Chapter 445 Oregon Laws 2001

AN ACT

SB 171

Relating to secured transactions; creating new provisions; amending ORS 29.205, 56.041, 71.1010, 71.1050, 71.2010, 72.1030, 72.2100, 72.3260, 72.4010, 72.4020, 72.4030, 72.5020, 72.7160, 72.8010, 72A.1030, 72A.3030, 72A.3070, 72A.3090, 72A.3095, 74.2100, 77.2090, 77.5030, 78.1030, 78.1060, 78.1100, 78.3010, 78.3020, 78.5100, 79.8010, 83.610, 87.322, 87.755, 87.816, 90.425, 93.806, 95.270, 192.440, 205.246, 283.089, 285B.050, 305.182, 305.184, 353.380, 471.292, 547.510, 646.551, 657.394, 657.542, 708A.535, 722.264, 725.360, 725.910, 803.015, 803.097 and 830.740 and section 9, chapter 249, Oregon Laws 2001 (Enrolled House Bill 2386), and ORCP 81 A; repealing ORS 79.1010, 79.1020, 79.1030, 79.1040, 79.1050, 79.1060, 79.1070, 79.1080, 79.1090, 79.1100, 79.1120, 79.1130, 79.1150, 79.1160, 79.2010, 79.2020, 79.2030, 79.2040, 79.2050, 79.2060, 79.2070, 79.2080, 79.3010, 79.3015, 79.3020, 79.3030, 79.3040, 79.3050, 79.3060, 79.3070, 79.3080, 79.3090, 79.3100, 79.3110, 79.3120, 79.3130, 79.3132, 79.3140, 79.3150, 79.3160, 79.3170, 79.3180, 79.4010, 79.4016, 79.4020, 79.4023, 79.4025, 79.4030, 79.4040, 79.4050, 79.4060, 79.4070, 79.4080, 79.4090, 79.5010, 79.5020, 79.5030, 79.5040, 79.5050, 79.5060 and 79.5070; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

GENERAL PROVISIONS

(Short Title, Definitions and General Concepts)

SECTION 1. 9-101. Short title. This chapter may be cited as Uniform Commercial Code-Secured Transactions.

SECTION 2. 9-102. Definitions and index of definitions. (1) As used in this chapter:

(a) “Accession” means goods that are physically united with other goods in such a manner that the identity of the original goods is not lost.

(b) “Account,” except as used in “account for,” means a right to payment of a monetary obligation, whether or not earned by performance, (i) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, (ii) for services rendered or to be rendered, (iii) for a policy of insurance issued or to be issued, (iv) for a secondary obligation incurred or to be incurred, (v) for energy provided or to be provided, (vi) for the use or hire of a vessel under a charter or other contract, (vii) arising out of the use of a credit or charge card or information contained on or for use with the card, or (viii) 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 (i) rights to payment evidenced by chattel paper or an instrument, (ii) commercial tort claims, (iii) deposit accounts, (iv) investment property, (v) letter-of-credit rights or letters of credit, or (vi) 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.

(c) “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.

(d) “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.

(e) “Agricultural lien” means an interest, other than a security interest or a lien created under ORS 87.226, 87.700 to 87.740 or 87.750 to 87.777, 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.

(f) “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.

(g) “Authenticate” means:

(A) To sign; or

(B) To execute or otherwise adopt a symbol, or encrypt or similarly process a record in whole or in part, with the present intent of the authenticating person to identify the person and adopt or accept a record.

(h) “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.

(i) “Cash proceeds” means proceeds that are money, checks, deposit accounts or the like.

(j) “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.

(k) “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 paragraph, “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.

(L) “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.

(m) “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.

(n) “Commodity account” means an account maintained by a commodity intermediary in which a commodity contract is carried for a commodity customer.

(o) “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.

(p) “Commodity customer” means a person for which a commodity intermediary carries a commodity contract on its books.

(q) “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.

(r) “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.

(s) “Consignee” means a merchant to which goods are delivered in a consignment.

(t) “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.

(u) “Consignor” means a person that delivers goods to a consignee in a consignment.

(v) “Consumer debtor” means a debtor in a consumer transaction.

(w) “Consumer goods” means goods that are used or bought for use primarily for personal, family or household purposes.

(x) “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.

(y) “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.

(z) “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.

(aa) “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.

(bb) “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.

(cc) “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.

(dd) “Document” means a document of title or a receipt of the type described in ORS 77.2010 (2).

(ee) “Electronic chattel paper” means chattel paper evidenced by a record or records consisting of information stored in an electronic medium.

(ff) “Encumbrance” means a right, other than an ownership interest, in real property. The term includes mortgages and other liens on real property.

(gg) “Equipment” means goods other than inventory, farm products or consumer goods.

(hh) “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.

(ii) “Farming operation” means raising, cultivating, propagating, fattening, grazing or any other farming, livestock or aquacultural operation.

(jj) “File number” means the number assigned to an initial financing statement pursuant to section 90 (1) of this 2001 Act.

(kk) “Filing office” means an office designated in section 72 of this 2001 Act as the place to file a financing statement.

(LL) “Filing-office rule” means a rule adopted pursuant to section 97 of this 2001 Act.

(mm) “Financing statement” means a record or records composed of an initial financing statement and any filed record relating to the initial financing statement.

(nn) “Fixture filing” means the filing of a financing statement covering goods that are or are to become fixtures and satisfying section 73 (1) and (2) of this 2001 Act. The term includes the filing of a financing statement covering goods of a transmitting utility which are or are to become fixtures.

(oo) “Fixtures” means goods that have become so related to particular real property that an interest in them arises under real property law. The term does not include portable irrigation equipment including movable pipe, pumps, electrical pump panels, pump columns, electrical wire, wheel lines, center pivots and handlines. The term includes domestic pumps, domestic pump wire, domestic pump panels, domestic pump columns, and buried irrigation equipment including buried pipe, buried electrical wire and all buried well casings.

(pp) “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.

(qq) “Good faith” means honesty in fact and the observance of reasonable commercial standards of fair dealing.

(rr) “Goods” means all things that are movable when a security interest attaches. The term includes (i) fixtures, (ii) standing timber that is to be cut and removed under a conveyance or contract for sale, (iii) the unborn young of animals, (iv) crops grown, growing or to be grown, even if the crops are produced on trees, vines or bushes, and (v) 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 (i) the program is associated with the goods in such a manner that it customarily is considered part of the goods, or (ii) 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.

(ss) “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.

(tt) “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.

(uu) “Instrument” means a negotiable instrument 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.

(vv) “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.

(ww) “Investment property” means a security, whether certificated or uncertificated, security entitlement, securities account, commodity contract or commodity account.

(xx) “Jurisdiction of organization,” with respect to a registered organization, means the jurisdiction under whose law the organization is organized.

(yy) “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.

(zz) “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.

(aaa) “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.

(bbb) “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.

(ccc) “Mortgage” means a consensual interest in real property, including fixtures, which secures payment or performance of an obligation.

(ddd) “New debtor” means a person that becomes bound as debtor under section 13 (4) of this 2001 Act by a security agreement previously entered into by another person.

(eee) “New value” means (i) money, (ii) money’s worth in property, services or new credit, or (iii) 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.

(fff) “Noncash proceeds” means proceeds other than cash proceeds.

(ggg) “Obligor” means a person that, with respect to an obligation secured by a security interest in or an agricultural lien on the collateral, (i) owes payment or other performance of the obligation, (ii) has provided property other than the collateral to secure payment or other performance of the obligation, or (iii) 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.

(hhh) “Original debtor,” except as used in section 30 (3) of this 2001 Act, means a person that, as debtor, entered into a security agreement to which a new debtor has become bound under section 13 (4) of this 2001 Act.

(iii) “Payment intangible” means a general intangible under which the account debtor’s principal obligation is a monetary obligation.

(jjj) “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.

(kkk) “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) of this paragraph;

(D) The spouse of an individual described in subparagraph (A), (B) or (C) of this paragraph; or

(E) An individual who is related by blood or marriage to an individual described in subparagraph (A), (B), (C) or (D) of this paragraph and shares the same home with the individual.

(LLL) “Proceeds,” except as used in section 107 (2) of this 2001 Act, 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.

(mmm) “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.

(nnn) “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 sections 118, 119 and 120 of this 2001 Act.

(ooo) “Public-finance transaction” means a secured transaction in connection with which:

(A) Debt securities are issued;

(B) All or a portion of the securities issued have an initial stated maturity of at least 20 years; and

(C) The debtor, obligor, secured party, account debtor or other person obligated on collateral, assignor or assignee of a secured obligation, or assignor or assignee of a security interest is a state or a governmental unit of a state.

(ppp) “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.

(qqq) “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.

(rrr) “Registered organization” means an organization organized solely under the law of a single state or the United States and as to which the state or the United States is required by statute or regulation to maintain a public record showing the organization to have been organized.

(sss) “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.

(ttt) “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 ORS 72.4010, 72.5050, 72.7110 (3), 72A.5080 (5), 74.2100 or section 148 of this 2001 Act.

(uuu) “Security agreement” means an agreement that creates or provides for a security interest.

(vvv) “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) of this paragraph.

(www) “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.

(xxx) “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.

(yyy) “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.

(zzz) “Tangible chattel paper” means chattel paper evidenced by a record or records consisting of information that is inscribed on a tangible medium.

(aaaa) “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.

(bbbb) “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.

(2) Definitions in other sections. The following definitions in other sections apply to this chapter:

“Applicant” ORS 75.1020

“Beneficiary” ORS 75.1020

“Broker” ORS 78.1020

“Certificated security” ORS 78.1020

“Check” ORS 73.0104

“Clearing corporation” ORS 78.1020

“Contract for sale” ORS 72.1060

“Customer” ORS 74.1040

“Entitlement holder” ORS 78.1020

“Financial asset” ORS 78.1020

“Holder in due course” ORS 73.0302

“Issuer” (with respect

to a letter of credit or

letter-of-credit right) ORS 75.1020

“Issuer” (with respect

to a security) ORS 78.2010

“Lease” ORS 72A.1030

“Lease agreement” ORS 72A.1030

“Lease contract” ORS 72A.1030

“Leasehold interest” ORS 72A.1030

“Lessee” ORS 72A.1030

“Lessee in ordinary course

of business” ORS 72A.1030

“Lessor” ORS 72A.1030

“Lessor’s residual

interest” ORS 72A.1030

“Letter of credit” ORS 75.1020

“Merchant” ORS 72.1040

“Negotiable instrument” ORS 73.0104

“Nominated person” ORS 75.1020

“Note” ORS 73.0104

“Proceeds of a letter

of credit” ORS 75.1140

“Prove” ORS 73.0103

“Sale” ORS 72.1060

“Securities intermediary” ORS 78.1020

“Security” ORS 78.1020

“Security certificate” ORS 78.1020

“Security entitlement” ORS 78.1020

“Uncertificated security” ORS 78.1020

(3) ORS chapter 71 definitions and principles. ORS chapter 71 contains general definitions and principles of construction and interpretation applicable throughout this chapter.

SECTION 3. 9-103. Purchase-money security interest; application of payments; burden of establishing. (1) Definitions. As used in this section:

(a) “Purchase-money collateral” means goods or software that secures a purchase-money obligation incurred with respect to that collateral; and

(b) “Purchase-money obligation” means an obligation of an obligor incurred as all or part of the price of the collateral or for value given to enable the debtor to acquire rights in or the use of the collateral if the value is in fact so used.

(2) Purchase-money security interest in goods. A security interest in goods is a purchase-money security interest:

(a) To the extent that the goods are purchase-money collateral with respect to that security interest;

(b) If the security interest is in inventory that is or was purchase-money collateral, also to the extent that the security interest secures a purchase-money obligation incurred with respect to other inventory in which the secured party holds or held a purchase-money security interest; and

(c) Also to the extent that the security interest secures a purchase-money obligation incurred with respect to software in which the secured party holds or held a purchase-money security interest.

(3) Purchase-money security interest in software. A security interest in software is a purchase-money security interest to the extent that the security interest also secures a purchase-money obligation incurred with respect to goods in which the secured party holds or held a purchase-money security interest if:

(a) The debtor acquired its interest in the software in an integrated transaction in which it acquired an interest in the goods; and

(b) The debtor acquired its interest in the software for the principal purpose of using the software in the goods.

(4) Consignor’s inventory purchase-money security interest. The security interest of a consignor in goods that are the subject of a consignment is a purchase-money security interest in inventory.

(5) Application of payment in non-consumer-goods transaction. In a transaction other than a consumer-goods transaction, if the extent to which a security interest is a purchase-money security interest depends on the application of a payment to a particular obligation, the payment must be applied:

(a) In accordance with any reasonable method of application to which the parties agree;

(b) In the absence of the parties’ agreement to a reasonable method, in accordance with any intention of the obligor manifested at or before the time of payment; or

(c) In the absence of an agreement to a reasonable method and a timely manifestation of the obligor’s intention, in the following order:

(A) To obligations that are not secured; and

(B) If more than one obligation is secured, to obligations secured by purchase-money security interests in the order in which those obligations were incurred.

(6) No loss of status of purchase-money security interest in non-consumer-goods transaction. In a transaction other than a consumer-goods transaction, a purchase-money security interest does not lose its status as such, even if:

(a) The purchase-money collateral also secures an obligation that is not a purchase-money obligation;

(b) Collateral that is not purchase-money collateral also secures the purchase-money obligation; or

(c) The purchase-money obligation has been renewed, refinanced, consolidated, or restructured.

(7) Burden of proof in non-consumer-goods transaction. In a transaction other than a consumer-goods transaction, a secured party claiming a purchase-money security interest has the burden of establishing the extent to which the security interest is a purchase-money security interest.

(8) Nonconsumer-goods transactions; no inference. The limitation of the rules in subsections (5), (6) and (7) of this section to transactions other than consumer-goods transactions is intended to leave to the court the determination of the proper rules in consumer-goods transactions. The court may not infer from that limitation the nature of the proper rule in consumer-goods transactions and may continue to apply established approaches.

SECTION 4. 9-104. Control of deposit account. (1) Requirements for control. A secured party has control of a deposit account if:

(a) The secured party is the bank with which the deposit account is maintained;

(b) The debtor, secured party and bank have agreed in an authenticated record that the bank will comply with instructions originated by the secured party directing disposition of the funds in the deposit account without further consent by the debtor; or

(c) The secured party becomes the bank’s customer with respect to the deposit account.

(2) Debtor’s right to direct disposition. A secured party that has satisfied subsection (1) of this section has control, even if the debtor retains the right to direct the disposition of funds from the deposit account.

SECTION 5. 9-105. Control of electronic chattel paper. A secured party has control of electronic chattel paper if the record or records comprising the chattel paper are created, stored and assigned in such a manner that:

(1) A single authoritative copy of the record or records exists which is unique, identifiable and, except as otherwise provided in subsections (4), (5) and (6) of this section, unalterable;

(2) The authoritative copy identifies the secured party as the assignee of the record or records;

(3) The authoritative copy is communicated to and maintained by the secured party or its designated custodian;

(4) Copies or revisions that add or change an identified assignee of the authoritative copy can be made only with the participation of the secured party;

(5) Each copy of the authoritative copy and any copy of a copy is readily identifiable as a copy that is not the authoritative copy; and

(6) Any revision of the authoritative copy is readily identifiable as an authorized or unauthorized revision.

SECTION 6. 9-106. Control of investment property. (1) Control under ORS 78.1060. A person has control of a certificated security, uncertificated security or security entitlement as provided in ORS 78.1060.

(2) Control of commodity contract. A secured party has control of a commodity contract if:

(a) The secured party is the commodity intermediary with which the commodity contract is carried; or

(b) The commodity customer, secured party and commodity intermediary have agreed that the commodity intermediary will apply any value distributed on account of the commodity contract as directed by the secured party without further consent by the commodity customer.

(3) Effect of control of securities account or commodity account. A secured party having control of all security entitlements or commodity contracts carried in a securities account or commodity account has control over the securities account or commodity account.

SECTION 7. 9-107. Control of letter-of-credit right. A secured party has control of a letter-of-credit right to the extent of any right to payment or performance by the issuer or any nominated person if the issuer or nominated person has consented to an assignment of proceeds of the letter of credit under ORS 75.1140 (3) or otherwise applicable law or practice.

SECTION 8. 9-108. Sufficiency of description. (1) Sufficiency of description. Except as otherwise provided in subsections (3), (4) and (5) of this section, a description of personal or real property is sufficient, whether or not it is specific, if it reasonably identifies what is described.

(2) Examples of reasonable identification. Except as otherwise provided in subsection (4) of this section, a description of collateral reasonably identifies the collateral if it identifies the collateral by:

(a) Specific listing;

(b) Category;

(c) Except as otherwise provided in subsection (5) of this section, a type of collateral defined in the Uniform Commercial Code;

(d) Quantity;

(e) Computational or allocational formula or procedure; or

(f) Except as otherwise provided in subsection (3) of this section, any other method, if the identity of the collateral is objectively determinable.

(3) 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.

(4) Investment property. Except as otherwise provided in subsection (5) of this section, a description of a security entitlement, securities account or commodity account is sufficient if it describes:

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

(b) The underlying financial asset or commodity contract.

(5) When description by type insufficient. A description only by type of collateral defined in the Uniform Commercial Code is an insufficient description of:

(a) A commercial tort claim; or

(b) In a consumer transaction, consumer goods, a security entitlement, a securities account or a commodity account.

(Applicability of Chapter)

SECTION 9. 9-109. Scope. (1) General scope of chapter. Except as otherwise provided in subsections (3) and (4) of this section, this chapter applies to:

(a) A transaction, regardless of its form, that creates a security interest in personal property or fixtures by contract;

(b) An agricultural lien;

(c) A sale of accounts, chattel paper, payment intangibles or promissory notes;

(d) A consignment;

(e) A security interest arising under ORS 72.4010, 72.5050, 72.7110 (3), or 72A.5080 (5), as provided in section 10 of this 2001 Act; and

(f) A security interest arising under ORS 74.2100 or section 148 of this 2001 Act.

(2) Security interest in secured obligation. The application of this chapter to a security interest in a secured obligation is not affected by the fact that the obligation is itself secured by a transaction or interest to which this chapter does not apply.

(3) Extent to which this chapter does not apply. This chapter does not apply to the extent that:

(a) A statute, regulation or treaty of the United States preempts this chapter;

(b) Another statute of this state expressly governs the creation, perfection, priority or enforcement of a security interest created by this state or a governmental unit of this state;

(c) A statute of another state, a foreign country, or a governmental unit of another state or a foreign country, other than a statute generally applicable to security interests, expressly governs creation, perfection, priority, or enforcement of a security interest created by the state, country, or governmental unit; or

(d) The rights of a transferee beneficiary or nominated person under a letter of credit are independent and superior under ORS 75.1140.

(4) Inapplicability of chapter. This chapter does not apply to:

(a) A landlord’s lien, other than an agricultural lien;

(b) A lien, other than an agricultural lien, given by statute or other rule of law for services or materials, but section 53 of this 2001 Act applies with respect to priority of the lien;

(c) An assignment of a claim for wages, salary or other compensation of an employee;

(d) A sale of accounts, chattel paper, payment intangibles or promissory notes as part of a sale of the business out of which they arose;

(e) An assignment of accounts, chattel paper, payment intangibles or promissory notes which is for the purpose of collection only;

(f) An assignment of a right to payment under a contract to an assignee that is also obligated to perform under the contract;

(g) An assignment of a single account, payment intangible or promissory note to an assignee in full or partial satisfaction of a preexisting indebtedness;

(h) A transfer of an interest in or an assignment of a claim under a policy of insurance, other than an assignment by or to a health-care provider of a health-care-insurance receivable and any subsequent assignment of the right to payment, but sections 35 and 42 of this 2001 Act apply with respect to proceeds and priorities in proceeds;

(i) An assignment of a right represented by a judgment, other than a judgment taken on a right to payment that was collateral;

(j) A right of recoupment or set-off, but:

(A) Section 60 of this 2001 Act applies with respect to the effectiveness of rights of recoupment or set-off against deposit accounts; and

(B) Section 66 of this 2001 Act applies with respect to defenses or claims of an account debtor;

(k) The creation or transfer of an interest in or lien on real property, including a lease or rents thereunder, or a seller’s or purchaser’s interest in a land sale contract and the proceeds thereof, except to the extent that provision is made for:

(A) Liens on real property in sections 13 and 28 of this 2001 Act;

(B) Fixtures in section 54 of this 2001 Act;

(C) Fixture filings in sections 72, 73, 83, 87 and 90 of this 2001 Act; and

(D) Security agreements covering personal and real property in section 102 of this 2001 Act;

(L) An assignment of a claim arising in tort, other than a commercial tort claim, but sections 35 and 42 of this 2001 Act apply with respect to proceeds and priorities in proceeds; or

(m) An assignment, in a consumer transaction, of a deposit account from which, under the terms of the account agreement, third party payments may be made by means of a check, draft, negotiable order of withdrawal or other order, but sections 35 and 42 of this 2001 Act apply with respect to proceeds and priorities in proceeds.

SECTION 10. 9-110. Security interests arising under ORS 72.1010 to 72.7250 or ORS chapter 72A. A security interest arising under ORS 72.4010, 72.5050, 72.7110 (3) or 72A.5080 (5) is subject to this chapter. However, until the debtor obtains possession of the goods:

(1) The security interest is enforceable, even if section 13 (2)(c) of this 2001 Act has not been satisfied;

(2) Filing is not required to perfect the security interest;

(3) The rights of the secured party after default by the debtor are governed by ORS 72.1010 to 72.7250 or ORS chapter 72A; and

(4) The security interest has priority over a conflicting security interest created by the debtor.

EFFECTIVENESS OF

SECURITY AGREEMENT;

ATTACHMENT OF SECURITY INTEREST;

RIGHTS OF PARTIES

TO SECURITY AGREEMENT

(Effectiveness and Attachment)

SECTION 11. 9-201. General effectiveness of security agreement. (1) General effectiveness. Except as otherwise provided in the Uniform Commercial Code, a security agreement is effective according to its terms between the parties, against purchasers of the collateral, and against creditors.

(2) Applicable consumer laws and other law. A transaction subject to this chapter is subject to any applicable rule of law which establishes a different rule for consumers and is also subject to ORS 83.510 to 83.680 on retail installment contracts and ORS chapter 725 on small loans.

(3) Other applicable law controls. In case of conflict between this chapter and a rule of law, statute or rule described in subsection (2) of this section, the rule of law, statute or rule controls. Failure to comply with a statute or rule described in subsection (2) of this section has only the effect the statute or rule specifies.

(4) Further deference to other applicable law. This chapter does not:

(a) Validate any rate, charge, agreement or practice that violates a rule of law, statute or regulation described in subsection (2) of this section; or

(b) Extend the application of the rule of law, statute, or rule to a transaction not otherwise subject to it.

SECTION 12. 9-202. Title to collateral immaterial. Except as otherwise provided with respect to consignments or sales of accounts, chattel paper, payment intangibles or promissory notes, the provisions of this chapter with regard to rights and obligations apply whether title to collateral is in the secured party or the debtor.

SECTION 13. 9-203. Attachment and enforceability of security interest; proceeds; supporting obligations; formal requisites. (1) Attachment. A security interest attaches to collateral when it becomes enforceable against the debtor with respect to the collateral, unless an agreement expressly postpones the time of attachment.

(2) Enforceability. Except as otherwise provided in subsections (3) to (9) of this section, a security interest is enforceable against the debtor and third parties with respect to the collateral only if:

(a) Value has been given;

(b) The debtor has rights in the collateral or the power to transfer rights in the collateral to a secured party; and

(c) One of the following conditions is met:

(A) The debtor has authenticated a security agreement that provides a description of the collateral and, if the security interest covers timber to be cut, a description of the land concerned;

(B) The collateral is not a certificated security and is in the possession of the secured party under section 33 of this 2001 Act pursuant to the debtor’s security agreement;

(C) The collateral is a certificated security in registered form and the security certificate has been delivered to the secured party under ORS 78.3010 pursuant to the debtor’s security agreement; or

(D) The collateral is deposit accounts, electronic chattel paper, investment property or letter-of-credit rights, and the secured party has control under section 4, 5, 6 or 7 of this 2001 Act pursuant to the debtor’s security agreement.

(3) Other Uniform Commercial Code provisions. Subsection (2) of this section is subject to ORS 74.2100 on the security interest of a collecting bank, section 148 of this 2001 Act on the security interest of a letter-of-credit issuer or nominated person, section 10 of this 2001 Act on a security interest arising under ORS 72.1010 to 72.7250 or ORS chapter 72A and section 16 of this 2001 Act on security interests in investment property.

(4) When person becomes bound by another person’s security agreement. A person becomes bound as debtor by a security agreement entered into by another person if, by operation of law other than this chapter or by contract:

(a) The security agreement becomes effective to create a security interest in the person’s property; or

(b) The person becomes generally obligated for the obligations of the other person, including the obligation secured under the security agreement, and acquires or succeeds to all or substantially all of the assets of the other person.

(5) Effect of new debtor becoming bound. If a new debtor becomes bound as debtor by a security agreement entered into by another person:

(a) The agreement satisfies subsection (2)(c) of this section with respect to existing or after-acquired property of the new debtor to the extent the property is described in the agreement; and

(b) Another agreement is not necessary to make a security interest in the property enforceable.

(6) Proceeds and supporting obligations. The attachment of a security interest in collateral gives the secured party the rights to proceeds provided by section 35 of this 2001 Act and is also attachment of a security interest in a supporting obligation for the collateral.

(7) Lien securing right to payment. The attachment of a security interest in a right to payment or performance secured by a security interest or other lien on personal or real property is also attachment of a security interest in the security interest, mortgage or other lien.

(8) Security entitlement carried in securities account. The attachment of a security interest in a securities account is also attachment of a security interest in the security entitlements carried in the securities account.

(9) Commodity contracts carried in commodity account. The attachment of a security interest in a commodity account is also attachment of a security interest in the commodity contracts carried in the commodity account.

SECTION 14. 9-204. After-acquired property; future advances. (1) After-acquired collateral. Except as otherwise provided in subsection (2) of this section, a security agreement may create or provide for a security interest in after-acquired collateral.

(2) When after-acquired property clause not effective. A security interest does not attach under a term constituting an after-acquired property clause to:

(a) Consumer goods, other than an accession when given as additional security, unless the debtor acquires rights in them within 10 days after the secured party gives value; or

(b) A commercial tort claim.

(3) Future advances and other value. A security agreement may provide that collateral secures, or that accounts, chattel paper, payment intangibles or promissory notes are sold in connection with, future advances or other value, whether or not the advances or value are given pursuant to commitment.

SECTION 15. 9-205. Use or disposition of collateral permissible. (1) When security interest not invalid or fraudulent. A security interest is not invalid or fraudulent against creditors solely because:

(a) The debtor has the right or ability to:

(A) Use, commingle or dispose of all or part of the collateral, including returned or repossessed goods;

(B) Collect, compromise, enforce or otherwise deal with collateral;

(C) Accept the return of collateral or make repossessions; or

(D) Use, commingle or dispose of proceeds; or

(b) The secured party fails to require the debtor to account for proceeds or replace collateral.

(2) Requirements of possession not relaxed. This section does not relax the requirements of possession if attachment, perfection or enforcement of a security interest depends upon possession of the collateral by the secured party.

SECTION 16. 9-206. Security interest arising in purchase or delivery of financial asset. (1) Security interest when person buys through securities intermediary. A security interest in favor of a securities intermediary attaches to a person’s security entitlement if:

(a) The person buys a financial asset through the securities intermediary in a transaction in which the person is obligated to pay the purchase price to the securities intermediary at the time of the purchase; and

(b) The securities intermediary credits the financial asset to the buyer’s securities account before the buyer pays the securities intermediary.

(2) Security interest secures obligation to pay for financial asset. The security interest described in subsection (1) of this section secures the person’s obligation to pay for the financial asset.

(3) Security interest in payment against delivery transaction. A security interest in favor of a person that delivers a certificated security or other financial asset represented by a writing attaches to the security or other financial asset if:

(a) The security or other financial asset:

(A) In the ordinary course of business is transferred by delivery with any necessary indorsement or assignment; and

(B) Is delivered under an agreement between persons in the business of dealing with such securities or financial assets; and

(b) The agreement calls for delivery against payment.

(4) Security interest secures obligation to pay for delivery. The security interest described in subsection (3) of this section secures the obligation to make payment for the delivery.

(Rights and Duties)

SECTION 17. 9-207. Rights and duties of secured party having possession or control of collateral. (1) Except as otherwise provided in subsection (4) of this section, a secured party shall use reasonable care in the custody and preservation of collateral in the secured party’s possession. In the case of chattel paper or an instrument, reasonable care includes taking necessary steps to preserve rights against prior parties unless otherwise agreed.

(2) Expenses, risks, duties and rights when secured party in possession. Except as otherwise provided in subsection (4) of this section, if a secured party has possession of collateral:

(a) Reasonable expenses, including the cost of insurance and payment of taxes or other charges, incurred in the custody, preservation, use or operation of the collateral are chargeable to the debtor and are secured by the collateral;

(b) The risk of accidental loss or damage is on the debtor to the extent of a deficiency in any effective insurance coverage;

(c) The secured party shall keep the collateral identifiable, but fungible collateral may be commingled; and

(d) The secured party may use or operate the collateral:

(A) For the purpose of preserving the collateral or its value;

(B) As permitted by an order of a court having competent jurisdiction; or

(C) Except in the case of consumer goods, in the manner and to the extent agreed by the debtor.

(3) Duties and rights when secured party in possession or control. Except as otherwise provided in subsection (4) of this section, a secured party having possession of collateral or control of collateral under section 4, 5, 6 or 7 of this 2001 Act:

(a) May hold as additional security any proceeds, except money or funds, received from the collateral;

(b) Shall apply money or funds received from the collateral to reduce the secured obligation, unless remitted to the debtor; and

(c) May create a security interest in the collateral.

(4) Buyer of certain rights to payment. If the secured party is a buyer of accounts, chattel paper, payment intangibles or promissory notes or a consignor:

(a) Subsection (1) of this section does not apply unless the secured party is entitled under an agreement:

(A) To charge back uncollected collateral; or

(B) Otherwise to full or limited recourse against the debtor or a secondary obligor based on the nonpayment or other default of an account debtor or other obligor on the collateral; and

(b) Subsections (2) and (3) of this section do not apply.

SECTION 18. 9-208. Additional duties of secured party having control of collateral. (1) Applicability of section. This section applies to cases in which there is no outstanding secured obligation and the secured party is not committed to make advances, incur obligations or otherwise give value.

(2) Duties of secured party after receiving demand from debtor. Within 10 days after receiving an authenticated demand by the debtor:

(a) A secured party having control of a deposit account under section 4 (1)(b) of this 2001 Act shall send to the bank with which the deposit account is maintained an authenticated statement that releases the bank from any further obligation to comply with instructions originated by the secured party;

(b) A secured party having control of a deposit account under section 4 (1)(c) of this 2001 Act shall:

(A) Pay the debtor the balance on deposit in the deposit account; or

(B) Transfer the balance on deposit into a deposit account in the debtor’s name;

(c) A secured party, other than a buyer, having control of electronic chattel paper under section 5 of this 2001 Act shall:

(A) Communicate the authoritative copy of the electronic chattel paper to the debtor or its designated custodian;

(B) If the debtor designates a custodian that is the designated custodian with which the authoritative copy of the electronic chattel paper is maintained for the secured party, communicate to the custodian an authenticated record releasing the designated custodian from any further obligation to comply with instructions originated by the secured party and instructing the custodian to comply with instructions originated by the debtor; and

(C) Take appropriate action to enable the debtor or its designated custodian to make copies of or revisions to the authoritative copy which add or change an identified assignee of the authoritative copy without the consent of the secured party;

(d) A secured party having control of investment property under ORS 78.1060 (4)(b) or section 6 (2) of this 2001 Act shall send to the securities intermediary or commodity intermediary with which the security entitlement or commodity contract is maintained an authenticated record that releases the securities intermediary or commodity intermediary from any further obligation to comply with entitlement orders or directions originated by the secured party; and

(e) A secured party having control of a letter-of-credit right under section 7 of this 2001 Act shall send to each person having an unfulfilled obligation to pay or deliver proceeds of the letter of credit to the secured party an authenticated release from any further obligation to pay or deliver proceeds of the letter of credit to the secured party.

SECTION 19. 9-209. Duties of secured party if account debtor has been notified of assignment. (1) Applicability of section. Except as otherwise provided in subsection (3) of this section, this section applies if:

(a) There is no outstanding secured obligation; and

(b) The secured party is not committed to make advances, incur obligations, or otherwise give value.

(2) Duties of secured party after receiving demand from debtor. Within 10 days after receiving an authenticated demand by the debtor, a secured party shall send to an account debtor that has received notification of an assignment to the secured party as assignee under section 68 (1) of this 2001 Act an authenticated record that releases the account debtor from any further obligation to the secured party.

(3) Inapplicability to sales. This section does not apply to an assignment constituting the sale of an account, chattel paper or payment intangible.

SECTION 20. 9-210. Request for accounting; request regarding list of collateral or statement of account. (1) Definitions. As used in this section:

(a) “Request” means a record of a type described in paragraph (b), (c) or (d) of this subsection.

