Even what seems like a minor error on your UCC filings can result in rejection or a filed UCC that could be deemed seriously misleading as defined in Section 9-506. Either of these situations can negatively affect the priority of the lender’s interest in the collateral. However, not all mistakes are created equal. Some are more damaging than others, which is why we’ve put together a list of the top 11 mistakes we see on clients’ filings. Avoid the pitfalls below, and you’ll reduce the risk of your filing being rejected or filing a UCC that is seriously misleading and, therefore, ineffective.
1. Failure to indicate the correct name of the debtor in the debtor name field(s).
We still see many filings prepared with the entity name followed by “a Delaware Limited Liability Company” or d/b/a names. The only way to be sure you have the correct debtor’s name is to review the charter document and any amendments for registered organizations and usually the unexpired state issued driver’s license or unexpired state issued ID for individual debtors. The name on the UCC filing should be styled to match the name on these sources.
In addition, we often see filings involving trusts prepared incorrectly with the trustee’s name in the debtor box. Filings involving trusts should either have the trust’s name in the debtor box or the settlor’s name if the trust does not have a name.
2. Submitting UCC3s with multiple functions in states that don’t allow it.
Not all states allow multiple functions (i.e. continuation and name change) on a UCC3. Refer to our help piece, Central Filing Offices That Allow Multiple Functions Per UCC Under Article 9, to see which states allow what types of multiple functions.
It’s important to note, however, that even if a state accepts multiple functions on a UCC3 filing, errors can be made where only one of the two functions are correctly indexed by the filing office. Therefore, while some states permit multiple functions, it is generally not a recommended practice.
3. Incorrect UCC1 file number listed on UCC3.
Filers need to be extremely careful providing the UCC1 file number on an amendment filing because the state will only reject if there is no such number in their system. If the number listed is an active filing in the filing office’s system, they will accept it, connect it with the wrong (unrelated) UCC1 and the filer will never know. This is one of the reasons why a post filing search is highly recommended.
4. Failure to include ALL of the debtor or secured party (SP) information on debtor or SP name or address changes.
Most states treat debtor or secured party name or address changes as “new parties” for the purpose of indexing the filing in their records. Therefore, all the debtor or SP information needs to be filled out or the filing may be rejected. For example, if you are filing a debtor address change, you also need to include the name of the debtor. Some filers enter only the information that is changing — probably because the UCC3 form directions seem to indicate that approach.
Note that Delaware is one of the rare exceptions to this and will accept debtor or SP changes with just the changed/new info included in box 7.
5. Filling out the UCC3 as a secured party name change when it is intended to be an assignment.
We have no way of knowing whether a name change really should be an assignment when we review clients’ filings, however, sometimes our staff asks the client about it if the new name on a SP name change appears to be totally unrelated to the original secured party name. When we’ve done this, we’ve often found that the filing should have been prepared as an assignment.
6. Failure to include the debtor name on UCC3s in states that require it.
There are several states that require the debtor’s name on a UCC3 regardless of the type of amendment. We recommend that you put the debtor’s name in Box 10 (Optional Filer Reference Data) except in GA and RI, which prefer that the name be listed in Box 6.
Note that Florida and Montana also require the secured party’s name on UCC3 filings. Refer to our help piece on “Non-Uniform UCC3 Requirements Under Article 9” for these and other state specific UCC3 requirements.
Register for our new CLE webinar, "Avoiding Fatal Debtor Name Mistakes on UCC Financing Statements" to learn more on the importance of the debtor name.
7. Failure to include the legal description of the real property on UCC3 fixture filings.
Article 9 requires the legal description of the real property on any type of UCC3 for fixture filings per Section 9-512(2). In addition, remember to check field 1b on UCC3 amendments, which indicates that the UCC financing statement amendment is to be filed [for record] (or recorded) in the real estate records.
8. Failure to include tax information in states that require it.
Florida has a documentary stamp tax and Tennessee has a recordation tax. Alabama and Maryland have taxes associated with any local UCC fixture filing.
9. Providing additional debtor or secured party names on an exhibit, instead of the designated UCC form fields.
Doing so, either on paper or electronic filings, ensures that these parties will NOT be indexed by the filing office. Filing offices do not index these additional parties even when instructions are provided to the filing office. Only the parties included in the debtor and secured party fields are included on the filing office index.
10. Multiple secured parties on UCC1 require all parties to act when filing UCC3s.
Filing a UCC3 amendment referencing only one authorizing secured party when multiple secured parties were indicated on the UCC1 may only affect the one secured party’s interest. As an example, if all secured parties intend to continue a UCC1, all of them must be listed as authorizing the continuation or each party must file a separate UCC3 continuation to continue their security interest.
11. UCC filers often attempt to file UCC3 continuations outside the permitted six-month continuation window.
UCC3 continuations may only be filed six months prior to the lapse date. Attempting to file a continuation statement earlier than that window will result in rejection. A filing office may accept a UCC3 continuation after lapse, however, a court would likely find that the original filing lapsed and was not continued based on the clear wording of the statute. (Section 9-515(c) says, “The effectiveness of a filed financing statement lapses on the expiration of the period of its effectiveness unless before the lapse a continuation statement is filed…Upon lapse, a financing statement ceases to be effective and any security interest…that was perfected…becomes unperfected…” [emphasis is ours].) It is important to keep in mind that acceptance of a UCC filing by a filing office does not ensure legal sufficiency.
Given the complexity and importance of properly preparing a UCC financing statement form, you may want to consider using an experienced service company to file your UCC financing statements. Doing so can help you avoid unnecessary delays, rejections, and other serious challenges.
This article is provided for informational purposes only and should not be considered, or relied upon, as legal advice.