Beneficiary" |
K.S.A. 84-5-102, and amendments thereto |
"Broker" |
K.S.A. 84-8-102, and amendments thereto |
"Certificated security" |
K.S.A. 84-8-102, and amendments thereto |
"Check" |
K.S.A. 84-3-104, and amendments thereto |
"Clearing corporation" |
K.S.A. 84-8-102, and amendments thereto |
"Contract for sale" |
K.S.A. 84-2-106, and amendments thereto |
"Customer" |
K.S.A. 84-4-104, and amendments thereto |
"Entitlement holder" |
K.S.A. 84-8-102, and amendments thereto |
"Financial asset" |
K.S.A. 84-8-102, and amendments thereto |
"Holder in due course" |
K.S.A. 84-3-302, and amendments thereto |
"Issuer" (with respect to a letter of credit or letter-of-creditright) |
K.S.A. 84-5-102, and amendments thereto |
"Issuer" (with respect to a security) |
K.S.A. 84-8-102, and amendments thereto |
"Issuer" (with respect to documents of title) |
K.S.A. 2024 Supp. 84-7-102, and amendments thereto |
"Lease" |
K.S.A. 84-2a-103, and amendments thereto |
"Lease agreement" |
K.S.A. 84-2a-103, and amendments thereto |
"Lease contract" |
K.S.A. 84-2a-103, and amendments thereto |
"Leasehold interest" |
K.S.A. 84-2a-103, and amendments thereto |
"Lessee" |
K.S.A. 84-2a-103, and amendments thereto |
"Lessee in ordinarycourse of business" |
K.S.A. 84-2a-103, and amendments thereto |
"Lessor" |
K.S.A. 84-2a-103, and amendments thereto |
"Lessor's residual interest" |
K.S.A. 84-2a-103, and amendments thereto |
"Letter of credit" |
K.S.A. 84-5-102, and amendments thereto |
"Merchant" |
K.S.A. 84-2-104, and amendments thereto |
"Negotiable instrument" |
K.S.A. 84-3-104, and amendments thereto |
"Nominated person" |
K.S.A. 84-5-102, and amendments thereto |
"Note" |
K.S.A. 84-3-104, and amendments thereto |
"Proceeds of a letter of credit" |
K.S.A. 84-5-114, and amendments thereto |
"Prove" |
K.S.A. 84-3-103, and amendments thereto |
"Sale" |
K.S.A. 84-2-106, and amendments thereto |
"Securities account" |
K.S.A. 84-8-501, and amendments thereto |
"Securities intermediary" |
K.S.A. 84-8-102, and amendments thereto |
"Security" |
K.S.A. 84-8-102, and amendments thereto |
"Security certificate" |
K.S.A. 84-8-102, and amendments thereto |
"Security entitlement" |
K.S.A. 84-8-102, and amendments thereto |
"Uncertificated security" |
K.S.A. 84-8-102, and amendments thereto |
(c) Article 1 of chapter 84 of the Kansas Statutes Annotated, and amendments thereto, definitions and principles. Article 1 of chapter 84 of the Kansas Statutes Annotated, and amendments thereto, contains general definitions and principles of construction and interpretation applicable throughout this article.
History: L. 2000, ch. 142, § 2; L. 2002, ch. 159, § 7; L. 2007, ch. 89, § 48; L. 2007, ch. 195, § 51; L. 2012, ch. 84, § 1; L. 2019, ch. 47, § 52; July 1, 2020.
KANSAS COMMENT, 1996
This section, which conforms to the 1995 Official Text, is the "positive scope" section of Article 9, just as 84-9-104 is the "negative scope" section. While this section tells us what transactions are covered, 84-9-104 expressly excludes many transactions which might otherwise be covered. In determining whether a particular transaction is covered by Article 9, the two sections should always be read together, together with 84-1-201(37).
Subsection (1). Subsection (1)(a) extends the rules of Article 9 to all transactions intended to create a security interest in personal property and fixtures. Substance rules over form. In order to give a sense of the breadth of coverage, Official Comment 5 delineates and catalogues the types of personal property covered by Article 9: accounts, chattel paper, documents, instruments, general intangibles, and goods. Official Comment 5 is extremely useful because it indexes all types of collateral, and includes a roadmap on how to perfect a security interest in each type, as well as applicable priority rules and special provisions governing default for each of the types of collateral.