(b) “Request for an accounting” means a record authenticated by a debtor requesting that the recipient provide an accounting of the unpaid obligations secured by collateral and reasonably identifying the transaction or relationship that is the subject of the request.

(c) “Request regarding a list of collateral” means a record authenticated by a debtor requesting that the recipient approve or correct a list of what the debtor believes to be the collateral securing an obligation and reasonably identifying the transaction or relationship that is the subject of the request.

(d) “Request regarding a statement of account” means a record authenticated by a debtor requesting that the recipient approve or correct a statement indicating what the debtor believes to be the aggregate amount of unpaid obligations secured by collateral as of a specified date and reasonably identifying the transaction or relationship that is the subject of the request.

(2) Duty to respond to requests. Subject to subsections (3), (4), (5) and (6) of this section, a secured party, other than a buyer of accounts, chattel paper, payment intangibles or promissory notes or a consignor, shall comply with a request within 14 days after receipt:

(a) In the case of a request for an accounting, by authenticating and sending to the debtor an accounting; and

(b) In the case of a request regarding a list of collateral or a request regarding a statement of account, by authenticating and sending to the debtor an approval or correction.

(3) Request regarding list of collateral; statement concerning type of collateral. A secured party that claims a security interest in all of a particular type of collateral owned by the debtor may comply with a request regarding a list of collateral by sending to the debtor an authenticated record including a statement to that effect within 14 days after receipt.

(4) Request regarding list of collateral; no interest claimed. A person that receives a request regarding a list of collateral, claims no interest in the collateral when it receives the request, and claimed an interest in the collateral at an earlier time shall comply with the request within 14 days after receipt by sending to the debtor an authenticated record:

(a) Disclaiming any interest in the collateral; and

(b) If known to the recipient, providing the name and mailing address of any assignee of or successor to the recipient’s interest in the collateral.

(5) Request for accounting or regarding statement of account; no interest in obligation claimed. A person that receives a request for an accounting or a request regarding a statement of account, claims no interest in the obligations when it receives the request, and claimed an interest in the obligations at an earlier time shall comply with the request within 14 days after receipt by sending to the debtor an authenticated record:

(a) Disclaiming any interest in the obligations; and

(b) If known to the recipient, providing the name and mailing address of any assignee of or successor to the recipient’s interest in the obligations.

(6) Charges for responses. A debtor is entitled without charge to one response to a request under this section during any six-month period. The secured party may require payment of a charge not exceeding $25 for each additional response.

PERFECTION AND PRIORITY

(Law Governing Perfection and Priority)

SECTION 21. 9-301. Law governing perfection and priority of security interests. Except as otherwise provided in sections 23 to 26 of this 2001 Act, the following rules determine the law governing perfection, the effect of perfection or nonperfection and the priority of a security interest in collateral:

(1) Except as otherwise provided in this section, while a debtor is located in a jurisdiction, the local law of that jurisdiction governs perfection, the effect of perfection or nonperfection and the priority of a security interest in collateral.

(2) While collateral is located in a jurisdiction, the local law of that jurisdiction governs perfection, the effect of perfection or nonperfection, and the priority of a possessory security interest in that collateral.

(3) Except as otherwise provided in subsection (4) of this section, while negotiable documents, goods, instruments, money or tangible chattel paper is located in a jurisdiction, the local law of that jurisdiction governs:

(a) Perfection of a security interest in the goods by filing a fixture filing;

(b) Perfection of a security interest in timber to be cut; and

(c) The effect of perfection or nonperfection and the priority of a nonpossessory security interest in the collateral.

(4) The local law of the jurisdiction in which the wellhead or minehead is located governs perfection, the effect of perfection or nonperfection and the priority of a security interest in as-extracted collateral.

SECTION 22. 9-302. Law governing perfection and priority of agricultural liens. While farm products are located in a jurisdiction, the local law of that jurisdiction governs perfection, the effect of perfection or nonperfection and the priority of an agricultural lien on the farm products.

SECTION 23. 9-303. Law governing perfection and priority of security interests in goods covered by a certificate of title. (1) Applicability of section. This section applies to goods covered by a certificate of title, even if there is no other relationship between the jurisdiction under whose certificate of title the goods are covered and the goods or the debtor.

(2) When goods covered by certificate of title. Goods become covered by a certificate of title when a valid application for the certificate of title and the applicable fee are delivered to the appropriate authority. Goods cease to be covered by a certificate of title at the earlier of the time the certificate of title ceases to be effective under the law of the issuing jurisdiction or the time the goods become covered subsequently by a certificate of title issued by another jurisdiction.

(3) Applicable law. The local law of the jurisdiction under whose certificate of title the goods are covered governs perfection, the effect of perfection or nonperfection, and the priority of a security interest in goods covered by a certificate of title from the time the goods become covered by the certificate of title until the goods cease to be covered by the certificate of title.

SECTION 24. 9-304. Law governing perfection and priority of security interests in deposit accounts. (1) Law of bank’s jurisdiction governs. The local law of a bank’s jurisdiction governs perfection, the effect of perfection or nonperfection and the priority of a security interest in a deposit account maintained with that bank.

(2) Bank’s jurisdiction. The following rules determine a bank’s jurisdiction for purposes of sections 21 to 62 of this 2001 Act:

(a) If an agreement between the bank and the debtor governing the deposit account expressly provides that a particular jurisdiction is the bank’s jurisdiction for purposes of sections 21 to 62 of this 2001 Act, this chapter or the Uniform Commercial Code, that jurisdiction is the bank’s jurisdiction.

(b) If paragraph (a) of this subsection does not apply and an agreement between the bank and its customer governing the deposit account expressly provides that the agreement is governed by the law of a particular jurisdiction, that jurisdiction is the bank’s jurisdiction.

(c) If neither paragraph (a) nor paragraph (b) of this subsection applies and an agreement between the bank and its customer governing the deposit account expressly provides that the deposit account is maintained at an office in a particular jurisdiction, that jurisdiction is the bank’s jurisdiction.

(d) If paragraphs (a) to (c) of this subsection do not apply, the bank’s jurisdiction is the jurisdiction in which the office identified in an account statement as the office serving the customer’s account is located.

(e) If paragraphs (a) to (d) of this subsection do not apply, the bank’s jurisdiction is the jurisdiction in which the chief executive office of the bank is located.

SECTION 25. 9-305. Law governing perfection and priority of security interests in investment property. (1) Governing law: General rules. Except as otherwise provided in subsection (3) of this section, the following rules apply:

(a) While a security certificate is located in a jurisdiction, the local law of that jurisdiction governs perfection, the effect of perfection or nonperfection and the priority of a security interest in the certificated security represented thereby.

(b) The local law of the issuer’s jurisdiction as specified in ORS 78.1100 (4) governs perfection, the effect of perfection or nonperfection and the priority of a security interest in an uncertificated security.

(c) The local law of the securities intermediary’s jurisdiction as specified in ORS 78.1100 (5) governs perfection, the effect of perfection or nonperfection and the priority of a security interest in a security entitlement or securities account.

(d) The local law of the commodity intermediary’s jurisdiction governs perfection, the effect of perfection or nonperfection and the priority of a security interest in a commodity contract or commodity account.

(2) Commodity intermediary’s jurisdiction. The following rules determine a commodity intermediary’s jurisdiction for purposes of sections 21 to 62 of this 2001 Act:

(a) If an agreement between the commodity intermediary and commodity customer governing the commodity account expressly provides that a particular jurisdiction is the commodity intermediary’s jurisdiction for purposes of sections 21 to 62 of this 2001 Act, this chapter or the Uniform Commercial Code, that jurisdiction is the commodity intermediary’s jurisdiction.

(b) If paragraph (a) of this subsection does not apply and an agreement between the commodity intermediary and commodity customer governing the commodity account expressly provides that the agreement is governed by the law of a particular jurisdiction, that jurisdiction is the commodity intermediary’s jurisdiction.

(c) If neither paragraph (a) nor paragraph (b) of this subsection applies and an agreement between the commodity intermediary and commodity customer governing the commodity account expressly provides that the commodity account is maintained at an office in a particular jurisdiction, that jurisdiction is the commodity intermediary’s jurisdiction.

(d) If paragraphs (a) to (c) of this subsection do not apply, the commodity intermediary’s jurisdiction is the jurisdiction in which the office identified in an account statement as the office serving the commodity customer’s account is located.

(e) If paragraphs (a) to (d) of this subsection do not apply, the commodity intermediary’s jurisdiction is the jurisdiction in which the chief executive office of the commodity intermediary is located.

(3) When perfection governed by law of jurisdiction where debtor located. The local law of the jurisdiction in which the debtor is located governs:

(a) Perfection of a security interest in investment property by filing;

(b) Automatic perfection of a security interest in investment property created by a broker or securities intermediary; and

(c) Automatic perfection of a security interest in a commodity contract or commodity account created by a commodity intermediary.

SECTION 26. 9-306. Law governing perfection and priority of security interests in letter-of-credit rights. (1) Governing law: Issuer’s or nominated person’s jurisdiction. Subject to subsection (3) of this section, the local law of the issuer’s jurisdiction or a nominated person’s jurisdiction governs perfection, the effect of perfection or nonperfection and the priority of a security interest in a letter-of-credit right if the issuer’s jurisdiction or nominated person’s jurisdiction is a state.

(2) Issuer’s or nominated person’s jurisdiction. For purposes of sections 21 to 62 of this 2001 Act, an issuer’s jurisdiction or nominated person’s jurisdiction is the jurisdiction whose law governs the liability of the issuer or nominated person with respect to the letter-of-credit right as provided in ORS 75.1160.

(3) When section not applicable. This section does not apply to a security interest that is perfected only under section 28 (4) of this 2001 Act.

SECTION 27. 9-307. Location of debtor. (1) “Place of business.” As used in this section, “place of business” means a place where a debtor conducts its affairs.

(2) Debtor’s location: General rules. Except as otherwise provided in this section, the following rules determine a debtor’s location:

(a) A debtor who is an individual is located at the individual’s principal residence.

(b) A debtor that is an organization and has only one place of business is located at its place of business.

(c) A debtor that is an organization and has more than one place of business is located at its chief executive office.

(3) Limitation of applicability of subsection (2) of this section. Subsection (2) of this section applies only if a debtor’s residence, place of business or chief executive office, as applicable, is located in a jurisdiction whose law generally requires information concerning the existence of a nonpossessory security interest to be made generally available in a filing, recording or registration system as a condition or result of the security interest’s obtaining priority over the rights of a lien creditor with respect to the collateral. If subsection (2) of this section does not apply, the debtor is located in the District of Columbia.

(4) Continuation of location: cessation of existence, etc. A person that ceases to exist, have a residence or have a place of business continues to be located in the jurisdiction specified by subsections (2) and (3) of this section.

(5) Location of registered organization organized under state law. A registered organization that is organized under the law of a state is located in that state.

(6) Location of registered organization organized under federal law; bank branches and agencies. Except as otherwise provided in subsection (9) of this section, a registered organization that is organized under the law of the United States and a branch or agency of a bank that is not organized under the law of the United States or a state are located:

(a) In the state that the law of the United States designates, if the law designates a state of location;

(b) In the state that the registered organization, branch or agency designates, if the law of the United States authorizes the registered organization, branch or agency to designate its state of location; or

(c) In the District of Columbia, if neither paragraph (a) nor paragraph (b) of this subsection applies.

(7) Continuation of location: change in status of registered organization. A registered organization continues to be located in the jurisdiction specified by subsection (5) or (6) of this section notwithstanding:

(a) The suspension, revocation, forfeiture or lapse of the registered organization’s status as such in its jurisdiction of organization; or

(b) The dissolution, winding up or cancellation of the existence of the registered organization.

(8) Location of United States. The United States is located in the District of Columbia.

(9) Location of foreign bank branch or agency if licensed in only one state. A branch or agency of a bank that is not organized under the law of the United States or a state is located in the state in which the branch or agency is licensed, if all branches and agencies of the bank are licensed in only one state.

(10) Location of foreign air carrier. A foreign air carrier under the Federal Aviation Act of 1958, as amended, is located at the designated office of the agent upon which service of process may be made on behalf of the carrier.

(11) Section applies only to sections 21 to 62 of this 2001 Act. This section applies only for purposes of sections 21 to 62 of this 2001 Act.

(Perfection)

SECTION 28. 9-308. When security interest or agricultural lien is perfected; continuity of perfection. (1) Perfection of security interest. Except as otherwise provided in this section and section 29 of this 2001 Act, a security interest is perfected if it has attached and all of the applicable requirements for perfection in sections 30 to 36 of this 2001 Act have been satisfied. A security interest is perfected when it attaches if the applicable requirements are satisfied before the security interest attaches.

(2) Perfection of agricultural lien. An agricultural lien is perfected if it has become effective and all of the applicable requirements for perfection in section 30 of this 2001 Act have been satisfied. An agricultural lien is perfected when it becomes effective if the applicable requirements are satisfied before the agricultural lien becomes effective.

(3) Continuous perfection; perfection by different methods. A security interest or agricultural lien is perfected continuously if it is originally perfected by one method under this chapter and is later perfected by another method under this chapter, without an intermediate period when it was unperfected.

(4) Supporting obligation. Perfection of a security interest in collateral also perfects a security interest in a supporting obligation for the collateral.

(5) Lien securing right to payment. Perfection of a security interest in a right to payment or performance also perfects a security interest in a security interest, mortgage or other lien on personal or real property securing the right.

(6) Security entitlement carried in securities account. Perfection of a security interest in a securities account also perfects a security interest in the security entitlements carried in the securities account.

(7) Commodity contract carried in commodity account. Perfection of a security interest in a commodity account also perfects a security interest in the commodity contracts carried in the commodity account.

SECTION 29. 9-309. Security interest perfected upon attachment. The following security interests are perfected when they attach:

(1) A purchase-money security interest in consumer goods, except as otherwise provided in section 31 (2) of this 2001 Act with respect to consumer goods that are subject to a statute or treaty described in section 31 (1) of this 2001 Act;

(2) An assignment of accounts or payment intangibles which does not by itself or in conjunction with other assignments to the same assignee transfer a significant part of the assignor’s outstanding accounts or payment intangibles;

(3) A sale of a payment intangible;

(4) A sale of a promissory note;

(5) A security interest created by the assignment of a health-care-insurance receivable to the provider of the health-care goods or services;

(6) A security interest arising under ORS 72.4010, 72.5050, 72.7110 (3), or 72A.5080 (5), until the debtor obtains possession of the collateral;

(7) A security interest of a collecting bank arising under ORS 74.2100;

(8) A security interest of an issuer or nominated person arising under section 148 of this 2001 Act;

(9) A security interest arising in the delivery of a financial asset under section 16 (3) of this 2001 Act;

(10) A security interest in investment property created by a broker or securities intermediary;

(11) A security interest in a commodity contract or a commodity account created by a commodity intermediary;

(12) An assignment for the benefit of all creditors of the transferor and subsequent transfers by the assignee thereunder; and

(13) A security interest created by an assignment of a beneficial interest in a decedent’s estate.

SECTION 30. 9-310. When filing required to perfect security interest or agricultural lien; security interests and agricultural liens to which filing provisions do not apply. (1) General rule: perfection by filing. Except as otherwise provided in subsection (2) of this section and section 32 (2) of this 2001 Act, a financing statement must be filed to perfect all security interests and agricultural liens.

(2) Exceptions: filing not necessary. The filing of a financing statement is not necessary to perfect a security interest:

(a) That is perfected under section 28 (4), (5), (6) or (7) of this 2001 Act;

(b) That is perfected under section 29 of this 2001 Act when it attaches;

(c) In property subject to a statute, regulation or treaty described in section 31 (1) of this 2001 Act;

(d) In goods in possession of a bailee that are perfected under section 32 (4)(a) or (b) of this 2001 Act;

(e) In certificated securities, documents, goods or instruments that are perfected without filing or possession under section 32 (5), (6) or (7) of this 2001 Act;

(f) In collateral in the secured party’s possession under section 33 of this 2001 Act;

(g) In a certificated security which is perfected by delivery of the security certificate to the secured party under section 33 of this 2001 Act;

(h) In deposit accounts, electronic chattel paper, investment property or letter-of-credit rights that are perfected by control under section 34 of this 2001 Act;

(i) In proceeds that are perfected under section 35 of this 2001 Act; or

(j) That are perfected under section 36 of this 2001 Act.

(3) Assignment of perfected security interest. If a secured party assigns a perfected security interest or agricultural lien, a filing under this chapter is not required to continue the perfected status of the security interest against creditors of and transferees from the original debtor.

SECTION 31. 9-311. Perfection of security interests in property subject to certain statutes, regulations and treaties.(1) Security interest subject to other law. Except as otherwise provided in subsection (4) of this section, the filing of a financing statement is not necessary or effective to perfect a security interest in property subject to:

(a) A statute, regulation or treaty of the United States whose requirements for a security interest’s obtaining priority over the rights of a lien creditor with respect to the property preempt section 30 (1) of this 2001 Act;

(b) ORS chapter 830 and the Oregon Vehicle Code; or

(c) A certificate-of-title statute of another jurisdiction which provides for a security interest 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 property.

(2) Compliance with other law. Compliance with the requirements of a statute, regulation or treaty described in subsection (1) of this section for obtaining priority over the rights of a lien creditor is equivalent to the filing of a financing statement under this chapter. Except as otherwise provided in subsection (4) of this section and sections 33 and 36 (4) and (5) of this 2001 Act for goods covered by a certificate of title, a security interest in property subject to a statute, regulation or treaty described in subsection (1) of this section may be perfected only by compliance with those requirements, and a security interest so perfected remains perfected notwithstanding a change in the use or transfer of possession of the collateral.

(3) Duration and renewal of perfection. Except as otherwise provided in subsection (4) of this section and section 36 (4) and (5) of this 2001 Act, duration and renewal of perfection of a security interest perfected by compliance with the requirements prescribed by a statute, regulation or treaty described in subsection (1) of this section are governed by the statute, regulation or treaty. In other respects, the security interest is subject to this chapter.

(4) Inapplicability to certain inventory. During any period in which collateral subject to a statute specified in subsection (1)(b) of this section is inventory held for sale or lease by a person or leased by that person as lessor and that person is in the business of selling goods of that kind, this section does not apply to a security interest in that collateral created by that person.

SECTION 32. 9-312. Perfection of security interests in chattel paper, deposit accounts, documents, goods covered by documents, instruments, investment property, letter-of-credit rights and money; perfection by permissive filing; temporary perfection without filing or transfer of possession. (1) Perfection by filing permitted. A security interest in chattel paper, negotiable documents, instruments or investment property may be perfected by filing. Except for goods in which filing is not necessary or effective to perfect a security interest under this chapter, a security interest in goods may be perfected by filing.

(2) Control or possession of certain collateral. Except as otherwise provided in section 35 (3) and (4) of this 2001 Act for proceeds:

(a) A security interest in a deposit account may be perfected only by control under section 34 of this 2001 Act;

(b) And except as otherwise provided in section 28 (4) of this 2001 Act, a security interest in a letter-of-credit right may be perfected only by control under section 34 of this 2001 Act; and

(c) A security interest in money may be perfected only by the secured party’s taking possession under section 33 of this 2001 Act.

(3) Goods covered by negotiable document. While goods are in the possession of a bailee that has issued a negotiable document covering the goods:

(a) A security interest in the goods may be perfected by perfecting a security interest in the document; and

(b) A security interest perfected in the document has priority over any security interest that becomes perfected in the goods by another method during that time.

(4) Goods covered by nonnegotiable document. While goods are in the possession of a bailee that has issued a nonnegotiable document covering the goods, a security interest in the goods may be perfected by:

(a) Issuance of a document in the name of the secured party;

(b) The bailee’s receipt of notification of the secured party’s interest; or

(c) Filing as to the goods.

(5) Temporary perfection: New value. A security interest in certificated securities, negotiable documents or instruments is perfected without filing or the taking of possession for a period of 20 days from the time it attaches to the extent that it arises for new value given under an authenticated security agreement.

(6) Temporary perfection: Goods or documents made available to debtor. A perfected security interest in a negotiable document or goods in possession of a bailee, other than one that has issued a negotiable document for the goods, remains perfected for 20 days without filing if the secured party makes available to the debtor the goods or documents representing the goods for the purpose of:

(a) Ultimate sale or exchange; or

(b) Loading, unloading, storing, shipping, transshipping, manufacturing, processing or otherwise dealing with them in a manner preliminary to their sale or exchange.

(7) Temporary perfection: Delivery of security certificate or instrument to debtor. A perfected security interest in a certificated security or instrument remains perfected for 20 days without filing if the secured party delivers the security certificate or instrument to the debtor for the purpose of:

(a) Ultimate sale or exchange; or

(b) Presentation, collection, enforcement, renewal or registration of transfer.

(8) Expiration of temporary perfection. After the 20-day period specified in subsection (5), (6) or (7) of this section expires, perfection depends upon compliance with this chapter.

SECTION 33. 9-313. When possession by or delivery to secured party perfects security interest without filing. (1) Perfection by possession or delivery. Except as otherwise provided in subsection (2) of this section, a secured party may perfect a security interest in negotiable documents, goods, instruments, money or tangible chattel paper by taking possession of the collateral. A secured party may perfect a security interest in certificated securities by taking delivery of the certificated securities under ORS 78.3010.

(2) Goods covered by certificate of title. With respect to goods covered by a certificate of title issued by this state, a secured party may perfect a security interest in the goods by taking possession of the goods only in the circumstances described in section 36 (5) of this 2001 Act.

(3) Collateral in possession of person other than debtor. With respect to collateral other than certificated securities and goods covered by a document, a secured party takes possession of collateral in the possession of a person other than the debtor, the secured party or a lessee of the collateral from the debtor in the ordinary course of the debtor’s business, when:

(a) The person in possession authenticates a record acknowledging that it holds possession of the collateral for the secured party’s benefit; or

(b) The person takes possession of the collateral after having authenticated a record acknowledging that it will hold possession of collateral for the secured party’s benefit.

(4) Time of perfection by possession; continuation of perfection. If perfection of a security interest depends upon possession of the collateral by a secured party, perfection occurs no earlier than the time the secured party takes possession and continues only while the secured party retains possession.

(5) Time of perfection by delivery; continuation of perfection. A security interest in a certificated security in registered form is perfected by delivery when delivery of the certificated security occurs under ORS 78.3010 and remains perfected by delivery until the debtor obtains possession of the security certificate.

(6) Acknowledgment not required. A person in possession of collateral is not required to acknowledge that it holds possession for a secured party’s benefit.

(7) Effectiveness of acknowledgment; no duties or confirmation. If a person acknowledges that it holds possession for the secured party’s benefit:

(a) The acknowledgment is effective under subsection (3) of this section or ORS 78.3010 (1), even if the acknowledgment violates the rights of a debtor; and

(b) Unless the person otherwise agrees or law other than this chapter otherwise provides, the person does not owe any duty to the secured party and is not required to confirm the acknowledgment to another person.

(8) Secured party’s delivery to person other than debtor. A secured party having possession of collateral does not relinquish possession by delivering the collateral to a person other than the debtor or a lessee of the collateral from the debtor in the ordinary course of the debtor’s business if the person was instructed before the delivery or is instructed contemporaneously with the delivery:

(a) To hold possession of the collateral for the secured party’s benefit; or

(b) To redeliver the collateral to the secured party.

(9) Effect of delivery under subsection (8) of this section; no duties or confirmation. A secured party does not relinquish possession, even if a delivery under subsection (8) of this section violates the rights of a debtor. A person to which collateral is delivered under subsection (8) of this section does not owe any duty to the secured party and is not required to confirm the delivery to another person unless the person otherwise agrees or law other than this chapter otherwise provides.

SECTION 34. 9-314. Perfection by control. (1) Perfection by control. A security interest in investment property, deposit accounts, letter-of-credit rights or electronic chattel paper may be perfected by control of the collateral under section 4, 5, 6 or 7 of this 2001 Act.

(2) Specified collateral: Time of perfection by control; continuation of perfection. A security interest in deposit accounts, electronic chattel paper or letter-of-credit rights is perfected by control under section 4, 5 or 7 of this 2001 Act when the secured party obtains control and remains perfected by control only while the secured party retains control.

(3) Investment property: Time of perfection by control; continuation of perfection. A security interest in investment property is perfected by control under section 6 of this 2001 Act from the time the secured party obtains control and remains perfected by control until:

(a) The secured party does not have control; and

(b) One of the following occurs:

(A) If the collateral is a certificated security, the debtor has or acquires possession of the security certificate;

(B) If the collateral is an uncertificated security, the issuer has registered or registers the debtor as the registered owner; or

(C) If the collateral is a security entitlement, the debtor is or becomes the entitlement holder.

SECTION 35. 9-315. Secured party’s rights on disposition of collateral and in proceeds. (1) Disposition of collateral: Continuation of security interest or agricultural lien; proceeds. Except as otherwise provided in this chapter and in ORS 72.4030 (2):

(a) A security interest or agricultural lien continues in collateral notwithstanding sale, lease, license, exchange or other disposition thereof unless the secured party authorized the disposition free of the security interest or agricultural lien; and

(b) A security interest attaches to any identifiable proceeds of collateral.

(2) When commingled proceeds identifiable. Proceeds that are commingled with other property are identifiable proceeds:

(a) If the proceeds are goods, to the extent provided by section 56 of this 2001 Act; and

(b) If the proceeds are not goods, to the extent that the secured party identifies the proceeds by a method of tracing, including application of equitable principles, that is permitted under law other than this chapter with respect to commingled property of the type involved.

(3) Perfection of security interest in proceeds. A security interest in proceeds is a perfected security interest if the security interest in the original collateral was perfected.

(4) Continuation of perfection. A perfected security interest in proceeds becomes unperfected on the 21st day after the security interest attaches to the proceeds unless:

(a) The following conditions are satisfied:

(A) A filed financing statement covers the original collateral;

(B) The proceeds are collateral in which a security interest may be perfected by filing in the office in which the financing statement has been filed; and

(C) The proceeds are not acquired with cash proceeds;

(b) The proceeds are identifiable cash proceeds; or

(c) The security interest in the proceeds is perfected other than under subsection (3) of this section when the security interest attaches to the proceeds or within 20 days thereafter.

(5) When perfected security interest in proceeds becomes unperfected. If a filed financing statement covers the original collateral, a security interest in proceeds which remains perfected under subsection (4)(a) of this section becomes unperfected at the later of:

(a) When the effectiveness of the filed financing statement lapses under section 86 of this 2001 Act or is terminated under section 84 of this 2001 Act; or

(b) The 21st day after the security interest attaches to the proceeds.

SECTION 36. 9-316. Continued perfection of security interest following change in governing law. (1) General rule: Effect on perfection of change in governing law. A security interest perfected pursuant to the law of the jurisdiction designated in section 21 (1) or 25 (3) of this 2001 Act remains perfected until the earliest of:

(a) The time perfection would have ceased under the law of that jurisdiction;

(b) The expiration of four months after a change of the debtor’s location to another jurisdiction; or

(c) The expiration of one year after a transfer of collateral to a person that thereby becomes a debtor and is located in another jurisdiction.

(2) Security interest perfected or unperfected under law of new jurisdiction. If a security interest described in subsection (1) of this section becomes perfected under the law of the other jurisdiction before the earliest time or event described in that subsection, it remains perfected thereafter. If the security interest does not become perfected under the law of the other jurisdiction before the earliest time or event, it becomes unperfected and is deemed never to have been perfected as against a purchaser of the collateral for value.

(3) Possessory security interest in collateral moved to new jurisdiction. A possessory security interest in collateral, other than goods covered by a certificate of title and as-extracted collateral consisting of goods, remains continuously perfected if:

(a) The collateral is located in one jurisdiction and subject to a security interest perfected under the law of that jurisdiction;

(b) Thereafter the collateral is brought into another jurisdiction; and

(c) Upon entry into the other jurisdiction, the security interest is perfected under the law of the other jurisdiction.

(4) Goods covered by certificate of title from this state. Except as otherwise provided in subsection (5) of this section, a security interest in goods covered by a certificate of title which is perfected by any method under the law of another jurisdiction when the goods become covered by a certificate of title from this state remains perfected until the security interest would have become unperfected under the law of the other jurisdiction had the goods not become so covered.

(5) When subsection (4) of this section security interest becomes unperfected against purchasers. A security interest described in subsection (4) of this section becomes unperfected as against a purchaser of the goods for value and is deemed never to have been perfected as against a purchaser of the goods for value if the applicable requirements for perfection under section 31 (2) or 33 of this 2001 Act are not satisfied before the earlier of:

(a) The time the security interest would have become unperfected under the law of the other jurisdiction had the goods not become covered by a certificate of title from this state; or

(b) The expiration of four months after the goods had become so covered.

(6) Change in jurisdiction of bank, issuer, nominated person, securities intermediary or commodity intermediary. A security interest in deposit accounts, letter-of-credit rights or investment property which is perfected under the law of the bank’s jurisdiction, the issuer’s jurisdiction, a nominated person’s jurisdiction, the securities intermediary’s jurisdiction or the commodity intermediary’s jurisdiction, as applicable, remains perfected until the earlier of:

(a) The time the security interest would have become unperfected under the law of that jurisdiction; or

(b) The expiration of four months after a change of the applicable jurisdiction to another jurisdiction.

(7) Subsection (6) of this section security interest perfected or unperfected under law of new jurisdiction. If a security interest described in subsection (6) of this section becomes perfected under the law of the other jurisdiction before the earlier of the time or the end of the period described in subsection (6) of this section, it remains perfected thereafter. If the security interest does not become perfected under the law of the other jurisdiction before the earlier of that time or the end of that period, it becomes unperfected and is deemed never to have been perfected as against a purchaser of the collateral for value.

(Priority)

SECTION 37. 9-317. Interests that take priority over or take free of security interest or agricultural lien. (1) Conflicting security interests and rights of lien creditors. A security interest or agricultural lien is subordinate to the rights of:

(a) A person entitled to priority under section 42 of this 2001 Act; and

(b) Except as otherwise provided in subsection (5) of this section, a person that becomes a lien creditor before the earlier of the time:

(A) The security interest or agricultural lien is perfected; or

(B) One of the conditions specified in section 13 (2)(c) of this 2001 Act is met and a financing statement covering the collateral is filed.

(2) Buyers that receive delivery. Except as otherwise provided in subsection (5) of this section, a buyer, other than a secured party, of tangible chattel paper, documents, goods, instruments or a security certificate takes free of a security interest or agricultural lien if the buyer gives value and receives delivery of the collateral without knowledge of the security interest or agricultural lien and before it is perfected.

(3) Lessees that receive delivery. Except as otherwise provided in subsection (5) of this section, a lessee of goods takes free of a security interest or agricultural lien if the lessee gives value and receives delivery of the collateral without knowledge of the security interest or agricultural lien and before it is perfected.

(4) Licensees and buyers of certain collateral. A licensee of a general intangible or a buyer, other than a secured party, of accounts, electronic chattel paper, general intangibles or investment property other than a certificated security takes free of a security interest if the licensee or buyer gives value without knowledge of the security interest and before it is perfected.

(5) Purchase-money security interest. Except as otherwise provided in sections 40 and 41 of this 2001 Act, if a person files a financing statement with respect to a purchase-money security interest before or within 20 days after the debtor receives delivery of the collateral, the security interest takes priority over the rights of a buyer, lessee or lien creditor which arise between the time the security interest attaches and the time of filing.

SECTION 38. 9-318. No interest retained in right to payment that is sold; rights and title of seller of account or chattel paper with respect to creditors and purchasers. (1) Seller retains no interest. A debtor that has sold an account, chattel paper, payment intangible or promissory note does not retain a legal or equitable interest in the collateral sold.

(2) Deemed rights of debtor if buyer’s security interest unperfected. For purposes of determining the rights of creditors of, and purchasers for value of an account or chattel paper from, a debtor that has sold an account or chattel paper, while the buyer’s security interest is unperfected, the debtor is deemed to have rights and title to the account or chattel paper identical to those the debtor sold.

SECTION 39. 9-319. Rights and title of consignee with respect to creditors and purchasers. (1) Consignee has consignor’s rights. Except as otherwise provided in subsection (2) of this section, for purposes of determining the rights of creditors of, and purchasers for value of goods from, a consignee, while the goods are in the possession of the consignee, the consignee is deemed to have rights and title to the goods identical to those the consignor had or had power to transfer.

(2) Applicability of other law. For purposes of determining the rights of a creditor of a consignee, law other than this chapter determines the rights and title of a consignee while goods are in the consignee’s possession if, under sections 21 to 62 of this 2001 Act, a perfected security interest held by the consignor would have priority over the rights of the creditor.

SECTION 40. 9-320. Buyer of goods. (1) Buyer in ordinary course of business. Except as otherwise provided in subsection (5) of this section, a buyer in ordinary course of business, other than a person buying farm products from a person engaged in farming operations, takes free of a security interest created by the buyer’s seller, even if the security interest is perfected and the buyer knows of its existence.

(2) Buyer of consumer goods. Except as otherwise provided in subsection (5) of this section, a buyer of goods from a person who used or bought the goods for use primarily for personal, family or household purposes takes free of a security interest, even if perfected, if the buyer buys:

(a) Without knowledge of the security interest;

(b) For value;

(c) Primarily for the buyer’s personal, family or household purposes; and

(d) Before the filing of a financing statement covering the goods.

