KANSAS OFFICE of
  REVISOR of STATUTES

  

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84-9-108. Sufficiency of description. (a) Sufficiency of description. Except as otherwise provided in subsections (c), (d), and (e), a description of personal or real property is sufficient, whether or not it is specific, if it reasonably identifies what is described.

(b) Examples of reasonable identification. Except as otherwise provided in subsection (d), a description of collateral reasonably identifies the collateral if it identifies the collateral by:

(1) Specific listing;

(2) category;

(3) except as otherwise provided in subsection (e), a type of collateral defined in the uniform commercial code;

(4) quantity;

(5) computational or allocational formula or procedure; or

(6) except as otherwise provided in subsection (c), any other method, if the identity of the collateral is objectively determinable.

(c) Supergeneric description not sufficient. A description of collateral as "all the debtor's assets" or "all the debtor's personal property" or using words of similar import does not reasonably identify the collateral.

(d) Investment property. Except as otherwise provided in subsection (e), a description of a security entitlement, securities account, or commodity account is sufficient if it describes:

(1) The collateral by those terms or as investment property; or

(2) the underlying financial asset or commodity contract.

(e) When description by type insufficient. A description only by type of collateral defined in the uniform commercial code is an insufficient description of:

(1) A commercial tort claim; or

(2) in a consumer transaction, consumer goods, a security entitlement, a securities account, or a commodity account.

History: L. 2000, ch. 142, § 8; July 1, 2001.

KANSAS COMMENT, 1996

This section, which does not vary from the 1995 Official Text, determines when a secured party's interest in after-acquired collateral is deemed taken for "new value" and not as security for antecedent debt. Two tests must be met for an interest in after-acquired property to be one not taken for antecedent debt: (1) "new value" must have been given; and (2) the after-acquired collateral must come either in the ordinary course of the debtor's business or as an acquisition under a contract of purchase entered into within a reasonable time after the giving of new value and pursuant to the security agreement.

The original purpose of this section was to protect the Article 9 "floating lien" from attack as a voidable preference in bankruptcy. Without the section, the trustee could argue that collateral acquired by the debtor shortly before bankruptcy was taken for "antecedent debt," and was thus voidable as a preference under section 60 of the 1898 Bankruptcy Act. With enactment of the Bankruptcy Reform Act of 1978, this section has generally been rendered academic. The new bankruptcy law expressly provides that a "transfer" of property from debtor to secured party is not made "until the debtor has acquired rights in the property transferred." 11 U.S.C. § 547(e)(3). Thus, the determination of when a transfer is made for antecedent debt is mandated by federal law, which would clearly preempt any attempt by this section to bring about a different result. For example, if a lender took a security interest in "all equipment now owned or hereafter acquired by the debtor," filed its financing statement under Article 9, and the debtor later went bankrupt, any equipment acquired by the debtor within 90 days of bankruptcy would probably not be allowed to feed the lender's security interest; instead, it would have to be given back to the trustee for the benefit of all creditors. This section would not protect the lender in such a case. However, § 547 of the Bankruptcy Code contains special protection for a secured party whose loan "enables" the debtor to acquire the new equipment, i.e., a purchase money security interest. See 11 U.S.C. § 547(c)(3). Moreover, special rules now apply to determine the extent to which an Article 9 lender can claim after-acquired inventory (which includes crops and livestock) and accounts under a "floating lien." In general, the lender must return as preferential any "improvement in position" acquired by comparing its collateral position 90 days before bankruptcy with its position on the day bankruptcy is filed. See 11 U.S.C. § 547(c)(5).

Revisor's Note:

Former section 84-9-108 was repealed by L. 2000, ch. 142, § 155 and the number reassigned to the current text.

Law Review and Bar Journal References:

Effect of "failure to file" in "floor plan financing" discussed, Charles H. Oldfather, 14 K.L.R. 571, 591 (1966).

"Revised Article 9 in Kansas," Hon. John K. Pearson, 51 K.L.R. 769, 789, 804 (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).

CASE ANNOTATIONS

1. Mischaracterization in financing statement of membership units in limited liability company was not "seriously misleading" where statement described number of units and identified parties by name under the facts of the case. In re Brown, 479 B.R. 112 (Bkrtcy. D. Kan. 2012).

2. Retailers' sales slips are security agreements under the facts of the case. In re Cunningham, 489 B.R. 602 (Bkrtcy. D. Kan. 2013).

3. A consumer transaction involving consumer goods renders a generic collateral description. In re Gracy, 522 B.R. 686, 692 (2015).


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