Perhaps the first rule of coverage is that form is irrelevant. There are no more distinctions based upon whether the transactions are a "chattel mortgage," a "conditional sale," or an "assignment of accounts receivable." There is only a unitary "security interest," although no penalty attaches to using the pre-UCC terminology. Another threshold rule is that transfers "absolute" in form may be disguised security interests and thus subject to Article 9. Pre-UCC Kansas cases so held (see, e.g., Boam v. Cohen, 94 K. 42, 145 P.559 (1915) and Home Finance v. Cox, 190 K. 553, 376 P.2d 884 (1962)), and more recent decisions under the UCC reinforce the point. Perhaps the best case is In re Joseph Kanner Hat Co., 482 F.2d 937 (2d Cir. 1973), where a bank failed to file a UCC financing statement covering the "absolute assignment" of a relocation claim. The court concluded that the assignment was really intended as security for a loan, so that failure to file was fatal in the debtor's bankruptcy.
The critical term "security interest" is defined in 84-1-201(37) (note the Definitional Cross Reference) to include leases intended as security. "Whether a lease is intended as security is to be determined by the facts of each case..." 84-1-201(37). The subsection essentially defines a lease as intended as a security interest when it is not terminable and extends beyond the useful life of the leased property, or when the lessee can acquire the property without consideration or for nominal consideration. The accounting or tax treatment of the lease is not controlling, and it can still be considered a security interest for Article 9 purposes if it meets those definitions. Therefore, the "lessor" will be required to file a financing statement in order to reclaim the property in case the "lessee" sells it, grants a security interest in it to another creditor, suffers a levy against it, or goes bankrupt.
Kansas adopted an optional provision, 84-1-209, suggested by New York drafters, that an agreement with a debtor or with an other creditor subordinating a creditor's right of payment to other creditors, is not a security interest. Such subordination is permitted by 84-9-316. Given the broad scope of Article 9, there had been some question whether a subordination agreement created a "general intangible" subject to the filing requirements of Article 9. 84-1-209, which was added by the Kansas Legislature in 1967, puts the matter to rest.
A somewhat related scope question involves a surety's right of subrogation. Is this right a "security interest" under this section, so that the surety should file a financing statement in order to obtain protection against competitors such as account assignees? In U.S. Fidelity & Guaranty Co. v. First State Bank, 208 K. 738, 494 P.2d 1149 (1972), a contractor's surety, who by reason of his performance was subrogated to the rights of either laborers and materialmen or the owner, was held to have an interest in retained funds in the hands of the owner which was superior to the rights of a bank which loaned money to the contractor after the bond was executed, even though the bank took as security for its loan an assignment of the contractor's rights. The court held that, since a surety's subrogation rights are creatures of equity and not consensual, the surety is not required to file an Article 9 financing statement to attain priority over the bank as an Article 9 assignee. In short, a surety's right of subrogation is not a "security interest" within the meaning of this subsection, and has priority. This Kansas decision is consistent with others throughout the country.
The Kansas Supreme Court has held that a bank's right of setoff is subject to a perfected security interest in proceeds. Bank of Kansas v. Hutchinson Health Services, Inc., 13 K.A. 2d 421, 773 P.2d 660 (1989). Some courts have held that a bank's right of setoff is subject to any Article 9 security interest under 9-201. National Acceptance Co. of America v. Virginia Capital Bank, 498 F. Supp. 1078 (E.D. Va. 1980).
Subsection (1)(b) extends the scope of Article 9 to the outright sale of accounts and chattel paper, even though such transactions are not "security interests" in the pure sense. They are covered because third parties would be misled if no financing statement was filed covering accounts (or possession given when chattel paper is sold). Making them subject to Article 9 puts third parties on notice. The "factoring" of accounts from a dealer to a bank or finance company requires the factor to file a financing statement showing itself as the secured party and the dealer as the debtor. If no financing statement is filed and the dealer goes bankrupt, the factor will probably lose the accounts. See 84-9-301(1)(b), 11 U.S.C. § 544, and Daly v. Shrimplin, 610 P.2d 397 (Wyo. 1980). Similarly, the sale and delivery of chattel paper (defined in 84-9-105(1)(b)) essentially to mean installment contracts) is covered by Article 9, and the financing agency should take possession of the paper in order to perfect. For the Kansas supreme Court's recognition that an outright sale of chattel paper is covered by Article 9, see United American State Bank & Trust Co. v. Wild West Chrysler Plymouth, Inc., 221 K. 523, 561 P.2d 792 (1977). On the other hand, the outright sale of a television set or a piece of equipment would not be covered by Article 9, and no filing would be necessary. By comparison, of course, an outright conveyance of real estate by warranty deed requires a recording to protect the right of the buyer against third parties without notice. K.S.A. 58-2221.
Subsection (2). This subsection makes it clear that Article 9 applies to transactions which are in substance security interests regardless of what they are called in the documentation, or how they might have been styled under pre-UCC law. Article 9 does not apply to statutory liens such as the repairman's lien found in K.S.A. 58-201, because such liens create security interests by statute, as a matter of public policy, and not by private contract. The statutory lien claimant need file no financing statement. Article 9 only covers consensual liens. However, 84-9-310 does set forth priority rules which govern the rights of a statutory lien claimant as against a competing Article 9 security interest. For example, under 84-9-310, a feedlot's lien for unpaid feed bills (K.S.A. 58-207) would probably have priority over a prior perfected security interest in the livestock, at least if the requirements of that section were met. See Kansas Comment 1983 to 84-9-310.