(3) Effectiveness of filing for subsection (2) of this section. To the extent that it affects the priority of a security interest over a buyer of goods under subsection (2) of this section, the period of effectiveness of a filing made in the jurisdiction in which the seller is located is governed by section 36 (1) and (2) of this 2001 Act.

(4) Buyer in ordinary course of business at wellhead or minehead. A buyer in ordinary course of business buying oil, gas or other minerals at the wellhead or minehead or after extraction takes free of an interest arising out of an encumbrance.

(5) Possessory security interest not affected. Subsections (1) and (2) of this section do not affect a security interest in goods in the possession of the secured party under section 33 of this 2001 Act.

SECTION 41. 9-321. Licensee of general intangible and lessee of goods in ordinary course of business. (1) “Licensee in ordinary course of business.” As used in this section, “licensee in ordinary course of business” means a person that becomes a licensee of a general intangible in good faith, without knowledge that the license violates the rights of another person in the general intangible, and in the ordinary course from a person in the business of licensing general intangibles of that kind. A person becomes a licensee in the ordinary course if the license to the person comports with the usual or customary practices in the kind of business in which the licensor is engaged or with the licensor’s own usual or customary practices.

(2) Rights of licensee in ordinary course of business. A licensee in ordinary course of business takes its rights under a nonexclusive license free of a security interest in the general intangible created by the licensor, even if the security interest is perfected and the licensee knows of its existence.

(3) Rights of lessee in ordinary course of business. A lessee in ordinary course of business takes its leasehold interest free of a security interest in the goods created by the lessor, even if the security interest is perfected and the lessee knows of its existence.

SECTION 42. 9-322. Priorities among conflicting security interests in and agricultural liens on same collateral. (1) General priority rules. Except as otherwise provided in this section, priority among conflicting security interests and agricultural liens in the same collateral is determined according to the following rules:

(a) Conflicting perfected security interests and agricultural liens rank according to priority in time of filing or perfection. Priority dates from the earlier of the time a filing covering the collateral is first made or the security interest or agricultural lien is first perfected, if there is no period thereafter when there is neither filing nor perfection.

(b) A perfected security interest or agricultural lien has priority over a conflicting unperfected security interest or agricultural lien.

(c) The first security interest or agricultural lien to attach or become effective has priority if conflicting security interests and agricultural liens are unperfected.

(2) Time of perfection: Proceeds and supporting obligations. For the purposes of subsection (1)(a) of this section:

(a) The time of filing or perfection as to a security interest in collateral is also the time of filing or perfection as to a security interest in proceeds; and

(b) The time of filing or perfection as to a security interest in collateral supported by a supporting obligation is also the time of filing or perfection as to a security interest in the supporting obligation.

(3) Special priority rules: proceeds and supporting obligations. Except as otherwise provided in subsection (6) of this section, a security interest in collateral which qualifies for priority over a conflicting security interest under section 47, 48, 49, 50 or 51 of this 2001 Act also has priority over a conflicting security interest in:

(a) Any supporting obligation for the collateral; and

(b) Proceeds of the collateral if:

(A) The security interest in proceeds is perfected;

(B) The proceeds are cash proceeds or of the same type as the collateral; and

(C) In the case of proceeds that are proceeds of proceeds, all intervening proceeds are cash proceeds, proceeds of the same type as the collateral or an account relating to the collateral.

(4) First-to-file priority rule for certain collateral. Subject to subsection (5) of this section and except as otherwise provided in subsection (6) of this section, if a security interest in chattel paper, deposit accounts, negotiable documents, instruments, investment property or letter-of-credit rights is perfected by a method other than filing, conflicting perfected security interests in proceeds of the collateral rank according to priority in time of filing.

(5) Applicability of subsection (4) of this section. Subsection (4) of this section applies only if the proceeds of the collateral are not cash proceeds, chattel paper, negotiable documents, instruments, investment property or letter-of-credit rights.

(6) Limitations on subsections (1) to (5) of this section. Subsections (1) to (5) of this section are subject to:

(a) Subsection (7) of this section and the other provisions of sections 21 to 62 of this 2001 Act;

(b) ORS 74.2100 with respect to a security interest of a collecting bank;

(c) Section 148 of this 2001 Act with respect to a security interest of an issuer or nominated person; and

(d) Section 10 of this 2001 Act with respect to a security interest arising under ORS 72.1010 to 72.7250 or ORS chapter 72A.

(7) Priority under agricultural lien statute. A perfected agricultural lien on collateral has priority over a conflicting security interest in or agricultural lien on the same collateral if the statute creating the agricultural lien so provides.

SECTION 43. 9-323. Future advances. (1) When priority based on time of advance. Except as otherwise provided in subsection (3) of this section, for purposes of determining the priority of a perfected security interest under section 42 (1)(a) of this 2001 Act, perfection of the security interest dates from the time an advance is made to the extent that the security interest secures an advance that:

(a) Is made while the security interest is perfected only:

(A) Under section 29 of this 2001 Act when it attaches; or

(B) Temporarily under section 32 (5), (6) or (7) of this 2001 Act; and

(b) Is not made pursuant to a commitment entered into before or while the security interest is perfected by a method other than under section 29 or 32 (5), (6) or (7) of this 2001 Act.

(2) Lien creditor. Except as otherwise provided in subsection (3) of this section, a security interest is subordinate to the rights of a person that becomes a lien creditor to the extent that the security interest secures an advance made more than 45 days after the person becomes a lien creditor unless the advance is made:

(a) Without knowledge of the lien; or

(b) Pursuant to a commitment entered into without knowledge of the lien.

(3) Buyer of receivables. Subsections (1) and (2) of this section do not apply to a security interest held by a secured party that is a buyer of accounts, chattel paper, payment intangibles or promissory notes or a consignor.

(4) Buyer of goods. Except as otherwise provided in subsection (5) of this section, a buyer of goods other than a buyer in ordinary course of business takes free of a security interest to the extent that it secures advances made after the earlier of:

(a) The time the secured party acquires knowledge of the buyer’s purchase; or

(b) Forty-five days after the purchase.

(5) Advances made pursuant to commitment: Priority of buyer of goods. Subsection (4) of this section does not apply if the advance is made pursuant to a commitment entered into without knowledge of the buyer’s purchase and before the expiration of the 45-day period.

(6) Lessee of goods. Except as otherwise provided in subsection (7) of this section, a lessee of goods, other than a lessee in ordinary course of business, takes the leasehold interest free of a security interest to the extent that it secures advances made after the earlier of:

(a) The time the secured party acquires knowledge of the lease; or

(b) Forty-five days after the lease contract becomes enforceable.

(7) Advances made pursuant to commitment: Priority of lessee of goods. Subsection (6) of this section does not apply if the advance is made pursuant to a commitment entered into without knowledge of the lease and before the expiration of the 45-day period.

SECTION 44. 9-324. Priority of purchase-money security interests. (1) General rule: Purchase-money priority. Except as otherwise provided in subsection (7) of this section, a perfected purchase-money security interest in goods other than inventory or livestock has priority over a conflicting security interest in the same goods, and, except as otherwise provided in section 47 of this 2001 Act, a perfected security interest in its identifiable proceeds also has priority, if the purchase-money security interest is perfected when the debtor receives possession of the collateral or within 20 days thereafter.

(2) Inventory purchase-money priority. Subject to subsection (3) of this section and except as otherwise provided in subsection (7) of this section, a perfected purchase-money security interest in inventory has priority over a conflicting security interest in the same inventory, has priority over a conflicting security interest in chattel paper or an instrument constituting proceeds of the inventory and in proceeds of the chattel paper, if so provided in section 50 of this 2001 Act, and, except as otherwise provided in section 47 of this 2001 Act, also has priority in identifiable cash proceeds of the inventory to the extent the identifiable cash proceeds are received on or before the delivery of the inventory to a buyer, if:

(a) The purchase-money security interest is perfected when the debtor receives possession of the inventory;

(b) The purchase-money secured party sends an authenticated notification to the holder of the conflicting security interest;

(c) The holder of the conflicting security interest receives the notification within five years before the debtor receives possession of the inventory; and

(d) The notification states that the person sending the notification has or expects to acquire a purchase-money security interest in inventory of the debtor and describes the inventory.

(3) Holders of conflicting inventory security interests to be notified. Subsection (2)(b) to (d) of this section applies only if the holder of the conflicting security interest had filed a financing statement covering the same types of inventory:

(a) If the purchase-money security interest is perfected by filing, before the date of the filing; or

(b) If the purchase-money security interest is temporarily perfected without filing or possession under section 32 (6) of this 2001 Act, before the beginning of the 20-day period thereunder.

(4) Livestock purchase-money priority. Subject to subsection (5) of this section and except as otherwise provided in subsection (7) of this section, a perfected purchase-money security interest in livestock that are farm products has priority over a conflicting security interest in the same livestock, and, except as otherwise provided in section 47 of this 2001 Act, a perfected security interest in their identifiable proceeds and identifiable products in their unmanufactured states also has priority, if:

(a) The purchase-money security interest is perfected when the debtor receives possession of the livestock;

(b) The purchase-money secured party sends an authenticated notification to the holder of the conflicting security interest;

(c) The holder of the conflicting security interest receives the notification within six months before the debtor receives possession of the livestock; and

(d) The notification states that the person sending the notification has or expects to acquire a purchase-money security interest in livestock of the debtor and describes the livestock.

(5) Holders of conflicting livestock security interests to be notified. Subsection (4)(b) to (d) of this section applies only if the holder of the conflicting security interest had filed a financing statement covering the same types of livestock:

(a) If the purchase-money security interest is perfected by filing, before the date of the filing; or

(b) If the purchase-money security interest is temporarily perfected without filing or possession under section 32 (6) of this 2001 Act, before the beginning of the 20-day period thereunder.

(6) Software purchase-money priority. Except as otherwise provided in subsection (7) of this section, a perfected purchase-money security interest in software has priority over a conflicting security interest in the same collateral, and, except as otherwise provided in section 47 of this 2001 Act, a perfected security interest in its identifiable proceeds also has priority, to the extent that the purchase-money security interest in the goods in which the software was acquired for use has priority in the goods and proceeds of the goods under this section.

(7) Conflicting purchase-money security interests. If more than one security interest qualifies for priority in the same collateral under subsection (1), (2), (4) or (6) of this section:

(a) A security interest securing an obligation incurred as all or part of the price of the collateral has priority over a security interest securing an obligation incurred for value given to enable the debtor to acquire rights in or the use of collateral; and

(b) In all other cases, section 42 (1) of this 2001 Act applies to the qualifying security interests.

SECTION 45. 9-325. Priority of security interests in transferred collateral. (1) Subordination of security interest in transferred collateral. Except as otherwise provided in subsection (2) of this section, a security interest created by a debtor is subordinate to a security interest in the same collateral created by another person if:

(a) The debtor acquired the collateral subject to the security interest created by the other person;

(b) The security interest created by the other person was perfected when the debtor acquired the collateral; and

(c) There is no period thereafter when the security interest is unperfected.

(2) Limitation of subsection (1) of this section subordination. Subsection (1) of this section subordinates a security interest only if the security interest:

(a) Otherwise would have priority solely under section 42 (1) or 43 of this 2001 Act; or

(b) Arose solely under ORS 72.7110 (3) or 72A.5080 (5).

SECTION 46. 9-326. Priority of security interests created by new debtor. (1) Subordination of security interest created by new debtor. Subject to subsection (2) of this section, a security interest created by a new debtor which is perfected by a filed financing statement that is effective solely under section 79 of this 2001 Act in collateral in which a new debtor has or acquires rights is subordinate to a security interest in the same collateral which is perfected other than by a filed financing statement that is effective solely under section 79 of this 2001 Act.

(2) Priority under other provisions; multiple original debtors. The other provisions of sections 21 to 62 of this 2001 Act determine the priority among conflicting security interests in the same collateral perfected by filed financing statements that are effective solely under section 79 of this 2001 Act. However, if the security agreements to which a new debtor became bound as debtor were not entered into by the same original debtor, the conflicting security interests rank according to priority in time of the new debtor’s having become bound.

SECTION 47. 9-327. Priority of security interests in deposit account. The following rules govern priority among conflicting security interests in the same deposit account:

(1) A security interest held by a secured party having control of the deposit account under section 4 of this 2001 Act has priority over a conflicting security interest held by a secured party that does not have control.

(2) Except as otherwise provided in subsections (3) and (4) of this section, security interests perfected by control under section 34 of this 2001 Act rank according to priority in time of obtaining control.

(3) Except as otherwise provided in subsection (4) of this section, a security interest held by the bank with which the deposit account is maintained has priority over a conflicting security interest held by another secured party.

(4) A security interest perfected by control under section 4 (1)(c) of this 2001 Act has priority over a security interest held by the bank with which the deposit account is maintained.

SECTION 48. 9-328. Priority of security interests in investment property. The following rules govern priority among conflicting security interests in the same investment property:

(1) A security interest held by a secured party having control of investment property under section 6 of this 2001 Act has priority over a security interest held by a secured party that does not have control of the investment property.

(2) Except as otherwise provided in subsections (3) and (4) of this section, conflicting security interests held by secured parties each of which has control under section 6 of this 2001 Act rank according to priority in time of:

(a) If the collateral is a security, obtaining control;

(b) If the collateral is a security entitlement carried in a securities account and:

(A) If the secured party obtained control under ORS 78.1060 (4)(a), the secured party’s becoming the person for which the securities account is maintained;

(B) If the secured party obtained control under ORS 78.1060 (4)(b), the securities intermediary’s agreement to comply with the secured party’s entitlement orders with respect to security entitlements carried or to be carried in the securities account; or

(C) If the secured party obtained control through another person under ORS 78.1060 (4)(c), the time on which priority would be based under this subsection if the other person were the secured party; or

(c) If the collateral is a commodity contract carried with a commodity intermediary, the satisfaction of the requirement for control specified in section 6 (2)(b) of this 2001 Act with respect to commodity contracts carried or to be carried with the commodity intermediary.

(3) A security interest held by a securities intermediary in a security entitlement or a securities account maintained with the securities intermediary has priority over a conflicting security interest held by another secured party.

(4) A security interest held by a commodity intermediary in a commodity contract or a commodity account maintained with the commodity intermediary has priority over a conflicting security interest held by another secured party.

(5) A security interest in a certificated security in registered form which is perfected by taking delivery under section 33 (1) of this 2001 Act and not by control under section 34 of this 2001 Act has priority over a conflicting security interest perfected by a method other than control.

(6) Conflicting security interests created by a broker, securities intermediary, or commodity intermediary which are perfected without control under section 6 of this 2001 Act rank equally.

(7) In all other cases, priority among conflicting security interests in investment property is governed by sections 42 and 43 of this 2001 Act.

SECTION 49. 9-329. Priority of security interests in letter-of-credit right. The following rules govern priority among conflicting security interests in the same letter-of-credit right:

(1) A security interest held by a secured party having control of the letter-of-credit right under section 7 of this 2001 Act has priority to the extent of its control over a conflicting security interest held by a secured party that does not have control.

(2) Security interests perfected by control under section 34 of this 2001 Act rank according to priority in time of obtaining control.

SECTION 50. 9-330. Priority of purchaser of chattel paper or instrument. (1) Purchaser’s priority: Security interest claimed merely as proceeds. A purchaser of chattel paper has priority over a security interest in the chattel paper which is claimed merely as proceeds of inventory subject to a security interest if:

(a) In good faith and in the ordinary course of the purchaser’s business, the purchaser gives new value and takes possession of the chattel paper or obtains control of the chattel paper under section 5 of this 2001 Act; and

(b) The chattel paper does not indicate that it has been assigned to an identified assignee other than the purchaser.

(2) Purchaser’s priority: Other security interests. A purchaser of chattel paper has priority over a security interest in the chattel paper which is claimed other than merely as proceeds of inventory subject to a security interest if the purchaser gives new value and takes possession of the chattel paper or obtains control of the chattel paper under section 5 of this 2001 Act in good faith, in the ordinary course of the purchaser’s business, and without knowledge that the purchase violates the rights of the secured party.

(3) Chattel paper purchaser’s priority in proceeds. Except as otherwise provided in section 47 of this 2001 Act, a purchaser having priority in chattel paper under subsection (1) or (2) of this section also has priority in proceeds of the chattel paper to the extent that:

(a) Section 42 of this 2001 Act provides for priority in the proceeds; or

(b) The proceeds consist of the specific goods covered by the chattel paper or cash proceeds of the specific goods, even if the purchaser’s security interest in the proceeds is unperfected.

(4) Instrument purchaser’s priority. Except as otherwise provided in section 51 (1) of this 2001 Act, a purchaser of an instrument has priority over a security interest in the instrument perfected by a method other than possession if the purchaser gives value and takes possession of the instrument in good faith and without knowledge that the purchase violates the rights of the secured party.

(5) Holder of purchase-money security interest gives new value. For purposes of subsections (1) and (2) of this section, the holder of a purchase-money security interest in inventory gives new value for chattel paper constituting proceeds of the inventory.

(6) Indication of assignment gives knowledge. For purposes of subsections (2) and (4) of this section, if chattel paper or an instrument indicates that it has been assigned to an identified secured party other than the purchaser, a purchaser of the chattel paper or instrument has knowledge that the purchase violates the rights of the secured party.

SECTION 51. 9-331. Priority of rights of purchasers of instruments, documents and securities under ORS chapters 73, 77 and 78; priority of interests in financial assets and security entitlements under ORS chapter 78. (1) Rights under ORS chapters 73, 77 and 78 not limited. This chapter does not limit the rights of a holder in due course of a negotiable instrument, a holder to which a negotiable document of title has been duly negotiated or a protected purchaser of a security. These holders or purchasers take priority over an earlier security interest, even if perfected, to the extent provided in ORS chapters 73, 77 and 78.

(2) Protection under ORS chapter 78. This chapter does not limit the rights of or impose liability on a person to the extent that the person is protected against the assertion of a claim under ORS chapter 78.

(3) Filing not notice. Filing under this chapter does not constitute notice of a claim or defense to the holders, or purchasers, or persons described in subsections (1) and (2) of this section.

SECTION 52. 9-332. Transfer of money; transfer of funds from deposit account. (1) Transferee of money. A transferee of money takes the money free of a security interest unless the transferee acts in collusion with the debtor in violating the rights of the secured party.

(2) Transferee of funds from deposit account. A transferee of funds from a deposit account takes the funds free of a security interest in the deposit account unless the transferee acts in collusion with the debtor in violating the rights of the secured party.

SECTION 53. 9-333. Priority of certain liens arising by operation of law. (1) “Possessory lien.” As used in this section, “possessory lien” means an interest, other than a security interest or an agricultural lien:

(a) Which secures payment or performance of an obligation for services or materials furnished with respect to goods by a person in the ordinary course of the person’s business;

(b) Which is created by statute or rule of law in favor of the person; and

(c) Whose effectiveness depends on the person’s possession of the goods.

(2) Priority of possessory lien. A possessory lien on goods has priority over a security interest in the goods unless the lien is created by a statute that expressly provides otherwise.

SECTION 54. 9-334. Priority of security interests in fixtures and crops. (1) Security interest in fixtures under this chapter. A security interest under this chapter may be created in goods that are fixtures or may continue in goods that become fixtures. A security interest does not exist under this chapter in ordinary building materials incorporated into an improvement on land.

(2) Security interest in fixtures under real-property law. This chapter does not prevent creation of an encumbrance upon fixtures under real property law.

(3) General rule: subordination of security interest in fixtures. In cases not governed by subsections (4) to (8) of this section, a security interest in fixtures is subordinate to a conflicting interest of an encumbrancer or owner of the related real property other than the debtor.

(4) Fixtures purchase-money priority. Except as otherwise provided in subsection (8) of this section, a perfected security interest in fixtures has priority over a conflicting interest of an encumbrancer or owner of the real property if the debtor has an interest of record in or is in possession of the real property and:

(a) The security interest is a purchase-money security interest;

(b) The interest of the encumbrancer or owner arises before the goods become fixtures; and

(c) The security interest is perfected by a fixture filing before the goods become fixtures or within 20 days thereafter.

(5) Priority of security interest in fixtures over interests in real property. A perfected security interest in fixtures has priority over a conflicting interest of an encumbrancer or owner of the real property if:

(a) The debtor has an interest of record in the real property or is in possession of the real property and the security interest:

(A) Is perfected by a fixture filing before the interest of the encumbrancer or owner is of record; and

(B) Has priority over any conflicting interest of a predecessor in title of the encumbrancer or owner;

(b) Before the goods become fixtures, the security interest is perfected by any method permitted by this chapter and the fixtures are readily removable:

(A) Factory or office machines;

(B) Equipment that is not primarily used or leased for use in the operation of the real property; or

(C) Replacements of domestic appliances that are consumer goods;

(c) The conflicting interest is a lien on the real property obtained by legal or equitable proceedings after the security interest was perfected by any method permitted by this chapter; or

(d) The security interest is:

(A) Created in a manufactured home in a manufactured-home transaction; and

(B) Perfected pursuant to a statute described in section 31 (1)(b) of this 2001 Act.

(6) Priority based on consent, disclaimer, or right to remove. A security interest in fixtures, whether or not perfected, has priority over a conflicting interest of an encumbrancer or owner of the real property if:

(a) The encumbrancer or owner has, in an authenticated record, consented to the security interest or disclaimed an interest in the goods as fixtures; or

(b) The debtor has a right to remove the goods as against the encumbrancer or owner.

(7) Continuation of priority under subsection (6)(b) of this section. The priority of the security interest under subsection (6)(b) of this section continues for a reasonable time if the debtor’s right to remove the goods as against the encumbrancer or owner terminates.

(8) Priority of construction mortgage. A mortgage is a construction mortgage to the extent that it secures an obligation incurred for the construction of an improvement on land, including the acquisition cost of the land, if a recorded record of the mortgage so indicates. Except as otherwise provided in subsections (5) and (6) of this section, a security interest in fixtures is subordinate to a construction mortgage if a record of the mortgage is recorded before the goods become fixtures and the goods become fixtures before the completion of the construction. A mortgage has this priority to the same extent as a construction mortgage to the extent that it is given to refinance a construction mortgage.

(9) Priority of security interest in crops. A perfected security interest in crops growing on real property has priority over a conflicting interest of an encumbrancer or owner of the real property if the debtor has an interest of record in or is in possession of the real property.

SECTION 55. 9-335. Accessions. (1) Creation of security interest in accession. A security interest may be created in an accession and continues in collateral that becomes an accession.

(2) Perfection of security interest. If a security interest is perfected when the collateral becomes an accession, the security interest remains perfected in the collateral.

(3) Priority of security interest. Except as otherwise provided in subsections (4) and (7) of this section, the other provisions of sections 21 to 62 of this 2001 Act determine the priority of a security interest in an accession.

(4) Compliance with certificate-of-title statute. Except as otherwise provided in subsection (7) of this section, a security interest in an accession is subordinate to a security interest in the whole which is perfected by compliance with the requirements of a certificate-of-title statute under section 31 (2) of this 2001 Act.

(5) Removal of accession after default. After default, subject to sections 99 to 126 of this 2001 Act, a secured party may remove an accession from other goods if the security interest in the accession has priority over the claims of every person having an interest in the whole.

(6) Reimbursement following removal. A secured party that removes an accession from other goods under subsection (5) of this section shall promptly reimburse any holder of a security interest or other lien on, or owner of, the whole or of the other goods, other than the debtor, for the cost of repair of any physical injury to the whole or the other goods. The secured party need not reimburse the holder or owner for any diminution in value of the whole or the other goods caused by the absence of the accession removed or by any necessity for replacing it. A person entitled to reimbursement may refuse permission to remove until the secured party gives adequate assurance for the performance of the obligation to reimburse.

(7) A security interest in an accession has priority over a security interest in the whole which is perfected by compliance with the requirements of a certificate-of-title statute under section 31 (2) of this 2001 Act if the security interest in the accession is a purchase money security interest that is perfected when the debtor receives possession of the accession or within 20 days thereafter.

SECTION 56. 9-336. Commingled goods. (1) “Commingled goods.” As used in this section, “commingled goods” means goods that are physically united with other goods in such a manner that their identity is lost in a product or mass.

(2) No security interest in commingled goods as such. A security interest does not exist in commingled goods as such. However, a security interest may attach to a product or mass that results when goods become commingled goods.

(3) Attachment of security interest to product or mass. If collateral becomes commingled goods, a security interest attaches to the product or mass.

(4) Perfection of security interest. If a security interest in collateral is perfected before the collateral becomes commingled goods, the security interest that attaches to the product or mass under subsection (3) of this section is perfected.

(5) Priority of security interest. Except as otherwise provided in subsection (6) of this section, the other provisions of sections 21 to 62 of this 2001 Act determine the priority of a security interest that attaches to the product or mass under subsection (3) of this section.

(6) Conflicting security interests in product or mass. If more than one security interest attaches to the product or mass under subsection (3) of this section, the following rules determine priority:

(a) A security interest that is perfected under subsection (4) of this section has priority over a security interest that is unperfected at the time the collateral becomes commingled goods.

(b) If more than one security interest is perfected under subsection (4) of this section, the security interests rank equally in proportion to the value of the collateral at the time it became commingled goods.

SECTION 57. 9-337. Priority of security interests in goods covered by certificate of title. If, while a security interest in goods is perfected by any method under the law of another jurisdiction, this state issues a certificate of title that does not show that the goods are subject to the security interest or contain a statement that they may be subject to security interests not shown on the certificate:

(1) A buyer of the goods, other than a person in the business of selling goods of that kind, takes free of the security interest if the buyer gives value and receives delivery of the goods after issuance of the certificate and without knowledge of the security interest; and

(2) The security interest is subordinate to a conflicting security interest in the goods that attaches, and is perfected under section 31 (2) of this 2001 Act, after issuance of the certificate and without the conflicting secured party’s knowledge of the security interest.

SECTION 58. 9-338. Priority of security interest or agricultural lien perfected by filed financing statement providing certain incorrect information. Except for information on the jurisdiction of organization for an organization that is not a registered organization, if a security interest or agricultural lien is perfected by a filed financing statement providing information described in section 87 (2)(e) of this 2001 Act which is incorrect at the time the financing statement is filed:

(1) The security interest or agricultural lien is subordinate to a conflicting perfected security interest in the collateral to the extent that the holder of the conflicting security interest gives value in reasonable reliance upon the incorrect information; and

(2) A purchaser, other than a secured party, of the collateral takes free of the security interest or agricultural lien to the extent that, in reasonable reliance upon the incorrect information, the purchaser gives value and, in the case of chattel paper, documents, goods, instruments or a security certificate, receives delivery of the collateral.

SECTION 59. 9-339. Priority subject to subordination. This chapter does not preclude subordination by agreement by a person entitled to priority.

(Rights of Bank)

SECTION 60. 9-340. Effectiveness of right of recoupment or set-off against deposit account. (1) Exercise of recoupment or set-off. Except as otherwise provided in subsection (3) of this section, a bank with which a deposit account is maintained may exercise any right of recoupment or set-off against a secured party that holds a security interest in the deposit account.

(2) Recoupment or set-off not affected by security interest. Except as otherwise provided in subsection (3) of this section, the application of this chapter to a security interest in a deposit account does not affect a right of recoupment or set-off of the secured party as to a deposit account maintained with the secured party.

(3) When set-off ineffective. The exercise by a bank of a set-off against a deposit account is ineffective against a secured party that holds a security interest in the deposit account which is perfected by control under section 4 (1)(c) of this 2001 Act, if the set-off is based on a claim against the debtor.

SECTION 61. 9-341. Bank’s rights and duties with respect to deposit account. Except as otherwise provided in section 60 (3) of this 2001 Act, and unless the bank otherwise agrees in an authenticated record, a bank’s rights and duties with respect to a deposit account maintained with the bank are not terminated, suspended, or modified by:

(1) The creation, attachment or perfection of a security interest in the deposit account;

(2) The bank’s knowledge of the security interest; or

(3) The bank’s receipt of instructions from the secured party.

SECTION 62. 9-342. Bank’s right to refuse to enter into or disclose existence of control agreement. This chapter does not require a bank to enter into an agreement of the kind described in section 4 (1)(b) of this 2001 Act, even if its customer so requests or directs. A bank that has entered into such an agreement is not required to confirm the existence of the agreement to another person unless requested to do so by its customer.

RIGHTS OF THIRD PARTIES

SECTION 63. 9-401. Alienability of debtor’s rights. (1) Other law governs alienability; exceptions. Except as otherwise provided in subsection (2) of this section and sections 68, 69, 70 and 71 of this 2001 Act, whether a debtor’s rights in collateral may be voluntarily or involuntarily transferred is governed by law other than this chapter.

(2) Agreement does not prevent transfer. An agreement between the debtor and secured party which prohibits a transfer of the debtor’s rights in collateral or makes the transfer a default does not prevent the transfer from taking effect.

SECTION 64. 9-402. Secured party not obligated on contract of debtor or in tort. The existence of a security interest, agricultural lien, or authority given to a debtor to dispose of or use collateral, without more, does not subject a secured party to liability in contract or tort for the debtor’s acts or omissions.

SECTION 65. 9-403. Agreement not to assert defenses against assignee. (1) “Value.” As used in this section, “value” has the meaning provided in ORS 73.0303 (1).

(2) Agreement not to assert claim or defense. Except as otherwise provided in this section, an agreement between an account debtor and an assignor not to assert against an assignee any claim or defense that the account debtor may have against the assignor is enforceable by an assignee that takes an assignment:

(a) For value;

(b) In good faith;

(c) Without notice of a claim of a property or possessory right to the property assigned; and

(d) Without notice of a defense or claim in recoupment of the type that may be asserted against a person entitled to enforce a negotiable instrument under ORS 73.0305 (1).

(3) When subsection (2) of this section not applicable. Subsection (2) of this section does not apply to defenses of a type that may be asserted against a holder in due course of a negotiable instrument under ORS 73.0305 (2).

(4) Omission of required statement in consumer transaction. In a consumer transaction, if a record evidences the account debtor’s obligation, law other than this chapter requires that the record include a statement to the effect that the rights of an assignee are subject to claims or defenses that the account debtor could assert against the original obligee, and the record does not include such a statement:

(a) The record has the same effect as if the record included such a statement; and

(b) The account debtor may assert against an assignee those claims and defenses that would have been available if the record included such a statement.

(5) Rule for individual under other law. This section is subject to law other than this chapter which establishes a different rule for an account debtor who is an individual and who incurred the obligation primarily for personal, family, or household purposes.

(6) Other law not displaced. Except as otherwise provided in subsection (4) of this section, this section does not displace law other than this chapter which gives effect to an agreement by an account debtor not to assert a claim or defense against an assignee.

SECTION 66. 9-404. Rights acquired by assignee; claims and defenses against assignee. (1) Assignee’s rights subject to terms, claims and defenses; exceptions. Unless an account debtor has made an enforceable agreement not to assert defenses or claims and subject to subsections (2) to (5) of this section, the rights of an assignee are subject to:

(a) All terms of the agreement between the account debtor and assignor and any defense or claim in recoupment arising from the transaction that gave rise to the contract; and

(b) Any other defense or claim of the account debtor against the assignor which accrues before the account debtor receives a notification of the assignment authenticated by the assignor or the assignee.

(2) Account debtor’s claim reduces amount owed to assignee. Subject to subsection (3) of this section and except as otherwise provided in subsection (4) of this section, the claim of an account debtor against an assignor may be asserted against an assignee under subsection (1) of this section only to reduce the amount the account debtor owes.

(3) Rule for individual under other law. This section is subject to law other than this chapter which establishes a different rule for an account debtor who is an individual and who incurred the obligation primarily for personal, family or household purposes.

(4) Omission of required statement in consumer transaction. In a consumer transaction, if a record evidences the account debtor’s obligation, law other than this chapter requires that the record include a statement to the effect that the account debtor’s recovery against an assignee with respect to claims and defenses against the assignor may not exceed amounts paid by the account debtor under the record, and the record does not include such a statement, the extent to which a claim of an account debtor against the assignor may be asserted against an assignee is determined as if the record included such a statement.

(5) Inapplicability to health-care-insurance receivable. This section does not apply to an assignment of a health-care-insurance receivable.

SECTION 67. 9-405. Modification of assigned contract. (1) Effect of modification on assignee. A modification of or substitution for an assigned contract is effective against an assignee if made in good faith. The assignee acquires corresponding rights under the modified or substituted contract. The assignment may provide that the modification or substitution is a breach of contract by the assignor. This subsection is subject to subsections (2) to (4) of this section.

(2) Applicability of subsection (1) of this section. Subsection (1) of this section applies to the extent that:

(a) The right to payment or a part thereof under an assigned contract has not been fully earned by performance; or

(b) The right to payment or a part thereof has been fully earned by performance and the account debtor has not received notification of the assignment under section 68 (1) of this 2001 Act.

(3) Rule for individual under other law. This section is subject to law other than this chapter which establishes a different rule for an account debtor who is an individual and who incurred the obligation primarily for personal, family or household purposes.

(4) Inapplicability to health-care-insurance receivable. This section does not apply to an assignment of a health-care-insurance receivable.

SECTION 68. 9-406. Discharge of account debtor; notification of assignment; identification and proof of assignment; restrictions on assignment of accounts, chattel paper, payment intangibles and promissory notes ineffective. (1) Discharge of account debtor; effect of notification. Subject to subsections (2) to (9) of this section, an account debtor on an account, chattel paper or a payment intangible may discharge its obligation by paying the assignor until, but not after, the account debtor receives a notification, authenticated by the assignor or the assignee, that the amount due or to become due has been assigned and that payment is to be made to the assignee. After receipt of the notification, the account debtor may discharge its obligation by paying the assignee and may not discharge the obligation by paying the assignor.

