What this is: After a successful webinar on how to avoid fatal debtor name mistakes on UCC financing statements, participants had additional questions following the webinar. Thankfully, we have Despina Shields to answer them.
What this means: If you didn’t get a chance to attend, you can always watch it on demand at this link. Regardless of your attendance, here are some questions that were asked and answered post-event that may be helpful for UCC filers.
1. Is the Debtor’s Name Case Sensitive and Can Case Cause a UCC Filing to Be Deemed Seriously Misleading?
Answer: No. However, it is strongly recommended to style the debtor name on the UCC financing statement precisely the same way the debtor name is presented on the organic documents (formation documents and any amendments) for entities. If filing a UCC on an individual, consult the individual’s unexpired state-issued driver’s license or state-issued identification card, from their primary state of residence, for the individual’s surname, first personal name and middle name (if any). Place the debtor’s name in the appropriate field of the UCC and include the precise debtor name with the same case, punctuation, spacing (if any) and corporate indicators that are displayed on the organic documents or ID card. At Cogency Global, we are not aware of any case law involving the debtor’s name being presented in a different case than that of the source document or ID that caused a UCC financing statement to be held seriously misleading, and thus ineffective, by the courts.
2. What if There Was a Debtor Name Error in the UCC1 Filing but the UCC3 Continuation Was Filed Reflecting the Correct Debtor Name…Does That Resolve the Incorrect Debtor Name?
Answer: Unfortunately, it does not. The only way to amend the debtor’s name is to file a UCC3 debtor name amendment. A UCC3 continuation extends the life of the UCC another 5 years unless the UCC was filed in Wyoming, which has a 10-year statutory period. To correct or change a debtor name, a UCC3 debtor name change amendment should be filed.
3. How Do You Know When Debtors Change Their Names if They Don’t Tell You?
Answer: Usually, the security agreement or other contract that was signed by the debtor and secured party that authorizes the filing of the UCC initial financing statement contains language that requires the debtor to notify the secured party of a name change. If a legal document were signed that contained notification requirements of a name change, the debtor could be in breach of the contract if they fail to provide timely notification, which could be a condition of default. Some secured parties, even with this requirement in the security agreement, will periodically check the public record to see if a debtor has changed its name. This way they are not relying completely on the debtor for notification. A periodic check of the public record for name changes is sometimes necessary for the secured party involved with a deal that might be viewed as high risk or where there are other indicators that a periodic name check would be helpful.
UCC and IP due diligence services can be difficult to get right. Get started with our resource page on UCC, IP & Related Due Diligence Services.
4. What Happens to Your UCC Filing Position if the Entity Changes its Name After the UCC1 is Filed?
Answer: It is common for debtors to change their names months or years after an initial UCC financing statement is filed. Position may be affected if the secured party fails to file a UCC3 debtor name amendment within a specified period, usually 4 months of the name change. If an amendment is filed within the required period, then priority is preserved, even if another secured party files during that 4-month window. If no debtor name amendment is filed, then the UCC filing could be deemed seriously misleading since third-party searchers are conducting searches on the current (new) true and correct legal name. Further, depending on the collateral being secured, the prior secured party may not have interest in any after acquired collateral. Searchers are not required to search for UCCs on former debtor names or conduct “reasonable” searches on prior names or name variations since UCC filers are required to maintain UCCs, which includes amending the debtor name after a debtor name change.
For specific statutory language covering this issue, please refer to UCC §9-507(c).
5. What is a Good Method to Check and See if My UCC Filings Might Be Seriously Misleading?
Answer: A Post Filing Search is a good method for learning if a UCC filing could be deemed seriously misleading. The best time to conduct this type of search is soon after a UCC filing has been filed because if the search does not reveal the expected UCC filing, then it is highly probable there is an issue with the UCC filing. A Post Filing Search enables the filer to identify the error and to rectify it promptly. If a Post Filing Search is not conducted shortly after a UCC1 or UCC3 debtor name change or addition was filed, it may be too late for the UCC to be effective.
Conduct the Post Filing Search on the exact name of the debtor by consulting the formation documents and any amendments for entities and unexpired state issued driver’s license or ID for individuals. Include spaces, punctuation and corporate indicators when conducting the search. In addition, be sure to conduct this search in the state of formation of the debtor (for entities and primary state of residence for individuals) using the state approved search logic/system and not a wild card search or using a third-party website. If the returned results include your filing, then it is likely the UCC would be considered an effective UCC financing statement. If the Post Filing Search results do not return the expected search results, it is likely that the UCC filing in question could be considered seriously misleading unless steps are taken to resolve the issue.
Third-party searchers are only required to search in the correct state, on the correct name, using the state-approved search logic. If a UCC filer follows this same process and uncovers their lien, then the filing is likely an effective financing statement. In addition, it helps to show the filer that third parties conducting UCC searches will find the UCC too.
If you have any other questions, feel free to contact our specialists or contact us in the comments.
This article is provided for informational purposes only and should not be considered, or relied upon, as legal advice.