Subsection (3). This subsection warns that Article 9 may still apply to a secured obligation even though the obligation is itself secured by collateral outside the scope of Article 9. The best example is the pledge of a real estate mortgage note; the note itself is an Article 9 "instrument" which can only be perfected by possession, even though the underlying asset (that which gives the note most of its value) is real estate, which is outside the scope of Article 9. See 84-9-104(j). This example is set forth in Official Comment 4 as an illustration of the "two-tiered" perfection problem which runs throughout Article 9. The illustration indicates why the Official Comments are so useful for the practitioner and should always be consulted right after reading the text of a section and its definitional cross references. Another example of "two-tiered" perfection is presented in Madison National Bank v. Newrath, 275 A.2d 495 (Md. 1971), where a partnership interest in a shopping center was held to be personal property subject to the filing requirements of Article 9 (probably a "general intangible"), even though the underlying asset—the shopping center—was real estate. A mortgage on the shopping center itself would be excluded from Article 9 by 9-104(j), but an assignment of the partner's interest was covered. A third example, especially relevant in Kansas, would be the assignment of a vendor's interest under an installment land contract; the assignment would probably be subject to Article 9 as a "general intangible" even though the underlying real estate would be outside the scope of Article 9. See In re Freeborn, 617 P.2d 424 (Wash. 1980)(failure of assignee of vendor's interest to file financing statement fatal in assignor's bankruptcy). For a Kansas bankruptcy case which appears to hold the same thing, see In re Southworth, 34 U.C.C. Rep. 1372 (D. Kan. (Bankr.), 1982), 22 B.R. 376.
Revisor's Note:
Former section 84-9-102 was repealed by L. 2000, ch. 142, § 155 and the number reassigned to the current text.
Section was also amended by L. 2007, ch. 90, § 65, but that version was repealed by L. 2007, ch. 195, § 60.
Law Review and Bar Journal References:
"Floor plan financing" under article 9 of UCC, Charles H. Oldfather, 14 K.L.R. 571, 588 (1966).
Secured transactions with the farmer, Van Smith, 35 J.B.A.K. 299, 338 (1966).
Subsection (1) discussed in "Survey of Kansas Law: Secured Transactions," J. Eugene Balloun, 16 K.L.R. 437, 439 (1968).
Real estate lease in Kansas, Richard L. Zinn, 17 K.L.R. 707, 721, 722 (1969).
Cited in article concerning sureties, Larry A. Withers, 10 W.L.J. 356, 357, 370 (1971).
Legislative survey, "Changes in Article Nine of the Kansas Commercial Code," Alan Tipton, 15 W.L.J. 212, 220, 221, 222 (1976).
"Survey of Kansas Law: Secured Transactions," J. Eugene Balloun, 27 K.L.R. 301, 305 (1979).
"Survey of Kansas Law: Secured Transactions," J. Eugene Balloun, 32 K.L.R. 351, 355 (1984).
"Commercial Law—Commercially Unreasonable Foreclosure Sales in the Context of a Surety Relationship—United States v. Lattauzio," John S. Clifford, 34 K.L.R. 175, 182 (1985).
"Revised Article 9 in Kansas," Hon. John K. Pearson, 51 K.L.R. 769, 775, 780, 781, 782, 784, 787, 789, 790, 792, 794, 795, 796, 803, 804, 805, 813, 831 (2003).
"A Brief Overview of Revised Article 9 in Kansas," John K. Pearson and J. Scott Pohl, 72 J.K.B.A. No. 8, 22 (2003).
"Kansas's Unique Treatment of Agricultural Liens," Keith G. Meyer, 53 K.L.R. 1141 (2005).
Attorney General's Opinions:
Mortgage registration; instruments subject thereto. 86-137.
Access to filing information. 87-50.
Record of mortgage can be filed as a financing statement covering fixtures with the register of deeds in the county where the collateral is located if such record complies with the fixture filing requirements without using a UCC-1 form. 2009-19.
CASE ANNOTATIONS
1. Subrogation pursuant to surety contract not a "security interest" within meaning of statute. United States Fidelity & Guaranty Co. v. First State Bank, 208 Kan. 738, 749, 494 P.2d 1149.
2. Action for breach of warranty in assignment clause of security agreement governed by subsection (1) (b) of this section. United American State Bank & Trust Co. v. Wild West Chrysler Plymouth, Inc., 221 Kan. 523, 526, 561 P.2d 792.