(2) When notification ineffective. Subject to subsection (8) of this section, notification is ineffective under subsection (1) of this section:

(a) If it does not reasonably identify the rights assigned;

(b) To the extent that an agreement between an account debtor and a seller of a payment intangible limits the account debtor’s duty to pay a person other than the seller and the limitation is effective under law other than this chapter; or

(c) At the option of an account debtor, if the notification notifies the account debtor to make less than the full amount of any installment or other periodic payment to the assignee, even if:

(A) Only a portion of the account, chattel paper or payment intangible has been assigned to that assignee;

(B) A portion has been assigned to another assignee; or

(C) The account debtor knows that the assignment to that assignee is limited.

(3) Proof of assignment. Subject to subsection (8) of this section, if requested by the account debtor, an assignee shall seasonably furnish reasonable proof that the assignment has been made. Unless the assignee complies, the account debtor may discharge its obligation by paying the assignor, even if the account debtor has received a notification under subsection (1) of this section.

(4) Term restricting assignment generally ineffective. Except as otherwise provided in subsection (5) of this section and ORS 72A.3030 and section 69 of this 2001 Act, and subject to subsection (8) of this section, a term in an agreement between an account debtor and an assignor or in a promissory note is ineffective to the extent that it:

(a) Prohibits, restricts or requires the consent of the account debtor or person obligated on the promissory note to the assignment or transfer of, or the creation, attachment, perfection or enforcement of a security interest in, the account, chattel paper, payment intangible or promissory note; or

(b) Provides that the assignment or transfer or the creation, attachment, perfection or enforcement of the security interest may give rise to a default, breach, right of recoupment, claim, defense, termination, right of termination or remedy under the account, chattel paper, payment intangible or promissory note.

(5) Inapplicability of subsection (4) of this section to certain sales. Subsection (4) of this section does not apply to the sale of a payment intangible or promissory note.

(6) Legal restrictions on assignment generally ineffective. Except as otherwise provided in ORS 72A.3030 and section 69 of this 2001 Act and subject to subsections (8) and (9) of this section, a rule of law, statute or regulation that prohibits, restricts or requires the consent of a government, governmental body or official, or account debtor to the assignment or transfer of, or creation of a security interest in, an account or chattel paper is ineffective to the extent that the rule of law, statute or regulation:

(a) Prohibits, restricts or requires the consent of the government, governmental body or official, or account debtor to the assignment or transfer of, or the creation, attachment, perfection or enforcement of a security interest in the account or chattel paper; or

(b) Provides that the assignment or transfer or the creation, attachment, perfection or enforcement of the security interest may give rise to a default, breach, right of recoupment, claim, defense, termination, right of termination or remedy under the account or chattel paper.

(7) Subsection (2)(c) of this section not waivable. Subject to subsection (8) of this section, an account debtor may not waive or vary its option under subsection (2)(c) of this section.

(8) Rule for individual under other law. This section is subject to law other than this chapter which establishes a different rule for an account debtor who is an individual and who incurred the obligation primarily for personal, family or household purposes.

(9) Inapplicability. (a) This section does not apply to the assignment of a health-care-insurance receivable.

(b) Subsections (4) and (6) of this section do not apply to the assignment or transfer of, or the creation of a security interest in, a claim or right to receive compensation for injuries or sickness as described in 26 U.S.C. 104(a)(2), provided that such transaction constitutes a sale of such claim or right. The limitation in this paragraph is intended to leave to the court the determination of the proper rules in such cases. The court may not infer from that limitation the nature of the proper rule in such cases and may continue to apply established approaches.

(c) Subsections (4) and (6) of this section do not apply to the following:

(A) The assignment or transfer of, or the creation of a security interest in, a claim or right to receive compensation for injuries or sickness as described in 26 U.S.C. 104(a)(1);

(B) The assignment or transfer of, or the creation of a security interest in, a claim or right to receive benefits under a special needs trust as described in 42 U.S.C. 1396p(d)(4); or

(C) The assignment or transfer of, or the creation, attachment, perfection or enforcement of a security interest in, the benefits, rights, privileges or options accruing under an annuity policy, to the extent that the annuity policy provides for such a restriction and the restriction is permitted under ORS 743.049.

(d) Subsection (6) of this section does not apply to the assignment or transfer of, or the creation, attachment, perfection or enforcement of a security interest in, a right when the transfer of the right is prohibited or restricted by ORS 147.325, 461.250 (7) or 656.234, to the extent that ORS 147.325, 461.250 (7) or 656.234 is inconsistent with subsection (6) of this section.

(10) Section prevails over inconsistent law. Except to the extent otherwise provided in subsection (9) of this section, this section prevails over any inconsistent provision of an existing or future statute unless the provision refers expressly to this section and states that the provision prevails over this section.

SECTION 69. 9-407. Restrictions on creation or enforcement of security interest in leasehold interest or in lessor’s residual interest. (1) Term restricting assignment generally ineffective. Except as otherwise provided in subsection (2) of this section, a term in a lease agreement is ineffective to the extent that it:

(a) Prohibits, restricts or requires the consent of a party to the lease to the assignment or transfer of, or the creation, attachment, perfection or enforcement of a security interest in, an interest of a party under the lease contract or in the lessor’s residual interest in the goods; or

(b) Provides that the assignment or transfer or the creation, attachment, perfection or enforcement of the security interest may give rise to a default, breach, right of recoupment, claim, defense, termination, right of termination or remedy under the lease.

(2) Effectiveness of certain terms. Except as otherwise provided in ORS 72A.3030 (7), a term described in subsection (1)(b) of this section is effective to the extent that there is:

(a) A transfer by the lessee of the lessee’s right of possession or use of the goods in violation of the term; or

(b) A delegation of a material performance of either party to the lease contract in violation of the term.

(3) Security interest not material impairment. The creation, attachment, perfection or enforcement of a security interest in the lessor’s interest under the lease contract or the lessor’s residual interest in the goods is not a transfer that materially impairs the lessee’s prospect of obtaining return performance or materially changes the duty of or materially increases the burden or risk imposed on the lessee within the purview of ORS 72A.3030 (4) unless, and then only to the extent that, enforcement actually results in a delegation of material performance of the lessor.

SECTION 70. 9-408. Restrictions on assignment of promissory notes, health-care-insurance receivables, and certain general intangibles ineffective. (1) Term restricting assignment generally ineffective. Except as otherwise provided in subsection (2) of this section, a term in a promissory note or in an agreement between an account debtor and a debtor which relates to a health-care-insurance receivable or a general intangible, including a contract, permit, license or franchise, and which term prohibits, restricts or requires the consent of the person obligated on the promissory note or the account debtor to, the assignment or transfer of, or creation, attachment or perfection of a security interest in, the promissory note, health-care-insurance receivable or general intangible, is ineffective to the extent that the term:

(a) Would impair the creation, attachment or perfection of a security interest; or

(b) Provides that the assignment or transfer or the creation, attachment or perfection of the security interest may give rise to a default, breach, right of recoupment, claim, defense, termination, right of termination or remedy under the promissory note, health-care-insurance receivable or general intangible.

(2) Applicability of subsection (1) of this section to sales of certain rights to payment. Subsection (1) of this section applies to a security interest in a payment intangible or promissory note only if the security interest arises out of a sale of the payment intangible or promissory note.

(3) Legal restrictions on assignment generally ineffective. A rule of law, statute or regulation that prohibits, restricts or requires the consent of a government, governmental body or official, person obligated on a promissory note or account debtor to the assignment or transfer of, or creation of a security interest in, a promissory note, health-care-insurance receivable or general intangible, including a contract, permit, license or franchise between an account debtor and a debtor, is ineffective to the extent that the rule of law, statute or regulation:

(a) Would impair the creation, attachment or perfection of a security interest; or

(b) Provides that the assignment or transfer or the creation, attachment or perfection of the security interest may give rise to a default, breach, right of recoupment, claim, defense, termination, right of termination or remedy under the promissory note, health-care-insurance receivable or general intangible.

(4) Limitation on ineffectiveness under subsections (1) and (3) of this section. To the extent that a term in a promissory note or in an agreement between an account debtor and a debtor which relates to a health-care-insurance receivable or general intangible or a rule of law, statute or regulation described in subsection (3) of this section would be effective under law other than this chapter but is ineffective under subsection (1) or (3) of this section, the creation, attachment or perfection of a security interest in the promissory note, health-care-insurance receivable or general intangible:

(a) Is not enforceable against the person obligated on the promissory note or the account debtor;

(b) Does not impose a duty or obligation on the person obligated on the promissory note or the account debtor;

(c) Does not require the person obligated on the promissory note or the account debtor to recognize the security interest, pay or render performance to the secured party, or accept payment or performance from the secured party;

(d) Does not entitle the secured party to use or assign the debtor’s rights under the promissory note, health-care-insurance receivable or general intangible, including any related information or materials furnished to the debtor in the transaction giving rise to the promissory note, health-care-insurance receivable or general intangible;

(e) Does not entitle the secured party to use, assign, possess or have access to any trade secrets or confidential information of the person obligated on the promissory note or the account debtor; and

(f) Does not entitle the secured party to enforce the security interest in the promissory note, health-care-insurance receivable or general intangible.

(5) Inapplicability. (a) Subsections (1) and (3) of this section do not apply to the assignment or transfer of, or the creation of a security interest in, a claim or right to receive compensation for injuries or sickness as described in 26 U.S.C. 104(a)(2), provided that such transaction constitutes a sale of such claim or right. The limitation in this paragraph is intended to leave to the court the determination of the proper rules in such cases. The court may not infer from that limitation the nature of the proper rule in such cases and may continue to apply established approaches.

(b) Subsections (1) and (3) of this section do not apply to the following:

(A) The assignment or transfer of, or the creation of a security interest in, a claim or right to receive compensation for injuries or sickness as described in 26 U.S.C. 104(a)(1);

(B) The assignment or transfer of, or the creation of a security interest in, a claim or right to receive benefits under a special needs trust as described in 42 U.S.C. 1396p(d)(4); or

(C) The assignment or transfer of, or the creation, attachment, perfection or enforcement of a security interest in, the benefits, rights, privileges or options accruing under an annuity policy, to the extent that the annuity policy provides for such a restriction and the restriction is permitted under ORS 743.049.

(c) Subsection (3) of this section does not apply to the assignment or transfer of, or the creation, attachment, perfection or enforcement of a security interest in, a right when the transfer of the right is prohibited or restricted by ORS 147.325, 461.250 (7) or 656.234, to the extent that ORS 147.325, 461.250 (7) or 656.234 is inconsistent with subsection (3) of this section.

(6) Section prevails over inconsistent law. Except to the extent otherwise provided in subsection (5) of this section, this section prevails over any inconsistent provision of an existing or future statute unless the provision refers expressly to this section and states that the provision prevails over this section.

SECTION 71. 9-409. Restrictions on assignment of letter-of-credit rights ineffective. (1) Term or law restricting assignment generally ineffective. A term in a letter of credit or a rule of law, statute, regulation, custom or practice applicable to the letter of credit which prohibits, restricts or requires the consent of an applicant, issuer or nominated person to a beneficiary’s assignment of or creation of a security interest in a letter-of-credit right is ineffective to the extent that the term or rule of law, statute, regulation, custom or practice:

(a) Would impair the creation, attachment or perfection of a security interest in the letter-of-credit right; or

(b) Provides that the assignment or the creation, attachment or perfection of the security interest may give rise to a default, breach, right of recoupment, claim, defense, termination, right of termination or remedy under the letter-of-credit right.

(2) Limitation on ineffectiveness under subsection (1) of this section. To the extent that a term in a letter of credit is ineffective under subsection (1) of this section but would be effective under law other than this chapter or a custom or practice applicable to the letter of credit, to the transfer of a right to draw or otherwise demand performance under the letter of credit, or to the assignment of a right to proceeds of the letter of credit, the creation, attachment or perfection of a security interest in the letter-of-credit right:

(a) Is not enforceable against the applicant, issuer, nominated person or transferee beneficiary;

(b) Imposes no duties or obligations on the applicant, issuer, nominated person or transferee beneficiary; and

(c) Does not require the applicant, issuer, nominated person or transferee beneficiary to recognize the security interest, pay or render performance to the secured party, or accept payment or other performance from the secured party.

FILING

(Filing Office; Contents and

Effectiveness of Financing Statement)

SECTION 72. 9-501. Filing office. (1) Filing offices. Except as otherwise provided in subsection (2) of this section, if the local law of this state governs perfection of a security interest or agricultural lien, the office in which to file a financing statement to perfect the security interest or agricultural lien is:

(a) The office designated for the filing or recording of a record of a mortgage on the related real property, if:

(A) The collateral is as-extracted collateral or timber to be cut; or

(B) The financing statement is filed as a fixture filing and the collateral is goods that are or are to become fixtures; or

(b) The office of the Secretary of State, in all other cases, including a case in which the collateral is goods that are or are to become fixtures and the financing statement is not filed as a fixture filing.

(2) Filing office for transmitting utilities. The office in which to file a financing statement to perfect a security interest in collateral, including fixtures, of a transmitting utility is the office of the Secretary of State. The financing statement also constitutes a fixture filing as to the collateral indicated in the financing statement which is or is to become fixtures.

SECTION 73. 9-502. Contents of financing statement; record of mortgage as financing statement; time of filing financing statement. (1) Sufficiency of financing statement. Subject to subsection (2) of this section, a financing statement is sufficient only if it:

(a) Provides the name of the debtor;

(b) Provides the name of the secured party or a representative of the secured party; and

(c) Indicates the collateral covered by the financing statement.

(2) Real-property-related financing statements. Except as otherwise provided in section 72 (2) of this 2001 Act, to be sufficient, a financing statement that covers as-extracted collateral or timber to be cut, or which is filed as a fixture filing and covers goods that are or are to become fixtures, must satisfy subsection (1) of this section and also:

(a) Indicate that it covers this type of collateral;

(b) Indicate that it is to be filed for record in the real property records;

(c) Provide a description of the real property to which the collateral is related sufficient to give constructive notice of a mortgage under the law of this state if the description were contained in a record of the mortgage of the real property; and

(d) If the debtor does not have an interest of record in the real property, provide the name of a record owner.

(3) Record of mortgage as financing statement. A record of a mortgage is effective, from the date of recording, as a financing statement filed as a fixture filing or as a financing statement covering as-extracted collateral or timber to be cut only if:

(a) The record indicates the goods or accounts that it covers;

(b) The goods are or are to become fixtures related to the real property described in the record or the collateral is related to the real property described in the record and is as-extracted collateral or timber to be cut;

(c) The record satisfies the requirements for a financing statement in this section other than an indication that it is to be filed in the real property records; and

(d) The record is duly recorded.

(4) Filing before security agreement or attachment. A financing statement may be filed before a security agreement is made or a security interest otherwise attaches.

SECTION 74. 9-503. Name of debtor and secured party. (1) Sufficiency of debtor’s name. A financing statement sufficiently provides the name of the debtor:

(a) If the debtor is a registered organization, only if the financing statement provides the name of the debtor indicated on the public record of the debtor’s jurisdiction of organization which shows the debtor to have been organized;

(b) If the debtor is a decedent’s estate, only if the financing statement provides the name of the decedent and indicates that the debtor is an estate;

(c) If the debtor is a trust or a trustee acting with respect to property held in trust, only if the financing statement:

(A) Provides the name specified for the trust in its organic documents or, if no name is specified, provides the name of the settlor and additional information sufficient to distinguish the debtor from other trusts having one or more of the same settlors; and

(B) Indicates, in the debtor’s name or otherwise, that the debtor is a trust or is a trustee acting with respect to property held in trust; and

(d) In other cases:

(A) If the debtor has a name, only if it provides the individual or organizational name of the debtor; and

(B) If the debtor does not have a name, only if it provides the names of the partners, members, associates or other persons comprising the debtor.

(2) Additional debtor-related information. A financing statement that provides the name of the debtor in accordance with subsection (1) of this section is not rendered ineffective by the absence of:

(a) A trade name or other name of the debtor; or

(b) Unless required under subsection (1)(d)(B) of this section, names of partners, members, associates or other persons comprising the debtor.

(3) Debtor’s trade name insufficient. A financing statement that provides only the debtor’s trade name does not sufficiently provide the name of the debtor.

(4) Representative capacity. Failure to indicate the representative capacity of a secured party or representative of a secured party does not affect the sufficiency of a financing statement.

(5) Multiple debtors and secured parties. A financing statement may provide the name of more than one debtor and the name of more than one secured party.

SECTION 75. 9-504. Indication of collateral. A financing statement sufficiently indicates the collateral that it covers if the financing statement provides:

(1) A description of the collateral pursuant to section 8 of this 2001 Act; or

(2) An indication that the financing statement covers all assets or all personal property.

SECTION 76. 9-505. Filing and compliance with other statutes and treaties for consignments, leases, other bailments and other transactions. (1) Use of terms other than “debtor” and “secured party.” 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 or treaty described in section 31 (1) of this 2001 Act, 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.”

(2) Effect of financing statement under subsection (1) of this section. Sections 72 to 98 of this 2001 Act apply to the filing of a financing statement under subsection (1) of this section and, as appropriate, to compliance that is equivalent to filing a financing statement under section 31 (2) of this 2001 Act, 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.

SECTION 77. 9-506. Effect of errors or omissions. (1) Minor errors and omissions. A financing statement substantially satisfying the requirements of sections 72 to 98 of this 2001 Act is effective, even if it has minor errors or omissions, unless the errors or omissions make the financing statement seriously misleading.

(2) Financing statement seriously misleading. Except as otherwise provided in subsection (3) of this section, a financing statement that fails sufficiently to provide the name of the debtor in accordance with section 74 (1) of this 2001 Act is seriously misleading.

(3) Financing statement not seriously misleading. Except as otherwise provided in subsection (4) of this section, if a search of the records of the filing office under the debtor’s correct name, using the filing office’s standard search logic, if any, would disclose a financing statement that fails sufficiently to provide the name of the debtor in accordance with section 74 (1) of this 2001 Act, the name provided does not make the financing statement seriously misleading.

(4) If the filing office’s standard search logic so changes that a search of the records of the filing office under the debtor’s correct name, using the changed search logic, would not disclose a financing statement previously deemed not to be seriously misleading by reason of subsection (3) of this section, the financing statement is effective except against a purchaser of the collateral which gives value in reasonable reliance upon a search using the changed search logic.

(5) “Debtor’s correct name.” For purposes of section 79 (2) of this 2001 Act, the “debtor’s correct name” in subsections (3) and (5) of this section means the correct name of the new debtor.

SECTION 78. 9-507. Effect of certain events on effectiveness of financing statement. (1) Disposition. A filed financing statement remains effective with respect to collateral that is sold, exchanged, leased, licensed or otherwise disposed of and in which a security interest or agricultural lien continues, even if the secured party knows of or consents to the disposition.

(2) Information becoming seriously misleading. Except as otherwise provided in subsection (3) of this section and sections 77 (4) and 79 of this 2001 Act, a financing statement is not rendered ineffective if, after the financing statement is filed, the information provided in the financing statement becomes seriously misleading under section 77 of this 2001 Act.

(3) Change in debtor’s name. If a debtor so changes its name that a filed financing statement becomes seriously misleading under section 77 of this 2001 Act:

(a) The financing statement is effective to perfect a security interest in collateral acquired by the debtor before, or within four months after, the change; and

(b) The financing statement is not effective to perfect a security interest in collateral acquired by the debtor more than four months after the change, unless an amendment to the financing statement which renders the financing statement not seriously misleading is filed within four months after the change.

SECTION 79. 9-508. Effectiveness of financing statement if new debtor becomes bound by security agreement. (1) Financing statement naming original debtor. Except as otherwise provided in this section, a filed financing statement naming an original debtor is effective to perfect a security interest in collateral in which a new debtor has or acquires rights to the extent that the financing statement would have been effective had the original debtor acquired rights in the collateral.

(2) Financing statement becoming seriously misleading. If the difference between the name of the original debtor and that of the new debtor causes a filed financing statement that is effective under subsection (1) of this section to be seriously misleading under section 77 of this 2001 Act:

(a) The financing statement is effective to perfect a security interest in collateral acquired by the new debtor before, and within four months after, the new debtor becomes bound under section 13 (4) of this 2001 Act; and

(b) The financing statement is not effective to perfect a security interest in collateral acquired by the new debtor more than four months after the new debtor becomes bound under section 13 (4) of this 2001 Act unless an initial financing statement providing the name of the new debtor is filed before the expiration of that time.

(3) When section not applicable. This section does not apply to collateral as to which a filed financing statement remains effective against the new debtor under section 78 (1) of this 2001 Act.

SECTION 80. 9-509. Persons entitled to file a record. (1) Person entitled to file record. A person may file an initial financing statement, amendment that adds collateral covered by a financing statement, or amendment that adds a debtor to a financing statement only if:

(a) The debtor authorizes the filing in an authenticated record or pursuant to subsection (2) or (3) of this section; or

(b) The person holds an agricultural lien that has become effective at the time of filing and the financing statement covers only collateral in which the person holds an agricultural lien.

(2) Security agreement as authorization. By authenticating or becoming bound as debtor by a security agreement, a debtor or new debtor authorizes the filing of an initial financing statement, and an amendment, covering:

(a) The collateral described in the security agreement; and

(b) Property that becomes collateral under section 35 (1)(b) of this 2001 Act, whether or not the security agreement expressly covers proceeds.

(3) Acquisition of collateral as authorization. By acquiring collateral in which a security interest or agricultural lien continues under section 35 (1)(a) of this 2001 Act, a debtor authorizes the filing of an initial financing statement, and an amendment, covering the collateral and property that becomes collateral under section 35 (1)(b) of this 2001 Act.

(4) Person entitled to file certain amendments. A person may file an amendment other than an amendment that adds collateral covered by a financing statement or an amendment that adds a debtor to a financing statement only if:

(a) The secured party of record authorizes the filing; or

(b) The amendment is a termination statement for a financing statement as to which the secured party of record has failed to file or send a termination statement as required by section 84 (1) or (3) of this 2001 Act, the debtor authorizes the filing, and the termination statement indicates that the debtor authorized it to be filed.

(5) Multiple secured parties of record. If there is more than one secured party of record for a financing statement, each secured party of record may authorize the filing of an amendment under subsection (4) of this section.

SECTION 81. 9-510. Effectiveness of filed record. (1) Filed record effective if authorized. A filed record is effective only to the extent that it was filed by a person that may file it under section 80 of this 2001 Act.

(2) Authorization by one secured party of record. A record authorized by one secured party of record does not affect the financing statement with respect to another secured party of record.

(3) Continuation statement not timely filed. A continuation statement that is not filed within the six-month period prescribed by section 86 (4) of this 2001 Act is ineffective.

SECTION 82. 9-511. Secured party of record. (1) Secured party of record. A secured party of record with respect to a financing statement is a person whose name is provided as the name of the secured party or a representative of the secured party in an initial financing statement that has been filed. If an initial financing statement is filed under section 85 (1) of this 2001 Act, the assignee named in the initial financing statement is the secured party of record with respect to the financing statement.

(2) Amendment naming secured party of record. If an amendment of a financing statement which provides the name of a person as a secured party or a representative of a secured party is filed, the person named in the amendment is a secured party of record. If an amendment is filed under section 85 (2) of this 2001 Act, the assignee named in the amendment is a secured party of record.

(3) Amendment deleting secured party of record. A person remains a secured party of record until the filing of an amendment of the financing statement which deletes the person.

SECTION 83. 9-512. Amendment of financing statement. (1) Amendment of information in financing statement. Subject to section 80 of this 2001 Act, a person may add or delete collateral covered by, continue or terminate the effectiveness of, or, subject to subsection (5) of this section, otherwise amend the information provided in, a financing statement by filing an amendment that:

(a) Identifies, by its file number, the initial financing statement to which the amendment relates; and

(b) If the amendment relates to an initial financing statement filed or recorded in a filing office described in section 72 (1)(a) of this 2001 Act, provides the information specified in section 73 (2) of this 2001 Act.

(2) Period of effectiveness not affected. Except as otherwise provided in section 86 of this 2001 Act, the filing of an amendment does not extend the period of effectiveness of the financing statement.

(3) Effectiveness of amendment adding collateral. A financing statement that is amended by an amendment that adds collateral is effective as to the added collateral only from the date of the filing of the amendment.

(4) Effectiveness of amendment adding debtor. A financing statement that is amended by an amendment that adds a debtor is effective as to the added debtor only from the date of the filing of the amendment.

(5) Certain amendments ineffective. An amendment is ineffective to the extent it:

(a) Purports to delete all debtors and fails to provide the name of a debtor to be covered by the financing statement; or

(b) Purports to delete all secured parties of record and fails to provide the name of a new secured party of record.

SECTION 84. 9-513. Termination statement. (1) Consumer goods. A secured party shall cause the secured party of record for a financing statement to file a termination statement for the financing statement if the financing statement covers consumer goods and:

(a) There is no obligation secured by the collateral covered by the financing statement and no commitment to make an advance, incur an obligation, or otherwise give value; or

(b) The debtor did not authorize the filing of the initial financing statement.

(2) Time for compliance with subsection (1) of this section. To comply with subsection (1) of this section, a secured party shall cause the secured party of record to file the termination statement:

(a) Within one month after there is no obligation secured by the collateral covered by the financing statement and no commitment to make an advance, incur an obligation or otherwise give value; or

(b) If earlier, within 20 days after the secured party receives an authenticated demand from a debtor.

(3) Other collateral. In cases not governed by subsection (1) of this section, within 20 days after a secured party receives an authenticated demand from a debtor, the secured party shall cause the secured party of record for a financing statement to send to the debtor a termination statement for the financing statement or file the termination statement in the filing office if:

(a) Except in the case of a financing statement covering accounts or chattel paper that has been sold or goods that are the subject of a consignment, there is no obligation secured by the collateral covered by the financing statement and no commitment to make an advance, incur an obligation, or otherwise give value;

(b) The financing statement covers accounts or chattel paper that has been sold but as to which the account debtor or other person obligated has discharged its obligation;

(c) The financing statement covers goods that were the subject of a consignment to the debtor but are not in the debtor’s possession; or

(d) The debtor did not authorize the filing of the initial financing statement.

(4) Effect of filing termination statement. Except as otherwise provided in section 81 of this 2001 Act, upon the filing of a termination statement with the filing office, the financing statement to which the termination statement relates ceases to be effective. Except as otherwise provided in section 81 of this 2001 Act, for purposes of sections 90 (7), 93 (1) and 94 (3) of this 2001 Act, the filing with the filing office of a termination statement relating to a financing statement that indicates that the debtor is a transmitting utility also causes the effectiveness of the financing statement to lapse.

SECTION 85. 9-514. Assignment of powers of secured party of record. (1) Assignment reflected on initial financing statement. Except as otherwise provided in subsection (3) of this section, an initial financing statement may reflect an assignment of all of the secured party’s power to authorize an amendment to the financing statement by providing the name and mailing address of the assignee as the name and address of the secured party.

(2) Assignment of filed financing statement. Except as otherwise provided in subsection (3) of this section, a secured party of record may assign of record all or part of its power to authorize an amendment to a financing statement by filing in the filing office an amendment of the financing statement which:

(a) Identifies, by its file number, the initial financing statement to which it relates;

(b) Provides the name of the assignor; and

(c) Provides the name and mailing address of the assignee.

(3) Assignment of record of mortgage. An assignment of record of a security interest in a fixture covered by a record of a mortgage which is effective as a financing statement filed as a fixture filing under section 73 (3) of this 2001 Act may be made only by an assignment of record of the mortgage in the manner provided by law of this state other than the Uniform Commercial Code.

SECTION 86. 9-515. Duration and effectiveness of financing statement; effect of lapsed financing statement; renewal notice. (1) Five-year effectiveness. Except as otherwise provided in subsections (2), (5), (6) and (7) of this section, a filed financing statement is effective for a period of five years after the date of filing.

(2) Public-finance or manufactured-home transaction. Except as otherwise provided in subsections (5), (6) and (7) of this section, an initial financing statement filed in connection with a public-finance transaction or manufactured-home transaction is effective for a period of 30 years after the date of filing if it indicates that it is filed in connection with a public-finance transaction or manufactured-home transaction.

(3) Lapse and continuation of financing statement. 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 pursuant to subsection (4) of this section. Upon lapse, a financing statement ceases to be effective and any security interest or agricultural lien that was perfected by the financing statement becomes unperfected, unless the security interest is perfected otherwise. If the security interest or agricultural lien becomes unperfected upon lapse, it is deemed never to have been perfected as against a purchaser of the collateral for value.

(4) When continuation statement may be filed. A continuation statement may be filed only within six months before the expiration of the five-year period specified in subsection (1) of this section or the 30-year period specified in subsection (2) of this section, whichever is applicable.

(5) Effect of filing continuation statement. Except as otherwise provided in section 81 of this 2001 Act, upon timely filing of a continuation statement, the effectiveness of the initial financing statement continues for a period of five years commencing on the day on which the financing statement would have become ineffective in the absence of the filing. Upon the expiration of the five-year period, the financing statement lapses in the same manner as provided in subsection (3) of this section, unless, before the lapse, another continuation statement is filed pursuant to subsection (4) of this section. Succeeding continuation statements may be filed in the same manner to continue the effectiveness of the initial financing statement.

(6) Transmitting utility financing statement. If a debtor is a transmitting utility and a filed financing statement so indicates, the financing statement is effective until a termination statement is filed.

(7) Record of mortgage as financing statement. A record of a mortgage that is effective as a financing statement filed as a fixture filing under section 73 (3) of this 2001 Act remains effective as a financing statement filed as a fixture filing until the mortgage is released or satisfied of record or its effectiveness otherwise terminates as to the real property.

SECTION 86a. Not less than three months or more than six months before the expiration of any financing statement, effective financing statement as defined in ORS 79.6020 or continuation thereof, the Secretary of State shall mail a renewal notice to the secured party or assignee of record, if any, at the address indicated on the financing statement, effective financing statement, assignment thereof or amendment thereto. The renewal notice shall include:

(1) The file number and expiration date of the financing statement or effective financing statement;

(2) The name of the debtor; and

(3) A statement that the financing statement or effective financing statement may be continued by filing a continuation statement or initial financing statement under section 191 or 192 of this 2001 Act.

SECTION 87. 9-516. What constitutes filing; effectiveness of filing. (1) What constitutes filing. Except as otherwise provided in subsection (2) of this section, communication of a record to and receipt by a filing office and tender of the filing fee or acceptance of the record by the filing office constitutes filing.

(2) Refusal to accept record; filing does not occur. Filing does not occur with respect to a record that a filing office refuses to accept because:

(a) The record is not communicated by a method or medium of communication authorized by the filing office;

(b) An amount equal to or greater than the applicable filing fee is not tendered;

(c) The filing office is unable to index the record because:

(A) In the case of an initial financing statement, the record does not provide a name for the debtor;

(B) In the case of an amendment or correction statement, the record:

(i) Does not identify the initial financing statement as required by section 83 or 89 of this 2001 Act, as applicable; or

(ii) Identifies an initial financing statement whose effectiveness has lapsed under section 86 of this 2001 Act and the filing office is that described in section 72 (1)(b) of this 2001 Act;

(C) In the case of an initial financing statement that provides the name of a debtor identified as an individual or an amendment that provides a name of a debtor identified as an individual which was not previously provided in the financing statement to which the record relates, the record does not identify the debtor’s last name; or

(D) In the case of a record filed or recorded in the filing office described in section 72 (1)(a) of this 2001 Act, the record does not provide a sufficient description of the real property to which it relates;

(d) In the case of an initial financing statement or an amendment that adds a secured party of record, the record does not provide a name and mailing address for the secured party of record;

(e) In the case of an initial financing statement or an amendment that provides a name of a debtor which was not previously provided in the financing statement to which the amendment relates, the record does not:

(A) Provide a mailing address for the debtor, unless the initial financing statement or amendment is included in a mortgage and the filing office is that described in section 72 (1)(a) of this 2001 Act;

(B) Indicate whether the debtor is an individual or an organization, unless the initial financing statement or amendment is included in a mortgage and the filing office is that described in section 72 (1)(a) of this 2001 Act; or

(C) If the filing office is that described in section 72 (1)(b) this 2001 Act and the financing statement indicates that the debtor is an organization, provide:

(i) A type of organization for the debtor;

(ii) A jurisdiction of organization for the debtor or, as an alternative when the debtor is not a registered organization, an indication that the debtor is not a registered organization; or

(iii) An organizational identification number for the debtor or indicate that the debtor has none;

(f) In the case of an assignment reflected in an initial financing statement under section 85 (1) of this 2001 Act or an amendment filed under section 85 (2) of this 2001 Act, the record does not provide a name and mailing address for the assignee; or

(g) In the case of a continuation statement, the record is not filed within the six-month period prescribed by section 86 (4) of this 2001 Act and the filing office is that described in section 72 (1)(b) of this 2001 Act.

(3) Rules applicable to subsection (2) of this section. For purposes of subsection (2) of this section:

(a) A record does not provide information if the filing office is unable to read or decipher the information; and

(b) A record that does not indicate that it is an amendment or identify an initial financing statement to which it relates, as required by section 83, 85 or 89 of this 2001 Act, is an initial financing statement.

(4) Refusal to accept record; record effective as filed record. A record that is communicated to and received by the filing office with tender of the filing fee under subsection (1) of this section, but which the filing office refuses to accept for a reason other than one set forth in subsection (2) of this section, is effective as a filed record except as against a purchaser of the collateral which gives value in reasonable reliance upon the absence of the record from the files.

SECTION 88. 9-517. Effect of indexing errors. The failure of the filing office to index a record correctly does not affect the effectiveness of the filed record.

SECTION 89. 9-518. Claim concerning inaccurate or wrongfully filed record. (1) Correction statement. A person may file in the filing office a correction statement with respect to a record indexed there under the person’s name if the person believes that the record is inaccurate or was wrongfully filed.

(2) Sufficiency of correction statement. A correction statement must:

(a) Identify the record to which it relates by the file number assigned to the initial financing statement to which the record relates;

(b) Indicate that it is a correction statement;

(c) Provide the basis for the person’s belief that the record is inaccurate and indicate the manner in which the person believes the record should be amended to cure any inaccuracy or provide the basis for the person’s belief that the record was wrongfully filed; and

(d) Indicate the name of the debtor and the secured party.

(3) Record not affected by correction statement. The filing of a correction statement does not affect the effectiveness of an initial financing statement or other filed record.

(Duties and Operation of Filing Office)

SECTION 90. 9-519. Numbering, maintaining and indexing records; communicating information provided in records. (1) Filing office duties. For each record filed in a filing office, the filing office shall:

(a) Assign a unique number to the filed record;

(b) Create a record that bears the number assigned to the filed record and the date and time of filing;

(c) Maintain the filed record for public inspection; and

(d) Index the filed record in accordance with subsections (3), (4) and (5) of this section.

(2) File number. Except as otherwise provided in subsection (9) of this section, a file number assigned after January 1, 2004, must include a digit that:

(a) Is mathematically derived from or related to the other digits of the file number; and

(b) Aids the filing office in determining whether a number communicated as the file number includes a single-digit or transpositional error.

(3) Indexing: general. Except as otherwise provided in subsections (4) and (5) of this section, the filing office shall:

(a) Index an initial financing statement according to the name of the debtor and index all filed records relating to the initial financing statement in a manner that associates with one another an initial financing statement and all filed records relating to the initial financing statement; and

(b) Index a record that provides a name of a debtor which was not previously provided in the financing statement to which the record relates also according to the name that was not previously provided.

(4) Indexing: real-property-related financing statement. If a financing statement is filed as a fixture filing or covers as-extracted collateral or timber to be cut, it must be filed for record and the filing office shall index it:

(a) Under the names of the debtor and of each owner of record shown on the financing statement as if they were the mortgagors under a mortgage of the real property described; and

(b) To the extent that the law of this state provides for indexing of records of mortgages under the name of the mortgagee, under the name of the secured party as if the secured party were the mortgagee thereunder, or, if indexing is by description, as if the financing statement were a record of a mortgage of the real property described.

(5) Indexing: Real-property-related assignment. If a financing statement is filed as a fixture filing or covers as-extracted collateral or timber to be cut, the filing office shall index an assignment filed under section 85 (1) of this 2001 Act or an amendment filed under section 85 (2) of this 2001 Act:

(a) Under the name of the assignor as grantor; and

(b) To the extent that the law of this state provides for indexing a record of the assignment of a mortgage under the name of the assignee, under the name of the assignee.

(6) Retrieval and association capability. The filing office shall maintain a capability:

(a) To retrieve a record by the name of the debtor and by the file number assigned to the initial financing statement to which the record relates; and

(b) To associate and retrieve with one another an initial financing statement and each filed record relating to the initial financing statement.

(7) Removal of debtor’s name. The filing office may not remove a debtor’s name from the index until one year after the effectiveness of a financing statement naming the debtor lapses under section 86 of this 2001 Act with respect to all secured parties of record.

(8) Timeliness of filing office performance. Except as otherwise provided in subsection (9) of this section, the filing office shall perform the acts required by subsections (1) to (5) of this section at the time and in the manner prescribed by filing-office rule, but not later than two business days after the filing office receives the record in question or, if the record is delivered by mail, not later than four business days after the filing office receives the record.

(9) Subsections (2) and (8) of this section do not apply to a filing office described in section 72 (1)(a) of this 2001 Act.

SECTION 91. 9-520. Acceptance and refusal to accept record. (1) Mandatory refusal to accept record. A filing office shall refuse to accept a record for filing for a reason set forth in section 87 (2) of this 2001 Act and may refuse to accept a record for filing only for a reason set forth in section 87 (2) of this 2001 Act.

(2) Communication concerning refusal. If a filing office refuses to accept a record for filing, it shall communicate to the person that presented the record the fact of and reason for the refusal and the date and time the record would have been filed had the filing office accepted it. The communication must be made at the time and in the manner prescribed by filing-office rule but, in the case of a filing office described in section 72 (1)(b) of this 2001 Act, in no event more than two business days after the filing office receives the record or, if the record is delivered by mail, four business days after the filing office receives the record.

(3) When filed financing statement effective. A filed financing statement satisfying section 73 (1) and (2) of this 2001 Act is effective, even if the filing office is required to refuse to accept it for filing under subsection (1) of this section. However, section 58 of this 2001 Act applies to a filed financing statement providing information described in section 87 (2)(e) of this 2001 Act which is incorrect at the time the financing statement is filed.

(4) Separate application to multiple debtors. If a record communicated to a filing office provides information that relates to more than one debtor, sections 72 to 98 of this 2001 Act apply as to each debtor separately.

SECTION 92. 9-521. Uniform form of written financing statement and amendment. (1) Initial financing statement form. A filing office that accepts written records may not refuse to accept a written initial financing statement in the form and format set forth in the final official text of the 1999 revisions to Article 9 of the Uniform Commercial Code promulgated by The American Law Institute and the National Conference of Commissioners on Uniform State Laws, except for a reason set forth in section 87 (2) of this 2001 Act.

(2) Amendment form. A filing office that accepts written records may not refuse to accept a written record in the form and format set forth in the final official text of the 1999 revisions to Article 9 of the Uniform Commercial Code promulgated by The American Law Institute and the National Conference of Commissioners on Uniform State Laws, except for a reason set forth in section 87 (2) of this 2001 Act.

SECTION 93. 9-522. Maintenance and destruction of records. (1) Post-lapse maintenance and retrieval of information. The filing office shall maintain a record of the information provided in a filed financing statement for at least one year after the effectiveness of the financing statement has lapsed under section 86 of this 2001 Act with respect to all secured parties of record. The record must be retrievable by using the name of the debtor and by using the file number assigned to the initial financing statement to which the record relates.

(2) Destruction of written records. Except to the extent that a statute governing disposition of public records provides otherwise, the filing office immediately may destroy any written record evidencing a financing statement. However, if the filing office destroys a written record, it shall maintain another record of the financing statement which complies with subsection (1) of this section.

SECTION 94. 9-523. Information from filing office; sale or license of records. (1) Acknowledgment of filing written record. If a person that files a written record requests an acknowledgment of the filing, the filing office shall send an image of the record showing the number assigned to the record pursuant to section 90 (1)(a) of this 2001 Act and the date and time of the filing of the record to the person indicated on the financing statement or amendment as the person to whom the acknowledgment should be sent or, if no person is so indicated, to the secured party or the person filing the written record. However, if the person furnishes a copy of the record to the filing office, the filing office may instead:

(a) Note upon the copy the number assigned to the record pursuant to section 90 (1)(a) of this 2001 Act and the date and time of the filing of the record; and

(b) Send the copy to the person indicated on the financing statement or amendment as the person to whom the acknowledgment should be sent or, if no person is so indicated, to the secured party or the person filing the written record.

(2) Acknowledgment of filing other record. If a person files a record other than a written record, the filing office shall communicate an acknowledgment to the person indicated on the financing statement or amendment as the person to whom the acknowledgment should be sent or, if no person is so indicated, to the secured party or the person filing the record. The acknowledgment shall provide:

(a) The information in the record;

(b) The number assigned to the record pursuant to section 90 (1)(a) of this 2001 Act; and

(c) The date and time of the filing of the record.

(3) Communication of requested information. The filing office shall communicate or otherwise make available in a record the following information to any person that requests it:

(a) Whether there is on file on a date and time specified by the filing office, but not a date earlier than five business days before the filing office receives the request, any financing statement that:

(A) Designates a particular debtor or, if the request so states, designates a particular debtor at the address specified in the request;

(B) Has not lapsed under section 86 of this 2001 Act with respect to all secured parties of record; and

(C) If the request so states, has lapsed under section 86 of this 2001 Act and a record of which is maintained by the filing office under section 93 (1) of this 2001 Act;

(b) The date and time of filing of each financing statement;

(c) The information provided in each financing statement; and

(d) All notices of federal lien or certificates or notices affecting a lien, if any, filed under ORS 87.806 to 87.831 for a particular person whose name is identical to the particular debtor named in the financing statement.

(4) Medium for communicating information. In complying with its duty under subsection (3) of this section, the filing office may communicate information in any medium. However, if requested, the filing office shall communicate information by issuing a record that can be admitted into evidence in the courts of this state without extrinsic evidence of its authenticity.

(5) Timeliness of filing office performance. The filing office described in section 72 (1)(b) of this 2001 Act shall perform the acts required by subsections (1) to (4) of this section at the time and in the manner prescribed by filing-office rule, but not later than two business days after the filing office receives the request or, if the request is delivered by mail, not later than four business days after the filing office receives the request.

(6) Public availability of records. At least every two weeks, the filing office described in section 72 (1)(b) of this 2001 Act shall offer to sell or license to the public on a nonexclusive basis, in bulk, copies of all records filed in it under sections 72 to 98 of this 2001 Act. The filing office shall offer the copies of any record in the medium in which the filing office maintains the record. The filing office may offer the copies in additional media.

SECTION 95. 9-524. Delay by filing office. Delay by the filing office beyond a time limit prescribed by sections 72 to 98 of this 2001 Act is excused if:

(1) The delay is caused by interruption of communication or computer facilities, war, emergency conditions, failure of equipment or other circumstances beyond control of the filing office; and

(2) The filing office exercises reasonable diligence under the circumstances.

SECTION 96. 9-525. Fees. (1) Initial financing statement or other record: General rule. Except as otherwise provided in subsection (4) of this section, the nonrefundable fee for filing and indexing a record under sections 72 to 98 of this 2001 Act is $10.

(2) Number of names. The number of names required to be indexed does not affect the amount of the fee in subsection (1) of this section.

(3) Response to information request. The nonrefundable fee for responding to a request for information from the filing office, including for communicating whether there is on file any financing statement naming a particular debtor, is:

(a) $10 for each distinct debtor name to be searched;

(b) In addition to the fee in paragraph (a) of this subsection, $5 for copies of Uniform Commercial Code documents relating to each distinct debtor name to be searched; and

(c) $5 for each request by document number for copies of Uniform Commercial Code documents.

(4) Record of mortgage. This section does not require a fee with respect to a record filed or recorded in the filing office described in section 72 (1)(a) of this 2001 Act. However, the recording and satisfaction fees that otherwise would be applicable to the record apply.

(5) The Secretary of State shall adopt rules prescribing fees for providing summaries and compilations that are not debtor specific and for providing copies of records, as described in section 94 (6) of this 2001 Act, that are not debtor specific.

SECTION 97. 9-526. Filing-office rules. (1) Adoption of filing-office rules. The Secretary of State shall adopt and publish rules applicable to its filing procedures, processes and operations to implement this chapter. The filing-office rules must be:

(a) Consistent with this chapter; and

(b) Adopted and published in accordance with ORS 183.310 to 183.550.

(2) Harmonization of rules. To keep the filing-office rules and practices of the filing office in harmony with the rules and practices of filing offices in other jurisdictions that enact substantially sections 72 to 98 of this 2001 Act, and to keep the technology used by the filing office compatible with the technology used by filing offices in other jurisdictions that enact substantially sections 72 to 98 of this 2001 Act, the Secretary of State, so far as is consistent with the purposes, policies and provisions of this chapter, in adopting, amending and repealing filing-office rules, shall:

(a) Consult with filing offices in other jurisdictions that enact substantially sections 72 to 98 of this 2001 Act;

(b) Consult the most recent version of the Model Rules promulgated by the International Association of Corporate Administrators or any successor organization; and

(c) Take into consideration the rules and practices of, and the technology used by, filing offices in other jurisdictions that enact substantially sections 72 to 98 of this 2001 Act.

SECTION 98. 9-527. Duty to report. The Secretary of State shall report to the Legislative Assembly on or before January 15 of each odd-numbered year regarding the operation of the filing office. The report must contain a statement of the extent to which the filing-office rules are not in harmony with the most recent version of the Model Rules promulgated by the International Association of Corporate Administrators, or any successor organization, and the reasons for these variations.

DEFAULT

(Default and Enforcement of Security Interest)

SECTION 99. 9-601. Rights after default; judicial enforcement; consignor or buyer of accounts, chattel paper, payment intangibles or promissory notes. (1) Rights of secured party after default. After default, a secured party has the rights provided in sections 99 to 126 of this 2001 Act and, except as otherwise provided in section 100 of this 2001 Act, those provided by agreement of the parties. A secured party:

(a) May reduce a claim to judgment, foreclose, or otherwise enforce the claim, security interest or agricultural lien by any available judicial procedure; and

(b) If the collateral is documents, may proceed either as to the documents or as to the goods they cover.

(2) Rights and duties of secured party in possession or control. A secured party in possession of collateral or control of collateral under section 4, 5, 6 or 7 of this 2001 Act has the rights and duties provided in section 17 of this 2001 Act.

(3) Rights cumulative; simultaneous exercise. The rights under subsections (1) and (2) of this section are cumulative and may be exercised simultaneously.

(4) Rights of debtor and obligor. Except as otherwise provided in subsection (7) of this section and section 103 of this 2001 Act, after default, a debtor and an obligor have the rights provided in sections 99 to 126 of this 2001 Act and by agreement of the parties.

(5) Lien of levy after judgment. If a secured party has reduced its claim to judgment, the lien of any levy that may be made upon the collateral by virtue of an execution based upon the judgment relates back to the earliest of:

(a) The date of perfection of the security interest or agricultural lien in the collateral;

(b) The date of filing a financing statement covering the collateral; or

(c) Any date specified in a statute under which the agricultural lien was created.

(6) Execution sale. A sale pursuant to an execution is a foreclosure of the security interest or agricultural lien by judicial procedure within the meaning of this section. A secured party may purchase at the sale and thereafter hold the collateral free of any other requirements of this chapter.

(7) Consignor or buyer of certain rights to payment. Except as otherwise provided in section 105 (3) of this 2001 Act, sections 99 to 126 of this 2001 Act impose no duties upon a secured party that is a consignor or is a buyer of accounts, chattel paper, payment intangibles or promissory notes.

SECTION 100. 9-602. Waiver and variance of rights and duties. Except as otherwise provided in section 122 of this 2001 Act, to the extent that they give rights to a debtor or obligor and impose duties on a secured party, the debtor or obligor may not waive or vary the rules stated in the following listed sections:

(1) Section 17 (2)(d)(C) of this 2001 Act, which deals with use and operation of the collateral by the secured party;

(2) Section 20 of this 2001 Act, which deals with requests for an accounting and requests concerning a list of collateral and statement of account;

(3) Section 105 (3) of this 2001 Act, which deals with collection and enforcement of collateral;

(4) Sections 106 (1) and 113 (3) of this 2001 Act to the extent that they deal with application or payment of noncash proceeds of collection, enforcement or disposition;

(5) Sections 106 (1) and 113 (4) of this 2001 Act to the extent that they require accounting for or payment of surplus proceeds of collateral;

(6) Section 107 of this 2001 Act to the extent that it imposes upon a secured party that takes possession of collateral without judicial process the duty to do so without breach of the peace;

(7) Sections 108 (2), 109, 111 and 112 of this 2001 Act, which deal with disposition of collateral;

(8) Section 113 (6) of this 2001 Act, which deals with calculation of a deficiency or surplus when a disposition is made to the secured party, a person related to the secured party or a secondary obligor;

(9) Section 114 of this 2001 Act, which deals with explanation of the calculation of a surplus or deficiency;

(10) Sections 118, 119 and 120 of this 2001 Act, which deal with acceptance of collateral in satisfaction of obligation;

(11) Section 121 of this 2001 Act, which deals with redemption of collateral;

(12) Section 122 of this 2001 Act, which deals with permissible waivers; and

(13) Sections 123 and 124 of this 2001 Act, which deal with the secured party’s liability for failure to comply with this chapter.

SECTION 101. 9-603. Agreement on standards concerning rights and duties. (1) Agreed standards. The parties may determine by agreement the standards measuring the fulfillment of the rights of a debtor or obligor and the duties of a secured party under a rule stated in section 100 of this 2001 Act if the standards are not manifestly unreasonable.

(2) Agreed standards inapplicable to breach of peace. Subsection (1) of this section does not apply to the duty under section 107 of this 2001 Act to refrain from breaching the peace.

SECTION 102. 9-604. Procedure if security agreement covers real property or fixtures. (1) Enforcement: personal and real property. If a security agreement covers both personal and real property, a secured party may proceed:

(a) Under sections 99 to 126 of this 2001 Act as to the personal property without prejudicing any rights with respect to the real property; or

(b) As to both the personal property and the real property in accordance with the rights with respect to the real property, in which case the other provisions of sections 99 to 126 of this 2001 Act do not apply.

(2) Enforcement: fixtures. Subject to subsection (3) of this section, if a security agreement covers goods that are or become fixtures, a secured party may proceed:

(a) Under sections 99 to 126 of this 2001 Act; or

(b) In accordance with the rights with respect to real property, in which case the other provisions of sections 99 to 126 of this 2001 Act do not apply.

(3) Removal of fixtures. Subject to the other provisions of sections 99 to 126 of this 2001 Act, if a secured party holding a security interest in fixtures has priority over all owners and encumbrancers of the real property, the secured party, after default, may remove the collateral from the real property.

(4) Injury caused by removal. A secured party that removes collateral shall promptly reimburse any encumbrancer or owner of the real property, other than the debtor, for the cost of repair of any physical injury caused by the removal. The secured party need not reimburse the encumbrancer or owner for any diminution in value of the real property caused by the absence of the goods removed or by any necessity of replacing them. A person entitled to reimbursement may refuse permission to remove until the secured party gives adequate assurance for the performance of the obligation to reimburse.

SECTION 103. 9-605. Unknown debtor or secondary obligor. A secured party does not owe a duty based on its status as secured party:

(1) To a person that is a debtor or obligor, unless the secured party knows:

(a) That the person is a debtor or obligor;

(b) The identity of the person; and

(c) How to communicate with the person; or

(2) To a secured party or lienholder that has filed a financing statement against a person, unless the secured party knows:

(a) That the person is a debtor; and

(b) The identity of the person.

SECTION 104. 9-606. Time of default for agricultural lien. For purposes of sections 99 to 126 of this 2001 Act, a default occurs in connection with an agricultural lien at the time the secured party becomes entitled to enforce the lien in accordance with the statute under which it was created.

SECTION 105. 9-607. Collection and enforcement by secured party. (1) Collection and enforcement generally. If so agreed, and in any event after default, a secured party:

(a) May notify an account debtor or other person obligated on collateral to make payment or otherwise render performance to or for the benefit of the secured party;

(b) May take any proceeds to which the secured party is entitled under section 35 of this 2001 Act;

(c) May enforce the obligations of an account debtor or other person obligated on collateral and exercise the rights of the debtor with respect to the obligation of the account debtor or other person obligated on collateral to make payment or otherwise render performance to the debtor, and with respect to any property that secures the obligations of the account debtor or other person obligated on the collateral;

(d) If it holds a security interest in a deposit account perfected by control under section 4 (1)(a) of this 2001 Act, may apply the balance of the deposit account to the obligation secured by the deposit account; and

(e) If it holds a security interest in a deposit account perfected by control under section 4 (1)(b) or (c) of this 2001 Act, may instruct the bank to pay the balance of the deposit account to or for the benefit of the secured party.

(2) Nonjudicial enforcement of mortgage. If necessary to enable a secured party to exercise under subsection (1)(c) of this section the right of a debtor to enforce a mortgage nonjudicially, the secured party may record in the office in which a record of the mortgage is recorded the secured party’s sworn affidavit, with a copy of the security agreement attached thereto. The affidavit shall be in recordable form and state that:

(a) A default has occurred; and

(b) The secured party is entitled to enforce the mortgage nonjudicially.

(3) Commercially reasonable collection and enforcement. A secured party shall proceed in a commercially reasonable manner if the secured party:

(a) Undertakes to collect from or enforce an obligation of an account debtor or other person obligated on collateral; and

(b) Is entitled to charge back uncollected collateral or otherwise to full or limited recourse against the debtor or a secondary obligor.

(4) Expenses of collection and enforcement. A secured party may deduct from the collections made pursuant to subsection (3) of this section reasonable expenses of collection and enforcement, including reasonable attorney fees and legal expenses incurred by the secured party.

(5) Duties to secured party not affected. This section does not determine whether an account debtor, bank or other person obligated on collateral owes a duty to a secured party.

SECTION 106. 9-608. Application of proceeds of collection or enforcement; liability for deficiency and right to surplus. (1) Application of proceeds, surplus and deficiency if obligation secured. If a security interest or agricultural lien secures payment or performance of an obligation, the following rules apply:

(a) A secured party shall apply or pay over for application the cash proceeds of collection or enforcement under section 105 of this 2001 Act in the following order to:

(A) The reasonable expenses of collection and enforcement and, to the extent provided for by agreement and not prohibited by law, reasonable attorney fees and legal expenses incurred by the secured party;

(B) The satisfaction of obligations secured by the security interest or agricultural lien under which the collection or enforcement is made; and

(C) The satisfaction of obligations secured by any subordinate security interest in or other lien on the collateral subject to the security interest or agricultural lien under which the collection or enforcement is made if the secured party receives an authenticated demand for proceeds before distribution of the proceeds is completed.

(b) If requested by a secured party, a holder of a subordinate security interest or other lien shall furnish reasonable proof of the interest or lien within a reasonable time. Unless the holder complies, the secured party need not comply with the holder’s demand under paragraph (a)(C) of this subsection.

(c) A secured party need not apply or pay over for application noncash proceeds of collection and enforcement under section 105 of this 2001 Act unless the failure to do so would be commercially unreasonable. A secured party that applies or pays over for application noncash proceeds shall do so in a commercially reasonable manner.

(d) A secured party shall account to and pay a debtor for any surplus, and the obligor is liable for any deficiency.

(2) No surplus or deficiency in sales of certain rights to payment. If the underlying transaction is a sale of accounts, chattel paper, payment intangibles or promissory notes, the debtor is not entitled to any surplus and the obligor is not liable for any deficiency.

SECTION 107. 9-609. Secured party’s right to take possession after default. (1) Possession; rendering equipment unusable; disposition on debtor’s premises. After default, a secured party:

(a) May take possession of the collateral; and

(b) Without removal, may render equipment unusable and dispose of collateral on a debtor’s premises under section 108 of this 2001 Act.

(2) Judicial and nonjudicial process. A secured party may proceed under subsection (1) of this section:

(a) Pursuant to judicial process; or

(b) Without judicial process, if it proceeds without breach of the peace.

(3) Assembly of collateral. If so agreed, and in any event after default, a secured party may require the debtor to assemble the collateral and make it available to the secured party at a place to be designated by the secured party which is reasonably convenient to both parties.

SECTION 108. 9-610. Disposition of collateral after default. (1) Disposition after default. After default, a secured party may sell, lease, license or otherwise dispose of any or all of the collateral in its present condition or following any commercially reasonable preparation or processing.

(2) Commercially reasonable disposition. Every aspect of a disposition of collateral, including the method, manner, time, place and other terms, must be commercially reasonable. If commercially reasonable, a secured party may dispose of collateral by public or private proceedings, by one or more contracts, as a unit or in parcels, and at any time and place and on any terms.

(3) Purchase by secured party. A secured party may purchase collateral:

(a) At a public disposition; or

(b) At a private disposition only if the collateral is of a kind that is customarily sold on a recognized market or the subject of widely distributed standard price quotations.

(4) Warranties on disposition. A contract for sale, lease, license or other disposition includes the warranties relating to title, possession, quiet enjoyment and the like which by operation of law accompany a voluntary disposition of property of the kind subject to the contract.

(5) Disclaimer of warranties. A secured party may disclaim or modify warranties under subsection (4) of this section:

(a) In a manner that would be effective to disclaim or modify the warranties in a voluntary disposition of property of the kind subject to the contract of disposition; or

(b) By communicating to the purchaser a record evidencing the contract for disposition and including an express disclaimer or modification of the warranties.

(6) Record sufficient to disclaim warranties. A record is sufficient to disclaim warranties under subsection (5) of this section if it indicates “There is no warranty relating to title, possession, quiet enjoyment or the like in this disposition” or uses words of similar import.

SECTION 109. 9-611. Notification before disposition of collateral. (1) “Notification date.” As used in this section, “notification date” means the earlier of the date on which:

(a) A secured party sends to the debtor and any secondary obligor an authenticated notification of disposition; or

(b) The debtor and any secondary obligor waive the right to notification.

(2) Notification of disposition required. Except as otherwise provided in subsection (4) of this section, a secured party that disposes of collateral under section 108 of this 2001 Act shall send to the persons specified in subsection (3) of this section a reasonable authenticated notification of disposition.

(3) Persons to be notified. To comply with subsection (2) of this section, the secured party shall send an authenticated notification of disposition to:

(a) The debtor;

(b) Any secondary obligor; and

(c) If the collateral is other than consumer goods:

(A) Any other person from which the secured party has received, before the notification date, an authenticated notification of a claim of an interest in the collateral;

(B) Any other secured party or lienholder that, 10 days before the notification date, held a security interest in or other lien on the collateral perfected by the filing of a financing statement that:

(i) Identified the collateral;

(ii) Was indexed under the debtor’s name as of that date; and

(iii) Was filed in the office in which to file a financing statement against the debtor covering the collateral as of that date; and

(C) Any other secured party that, 10 days before the notification date, held a security interest in the collateral perfected by compliance with a statute, regulation or treaty described in section 31 (1) of this 2001 Act.

(4) Subsection (2) of this section inapplicable: Perishable collateral; recognized market. Subsection (2) of this section does not apply if the collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market.

(5) Compliance with subsection (3)(c)(B) of this section. A secured party complies with the requirement for notification prescribed by subsection (3)(c)(B) of this section if:

(a) Not later than 20 days or earlier than 30 days before the notification date, the secured party requests, in a commercially reasonable manner, information concerning financing statements indexed under the debtor’s name in the office indicated in subsection (3)(c)(B) of this section; and

(b) Before the notification date, the secured party:

(A) Did not receive a response to the request for information; or

(B) Received a response to the request for information and sent an authenticated notification of disposition to each secured party or other lienholder named in that response whose financing statement covered the collateral.

SECTION 110. 9-612. Timeliness of notification before disposition of collateral. (1) Reasonable time is question of fact. Except as otherwise provided in subsection (2) of this section, a notification of disposition sent after default and 15 days or more before the earliest time of disposition, as set forth in the notification, is sent within a reasonable time before the disposition.

(2) Ten-day period sufficient in nonconsumer transaction. In a transaction other than a consumer transaction, a notification of disposition sent after default and 10 days or more before the earliest time of disposition set forth in the notification is sent within a reasonable time before the disposition.

SECTION 111. 9-613. Contents and form of notification before disposition of collateral: General. Except in a consumer-goods transaction, the following rules apply:

(1) The contents of a notification of disposition are sufficient if the notification:

(a) Indicates the name of the debtor and the name, address and telephone number of the secured party;

(b) Describes the collateral that is the subject of the intended disposition;

(c) States the method of intended disposition;

(d) States that the debtor is entitled to an accounting of the unpaid indebtedness and states the charge, if any, for an accounting; and

(e) States the time and place of a public disposition or the time after which any other disposition is to be made.

(2) Whether the contents of a notification that lacks any of the information specified in subsection (1) of this section are nevertheless sufficient is a question of fact.

(3) The contents of a notification providing substantially the information specified in subsection (1) of this section are sufficient, even if the notification includes:

(a) Information not specified by subsection (1) of this section; or

(b) Minor errors that are not seriously misleading.

(4) A particular phrasing of the notification is not required.

(5) The following form of notification and the form appearing in section 112 (3) of this 2001 Act, when completed, provide sufficient information:

____________________________________________________________________________

NOTIFICATION OF DISPOSITION OF COLLATERAL

To: (Name of debtor, obligor or other person to which the notification is sent.)

From: (Name, address and telephone number of secured party.)

Name of Debtor(s): (Include only if debtor(s) are not an addressee.)

For a public disposition:

We will sell or lease or license, as applicable the (describe collateral) to the highest qualified bidder in public as follows:

Day and date: ______

Time: ______

Place: ______

For a private disposition:

We will sell or lease or license, as applicable the (describe collateral) privately sometime after (day and date).

You are entitled to an accounting of the unpaid indebtedness secured by the property that we intend to sell or lease or license, as applicable for a charge of $___. You may request an accounting by calling us at (telephone number).

____________________________________________________________________________

SECTION 112. 9-614. Contents and form of notification before disposition of collateral: consumer-goods transaction. In a consumer-goods transaction, the following rules apply:

(1) A notification of disposition must provide the following information:

(a) The information specified in section 111 (1) of this 2001 Act;

(b) A description of any liability for a deficiency of the person to which the notification is sent;

(c) A telephone number from which the amount that must be paid to the secured party to redeem the collateral under section 121 of this 2001 Act is available; and

(d) A telephone number or mailing address from which additional information concerning the disposition and the obligation secured is available.

(2) A particular phrasing of the notification is not required.

(3) The following form of notification, when completed, provides sufficient information:

____________________________________________________________________________

(Name and address of secured party)

(Date)

NOTICE OF OUR PLAN TO SELL PROPERTY

(Name and address of any obligor who is also a debtor)

Subject: (Identification of Transaction)

We have your (describe collateral), because you broke promises in our agreement.

For a public disposition:

We will sell (describe collateral) at public sale. A sale could include a lease or license. The sale will be held as follows:

Day and date: ________________

Time: _______________

Place: ________________

You may attend the sale and bring bidders if you want.

For a private disposition:

We will sell (describe collateral) at private sale sometime after (date). A sale could include a lease or license.

The money that we get from the sale, after paying our costs, will reduce the amount you owe. If we get less money than you owe, you (will or will not, as applicable) still owe us the difference. If we get more money than you owe, you will get the extra money, unless we must pay it to someone else.

You can get the property back at any time before we sell it by paying us the full amount you owe (not just the past due payments), including our expenses. To learn the exact amount you must pay, call us at (telephone number).

If you want us to explain to you in writing how we have figured the amount that you owe us, you may call us at (telephone number) or write us at (secured party’s address) and request a written explanation. We will charge you $_______ for the explanation if we sent you another written explanation of the amount you owe us within the last six months.

If you need more information about the sale call us at (telephone number) or write us at (secured party’s address).

We are sending this notice to the following other people who have an interest in (describe collateral) or who owe money under your agreement:

(Names of all other debtors and obligors, if any.)

______________________________________________________________________________

(4) A notification in the form of subsection (3) of this section is sufficient, even if the form includes additional information.

(5) A notification in the form of subsection (3) of this section is sufficient, even if it includes minor errors in information not required by subsection (1) of this section, unless the error is seriously misleading.

(6) If a notification under this section is not in the form of subsection (3) of this section, law other than this chapter determines the effect of including information not required by subsection (1) of this section.

SECTION 113. 9-615. Application of proceeds of disposition; liability for deficiency and right to surplus. (1) Application of proceeds. A secured party shall apply or pay over for application the cash proceeds of disposition under section 108 of this 2001 Act in the following order to:

(a) The reasonable expenses of retaking, holding, preparing for disposition, processing and disposing, and, to the extent provided for by agreement and not prohibited by law, reasonable attorney fees and legal expenses incurred by the secured party;

(b) The satisfaction of obligations secured by the security interest or agricultural lien under which the disposition is made;

(c) The satisfaction of obligations secured by any subordinate security interest in or other subordinate lien on the collateral if:

(A) The secured party receives from the holder of the subordinate security interest or other lien an authenticated demand for proceeds before distribution of the proceeds is completed; and

(B) In a case in which a consignor has an interest in the collateral, the subordinate security interest or other lien is senior to the interest of the consignor; and

(d) A secured party that is a consignor of the collateral if the secured party receives from the consignor an authenticated demand for proceeds before distribution of the proceeds is completed.

(2) Proof of subordinate interest. If requested by a secured party, a holder of a subordinate security interest or other lien shall furnish reasonable proof of the interest or lien within a reasonable time. Unless the holder does so, the secured party need not comply with the holder’s demand under subsection (1)(c) of this section.

(3) Application of noncash proceeds. A secured party need not apply or pay over for application noncash proceeds of disposition under section 108 of this 2001 Act unless the failure to do so would be commercially unreasonable. A secured party that applies or pays over for application noncash proceeds shall do so in a commercially reasonable manner.