3. Where "lease" agreements were intended to create security interests under K.S.A. 84-1-201(37)(b), provisions of Article 9 of UCC applicable. CIT Financial Services, Inc. v. Gott, 5 Kan. App. 2d 224, 228, 615 P.2d 774.
4. Lease of truck to debtor was true lease and not meant to be security; under facts, lessor could reclaim. In Re Intern. Plastics, Inc., 18 B.R. 583, 584, 585 (1982).
5. Assignment of payments from realty deed governed by Article 9 of UCC; trustee had priority over unperfected bank. In Re Southworth, 22 B.R. 376, 377, 379 (1982).
6. No perfected security interest in real estate contract as intangible personal property. Garnett State Savings Bank v. Tush, 232 Kan. 447, 452, 657 P.2d 508 (1983).
7. Cited; lease-purchase agreement under economic development revenue bond act (K.S.A. 12-1740 et seq.) not complete sale; filing requirements inapplicable. In re Petition of City of Moran, 238 Kan. 513, 519, 522, 713 P.2d 451 (1986).
8. Cited; certain formal requirements that must be met before security interest may be enforced against debtor examined. Maxl Sales Co. v. Critiques, Inc., 796 F.2d 1293, 1297, 62 B.R. [168] [172] [173] (1986).
9. Cited; applicability of Kansas law on unauthorized removal from state and sale of secured collateral examined. Farmers State Bank v. Production Cred. Ass'n of St. Cloud, 243 Kan. 87, 96, 755 P.2d 518 (1988).
10. Priority between right of setoff and perfected security interest examined. Bank of Kansas v. Hutchinson Health Services, Inc., 13 Kan. App. 2d 421, 426, 773 P.2d 660 (1989).
11. Perfection of security interest in instrument, mortgagee's assignment of notes and mortgages as security, relative priority of interests examined. Army Nat'l Bank v. Equity Developers, Inc., 245 Kan. 3, 14, 774 P.2d 919 (1989).
12. Agreement between small business association borrower and tractor seller was contract for sale/security agreement subject to UCC under facts stated. U.S. v. Ables, 739 F. Supp. 1439, 1445 (1990).
13. Article 9 inapplicable to priority dispute between two creditors concerning surplus proceeds from foreclosure sale of real estate. Kinsley State Bank v. Waters, 18 Kan. App. 2d 413, 417, 854 P.2d 311 (1993).
14. Cited where holder of security interest in personal property granted coverage as mortgage holder under loss-payee clause. Union State Bank v. St. Paul Fire & Marine Ins. Co., 18 Kan. App. 2d 466, 475, 856 P.2d 174 (1993).
15. Whether priority interest of purchase money security interest holder in fixtures extends to attached real estate fixtures examined. Capitol Fed'l Savings & Loan Ass'n v. Hoger, 19 Kan. App. 2d 1052, 1055, 880 P.2d 281 (1994).
16. Whether mineral income assignment amounts to an outright sale of an account pursuant to section examined. Oxy USA, Inc. v. Colorado Interstate Gas Co., 20 Kan. App. 2d 69, 76, 883 P.2d 1216 (1994).
17. Whether holder in due course immune to defense that transaction is illegal and nullified by other law examined. U.S.D. No. 207 v. Northland Nat'l Bank, 20 Kan. App. 2d 321, 331, 887 P.2d 1138 (1994).
18. Whether waiver of defenses contract provision is enforceable examined. Benedictine College v. Century Office Products, 853 F. Supp. 1315, 1320 (1994).
19. Whether lessor may acquire security interest in accounts receivable to protect ownership interest in leased property examined. Baldwin v. Hays Asphalt Constr., Inc., 20 Kan. App. 2d 853, 854, 893 P.2d 275 (1995).
20. Interest of estate in proceeds of crops planted held free of any claim or lien of creditor. In re Stout, 284 B.R. 511, 513 (2002).
21. Mentioned; UCC provides that security interest generally subordinate to judicial lien before the security interest is perfected. In re Barker, 358 B.R. 399, 406 (2007).
22. Bankruptcy trustee's attempted avoidance of lien on modular home denied; court distinguishes modular homes from mobile homes. In re Brouillette, 389 B.R. 214, 221 (2008).
23. Bank had lien in mortgagor's mobile home under Kansas' version of the Uniform Commercial Code. In re Brooks, 452 B.R. 809 (Bkrtcy. D. Kan. 2011).
24. Membership units in limited liability company which were not traded on any market were in nature of "general intangibles" for attachment and perfection under the facts of the case. In re Brown, 479 B.R. 112 (Bkrtcy. D. Kan. 2012).
25. Upon recharacterization of a transaction, a court must look beyond language of agreement to determine true nature of the interest granted. In re Brooke Capital Corp., 588 F. Appx. 834, 843 (10 th Cir. 2014).
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