(4) Surplus or deficiency if obligation secured. If the security interest under which a disposition is made secures payment or performance of an obligation, after making the payments and applications required by subsection (1) of this section and permitted by subsection (3) of this section:

(a) Unless subsection (1)(d) of this section requires the secured party to apply or pay over cash proceeds to a consignor, the secured party shall account to and pay a debtor for any surplus; and

(b) The obligor is liable for any deficiency.

(5) No surplus or deficiency in sales of certain rights to payment. If the underlying transaction is a sale of accounts, chattel paper, payment intangibles or promissory notes:

(a) The debtor is not entitled to any surplus; and

(b) The obligor is not liable for any deficiency.

(6) Calculation of surplus or deficiency in disposition to person related to secured party. The surplus or deficiency following a disposition is calculated based on the amount of proceeds that would have been realized in a disposition complying with sections 99 to 126 of this 2001 Act to a transferee other than the secured party, a person related to the secured party, or a secondary obligor if:

(a) The transferee in the disposition is the secured party, a person related to the secured party, or a secondary obligor; and

(b) The amount of proceeds of the disposition is significantly below the range of proceeds that a complying disposition to a person other than the secured party, a person related to the secured party, or a secondary obligor would have brought.

(7) Cash proceeds received by junior secured party. A secured party that receives cash proceeds of a disposition in good faith and without knowledge that the receipt violates the rights of the holder of a security interest or other lien that is not subordinate to the security interest or agricultural lien under which the disposition is made:

(a) Takes the cash proceeds free of the security interest or other lien;

(b) Is not obligated to apply the proceeds of the disposition to the satisfaction of obligations secured by the security interest or other lien; and

(c) Is not obligated to account to or pay the holder of the security interest or other lien for any surplus.

SECTION 114. 9-616. Explanation of calculation of surplus or deficiency. (1) Definitions. As used in this section:

(a) “Explanation” means a writing that:

(A) States the amount of the surplus or deficiency;

(B) Provides an explanation in accordance with subsection (3) of this section of how the secured party calculated the surplus or deficiency;

(C) States, if applicable, that future debits, credits, charges, including additional credit service charges or interest, rebates and expenses may affect the amount of the surplus or deficiency; and

(D) Provides a telephone number or mailing address from which additional information concerning the transaction is available.

(b) “Request” means a record:

(A) Authenticated by a debtor or consumer obligor;

(B) Requesting that the recipient provide an explanation; and

(C) Sent after disposition of the collateral under section 108 of this 2001 Act.

(2) Explanation of calculation. In a consumer-goods transaction in which the debtor is entitled to a surplus or a consumer obligor is liable for a deficiency under section 113 of this 2001 Act, the secured party shall:

(a) Send an explanation to the debtor or consumer obligor, as applicable, after the disposition and:

(A) Before or when the secured party accounts to the debtor and pays any surplus or first makes written demand on the consumer obligor after the disposition for payment of the deficiency; and

(B) Within 14 days after receipt of a request; or

(b) In the case of a consumer obligor who is liable for a deficiency, within 14 days after receipt of a request, send to the consumer obligor a record waiving the secured party’s right to a deficiency.

(3) Required information. To comply with subsection (1)(a)(B) of this section, a writing must provide the following information in the following order:

(a) The aggregate amount of obligations secured by the security interest under which the disposition was made, and, if the amount reflects a rebate of unearned interest or credit service charge, an indication of that fact, calculated as of a specified date:

(A) If the secured party takes or receives possession of the collateral after default, not more than 35 days before the secured party takes or receives possession; or

(B) If the secured party takes or receives possession of the collateral before default or does not take possession of the collateral, not more than 35 days before the disposition;

(b) The amount of proceeds of the disposition;

(c) The aggregate amount of the obligations after deducting the amount of proceeds;

(d) The amount, in the aggregate or by type, and types of expenses, including expenses of retaking, holding, preparing for disposition, processing and disposing of the collateral, and attorney fees secured by the collateral which are known to the secured party and relate to the current disposition;

(e) The amount, in the aggregate or by type, and types of credits, including rebates of interest or credit service charges, to which the obligor is known to be entitled and which are not reflected in the amount in paragraph (a) of this subsection; and

(f) The amount of the surplus or deficiency.

(4) Substantial compliance. A particular phrasing of the explanation is not required. An explanation complying substantially with the requirements of subsection (1) of this section is sufficient, even if it includes minor errors that are not seriously misleading.

(5) Charges for responses. A debtor or consumer obligor is entitled without charge to one response to a request under this section during any six-month period in which the secured party did not send to the debtor or consumer obligor an explanation pursuant to subsection (2)(a) of this section. The secured party may require payment of a charge not exceeding $25 for each additional response.

SECTION 115. 9-617. Rights of transferee of collateral. (1) Effects of disposition. A secured party’s disposition of collateral after default:

(a) Transfers to a transferee for value all of the debtor’s rights in the collateral;

(b) Discharges the security interest under which the disposition is made; and

(c) Discharges any subordinate security interest or other subordinate lien.

(2) Rights of good-faith transferee. A transferee that acts in good faith takes free of the rights and interests described in subsection (1) of this section, even if the secured party fails to comply with this chapter or the requirements of any judicial proceeding.

(3) Rights of other transferee. If a transferee does not take free of the rights and interests described in subsection (1) of this section, the transferee takes the collateral subject to:

(a) The debtor’s rights in the collateral;

(b) The security interest or agricultural lien under which the disposition is made; and

(c) Any other security interest or other lien.

SECTION 116. 9-618. Rights and duties of certain secondary obligors. (1) Rights and duties of secondary obligor. A secondary obligor acquires the rights and becomes obligated to perform the duties of the secured party after the secondary obligor:

(a) Receives an assignment of a secured obligation from the secured party;

(b) Receives a transfer of collateral from the secured party and agrees to accept the rights and assume the duties of the secured party; or

(c) Is subrogated to the rights of a secured party with respect to collateral.

(2) Effect of assignment, transfer or subrogation. An assignment, transfer or subrogation described in subsection (1) of this section:

(a) Is not a disposition of collateral under section 108 of this 2001 Act; and

(b) Relieves the secured party of further duties under this chapter.

SECTION 117. 9-619. Transfer of record or legal title. (1) “Transfer statement.” As used in this section, “transfer statement” means a record authenticated by a secured party stating:

(a) That the debtor has defaulted in connection with an obligation secured by specified collateral;

(b) That the secured party has exercised its post-default remedies with respect to the collateral;

(c) That, by reason of the exercise, a transferee has acquired the rights of the debtor in the collateral; and

(d) The name and mailing address of the secured party, debtor and transferee.

(2) Effect of transfer statement. A transfer statement entitles the transferee to the transfer of record of all rights of the debtor in the collateral specified in the statement in any official filing, recording, registration or certificate-of-title system covering the collateral. If a transfer statement is presented with the applicable fee and request form to the official or office responsible for maintaining the system, the official or office shall:

(a) Accept the transfer statement;

(b) Promptly amend its records to reflect the transfer; and

(c) If applicable, issue a new appropriate certificate of title in the name of the transferee.

(3) Transfer not a disposition; no relief of secured party’s duties. A transfer of the record or legal title to collateral to a secured party under subsection (2) of this section or otherwise is not of itself a disposition of collateral under this chapter and does not of itself relieve the secured party of its duties under this chapter.

SECTION 118. 9-620. Acceptance of collateral in full or partial satisfaction of obligation; compulsory disposition of collateral. (1) Conditions to acceptance in satisfaction. Except as otherwise provided in subsection (7) of this section, a secured party may accept collateral in full or partial satisfaction of the obligation it secures only if:

(a) The debtor consents to the acceptance under subsection (3) of this section;

(b) The secured party does not receive, within the time set forth in subsection (4) of this section, a notification of objection to the proposal authenticated by:

(A) A person to which the secured party was required to send a proposal under section 119 of this 2001 Act; or

(B) Any other person, other than the debtor, holding an interest in the collateral subordinate to the security interest that is the subject of the proposal;

(c) If the collateral is consumer goods, the collateral is not in the possession of the debtor when the debtor consents to the acceptance; and

(d) Subsection (5) of this section does not require the secured party to dispose of the collateral or the debtor waives the requirement pursuant to section 122 of this 2001 Act.

(2) Purported acceptance ineffective. A purported or apparent acceptance of collateral under this section is ineffective unless:

(a) The secured party consents to the acceptance in an authenticated record or sends a proposal to the debtor; and

(b) The conditions of subsection (1) of this section are met.

(3) Debtor’s consent. For purposes of this section:

(a) A debtor consents to an acceptance of collateral in partial satisfaction of the obligation it secures only if the debtor agrees to the terms of the acceptance in a record authenticated after default; and

(b) A debtor consents to an acceptance of collateral in full satisfaction of the obligation it secures only if the debtor agrees to the terms of the acceptance in a record authenticated after default or the secured party:

(A) Sends to the debtor after default a proposal that is unconditional or subject only to a condition that collateral not in the possession of the secured party be preserved or maintained;

(B) In the proposal, proposes to accept collateral in full satisfaction of the obligation it secures; and

(C) Does not receive a notification of objection authenticated by the debtor within 20 days after the proposal is sent.

(4) Effectiveness of notification. To be effective under subsection (1)(b) of this section, a notification of objection must be received by the secured party:

(a) In the case of a person to which the proposal was sent pursuant to section 119 of this 2001 Act, within 20 days after notification was sent to that person; and

(b) In other cases:

(A) Within 20 days after the last notification was sent pursuant to section 119 of this 2001 Act; or

(B) If a notification was not sent, before the debtor consents to the acceptance under subsection (3) of this section.

(5) Mandatory disposition of consumer goods. A secured party that has taken possession of collateral shall dispose of the collateral pursuant to section 108 of this 2001 Act within the time specified in subsection (6) of this section if:

(a) Sixty percent of the cash price has been paid in the case of a purchase-money security interest in consumer goods; or

(b) Sixty percent of the principal amount of the obligation secured has been paid in the case of a non-purchase-money security interest in consumer goods.

(6) Compliance with mandatory disposition requirement. To comply with subsection (5) of this section, the secured party shall dispose of the collateral:

(a) Within 180 days after taking possession; or

(b) Within any longer period to which the debtor and all secondary obligors have agreed in an agreement to that effect entered into and authenticated after default.

(7) No partial satisfaction in consumer transaction. In a consumer transaction, a secured party may not accept collateral in partial satisfaction of the obligation it secures.

SECTION 119. 9-621. Notification of proposal to accept collateral. (1) Persons to which proposal to be sent. A secured party that desires to accept collateral in full or partial satisfaction of the obligation it secures shall send its proposal to:

(a) Any person from which the secured party has received, before the debtor consented to the acceptance, an authenticated notification of a claim of an interest in the collateral;

(b) Any other secured party or lienholder that, 10 days before the debtor consented to the acceptance, held a security interest in or other lien on the collateral perfected by the filing of a financing statement that:

(A) Identified the collateral;

(B) Was indexed under the debtor’s name as of that date; and

(C) Was filed in the office or offices in which to file a financing statement against the debtor covering the collateral as of that date; and

(c) Any other secured party that, 10 days before the debtor consented to the acceptance, held a security interest in the collateral perfected by compliance with a statute, regulation or treaty described in section 31 (1) of this 2001 Act.

(2) Proposal to be sent to secondary obligor in partial satisfaction. A secured party that desires to accept collateral in partial satisfaction of the obligation it secures shall send its proposal to any secondary obligor in addition to the persons described in subsection (1) of this section.

SECTION 120. 9-622. Effect of acceptance of collateral. (1) Effect of acceptance. A secured party’s acceptance of collateral in full or partial satisfaction of the obligation it secures:

(a) Discharges the obligation to the extent consented to by the debtor;

(b) Transfers to the secured party all of a debtor’s rights in the collateral;

(c) Discharges the security interest or agricultural lien that is the subject of the debtor’s consent and any subordinate security interest or other subordinate lien; and

(d) Terminates any other subordinate interest.

(2) Discharge of subordinate interest notwithstanding noncompliance. A subordinate interest is discharged or terminated under subsection (1) of this section, even if the secured party fails to comply with this chapter.

SECTION 121. 9-623. Right to redeem collateral. (1) Persons that may redeem. A debtor, any secondary obligor or any other secured party or lienholder may redeem collateral.

(2) Requirements for redemption. To redeem collateral, a person shall tender:

(a) Fulfillment of all obligations secured by the collateral; and

(b) The reasonable expenses and attorney fees described in section 113 (1)(a) of this 2001 Act.

(3) When redemption may occur. A redemption may occur at any time before a secured party:

(a) Has collected collateral under section 105 of this 2001 Act;

(b) Has disposed of collateral or entered into a contract for its disposition under section 108 of this 2001 Act; or

(c) Has accepted collateral in full or partial satisfaction of the obligation it secures under section 120 of this 2001 Act.

SECTION 122. 9-624. Waiver. (1) Waiver of disposition notification. A debtor or secondary obligor may waive the right to notification of disposition of collateral under section 109 of this 2001 Act only by an agreement to that effect entered into and authenticated after default.

(2) Waiver of mandatory disposition. A debtor may waive the right to require disposition of collateral under section 118 (5) of this 2001 Act only by an agreement to that effect entered into and authenticated after default.

(3) Waiver of redemption right. Except in a consumer-goods transaction, a debtor or secondary obligor may waive the right to redeem collateral under section 121 of this 2001 Act only by an agreement to that effect entered into and authenticated after default.

(Noncompliance With Chapter)

SECTION 123. 9-625. Remedies for secured party’s failure to comply with article. (1) Judicial orders concerning noncompliance. If it is established that a secured party is not proceeding in accordance with this chapter, a court may order or restrain collection, enforcement or disposition of collateral on appropriate terms and conditions.

(2) Damages for noncompliance. Subject to subsections (3), (4) and (6) of this section, a person is liable for damages in the amount of any loss caused by a failure to comply with this chapter. Loss caused by a failure to comply may include loss resulting from the debtor’s inability to obtain, or increased costs of, alternative financing.

(3) Persons entitled to recover damages; statutory damages in consumer-goods transaction. Except as otherwise provided in section 126 of this 2001 Act:

(a) A person that, at the time of the failure, was a debtor, was an obligor, or held a security interest in or other lien on the collateral may, in an individual action only, recover damages under subsection (2) of this section for its loss;

(b) If the collateral is consumer goods, a person that was a debtor or a secondary obligor at the time a secured party failed to comply with sections 99 to 126 of this 2001 Act may, in an individual action only, recover an amount not less than $1,000; and

(c) The court may award reasonable attorney fees to the prevailing party in an action under this subsection.

(4) Recovery when deficiency eliminated or reduced. A debtor whose deficiency is eliminated under section 124 of this 2001 Act may recover damages for the loss of any surplus. However, a debtor or secondary obligor whose deficiency is eliminated or reduced under section 124 of this 2001 Act may not otherwise recover under subsection (2) of this section for noncompliance with the provisions of sections 99 to 126 of this 2001 Act relating to collection, enforcement, disposition or acceptance.

(5) Statutory damages: Noncompliance with specified provisions. Regarding a transaction that is a consumer transaction or in which the collateral is consumer goods, in addition to any damages recoverable under subsection (2) of this section, the debtor, consumer obligor, or person named as a debtor in a filed record, as applicable, may, in an individual action only, recover $500 for each instance from a person that:

(a) Fails to comply with section 18 of this 2001 Act;

(b) Fails to comply with section 19 of this 2001 Act;

(c) After the effective date of this 2001 Act, files a record that the person is not entitled to file under section 80 (1) of this 2001 Act if the record is not released or terminated within 10 days after receipt by the secured party of an authenticated request from the debtor that explains the basis for the request;

(d) Fails to cause the secured party of record to file or send a termination statement as required by section 84 (1) or (3) of this 2001 Act; or

(e) Fails to comply with section 114 (2) of this 2001 Act and whose failure is part of a pattern, or consistent with a practice, of noncompliance.

(6) Statutory damages: Noncompliance with section 20 of this 2001 Act. A debtor or consumer obligor may recover damages under subsection (2) of this section and, in addition, $500 in each case from a person that, without reasonable cause, fails to comply with a request under section 20 of this 2001 Act. A recipient of a request under section 20 of this 2001 Act which never claimed an interest in the collateral or obligations that are the subject of a request under section 20 of this 2001 Act has a reasonable excuse for failure to comply with the request within the meaning of this subsection.

(7) Limitation of security interest: Noncompliance with section 20 of this 2001 Act. If a secured party fails to comply with a request regarding a list of collateral or a statement of account under section 20 of this 2001 Act, the secured party may claim a security interest only as shown in the list or statement included in the request as against a person that is reasonably misled by the failure.

SECTION 124. 9-626. Action in which deficiency or surplus is in issue. (1) Applicable rules if amount of deficiency or surplus in issue. In an action arising from a transaction, other than a consumer transaction, in which the amount of a deficiency or surplus is in issue, the following rules apply:

(a) A secured party need not prove compliance with the provisions of sections 99 to 126 of this 2001 Act relating to collection, enforcement, disposition, or acceptance unless the debtor or a secondary obligor places the secured party’s compliance in issue.

(b) If the secured party’s compliance is placed in issue, the secured party has the burden of establishing that the collection, enforcement, disposition or acceptance was conducted in accordance with sections 99 to 126 of this 2001 Act.

(c) Except as otherwise provided in section 126 of this 2001 Act, if a secured party fails to prove that the collection, enforcement, disposition or acceptance was conducted in accordance with the provisions of sections 99 to 126 of this 2001 Act relating to collection, enforcement, disposition or acceptance, the liability of a debtor or a secondary obligor for a deficiency is limited to an amount by which the sum of the secured obligation, expenses and attorney fees exceeds the greater of:

(A) The proceeds of the collection, enforcement, disposition or acceptance; or

(B) The amount of proceeds that would have been realized had the noncomplying secured party proceeded in accordance with the provisions of sections 99 to 126 of this 2001 Act relating to collection, enforcement, disposition or acceptance.

(d) For purposes of paragraph (c)(B) of this subsection, the amount of proceeds that would have been realized is equal to the sum of the secured obligation, expenses and attorney fees unless the secured party proves that the amount is less than that sum.

(e) If a deficiency or surplus is calculated under section 113 (6) of this 2001 Act, the debtor or obligor has the burden of establishing that the amount of proceeds of the disposition is significantly below the range of prices that a complying disposition to a person other than the secured party, a person related to the secured party, or a secondary obligor would have brought.

(2) Nonconsumer transactions; no inference. The limitation of the rules in subsection (1) of this section to transactions other than consumer transactions is intended to leave to the court the determination of the proper rules in consumer transactions. The court may not infer from that limitation the nature of the proper rule in consumer transactions and may continue to apply established approaches.

SECTION 125. 9-627. Determination of whether conduct was commercially reasonable. (1) Greater amount obtainable under other circumstances; no preclusion of commercial reasonableness. The fact that a greater amount could have been obtained by a collection, enforcement, disposition or acceptance at a different time or in a different method from that selected by the secured party is not of itself sufficient to preclude the secured party from establishing that the collection, enforcement, disposition or acceptance was made in a commercially reasonable manner.

(2) Dispositions that are commercially reasonable. A disposition of collateral is made in a commercially reasonable manner if the disposition is made:

(a) In the usual manner on any recognized market;

(b) At the price current in any recognized market at the time of the disposition; or

(c) Otherwise in conformity with reasonable commercial practices among dealers in the type of property that was the subject of the disposition.

(3) Approval by court or on behalf of creditors. A collection, enforcement, disposition or acceptance is commercially reasonable if it has been approved:

(a) In a judicial proceeding;

(b) By a bona fide creditors’ committee;

(c) By a representative of creditors; or

(d) By an assignee for the benefit of creditors.

(4) Approval under subsection (3) of this section not necessary; absence of approval has no effect. Approval under subsection (3) of this section need not be obtained, and lack of approval does not mean that the collection, enforcement, disposition or acceptance is not commercially reasonable.

SECTION 126. 9-628. Nonliability and limitation on liability of secured party; liability of secondary obligor. (1) Limitation of liability of secured party for noncompliance with this chapter. Unless a secured party knows that a person is a debtor or obligor, knows the identity of the person and knows how to communicate with the person:

(a) The secured party is not liable to the person, or to a secured party or lienholder that has filed a financing statement against the person, for failure to comply with this chapter; and

(b) The secured party’s failure to comply with this chapter does not affect the liability of the person for a deficiency.

(2) Limitation of liability based on status as secured party. A secured party is not liable because of its status as secured party:

(a) To a person that is a debtor or obligor, unless the secured party knows:

(A) That the person is a debtor or obligor;

(B) The identity of the person; and

(C) How to communicate with the person; or

(b) To a secured party or lienholder that has filed a financing statement against a person, unless the secured party knows:

(A) That the person is a debtor; and

(B) The identity of the person.

(3) Limitation of liability if reasonable belief that transaction not a consumer-goods transaction or consumer transaction. A secured party is not liable to any person, and a person’s liability for a deficiency is not affected, because of any act or omission arising out of the secured party’s reasonable belief that a transaction is not a consumer-goods transaction or a consumer transaction or that goods are not consumer goods, if the secured party’s belief is based on its reasonable reliance on:

(a) A debtor’s representation concerning the purpose for which collateral was to be used, acquired or held; or

(b) An obligor’s representation concerning the purpose for which a secured obligation was incurred.

(4) Limitation of liability for statutory damages. A secured party is not liable to any person under section 123 (3)(b) of this 2001 Act for its failure to comply with section 114 of this 2001 Act.

(5) Limitation of multiple liability for statutory damages. A secured party is not liable under section 123 (3)(b) of this 2001 Act more than once with respect to any one secured obligation.

SECTION 127. Sections 1 to 126 of this 2001 Act are added to and made a part of ORS chapter 79.

SECTION 128. Notwithstanding any other provision of law, ORS 79.6020 to 79.7010 shall not be considered to have been added to or made a part of ORS chapter 79 for the purpose of statutory compilation or for the application of definitions, penalties or administrative provisions applicable to statute sections in that chapter.

CONFORMING AMENDMENTS

SECTION 129. ORS 71.1010 is amended to read:

71.1010. This chapter, ORS 72.1010 to 72.7250 and ORS chapters 72A, 73, 74, 74A, 75, 77, [and] 78 and [ORS 79.1010 to 79.5070 and 79.8010] 79 may be cited as Uniform Commercial Code.

SECTION 130. ORS 71.1050 is amended to read:

71.1050. (1) Except as provided hereafter in this section, when a transaction bears a reasonable relation to this state and also to another state or nation the parties may agree that the law either of this state or of such other state or nation shall govern their rights and duties. Failing such agreement the Uniform Commercial Code applies to transactions bearing an appropriate relation to this state.

(2) Where one of the following provisions specifies the applicable law, that provision governs and a contrary agreement is effective only to the extent permitted by the law (including the conflict of laws rules) so specified:

(a) Rights of creditors against sold goods as specified in ORS 72.4020.

(b) Applicability of ORS chapter 72A on leases.

(c) Applicability of ORS chapter 74 as specified in ORS 74.1020.

(d) Applicability of ORS chapter 74A as specified in ORS 74A.5070.

(e) Applicability of ORS chapter 75 as specified in ORS 75.1160.

(f) Applicability of ORS chapter 78 as specified in ORS 78.1100.

(g) [Perfection provisions of ORS 79.1030.] Sections 21 to 27 of this 2001 Act governing perfection, the effect of perfection or nonperfection, and the priority of security interests and agricultural liens.

SECTION 131. ORS 71.2010 is amended to read:

71.2010. Subject to additional definitions contained in other sections of the Uniform Commercial Code which are applicable to a specific series of sections, and unless the context otherwise requires, in the Uniform Commercial Code:

(1) “Action” in the sense of a judicial proceeding includes recoupment, counterclaim, setoff, suit in equity and any other proceedings in which rights are determined.

(2) “Aggrieved party” means a party entitled to resort to a remedy.

(3) “Agreement” means the bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance as provided in ORS 71.2050 and 72.2080. Whether an agreement has legal consequences is determined by the provisions of the Uniform Commercial Code, if applicable; otherwise by the law of contracts as specified in ORS 71.1030.

(4) “Bank” means any person engaged in the business of banking.

(5) “Bearer” means the person in possession of an instrument, document of title or security payable to bearer or indorsed in blank.

(6) “Bill of lading” means a document evidencing the receipt of goods for shipment issued by a person engaged in the business of transporting or forwarding goods, and includes an airbill. “Airbill” means a document serving for air transportation as a bill of lading does for marine or rail transportation, and includes an air consignment note or air waybill.

(7) “Branch” includes a separately incorporated foreign branch of a bank.

(8) “Burden of establishing” a fact means the burden of persuading the triers of fact that the existence of the fact is more probable than its nonexistence.

(9) “Buyer in ordinary course of business” means a person [who] that buys goods in good faith, [and] without knowledge that the sale [to the person is in violation of] violates the [ownership] rights [or security interest] of [a third party] another person in the goods, and [buys] in the ordinary course from a [seller] person, other than a pawnbroker, in the business of selling goods of that kind. [but does not include a pawnbroker. All persons who sell minerals or the like (including oil and gas) at wellhead or minehead shall be deemed to be sellers] A person buys goods in the ordinary course if the sale to the person comports with the usual or customary practices in the kind of business in which the seller is engaged or with the seller’s own usual or customary practices. A person that sells oil, gas or other minerals at the wellhead or minehead is a person in the business of selling goods of that kind. [“Buying”] A buyer in ordinary course of business may [be] buy for cash, [or] by exchange of other property, or on secured or unsecured credit, and [includes receiving] may acquire goods or documents of title under a preexisting contract for sale [but does not include a transfer in bulk or as security for or in total or partial satisfaction of a money debt]. Only a buyer that takes possession of the goods or has a right to recover the goods from the seller under ORS 72.1010 to 72.7250 may be a buyer in ordinary course of business. A person that acquires goods in a transfer in bulk or as security for or in total or partial satisfaction of a money debt is not a buyer in ordinary course of business.

(10) “Conspicuous”: A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: NONNEGOTIABLE BILL OF LADING) is conspicuous. Language in the body of a form is “conspicuous” if it is in larger or other contrasting type or color. But in a telegram any stated term is “conspicuous.” Whether a term or clause is “conspicuous” or not is for decision by the court.

(11) “Contract” means the total legal obligation which results from the parties’ agreement as affected by the Uniform Commercial Code and any other applicable rules of law.

(12) “Creditor” includes a general creditor, a secured creditor, a lien creditor and any representative of creditors, including an assignee for the benefit of creditors, a trustee in bankruptcy, a receiver in equity and an executor or administrator of an insolvent debtor’s or assignor’s estate.

(13) “Defendant” includes a person in the position of defendant in a cross action or counterclaim.

(14) “Delivery” with respect to instruments, documents of title, chattel paper or certificated securities means voluntary transfer of possession.

(15) “Document of title” includes bill of lading, dock warrant, dock receipt, warehouse receipt or order for the delivery of goods, and also any other document which in the regular course of business or financing is treated as adequately evidencing that the person in possession of it is entitled to receive, hold and dispose of the document and the goods it covers. To be a document of title a document must purport to be issued by or addressed to a bailee and purport to cover goods in the bailee’s possession which are either identified or are fungible portions of an identified mass.

(16) “Fault” means wrongful act, omission or breach.

(17) “Fungible” with respect to goods or securities means goods or securities of which any unit is, by nature or usage of trade, the equivalent of any other like unit. Goods which are not fungible shall be deemed fungible for the purposes of the Uniform Commercial Code to the extent that under a particular agreement or document unlike units are treated as equivalents.

(18) “Genuine” means free of forgery or counterfeiting.

(19) “Good faith” means honesty in fact in the conduct or transaction concerned.

(20) “Holder” means:

(a) With respect to a negotiable instrument, the person in possession of the negotiable instrument if:

(A) The instrument is payable to bearer; or

(B) The instrument is payable to an identified person, and the identified person is in possession.

(b) With respect to a document of title, the person in possession of the document of title if the goods are deliverable to bearer or to the order of the person in possession.

(21) To “honor” is to pay or to accept and pay, or where a credit so engages to purchase or discount a draft complying with the terms of the credit.

(22) “Insolvency proceedings” includes any assignment for the benefit of creditors or other proceedings intended to liquidate or rehabilitate the estate of the person involved.

(23) A person is “insolvent” who either has ceased to pay the person’s debts in the ordinary course of business or cannot pay the person’s debts as they become due or is insolvent within the meaning of the federal bankruptcy law.

(24) “Money” means a medium of exchange authorized or adopted by a domestic or foreign government and includes a monetary unit of account established by an intergovernmental organization or by agreement between two or more nations.

(25) A person has “notice” of fact when:

(a) The person has actual knowledge of it;

(b) The person has received a notice or notification of it; or

(c) From all the facts and circumstances known to the person at the time in question the person has reason to know that it exists.

A person “knows” or has “knowledge” of a fact when the person has actual knowledge of it. “Discover” or “learn” or a word or phrase of similar import refers to knowledge rather than to reason to know. The time and circumstances under which a notice or notification may cease to be effective are not determined by the Uniform Commercial Code.

(26) A person “notifies” or “gives” a notice or notification to another by taking such steps as may be reasonably required to inform the other in ordinary course whether or not such other actually comes to know of it. A person “receives” a notice or notification when:

(a) It comes to the person’s attention; or

(b) It is duly delivered at the place of business through which the contract was made or at any other place held out by the person as the place for receipt of such communications.

(27) Notice, knowledge or a notice or notification received by an organization is effective for a particular transaction from the time when it is brought to the attention of the individual conducting that transaction, and in any event from the time when it would have been brought to the individual’s attention if the organization had exercised due diligence.

(28) “Organization” includes a corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest, or any other legal or commercial entity.

(29) “Party,” as distinct from “third party,” means a person who has engaged in a transaction or made an agreement within the Uniform Commercial Code.

(30) “Person” includes an individual or an organization.

(31) “Presumption” or “presumed” means that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its nonexistence.

(32) “Purchase” includes taking by sale, discount, negotiation, mortgage, pledge, lien, security interest, issue or reissue, gift or any other voluntary transaction creating an interest in property.

(33) “Purchaser” means a person who takes by purchase.

(34) “Remedy” means any remedial right to which an aggrieved party is entitled with or without resort to a tribunal.

(35) “Representative” includes an agent, an officer of a corporation or association, and a trustee, executor or administrator of an estate, or any other person empowered to act for another.

(36) “Rights” includes remedies.

(37)(a) “Security interest” means an interest in personal property or fixtures which secures payment or performance of an obligation. [The retention or reservation of title by a seller of goods notwithstanding shipment or delivery to the buyer is limited in effect to a reservation of a “security interest.”] The term also includes any interest of a consignor and a buyer of accounts, [or] chattel paper, [which] a payment intangible or a promissory note in a transaction that is subject to ORS [79.1010 to 79.5070 and 79.8010] chapter 79. The special property interest of a buyer of goods on identification of such goods to a contract for sale under ORS 72.4010 is not a “security interest,” but a buyer may also acquire a “security interest” by complying with ORS [79.1010 to 79.5070 and 79.8010] chapter 79. [Unless a lease or consignment is intended as security, reservation of title thereunder is not a “security interest” but a consignment is in any event subject to the provisions on consignment sales.] Except as otherwise provided in ORS 72.5050, the right of a seller or lessor of goods under ORS 72.1010 to 72.7250 or ORS chapter 72A to retain or acquire possession of the goods is not a “security interest,” but a seller or lessor may also acquire a “security interest” by complying with ORS chapter 79. The retention or reservation of title by a seller of goods notwithstanding shipment or delivery to the buyer (ORS 72.4010) is limited in effect to a reservation of a “security interest.” Whether a transaction creates a lease or security interest is determined by the facts of each case; however, a transaction creates a security interest if the consideration the lessee is to pay the lessor for the right to possession and use of the goods is an obligation for the term of the lease not subject to termination by the lessee and:

(A) The original term of the lease is equal to or greater than the remaining economic life of the goods;

(B) The lessee is bound to renew the lease for the remaining economic life of the goods or is bound to become the owner of the goods;

(C) The lessee has an option to renew the lease for the remaining economic life of the goods for no additional consideration or nominal additional consideration upon compliance with the lease agreement; or

(D) The lessee has an option to become the owner of the goods for no additional consideration or nominal additional consideration upon compliance with the lease agreement.

(b) A transaction does not create a security interest merely because it provides that:

(A) The present value of the consideration the lessee is obligated to pay the lessor for the right to possession and use of the goods is substantially equal to or is greater than the fair market value of the goods at the time the lease is entered into;

(B) The lessee assumes risk of loss of the goods, or agrees to pay taxes, insurance, filing, recording or registration fees, or service or maintenance costs with respect to the goods;

(C) The lessee has an option to renew the lease or to become the owner of the goods;

(D) The lessee has an option to renew the lease for a fixed rent that is equal to or greater than the reasonably predictable fair market rent for the use of the goods for the term of the renewal at the time the option is to be performed; or

(E) The lessee has an option to become the owner of the goods for a fixed price that is equal to or greater than the reasonably predictable fair market value of the goods at the time the option is to be performed.

(c) For purposes of this subsection:

(A) “Additional consideration” is not nominal if, when the option to renew the lease is granted to the lessee, the rent is stated to be the fair market rent for the use of the goods for the term of the renewal determined at the time the option is to be performed, or when the option to become the owner of the goods is granted to the lessee the price is stated to be the fair market value of the goods determined at the time the option is to be performed. “Additional consideration” is nominal if it is less than the lessee’s reasonably predictable cost of performing under the lease agreement if the option is not exercised;

(B) “Present value” means the amount as of a date certain of one or more sums payable in the future, discounted to the date certain. The discount is determined by the interest rate specified by the parties if the rate is not manifestly unreasonable at the time the transaction is entered into, otherwise, the discount is determined by a commercially reasonable rate that takes into account the facts and circumstances of each case at the time the transaction was entered into; and

(C) “Reasonably predictable” and “remaining economic life of the goods” are to be determined with reference to the facts and circumstances at the time the transaction is entered into.

(38) “Send” in connection with any writing or notice means to deposit in the mail or deliver for transmission by any other usual means of communication with postage or cost of transmission provided for and properly addressed and in the case of an instrument to an address specified thereon or otherwise agreed, or if there be none to any address reasonable under the circumstances. The receipt of any writing or notice within the time at which it would have arrived if properly sent has the effect of a proper sending.

(39) “Signed” includes any symbol executed or adopted by a party with present intention to authenticate a writing.

(40) “Surety” includes guarantor.

(41) “Telegram” includes a message transmitted by radio, teletype, cable, any mechanical method of transmission, or the like.

(42) “Term” means that portion of an agreement which relates to a particular matter.

(43) “Unauthorized” signature or indorsement means one made without actual, implied or apparent authority and includes a forgery.

(44) “Value.” Except as otherwise provided with respect to negotiable instruments and bank collections in ORS 74.2090 and 74.2100, a person gives “value” for rights if the person acquires them:

(a) In return for a binding commitment to extend credit or for the extension of immediately available credit whether or not drawn upon and whether or not a chargeback is provided for in the event of difficulties in collection;

(b) As security for or in total or partial satisfaction of a preexisting claim;

(c) By accepting delivery pursuant to a preexisting contract for purchase; or

(d) Generally, in return for any consideration sufficient to support a simple contract.

(45) “Warehouse receipt” means a receipt issued by a person engaged in the business of storing goods for hire.

(46) “Written” or “writing” includes printing, typewriting or any other intentional reduction to tangible form.

SECTION 132. ORS 72.1030 is amended to read:

72.1030. (1) In ORS 72.1010 to 72.7250 unless the context otherwise requires:

(a) “Buyer” means a person who buys or contracts to buy goods.

(b) “Good faith” in the case of a merchant means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.

(c) “Livestock” means equines, cattle, sheep, goats, llamas, alpacas and swine.

(d) “Receipt” of goods means taking physical possession of them.

(e) “Seller” means a person who sells or contracts to sell goods.

(2) Other definitions applying to ORS 72.1010 to 72.7250, and the sections in which they appear are:

(a) “Acceptance,” as defined in ORS 72.6060.

(b) “Banker’s credit,” as defined in ORS 72.3250.

(c) “Between merchants,” as defined in ORS 72.1040.

(d) “Cancellation,” as defined in ORS 72.1060 (4).

(e) “Commercial unit,” as defined in ORS 72.1050.

(f) “Confirmed credit,” as defined in ORS 72.3250.

(g) “Conforming to contract,” as defined in ORS 72.1060.

(h) “Contract for sale,” as defined in ORS 72.1060.

(i) “Cover,” as defined in ORS 72.7120.

(j) “Entrusting,” as defined in ORS 72.4030.

(k) “Financing agency,” as defined in ORS 72.1040.

(L) “Future goods,” as defined in ORS 72.1050.

(m) “Goods,” as defined in ORS 72.1050.

(n) “Identification,” as defined in ORS 72.5010.

(o) “Installment contract,” as defined in ORS 72.6120.

(p) “Letter of credit,” as defined in ORS 72.3250.

(q) “Lot,” as defined in ORS 72.1050.

(r) “Merchant,” as defined in ORS 72.1040.

(s) “Overseas,” as defined in ORS 72.3230.

(t) “Person in position of seller,” as defined in ORS 72.7070.

(u) “Present sale,” as defined in ORS 72.1060.

(v) “Sale,” as defined in ORS 72.1060.

(w) “Sale on approval,” as defined in ORS 72.3260.

(x) “Sale or return,” as defined in ORS 72.3260.

(y) “Termination,” as defined in ORS 72.1060.

(3) The following definitions in other series of sections apply to ORS 72.1010 to 72.7250:

(a) “Check,” as defined in ORS 73.0104.

(b) “Consignee,” as defined in ORS 77.1020.

(c) “Consignor,” as defined in ORS 77.1020.

(d) “Consumer goods,” as defined in [ORS 79.1090] section 2 of this 2001 Act.

(e) “Dishonor,” as defined in ORS 73.0502.

(f) “Draft,” as defined in ORS 73.0104.

(4) In addition, ORS chapter 71 contains general definitions and principles of construction and interpretation applicable throughout ORS 72.1010 to 72.7250.

SECTION 133. ORS 72.2100 is amended to read:

72.2100. (1) A party may perform the duty of the party through a delegate unless otherwise agreed or unless the other party has a substantial interest in having the original promisor perform or control the acts required by the contract. No delegation of performance relieves the party delegating of any duty to perform or any liability for breach.

(2) [Unless] Except as otherwise provided in section 68 of this 2001 Act, unless otherwise agreed, all rights of either seller or buyer can be assigned except where the assignment would materially change the duty of the other party, or increase materially the burden or risk imposed on the other party by the contract, or impair materially the chance of the other party obtaining return performance. A right to damages for breach of the whole contract or a right arising out of the assignor’s due performance of the entire obligation of the assignor can be assigned despite agreement otherwise.

(3) The creation, attachment, perfection or enforcement of a security interest in the seller’s interest under a contract is not a transfer that materially changes the duty of or increases materially the burden or risk imposed on the buyer or impairs materially the buyer’s chance of obtaining return performance within the purview of subsection (2) unless, and then only to the extent that, enforcement actually results in a delegation of material performance of the seller. Even in that event, the creation, attachment, perfection and enforcement of the security interest remain effective, but (i) the seller is liable to the buyer for damages caused by the delegation to the extent that the damages could not reasonably be prevented by the buyer, and (ii) a court having jurisdiction may grant other appropriate relief, including cancellation of the contract for sale or an injunction against enforcement of the security interest or consummation of the enforcement.

[(3)] (4) Unless the circumstances indicate the contrary a prohibition of assignment of “the contract” is to be construed as barring only the delegation to the assignee of the assignor’s performance.

[(4)] (5) An assignment of “the contract” or of “all my rights under the contract” or an assignment in similar general terms is an assignment of rights and unless the language or the circumstances (as in an assignment for security) indicate the contrary, it is a delegation of performance of the duties of the assignor and its acceptance by the assignee constitutes a promise by the assignee to perform those duties. This promise is enforceable by either the assignor or the other party to the original contract.

[(5)] (6) The other party may treat any assignment which delegates performance as creating reasonable grounds for insecurity and may without prejudice to the rights of the other party against the assignor demand assurances from the assignee as provided in ORS 72.6090.

SECTION 134. ORS 72.3260 is amended to read:

72.3260. (1) Unless otherwise agreed, if delivered goods may be returned by the buyer even though they conform to the contract, the transaction is:

(a) A “sale on approval” if the goods are delivered primarily for use; and

(b) A “sale or return” if the goods are delivered primarily for resale.

(2) [Except as provided in subsection (3) of this section,] Goods held on approval are not subject to the claims of the buyer’s creditors until acceptance; goods held on sale or return are subject to such claims while in the buyer’s possession.

[(3) Where goods are delivered to a person for sale and such person maintains a place of business at which the person deals in goods of the kind involved, under a name other than the name of the person making delivery, then with respect to claims of creditors of the person conducting the business the goods are deemed to be on sale or return. The provisions of this subsection are applicable even though an agreement purports to reserve title to the person making delivery until payment or resale or uses such words as “on consignment” or “on memorandum.” However, this subsection is not applicable if the person making delivery:]

[(a) Complies with an applicable law providing for a consignor’s interest or the like to be evidenced by a sign; or]

[(b) Establishes that the person conducting the business is generally known by the creditors of the person to be substantially engaged in selling the goods of others; or]

[(c) Complies with the filing provisions of ORS 79.1010 to 79.5070 and 79.8010 on secured transactions.]

[(4)] (3) Any “or return” term of a contract for sale is to be treated as a separate contract for sale within ORS 72.2010 relating to the statute of frauds and as contradicting the sale aspect of the contract within the provisions of ORS 72.2020 on parole or extrinsic evidence.

[(5) This section shall determine priorities in goods between consignors and unsecured creditors of the person to whom the goods are delivered for sale. This section does not apply to the determination of priorities in goods between consignors and secured creditors of the person to whom the goods are delivered for sale. Priorities in goods between consignors and secured creditors of the person to whom the goods are delivered for sale shall be determined exclusively under ORS 79.3015.]

SECTION 135. ORS 72.4010 is amended to read:

72.4010. Each provision of ORS 72.1010 to 72.7250 with regard to the rights, obligations and remedies of the seller, the buyer, purchasers or other third parties applies irrespective of title to the goods except where the provision refers to such title. In so far as situations are not covered by the other provisions of ORS 72.1010 to 72.7250 and matters concerning title become material the following rules apply:

(1) Title to goods cannot pass under a contract for sale prior to their identification to the contract as provided in ORS 72.5010, and unless otherwise explicitly agreed the buyer acquires by their identification a special property as limited by the Uniform Commercial Code. Any retention or reservation by the seller of the title (property) in goods shipped or delivered to the buyer is limited in effect to a reservation of a security interest. Subject to these provisions and to the provisions of ORS [79.1010 to 79.5070 and 79.8010] chapter 79 on secured transactions, title to goods passes from the seller to the buyer in any manner and on any conditions explicitly agreed on by the parties.

(2) Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; and in particular and despite any reservation of a security interest by the bill of lading:

(a) If the contract requires or authorizes the seller to send the goods to the buyer but does not require the seller to deliver them at destination, title passes to the buyer at the time and place of shipment; but

(b) If the contract requires delivery at destination, title passes on tender there.

(3) Unless otherwise explicitly agreed where delivery is to be made without moving the goods:

(a) If the seller is to deliver a document of title, title passes at the time when and the place where the seller delivers such documents; or

(b) If the goods are at the time of contracting already identified and no documents are to be delivered, title passes at the time and place of contracting.

(4) When livestock has been delivered under a contract of sale and is transported by private, common or contract carrier, if on the accompanying brand inspection certificate or memorandum of brand inspection certificate the seller has noted that as consideration for the sale of the livestock a draft, check, certificate of deposit or note has been given, title does not pass until the instrument is paid.

(5) A rejection or other refusal by the buyer to receive or retain the goods, whether or not justified, or a justified revocation of acceptance revests title to the goods in the seller. Such revesting occurs by operation of law and is not a “sale.”

SECTION 136. ORS 72.4020 is amended to read:

72.4020. (1) Except as provided in subsections (2) and (3) of this section, rights of unsecured creditors of the seller with respect to goods which have been identified to a contract for sale are subject to the buyer’s rights to recover the goods pursuant to ORS 72.5020 and 72.7160.

(2) A creditor of the seller may treat a sale or an identification of goods to a contract for sale as void if as against the creditor a retention of possession by the seller is fraudulent under any rule of law of the state where the goods are situated, except that retention of possession in good faith and current course of trade by a merchant-seller for a commercially reasonable time after a sale or identification is not fraudulent.

(3) Nothing in ORS 72.1010 to 72.7250 shall be deemed to impair the rights of creditors of the seller:

(a) Under the provisions of ORS [79.1010 to 79.5070 and 79.8010] chapter 79 on secured transactions; or

(b) Where identification to the contract or delivery is made not in current course of trade but in satisfaction of or as security for a preexisting claim for money, security or the like and is made under circumstances which under any rule of law of the state where the goods are situated would apart from ORS 72.1010 to 72.7250 constitute the transaction a fraudulent transfer or voidable preference.

SECTION 137. ORS 72.4030 is amended to read:

72.4030. (1) A purchaser of goods acquires all title which the transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though:

(a) The transferor was deceived as to the identity of the purchaser; or

(b) The delivery was in exchange for a check which is later dishonored; or

(c) It was agreed that the transaction was to be a “cash sale”; or

(d) The delivery was procured through fraud punishable as larcenous under the criminal law.

(2) Notwithstanding any other provision of this section, when livestock has been delivered under a transaction of purchase, is transported by private, common or contract carrier and on the accompanying brand inspection certificate or memorandum of brand inspection certificate the seller has noted that as consideration for the transaction of purchase a draft, check, certificate of deposit or note was given, if the draft, check, certificate of deposit or note is later dishonored, the buyer does not have power to transfer good title to a good faith purchaser for value.

(3) Any entrusting of possession of goods to a merchant who deals in goods of that kind gives the merchant power to transfer all rights of the entruster to a buyer in ordinary course of business.

(4) “Entrusting” includes any delivery and any acquiescence in retention of possession regardless of any condition expressed between the parties to the delivery or acquiescence and regardless of whether the procurement of the entrusting of the possessor’s disposition of the goods have been such as to be larcenous under the criminal law.

(5) The rights of other purchasers of goods and of lien creditors are governed by ORS [79.1010 to 79.5070 and 79.8010] chapter 79 on secured transactions and ORS chapter 77 on documents of title.

SECTION 138. ORS 72.5020 is amended to read:

72.5020. (1) Subject to [subsection] subsections (2) and (3) of this section and even though the goods have not been shipped, a buyer who has paid a part or all of the price of goods in which the buyer has a special property under the provisions of [the immediately preceding section] ORS 72.5010 may on making and keeping good a tender of any unpaid portion of their price recover them from the seller if:

(a) In the case of goods bought for personal, family or household purposes, the seller repudiates or fails to deliver as required by the contract; or

(b) In all cases, the seller becomes insolvent within 10 days after receipt of the first installment on their price.

(2) The buyer’s right to recover the goods under subsection (1)(a) of this section vests upon acquisition of a special property, even if the seller had not then repudiated or failed to deliver.

[(2)] (3) If the identification creating the special property of the buyer has been made by the buyer the buyer acquires the right to recover the goods only if they conform to the contract for sale.

SECTION 139. ORS 72.7160 is amended to read:

72.7160. (1) Specific performance may be decreed where the goods are unique or in other proper circumstances.

(2) The decree for specific performance may include such terms and conditions as to payment of the price, damages or other relief as the court may deem just.

(3) The buyer has a right of replevin for goods identified to the contract if after reasonable effort the buyer is unable to effect cover for such goods or the circumstances reasonably indicate that such effort will be unavailing or if the goods have been shipped under reservation and satisfaction of the security interest in them has been made or tendered. In the case of goods bought for personal, family or household purposes, the buyer’s right of replevin vests upon acquisition of a special property, even if the seller had not then repudiated or failed to deliver.

SECTION 140. ORS 72.8010 is amended to read:

72.8010. As used in ORS 72.8010 to 72.8200, unless the context requires otherwise:

(1) “Consumer good” means a new consumer good as defined in [ORS 79.1090 (1)] section 2 of this 2001 Act and includes, but is not limited to, a new motor vehicle, new manufactured dwelling, new modular home, new machine, new appliance or new like product used or bought for use primarily for personal family or household purposes. However, “consumer good” does not include a soft good or a consumable.

(2) “Buyer” or “retail buyer” means any person who buys a consumer good from a person engaged in the business of manufacturing, distributing or selling consumer goods at retail.

(3) “Manufacturer” means any person who manufactures, assembles or produces consumer goods.

(4) “Distributor” means any person who stands between the manufacturer and the retail seller in purchases, consignments or contracts for sale of consumer goods.

(5) “Retail seller,” “seller” or “retailer” means a person who engages in the business of selling consumer goods to retail buyers.

(6) “Soft good” means any pliable product substantially composed of woven material, natural or synthetic yarn or fiber, textile or similar product.

(7) “Consumable” means any product which is intended for consumption by individuals, or use by individuals for purposes of personal care or in the performance of services ordinarily rendered within the household, and which usually is consumed or expended in the course of such consumption or use.

(8) “Implied warranty of merchantability” of a consumer good or “implied warranty that a consumer good is merchantable” is a warranty that the consumer good:

(a) Passes without objection in the trade under the contract description;

(b) Is fit for the ordinary purposes for which the good is used;

(c) Is adequately contained, packaged and labeled; and

(d) Conforms to the promises or affirmations of fact made on the container or label.

(9) “Implied warranty of fitness” means that when the retailer, distributor or manufacturer has reason to know any particular purpose for which the consumer good is required, and further, that the buyer is relying on the skill and judgment of the seller to select and furnish a suitable good, then there is an implied warranty that the good shall be fit for such purpose.

SECTION 141. ORS 72A.1030 is amended to read:

72A.1030. (1) As used in this chapter, unless the context otherwise requires:

(a) “Buyer in ordinary course of business” means a person who in good faith and without knowledge that the sale to the person is in violation of the ownership rights or security interest or leasehold interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind but does not include a pawnbroker. “Buying” may be for cash or by exchange of other property or on secured or unsecured credit and includes receiving goods or documents of title under a preexisting contract for sale but does not include a transfer in bulk or as security for or in total or partial satisfaction of a money debt.

(b) “Cancellation” occurs when either party puts an end to the lease contract for default by the other party.

(c) “Commercial unit” means such a unit of goods as by commercial usage is a single whole for purposes of lease and division of which materially impairs its character or value on the market or in use. A “commercial unit” may be a single article, as a machine, or a set of articles, as a suite of furniture or a line of machinery, or a quantity, as a gross or carload, or any other unit treated in use or in the relevant market as a single whole.

(d) “Conforming goods” or “performance under a lease contract” means goods or performance that are in accordance with the obligations under the lease contract.

(e) “Consumer lease” means a lease that a lessor regularly engaged in the business of leasing or selling makes to a lessee who is an individual and who takes under the lease primarily for a personal, family or household purpose, if the total payments to be made under the lease contract, excluding payments for options to renew or buy, do not exceed $25,000.

(f) “Fault” means wrongful act, omission, breach or default.

(g) “Finance lease” means a lease in which the lessor does not select, manufacture or supply the goods, the lessor acquires the goods or the right to possession and use of the goods in connection with the lease, and either:

(A) The lessee receives a copy of the contract evidencing the lessor’s purchase of the goods on or before signing the lease contract;

(B) The lessee’s approval of the contract evidencing the lessor’s purchase of the goods is a condition to effectiveness of the lease contract;

(C) The lessor informs the lessee in writing of the identity of the supplier unless the lessee has selected the supplier and directed the lessor to purchase the goods from the supplier;

(D) The lessor informs the lessee in writing that the lessee may have rights under the contract evidencing the lessor’s purchase of the goods and the lessor advises the lessee in writing to contact the supplier for a description of any such rights; or

(E) The lease contract discloses all warranties and other rights provided to the lessee by the lessor and supplier in connection with the lease contract and informs the lessee that there are no warranties or other rights provided to the lessee by the lessor and supplier other than those disclosed in the lease contract.

(h) “Goods” means all things that are movable at the time of identification to the lease contract, or are fixtures as provided in ORS 72A.3090, but “goods” does not include money, documents, instruments, accounts, chattel paper, general intangibles or minerals or the like, including oil and gas, before extraction. “Goods” also includes the unborn young of animals.

(i) “Installment lease contract” means a lease contract that authorizes or requires the delivery of goods in separate lots to be separately accepted, even though the lease contract contains a clause “each delivery is a separate lease” or its equivalent.

(j) “Lease” means a transfer of the right to possession and use of goods for a term in return for consideration, but a sale, including a sale on approval or a sale or return, or retention or creation of a security interest is not a lease. Unless the context clearly indicates otherwise, “lease” includes a sublease.

(k) “Lease agreement” means the bargain, with respect to the lease, of the lessor and the lessee in fact as found in the language or by implication from other circumstances including course of dealing or usage of trade or course of performance as provided in this chapter. Unless the context clearly indicates otherwise, “lease agreement” includes a sublease agreement.

(L) “Lease contract” means the total legal obligation that results from the lease agreement as affected by this chapter and any other applicable rules of law. Unless the context clearly indicates otherwise, “lease contract” includes a sublease contract.

(m) “Leasehold interest” means the interest of the lessor or the lessee under a lease contract.

(n) “Lessee” means a person who acquires the right to possession and use of goods under a lease. Unless the context clearly indicates otherwise, “lessee” includes a sublessee.

(o) “Lessee in ordinary course of business” means a person who in good faith and without knowledge that the lease to the person is in violation of the ownership rights or security interest or leasehold interest of a third party in the goods leases in ordinary course from a person in the business of selling or leasing goods of that kind but does not include a pawnbroker. “Leasing” may be for cash or by exchange of other property or on secured or unsecured credit and includes receiving goods or documents of title under a preexisting lease contract but does not include a transfer in bulk or as security for or in total or partial satisfaction of a money debt.

(p) “Lessor” means a person who transfers the right to possession and use of goods under a lease. Unless the context clearly indicates otherwise, “lessor” includes a sublessor.

(q) “Lessor’s residual interest” means the lessor’s interest in the goods after expiration, termination or cancellation of the lease contract.

(r) “Lien” means a charge against or interest in goods to secure payment of a debt or performance of an obligation, but “lien” does not include a security interest.

(s) “Lot” means a parcel or a single article that is the subject matter of a separate lease or delivery, whether or not it is sufficient to perform the lease contract.

(t) “Merchant lessee” means a lessee that is a merchant with respect to goods of the kind subject to the lease.

(u) “Present value” means the amount as of a date certain of one or more sums payable in the future, discounted to the date certain. The discount is determined by the interest rate specified by the parties if the rate was not manifestly unreasonable at the time the transaction was entered into; otherwise, the discount is determined by a commercially reasonable rate that takes into account the facts and circumstances of each case at the time the transaction was entered into.

(v) “Purchase” includes taking by sale, lease, mortgage, security interest, pledge, gift or any other voluntary transaction creating an interest in goods.

(w) “Sublease” means a lease of goods the right to possession and use of which was acquired by the lessor as a lessee under an existing lease.

(x) “Supplier” means a person from whom a lessor buys or leases goods to be leased under a finance lease.

(y) “Supply contract” means a contract under which a lessor buys or leases goods to be leased.

(z) “Termination” occurs when either party pursuant to a power created by agreement or law puts an end to the lease contract otherwise than for default.

(2) Other definitions applying to this chapter and the sections in which they appear are:

(a) “Accessions” as defined in ORS 72A.3100.

(b) “Account” as defined in [ORS 79.1060] section 2 of this 2001 Act.

(c) “Between merchants” as defined in ORS 72.1040.

(d) “Buyer” as defined in ORS 72.1030.

(e) “Chattel paper” as defined in [ORS 79.1050] section 2 of this 2001 Act.

(f) “Construction mortgage” as defined in ORS 72A.3090.

(g) “Consumer goods” as defined in [ORS 79.1090] section 2 of this 2001 Act.

(h) “Document” as defined in [ORS 79.1050] section 2 of this 2001 Act.

(i) “Encumbrance” as defined in ORS 72A.3090.

(j) “Entrusting” as defined in ORS 72.4030.

(k) “Fixture filing” as defined in ORS 72A.3090.

(L) “Fixtures” as defined in ORS 72A.3090.

(m) “General [intangibles] intangible” as defined in [ORS 79.1060] section 2 of this 2001 Act.

(n) “Good faith” as defined in ORS 72.1030.

(o) “Instrument” as defined in [ORS 79.1050] section 2 of this 2001 Act.

(p) “Merchant” as defined in ORS 72.1040.

(q) “Mortgage” as defined in [ORS 79.1050] section 2 of this 2001 Act.

(r) “Purchase money lease” as defined in ORS 72A.3090.

(s) “Pursuant to commitment” as defined in [ORS 79.1050] section 2 of this 2001 Act.

(t) “Receipt” as defined in ORS 72.1030.

(u) “Sale” as defined in ORS 72.1060.

(v) “Sale on approval” as defined in ORS 72.3260.

(w) “Sale or return” as defined in ORS 72.3260.

(x) “Seller” as defined in ORS 72.1030.

(3) In addition, ORS chapter 71 contains general definitions and principles of construction and interpretation applicable throughout this chapter.

SECTION 142. ORS 72A.3030 is amended to read:

72A.3030. (1) As used in this section, “creation of a security interest” includes the sale of a lease contract that is subject to [ORS 79.1020 (1)(b)] section 9 (1)(c) of this 2001 Act.

(2) Except as provided in [subsections] subsection (3) [and (4)] of this section and section 69 of this 2001 Act, a provision in a lease agreement that prohibits the voluntary or involuntary transfer, including a transfer by sale, sublease, creation or enforcement of a security interest, or attachment, levy or other judicial process, of an interest of a party under the lease contract or of the lessor’s residual interest in the goods, or that makes such a transfer an event of default, gives rise to the rights and remedies provided in subsection [(5)] (4) of this section, but a transfer that is prohibited or is an event of default under the lease agreement is otherwise effective.

[(3) A provision in a lease agreement that prohibits the creation or enforcement of a security interest in an interest of a party under the lease contract or in the lessor’s residual interest in the goods, or makes such a transfer an event of default, is not enforceable unless, and then only to the extent that, there is an actual transfer by the lessee of the lessee’s right of possession or use of the goods in violation of the provision or an actual delegation of a material performance of either party to the lease contract in violation of the provision. Neither the granting nor the enforcement of a security interest in the lessor’s interest under the lease contract or the lessor’s residual interest in the goods is a transfer that materially impairs the prospect of obtaining return performance by, materially changes the duty of, or materially increases the burden or risk imposed on, the lessee within the purview of subsection (5) of this section unless, and then only to the extent that, there is an actual delegation of a material performance of the lessor.]

[(4)] (3) A provision in a lease agreement is not enforceable if the provision prohibits a transfer of a right to damages for default with respect to the whole lease contract or of a right to payment arising out of the transferor’s due performance of the transferor’s entire obligation or makes such a transfer an event of default. A transfer that is not enforceable under this section is not a transfer that materially impairs the prospect of obtaining return performance by, materially changes the duty of, or materially increases the burden or risk imposed on, the other party to the lease contract under subsection [(5)] (4) of this section.

[(5)] (4) Subject to [subsections] subsection (3) [and (4)] of this section and section 69 of this 2001 Act:

(a) If a transfer is made that is made an event of default under a lease agreement, the party to the lease contract not making the transfer has the rights and remedies described in ORS 72A.5010 (2), unless the party waives the default or otherwise agrees; or

(b) If paragraph (a) of this subsection is not applicable and a transfer is made that is prohibited under a lease agreement or that materially impairs the prospect of obtaining return performance by, materially changes the duty of, or materially increases the burden or risk imposed on, the other party to the lease contract, then, unless the party not making the transfer agrees at any time to the transfer in the lease contract or otherwise, and except as limited by contract:

(A) The transferor is liable to the party not making the transfer for damages caused by the transfer to the extent that the damages could not reasonably be prevented by the party not making the transfer; and

(B) A court having jurisdiction may grant other appropriate relief, including cancellation of the lease contract or an injunction.

[(6)] (5) A transfer of “the lease” or of “all my rights under the lease” or a transfer in similar general terms is a transfer of rights, and unless the language or the circumstances indicate the contrary, as in a transfer for security, the transfer is a delegation of duties by the transferor to the transferee. Acceptance by the transferee constitutes a promise by the transferee to perform those duties. The promise is enforceable by either the transferor or the other party to the lease contract.

[(7)] (6) Unless otherwise agreed by the lessor and the lessee, a delegation of performance does not relieve the transferor as against the other party of any duty to perform or of any liability for default.

[(8)] (7) In a consumer lease, to prohibit the transfer of an interest of a party under the lease contract or to make a transfer an event of default, the language must be specific, by a writing, and conspicuous.

SECTION 143. ORS 72A.3070 is amended to read:

72A.3070. (1) Except as otherwise provided in ORS 72A.3060, a creditor of a lessee takes subject to the lease contract.

(2) Except as otherwise provided in [subsections] subsection (3) [and (4)] of this section and in ORS 72A.3060 and 72A.3080, a creditor of a lessor takes subject to the lease contract unless[:]

[(a)] the creditor holds a lien that attached to the goods before the lease contract became enforceable[;].

[(b) The creditor holds a security interest in the goods and the lessee did not give value and receive delivery of the goods without knowledge of the security interest; or]

[(c) The creditor holds a security interest in the goods which was perfected under ORS 79.3030 before the lease contract became enforceable.]

[(3) A lessee in the ordinary course of business takes the leasehold interest free of a security interest in the goods created by the lessor even though the security interest is perfected under ORS 79.3030 and the lessee knows of its existence.]

[(4) A lessee other than a lessee in the ordinary course of business takes the leasehold interest free of a security interest to the extent that it secures future advances made after the secured party acquires knowledge of the lease or more than 45 days after the lease contract becomes enforceable, whichever occurs first, unless the future advances are made pursuant to a commitment entered into without knowledge of the lease and before the expiration of the 45-day period.]

(3) Except as otherwise provided in sections 37, 41 and 43 of this 2001 Act, a lessee takes a leasehold interest subject to a security interest held by a creditor of the lessor.

SECTION 144. ORS 72A.3090 is amended to read:

72A.3090. (1) As used in this section:

(a) Goods are “fixtures” when they become so related to particular real estate that an interest in them arises under real estate law;

(b) A “fixture filing” is the filing, in the office where a record of a mortgage on the real estate would be filed or recorded, of a financing statement covering goods that are or are to become fixtures and conforming to the requirements of [ORS 79.4020 (5)] section 73 (1) and (2) of this 2001 Act;

(c) A lease is a “purchase money lease” unless the lessee has possession or use of the goods or the right to possession or use of the goods before the lease agreement is enforceable;

(d) A mortgage is a “construction mortgage” to the extent it secures an obligation incurred for the construction of an improvement on land including the acquisition cost of the land, if the recorded writing so indicates; and

(e) “Encumbrance” includes real estate mortgages and other liens on real estate and all other rights in real estate that are not ownership interests.

(2) Under this chapter a lease may be of goods that are fixtures or may continue in goods that become fixtures, but no lease exists under this chapter of ordinary building materials incorporated into an improvement on land.

(3) This chapter does not prevent creation of a lease of fixtures pursuant to real estate law.

(4) The perfected interest of a lessor of fixtures has priority over a conflicting interest of an encumbrancer or owner of the real estate if:

(a) The lease is a purchase money lease, the conflicting interest of the encumbrancer or owner arises before the goods become fixtures, the interest of the lessor is perfected by a fixture filing before the goods become fixtures or within 20 days thereafter, and the lessee has an interest of record in the real estate or is in possession of the real estate; or

(b) The interest of the lessor is perfected by a fixture filing before the interest of the encumbrancer or owner is of record, the lessor’s interest has priority over any conflicting interest of a predecessor in title of the encumbrancer or owner, and the lessee has an interest of record in the real estate or is in possession of the real estate.

(5) The interest of a lessor of fixtures, whether or not perfected, has priority over the conflicting interest of an encumbrancer or owner of the real estate if:

(a) The fixtures are readily removable factory or office machines, readily removable equipment that is not primarily used or leased for use in the operation of the real estate, or readily removable replacements of domestic appliances that are goods subject to a consumer lease, and before the goods become fixtures the lease contract is enforceable;

(b) The conflicting interest is a lien on the real estate obtained by legal or equitable proceedings after the lease contract is enforceable;

(c) The encumbrancer or owner has consented in writing to the lease or has disclaimed an interest in the goods as fixtures; or

(d) The lessee has a right to remove the goods as against the encumbrancer or owner. If the lessee’s right to remove terminates, the priority of the interest of the lessor continues for a reasonable time.

(6) Notwithstanding subsection (4)(a) of this section but otherwise subject to subsections (4) and (5) of this section, the interest of a lessor of fixtures, including the lessor’s residual interest, is subordinate to the conflicting interest of an encumbrancer of the real estate under a construction mortgage recorded before the goods become fixtures if the goods become fixtures before the completion of the construction. To the extent given to refinance a construction mortgage, the conflicting interest of an encumbrancer of the real estate under a mortgage has this priority to the same extent as the encumbrancer of the real estate under the construction mortgage.

(7) In cases not within subsections (1) to (6) of this section, priority between the interest of a lessor of fixtures, including the lessor’s residual interest, and the conflicting interest of an encumbrancer or owner of the real estate who is not the lessee is determined by the priority rules governing conflicting interests in real estate.

(8) If the interest of a lessor of fixtures, including the lessor’s residual interest, has priority over all conflicting interests of all owners and encumbrancers of the real estate, the lessor or the lessee may on default, expiration, termination or cancellation of the lease agreement, but subject to the lease agreement and this chapter, or if necessary to enforce the lessor’s or lessee’s other rights and remedies under this chapter, remove the goods from the real estate, free and clear of all conflicting interests of all owners and encumbrancers of the real estate, but the lessor or lessee must reimburse any encumbrancer or owner of the real estate who is not the lessee and who has not otherwise agreed for the cost of repair of any physical injury, but not for any diminution in value of the real estate caused by the absence of the goods removed or by any necessity of replacing them. A person entitled to reimbursement may refuse permission to remove until the party seeking removal gives adequate security for the performance of this obligation.

(9) Even though the lease agreement does not create a security interest, the interest of a lessor of fixtures, including the lessor’s residual interest, is perfected by filing a financing statement as a fixture filing for leased goods that are or are to become fixtures in accordance with the relevant provisions of ORS chapter 79.

SECTION 145. ORS 72A.3095 is amended to read:

72A.3095. (1) A financing statement filed as a fixture filing under ORS 72A.3090 shall be recorded and indexed as a mortgage on the real estate.

(2) [ORS 79.4070] Section 94 of this 2001 Act does not apply to a financing statement recorded and indexed as a mortgage under this section.

SECTION 146. ORS 74.2100 is amended to read:

74.2100. (1) A collecting bank has a security interest in an item and in any accompanying documents or in the proceeds of either:

(a) In case of an item deposited in an account, to the extent to which credit given for the item has been withdrawn or applied;

(b) In case of an item for which it has given credit available for withdrawal as of right, to the extent of the credit given, whether or not the credit is drawn upon or there is a right of charge-back; or

(c) If it makes an advance on or against the item.

(2) If credit given for several items received at one time or pursuant to a single agreement is withdrawn or applied in part, the security interest remains upon all the items, any accompanying documents or the proceeds of either. For the purpose of this action, credits first given are first withdrawn.

(3) Receipt by a collecting bank of a final settlement for an item is a realization on its security interest in the item, accompanying documents and proceeds. So long as the bank does not receive final settlement for the item or give up possession of the item or accompanying documents for purposes other than collection, the security interest continues to that extent and is subject to ORS chapter 79, but:

(a) No security agreements are necessary to make the security interest enforceable under [ORS 79.2030 (1)(a)] section 13 (2)(c)(A) of this 2001 Act;

(b) No filing is required to perfect the security interest; and

(c) The security interest has priority over conflicting perfected security interests in the item, accompanying documents or proceeds.

SECTION 147. Section 148 of this 2001 Act is added to and made a part of ORS chapter 75.

SECTION 148. 5-118. Security interest of issuer or nominated person. (1) An issuer or nominated person has a security interest in a document presented under a letter of credit to the extent that the issuer or nominated person honors or gives value for the presentation.

(2) As long as and to the extent that an issuer or nominated person has not been reimbursed or has not otherwise recovered the value given with respect to a security interest in a document under subsection (1) of this section, the security interest continues and is subject to ORS chapter 79, but:

(a) A security agreement is not necessary to make the security interest enforceable under section 13 (2)(c) of this 2001 Act;

(b) If the document is presented in a medium other than a written or other tangible medium, the security interest is perfected; and

(c) If the document is presented in a written or other tangible medium and is not a certificated security, chattel paper, a document of title, an instrument, or a letter of credit, the security interest is perfected and has priority over a conflicting security interest in the document as long as the debtor does not have possession of the document.

SECTION 149. ORS 77.2090 is amended to read:

77.2090. (1) A warehouseman has a lien against the bailor on the goods covered by a warehouse receipt or on the proceeds thereof in the possession of the warehouseman for charges for storage or transportation (including demurrage and terminal charges), insurance, labor, or charges present or future in relation to the goods, and for expenses necessary for preservation of the goods or reasonably incurred in their sale pursuant to law. If the person on whose account the goods are held is liable for like charges or expenses in relation to other goods whenever deposited and it is stated in the receipt that a lien is claimed for charges and expenses in relation to other goods, the warehouseman also has a lien against the person for such charges and expenses whether or not the other goods have been delivered by the warehouseman. But against a person to whom a negotiable warehouse receipt is duly negotiated a warehouseman’s lien is limited to charges in an amount or at a rate specified on the receipt or if no charges are so specified then to a reasonable charge for storage of the goods covered by the receipt subsequent to the date of the receipt.

(2) The warehouseman may also reserve a security interest against the bailor for a maximum amount specified on the receipt for charges other than those specified in subsection (1) of this section, such as for money advanced and interest. Such a security interest is governed by ORS [79.1010 to 79.5070] chapter 79 on secured transactions.

(3) A warehouseman’s lien for charges and expenses under subsection (1) of this section or a security interest under subsection (2) of this section is also effective against all persons if the bailor was the legal possessor of the goods at the time of deposit.

(4) A warehouseman loses the lien of the warehouseman on any goods which the warehouseman voluntarily delivers or which the warehouseman unjustifiably refuses to deliver.

SECTION 150. ORS 77.5030 is amended to read:

77.5030. (1) A document of title confers no right in goods against a person who before issuance of the document had a legal interest or a perfected security interest in them and who neither:

(a) Delivered or entrusted them or any document of title covering them to the bailor or the nominee of the bailor with actual or apparent authority to ship, store or sell or with power to obtain delivery under ORS 77.4030 or with power of disposition under ORS 72.4030 and [79.3070] section 40 of this 2001 Act or other statute or rule of law; nor

(b) Acquiesced in the procurement by the bailor or the nominee of the bailor of any document of title.

(2) Title to goods based upon an unaccepted delivery order is subject to the rights of anyone to whom a negotiable warehouse receipt or bill of lading covering the goods has been duly negotiated. Such a title may be defeated under ORS 77.5040 to the same extent as the rights of the issuer or a transferee from the issuer.

(3) Title to goods based upon a bill of lading issued to a freight forwarder is subject to the rights of anyone to whom a bill issued by the freight forwarder is duly negotiated; but delivery by the carrier in accordance with ORS 77.4010 to 77.4040 pursuant to its own bill of lading discharges the carrier’s obligation to deliver.

SECTION 151. ORS 78.1030 is amended to read:

78.1030. (1) A share or similar equity interest issued by a corporation, business trust, joint stock company or similar entity is a security.

(2) An “investment company security” is a security. “Investment company security” means a share or similar equity interest issued by an entity that is registered as an investment company under the federal investment company laws, an interest in a unit investment trust that is so registered or a face-amount certificate issued by a face-amount certificate company that is so registered. “Investment company security” does not include an insurance policy, endowment policy or annuity contract issued by an insurance company.

(3) An interest in a partnership or limited liability company is not a security unless it is dealt in or traded on securities exchanges or in securities markets, its terms expressly provide that it is a security governed by this chapter or it is an investment company security. However, an interest in a partnership or limited liability company is a financial asset if it is held in a securities account.

(4) A writing that is a security certificate is governed by this chapter and not by ORS chapter 73, even though it also meets the requirements of that chapter. However, a negotiable instrument governed by ORS chapter 73 is a financial asset if it is held in a securities account.

(5) An option or similar obligation issued by a clearing corporation to its participants is not a security, but is a financial asset.

(6) A commodity contract, as defined in [ORS 79.1150] section 2 of this 2001 Act, is not a security or a financial asset.

SECTION 152. ORS 78.1060 is amended to read:

78.1060. (1) A purchaser has control of a certificated security in bearer form if the certificated security is delivered to the purchaser.

(2) A purchaser has control of a certificated security in registered form if the certificated security is delivered to the purchaser, and:

(a) The certificate is indorsed to the purchaser or in blank by an effective indorsement; or

(b) The certificate is registered in the name of the purchaser, upon original issue or registration of transfer by the issuer.

(3) A purchaser has control of an uncertificated security if:

(a) The uncertificated security is delivered to the purchaser; or

(b) The issuer has agreed to comply with instructions originated by the purchaser without further consent by the registered owner.

(4) A purchaser has control of a security entitlement if:

(a) The purchaser becomes the entitlement holder; [or]

(b) The securities intermediary has agreed to comply with entitlement orders originated by the purchaser without further consent by the entitlement holder; or

(c) Another person has control of the security entitlement on behalf of the purchaser or, having previously acquired control of the security entitlement, acknowledges that the person has control on behalf of the purchaser.

(5) If an interest in a security entitlement is granted by the entitlement holder to the entitlement holder’s own securities intermediary, the securities intermediary has control.

(6) A purchaser who has satisfied the requirements of subsection (3)[(b)] or (4)[(b)] of this section has control, even if the registered owner in the case of subsection (3)[(b)] of this section, or the entitlement holder in the case of subsection (4)[(b)] of this section, retains the right to make substitutions for the uncertificated security or security entitlement, to originate instructions or entitlement orders to the issuer or securities intermediary or otherwise to deal with the uncertificated security or security entitlement.

(7) An issuer or a securities intermediary may not enter into an agreement of the kind described in subsection (3)(b) or (4)(b) of this section without the consent of the registered owner or entitlement holder, but an issuer or a securities intermediary is not required to enter into such an agreement even though the registered owner or entitlement holder so directs. An issuer or securities intermediary that has entered into such an agreement is not required to confirm the existence of the agreement to another party unless requested to do so by the registered owner or entitlement holder.

SECTION 153. ORS 78.1100 is amended to read:

78.1100. (1) The local law of the issuer’s jurisdiction, as defined in subsection (4) of this section, governs:

(a) The validity of a security;

(b) The rights and duties of the issuer with respect to registration of transfer;

(c) The effectiveness of registration of transfer by the issuer;

(d) Whether the issuer owes any duties to an adverse claimant to a security; and

(e) Whether an adverse claim can be asserted against a person to whom transfer of a certificated or uncertificated security is registered or a person who obtains control of an uncertificated security.

(2) The local law of the securities intermediary’s jurisdiction, as specified in subsection (5) of this section, governs:

(a) Acquisition of a security entitlement from the securities intermediary;

(b) The rights and duties of the securities intermediary and entitlement holder arising out of a security entitlement;

(c) Whether the securities intermediary owes any duties to an adverse claimant to a security entitlement; and

(d) Whether an adverse claim can be asserted against a person who acquires a security entitlement from the securities intermediary or a person who purchases a security entitlement or interest therein from an entitlement holder.

(3) The local law of the jurisdiction in which a security certificate is located at the time of delivery governs whether an adverse claim can be asserted against a person to whom the security certificate is delivered.

(4) “Issuer’s jurisdiction” means the jurisdiction under which the issuer of the security is organized or, if permitted by the law of that jurisdiction, the law of another jurisdiction specified by the issuer. An issuer organized under the law of this state may specify the law of another jurisdiction as the law governing the matters specified in subsection (1)(b) to (e) of this section.

(5) The following rules determine a securities intermediary’s jurisdiction for purposes of this section:

(a) If an agreement between the securities intermediary and its entitlement holder [specifies that the agreement is governed by the law of a particular jurisdiction] governing the securities account expressly provides that a particular jurisdiction is the securities intermediary’s jurisdiction for purposes of ORS 78.1010 to 78.1160, this chapter or ORS chapter 79, that jurisdiction is the securities intermediary’s jurisdiction.

(b) If paragraph (a) of this subsection does not apply and an agreement between the securities intermediary and its entitlement holder governing the securities account expressly provides that the agreement is governed by the law of a particular jurisdiction, that jurisdiction is the securities intermediary’s jurisdiction.

[(b)] (c) If neither paragraph (a) nor (b) of this subsection applies and an agreement between the securities intermediary and its entitlement holder [does not specify the governing law as provided in paragraph (a) of this subsection, but] governing the securities account expressly [specifies] provides that the securities account is maintained at an office in a particular jurisdiction, that jurisdiction is the securities intermediary’s jurisdiction.

[(c)] (d) [If an agreement between the securities intermediary and its entitlement holder does not specify a jurisdiction as provided in paragraph (a) or (b) of this subsection] If paragraphs (a) to (c) of this subsection do not apply, the securities intermediary’s jurisdiction is the jurisdiction in which [is located] the office identified in an account statement as the office serving the entitlement holder’s account is located.

[(d)] (e) [If an agreement between the securities intermediary and its entitlement holder does not specify a jurisdiction as provided in paragraph (a) or (b) of this subsection and an account statement does not identify an office serving the entitlement holder’s account as provided in paragraph (c) of this subsection,] If paragraphs (a) to (d) of this subsection do not apply, the securities intermediary’s jurisdiction is the jurisdiction in which [is located] the chief executive office of the securities intermediary is located.

(6) A securities intermediary’s jurisdiction is not determined by the physical location of certificates representing financial assets, by the jurisdiction in which is organized the issuer of the financial asset for which an entitlement holder has a security entitlement or by the location of facilities for data processing or other record keeping concerning the account.

SECTION 154. ORS 78.3010 is amended to read:

78.3010. (1) Delivery of a certificated security to a purchaser occurs when:

(a) The purchaser acquires possession of the security certificate;

(b) Another person, other than a securities intermediary, either acquires possession of the security certificate on behalf of the purchaser or, having previously acquired possession of the certificate, acknowledges that it holds for the purchaser; or

(c) A securities intermediary acting on behalf of the purchaser acquires possession of the security certificate, only if the certificate is in registered form and [has been] is (i) registered in the name of the purchaser, (ii) payable to the order of the purchaser, or (iii) specially indorsed to the purchaser by an effective indorsement and has not been indorsed to the securities intermediary or in blank.

(2) Delivery of an uncertificated security to a purchaser occurs when:

(a) The issuer registers the purchaser as the registered owner, upon original issue or registration of transfer; or

(b) Another person, other than a securities intermediary, either becomes the registered owner of the uncertificated security on behalf of the purchaser or, having previously become the registered owner, acknowledges that it holds for the purchaser.

SECTION 155. ORS 78.3020 is amended to read:

78.3020. (1) Except as otherwise provided in subsections (2) and (3) of this section, [upon delivery] a purchaser of a certificated or uncertificated security [to a purchaser, the purchaser] acquires all rights in the security that the transferor had or had power to transfer.

(2) A purchaser of a limited interest acquires rights only to the extent of the interest purchased.

(3) A purchaser of a certificated security who as a previous holder had notice of an adverse claim does not improve its position by taking from a protected purchaser.

SECTION 156. ORS 78.5100 is amended to read:

78.5100. (1) [An] In a case not covered by the priority rules in ORS chapter 79 or the rules stated in subsection (3) of this section, an action based on an adverse claim to a financial asset or security entitlement, whether framed in conversion, replevin, constructive trust, equitable lien or other theory, may not be asserted against a person who purchases a security entitlement, or an interest therein, from an entitlement holder if the purchaser gives value, does not have notice of the adverse claim and obtains control.

(2) If an adverse claim could not have been asserted against an entitlement holder under ORS 78.5020, the adverse claim cannot be asserted against a person who purchases a security entitlement, or an interest therein, from the entitlement holder.

(3) In a case not covered by the priority rules in ORS chapter 79, a purchaser for value of a security entitlement, or an interest therein, who obtains control has priority over a purchaser of a security entitlement, or an interest therein, who does not obtain control. [Purchasers] Except as otherwise provided in subsection (4) of this section, purchasers who have control rank [equally, except that a] according to priority in time of:

(a) The purchaser’s becoming the person for whom the securities account, in which the security entitlement is carried, is maintained, if the purchaser obtained control under ORS 78.1060 (4)(a);

(b) The securities intermediary’s agreement to comply with the purchaser’s entitlement orders with respect to security entitlements carried or to be carried in the securities account in which the security entitlement is carried, if the purchaser obtained control under ORS 78.1060 (4)(b); or

(c) If the purchaser obtained control through another person under ORS 78.1060 (4)(c), the time on which priority would be based under this subsection if the other person were the secured party.

(4) A securities intermediary as purchaser has priority over a conflicting purchaser who has control unless otherwise agreed by the securities intermediary.

SECTION 157. ORS 79.8010 is amended to read:

79.8010. Except as provided in ORS 30.260 to 30.300, the Secretary of State and the secretary’s officers and employees shall not be liable to debtors, secured parties or any other person in administering this chapter or ORS 79.6020 to 79.7010.

SECTION 158. ORS 79.8010 is added to and made a part of sections 72 to 98 of this 2001 Act.

SECTION 159. ORS 29.205 is amended to read:

29.205. (1) Delivery of a writ of garnishment in accordance with ORS 29.155 to 29.185 shall be effective to garnish all property of the defendant which is in the garnishee’s possession, control or custody at the time of delivery of the writ of garnishment to the garnishee, including but not limited to property in safe deposit boxes, stock, debts and other obligations then in existence and payable in money, whether due or to become due, property held on expired and unexpired bailments and leases, and property held by the garnishee pursuant to a security interest granted by defendant to garnishee.

(2) Notwithstanding any other provision of this chapter, but except as provided in ORS 29.375, the duty of a garnishee to deliver any property of the defendant which may be contained in a safe deposit box which is in the garnishee’s possession, control or custody at the time of delivery of the writ of garnishment to the garnishee is conditioned upon the plaintiff’s first paying to the garnishee, in addition to the search fee provided for in ORS 29.377 (1), all reasonable costs incurred by the garnishee in gaining entry to the safe deposit box. The costs shall be paid to the garnishee by the plaintiff on or before the date the plaintiff pays the sheriff’s fees under ORS 29.237. If the plaintiff fails to pay such costs to the garnishee, the garnishment shall not be effective to garnish any property of the defendant which may be contained in any such safe deposit box and the garnishee may proceed to deal with the safe deposit box and its contents as though the writ of garnishment had not been issued. Nothing in this section limits the right of a plaintiff to reach the contents of any safe deposit box in any manner otherwise provided by law.

(3) Notwithstanding subsection (1) of this section, property which may not be taken by garnishment shall include but is not limited to equitable interests, property in the custody of the law, property in the possession of a conservator and property in the possession of a personal representative constituting the subject matter of a trust contained in a duly probated will of a decedent.

(4) Notwithstanding any other provision of law, and except for workers’ compensation or property in the custody of the law, when a garnishment is issued to collect past due support, no exemption may be allowed for amounts due the obligated parent that are the result of lump sum or periodic payments on a judgment, settlement or public or private retirement funds.

(5) In addition to such rights as the garnishee may have at law, in equity or otherwise, if the garnishee is a financial institution, the garnishee may, following delivery of a writ of garnishment or warrant and notice of garnishment to the garnishee, set off such sums as are due from defendant at the time the garnishee receives the writ of garnishment. A garnishee may not set off any amounts which are not otherwise due to be paid but which have been accelerated after the receipt of a writ of garnishment. Notwithstanding any other provision of this chapter, such a garnishee shall have no obligation to remit any sums upon the garnishment which the garnishee has set off pursuant to this subsection. A garnishee who sets off pursuant to this subsection shall disclose the fact and amount of the setoff in the certificate of garnishee prepared and delivered under ORS 29.235, and shall certify therein that the amount set off by the garnishee was due from the defendant to the garnishee at the time the garnishee received the writ of garnishment.

(6) Notwithstanding subsection (1) of this section, if a writ of garnishment is received by a financial institution garnishee after 4 p.m., as to any deposit account held by the garnishee in the name of the defendant, the writ of garnishment will only be effective to garnish those funds that are on deposit in the account at the beginning of the business day following the day on which the writ of garnishment is delivered to the garnishee.

(7) Notwithstanding any other provision of this chapter, if a garnishee discovers that a voluntary or involuntary bankruptcy petition has been filed by or on behalf of the defendant under section 301, 302 or 303 of the United States Bankruptcy Code (11 U.S.C. 101 to 1330) before the garnishee delivers the garnishee’s certificate pursuant to ORS 29.235, the garnishment of any property of the defendant in the garnishee’s possession, control or custody is stayed pursuant to section 362 of the United States Bankruptcy Code (11 U.S.C. 362).

(8)(a) Notwithstanding subsection (1) of this section, a garnishee may apply a setoff against amounts owing to the defendant under the terms of a land sale contract, under the terms of a promissory note or other evidence of indebtedness that is secured by a mortgage or trust deed, or under the terms of a security agreement as defined [by ORS 79.1050] in section 2 of this 2001 Act, to the extent that those amounts are actually paid to another person:

(A) Who is entitled to receive the amounts under the terms of the land sale contract, mortgage, trust deed or security agreement, or under the terms of any other land sale contract, mortgage, trust deed or security agreement that is secured by the same property that is the subject of the land sale contract, mortgage, trust deed or security agreement; and

(B) Who has an interest in the property that is the subject of the land sale contract, mortgage, trust deed or security agreement that is superior to the interest of the plaintiff under the laws that would govern a foreclosure, trust deed sale, repossession or other action against the property that is the subject of the land sale contract, mortgage, trust deed or security agreement.

(b) A garnishee must deliver to a plaintiff all amounts in the garnishee’s possession, control or custody at the time of delivery of the writ of garnishment that are not actually paid by the garnishee to another person as described in paragraph (a) of this subsection unless those amounts are exempt from execution under other law.

(c) A garnishee who applies a setoff under this subsection must disclose that the setoff has been applied, and the amount of the setoff, in the certificate of garnishee prepared and delivered under ORS 29.235. The garnishee must certify in the certificate that the amounts specified in the certificate were actually paid by the garnishee to another person entitled to receive those amounts under paragraph (a) of this subsection.

(9) For the purposes of this section, “financial institution” has the meaning given that term in ORS 706.008.

SECTION 159a. If House Bill 2386 becomes law, section 159 of this 2001 Act (amending ORS 29.205) is repealed and section 9, chapter 249, Oregon Laws 2001 (Enrolled House Bill 2386), is amended to read:

Sec. 9. (1) Notwithstanding section 7, chapter 249, Oregon Laws 2001 (Enrolled House Bill 2386) [of this 2001 Act], a garnishee may apply a setoff against amounts owing to the debtor under the terms of a land sale contract, under the terms of a promissory note or other evidence of indebtedness that is secured by a mortgage or trust deed, or under the terms of a security agreement as defined in [ORS 79.1050] section 2 of this 2001 Act, to the extent that those amounts are actually paid to another person:

(a) Who is entitled to receive the amounts under the terms of the land sale contract, mortgage, trust deed or security agreement, or under the terms of any other land sale contract, mortgage, trust deed or security agreement that is secured by the same property that is the subject of the land sale contract, mortgage, trust deed or security agreement; and

(b) Who has an interest in the property that is the subject of the land sale contract, mortgage, trust deed or security agreement that is superior to the interest of the creditor under the laws that would govern a foreclosure, trust deed sale, repossession or other action against the property that is the subject of the land sale contract, mortgage, trust deed or security agreement.

(2) A garnishee must deliver in the manner required by sections 1 to 65, chapter 249, Oregon Laws 2001 (Enrolled House Bill 2386), [of this 2001 Act] all amounts in the garnishee’s possession, control or custody at the time of delivery of the writ of garnishment that are not actually paid by the garnishee to another person as described in subsection (1) of this section, unless those amounts are exempt from execution under other law.

(3) A garnishee who applies a setoff under this section must disclose that the setoff has been applied, and the amount of the setoff, in the garnishee response required by section 24, chapter 249, Oregon Laws 2001 (Enrolled House Bill 2386) [of this 2001 Act]. The garnishee must certify in the garnishee response that the amounts specified in the certificate were actually paid by the garnishee to another person entitled to receive those amounts under subsection (1) of this section.

SECTION 159b. The repeal of section 159 of this 2001 Act and the amendments to section 9, chapter 249, Oregon Laws 2001 (Enrolled House Bill 2386), by section 159a of this 2001 Act become operative on the effective date of chapter 249, Oregon Laws 2001 (Enrolled House Bill 2386).

SECTION 160. ORS 56.041, as amended by section 4, chapter 652, Oregon Laws 1999, is amended to read:

56.041. (1) The Operating Account is established in the General Fund of the State Treasury.

(2) The net amount accruing to the Secretary of State from all fees, charges, interest, fines, penalties and miscellaneous revenues from all sources relating to business registry functions, and moneys received by the Secretary of State under ORS chapters 79 and 194 and ORS 79.6020 to 79.7010, 87.246, 87.767 and 87.806 to 87.831 shall, after deduction of refunds, be paid over to the State Treasurer and deposited at least monthly in the Operating Account.

(3) Moneys deposited to the credit of the Operating Account are continuously appropriated for the expenses of carrying out the functions and duties of the Secretary of State relating to business registry, and the functions and duties of the Secretary of State under ORS chapters 79 and 194 and ORS 79.6020 to 79.7010, 87.246, 87.767 and 87.806 to 87.831.

SECTION 161. ORS 83.610 is amended to read:

83.610. After the payment of all sums for which the buyer is obligated under a retail installment contract or other security agreement, as defined in [ORS 79.1050] section 2 of this 2001 Act, and upon written demand made by the buyer, the holder of such contract or agreement shall mail to the buyer at the buyer’s last-known address, good and sufficient instruments to indicate payment in full and to release all security in the motor vehicle. This section is supplementary to and is not restrictive of ORS 86.440, 86.460 and 803.097 or of ORS [79.1010 to 79.5070 and 79.8010] chapter 79.

SECTION 162. ORS 87.322 is amended to read:

87.322. ORS 87.272 to 87.316 does not apply to a lien on a chattel created by ORS 87.216 when that chattel is subject to a prior duly perfected security interest as provided in ORS 87.146 (1)(d). When a lien created by ORS 87.216 is junior and subordinate to a prior duly perfected security interest, that lien shall be foreclosed by suit under ORS chapter 88. In such a suit to foreclose, the holder of the prior security interest shall be made a party defendant to the foreclosure proceeding. The person holding the prior security interest may extinguish the lien created by ORS 87.216 by either a foreclosure proceeding under ORS chapter 88 or a nonjudicial foreclosure proceeding under [ORS 79.5010 to 79.5070] sections 99 to 126 of this 2001 Act.

SECTION 163. ORS 87.755 is amended to read:

87.755. (1) When an agricultural producer sells grain, the agricultural producer shall have a lien on the grain and the proceeds thereof for a period not to exceed 90 days from the date the lien attaches.

(2) The lien created by subsection (1) of this section shall attach to the grain and to the proceeds thereof on the date the agricultural producer sells the grain to the purchaser or on the date the agricultural producer physically delivers the grain to the purchaser, whichever last occurs.

(3) The lien created by subsection (1) of this section shall be preferred to any lien or security interest in favor of any creditor of the purchaser, regardless of whether the creditor’s lien or security interest attached to the grain or proceeds before or after the date on which the agricultural producer’s lien attached under subsection (2) of this section.

(4) An agricultural producer who claims a lien under subsection (1) of this section need not file any notice of the lien in order to perfect the lien.

(5) The lien created by subsection (1) of this section shall be subject to the provisions of [ORS 79.3070 (1)] section 40 of this 2001 Act.

(6) The lien created by subsection (1) of this section is discharged, except as to the proceeds therefrom, upon sale of the grain by the purchaser to a third party purchaser.

SECTION 164. ORS 87.816 is amended to read:

87.816. (1) If a notice of federal lien, a refiling of a notice of federal lien, or a notice of revocation of any certificate described in subsection (2) of this section is presented to a filing officer who is:

(a) The Secretary of State, the secretary shall cause the notice or refiled notice to be marked, held and indexed in accordance with the provisions of [ORS 79.4030 (4)] section 90 of this 2001 Act as if the notice or refiled notice were a financing statement within the meaning of ORS [79.1010 to 79.5070 and 79.8010] chapter 79; or

(b) Any other officer described in ORS 87.806, the officer shall indorse thereon the identification of the officer and the date and time of receipt and forthwith file it alphabetically or enter it in an alphabetical index showing the name and address of the person named in the notice or refiled notice, the date and time of receipt, the title and address of the official or entity certifying the lien and the total amount appearing on the notice of lien or refiled notice of lien.

(2) If a certificate of release, nonattachment, discharge or subordination of any lien is presented to the Secretary of State for filing, the secretary shall:

(a) Cause a certificate of release to be marked, held and indexed as if the certificate were a termination statement within the meaning of [ORS 79.4040] section 83 of this 2001 Act;

(b) Cause a certificate of discharge or subordination to be held, marked and indexed as if the certificate were a release of collateral within the meaning of [ORS 79.4060] section 83 of this 2001 Act; and

(c) Cause a certificate of nonattachment to be marked, held and indexed as if the certificate were an amendment of a financing statement within the meaning of [ORS 79.4020 (4)] section 83 of this 2001 Act.

(3) If any refiled notice of federal lien or notice of revocation referred to in subsection (1) of this section or any of the certificates specified in subsection (2) of this section is presented for filing with any other filing officer specified in ORS 87.806, the officer shall permanently attach the refiled notice, certificate or notice to the original notice of lien and shall enter the refiled notice, certificate or notice with the date of filing in any alphabetical lien index on the line where the original notice of lien is entered.

(4) Upon request of any person, the filing officer shall issue the certificate of the filing officer showing whether there is on file in the officer’s office, on the date and hour stated therein, any notice of lien or certificate or notice affecting any lien naming a particular person, and if a notice or certificate is on file, giving the date and hour of its filing. All financing statements and statements of assignment, if any, filed pursuant to ORS [79.1010 to 79.5070 and 79.8010] chapter 79 for a particular debtor whose name is identical to the particular person named in the lien shall be shown on this certificate. The uniform fee for such a certificate for a particular person shall be prescribed by the Secretary of State by rule. If the request for the certificate is in writing and not in the standard form prescribed by the Secretary of State, an additional fee shall be prescribed. Upon request the filing officer shall furnish a copy of any notice of federal lien or notice or certificate affecting a federal lien for a fee as prescribed by the Secretary of State by rule under [ORS 79.4025] section 96 of this 2001 Act.

(5) Notice of a federal lien or a refiling of a notice of federal lien is effective for a period of 10 years from the date of assessment. A notice or refiling of a notice of a federal lien shall state:

(a) The date the tax was assessed; and

(b) That the effective period of the lien is as provided by federal law.

SECTION 165. ORS 90.425 is amended to read:

90.425. (1) As used in this section:

(a) “Current market value” means the amount in cash, as determined by the county assessor, that could reasonably be expected to be paid for a manufactured dwelling or floating home by an informed buyer to an informed seller, each acting without compulsion in an arm’s length transaction occurring on the assessment date for the tax year or on the date of a subsequent reappraisal by the county assessor.

(b) “Dispose of the personal property” means that, if reasonably appropriate, the landlord may throw away the property or may give it without consideration to a nonprofit organization or to a person unrelated to the landlord. The landlord may not retain the property for personal use or benefit.

(c) “Goods” includes those goods left inside a recreational vehicle, manufactured dwelling or floating home or left upon the rental space outside a recreational vehicle, manufactured dwelling or floating home, whether the recreational vehicle, dwelling or home is located inside or outside of a facility.

(d) “Lienholder” means any lienholder of an abandoned recreational vehicle, manufactured dwelling or floating home, if the lien is of record or the lienholder is actually known to the landlord.

(e) “Owner” means any owner of an abandoned recreational vehicle, manufactured dwelling or floating home, if different from the tenant and either of record or actually known to the landlord.

(f) “Personal property” means goods, vehicles and recreational vehicles and includes manufactured dwellings and floating homes not located in a facility. “Personal property” does not include manufactured dwellings and floating homes located in a facility and therefore subject to being stored, sold or disposed of as provided under ORS 90.675.

(2) A landlord shall not store, sell or dispose of abandoned personal property except as provided by this section. This section governs the rights and obligations of landlords, tenants and any lienholders or owners in any personal property abandoned or left upon the premises by the tenant or any lienholder or owner in the following circumstances:

(a) The tenancy has ended by termination or expiration of a rental agreement or by relinquishment or abandonment of the premises and the landlord reasonably believes under all the circumstances that the tenant has left the personal property upon the premises with no intention of asserting any further claim to the premises or to the personal property;

(b) The tenant has been absent from the premises continuously for seven days after termination of a tenancy by a court order that has not been executed; or

(c) The landlord elects to remove the personal property pursuant to ORS 105.165.

(3) Prior to selling or disposing of the tenant’s personal property under this section, the landlord must give a written notice to the tenant which shall be:

(a) Personally delivered to the tenant; or

(b) Sent by first class mail addressed and mailed to the tenant at:

(A) The premises;

(B) Any post-office box held by the tenant and actually known to the landlord; and

(C) The most recent forwarding address if provided by the tenant or actually known to the landlord.

(4)(a) In addition to the notice required by subsection (3) of this section, in the case of an abandoned recreational vehicle, manufactured dwelling or floating home, a landlord shall also give a copy of the notice described in subsection (3) of this section to:

(A) Any lienholder of the recreational vehicle, manufactured dwelling or floating home;

(B) Any owner of the recreational vehicle, manufactured dwelling or floating home;

(C) The tax collector of the county where the manufactured dwelling or floating home is located; and

(D) The assessor of the county where the manufactured dwelling or floating home is located.

(b) The landlord shall give the notice copy required by this subsection by personal delivery or first class mail, except that for any lienholder, mail service shall be by first class mail with certificate of mailing.

(5) The notice required under subsection (3) of this section shall state that:

(a) The personal property left upon the premises is considered abandoned;

(b) The tenant or any lienholder or owner must contact the landlord by a specified date, as provided in subsection (6) of this section, to arrange for the removal of the abandoned personal property;

(c) The personal property is stored at a place of safekeeping, except that if the property includes a manufactured dwelling or floating home, the dwelling or home shall be stored on the rented space;

(d) The tenant or any lienholder or owner, except as provided by subsection (17) of this section, may arrange for removal of the personal property by contacting the landlord at a described telephone number or address on or before the specified date;

(e) The landlord shall make the personal property available for removal by the tenant or any lienholder or owner, except as provided by subsection (17) of this section, by appointment at reasonable times;

(f) If the personal property is considered to be abandoned pursuant to subsection (2)(a) or (b) of this section, the landlord may require payment of removal and storage charges, as provided by subsection (7)(d) of this section, prior to releasing the personal property to the tenant or any lienholder or owner;

(g) If the personal property is considered to be abandoned pursuant to subsection (2)(c) of this section, the landlord shall not require payment of storage charges prior to releasing the personal property;

(h) If the tenant or any lienholder or owner fails to contact the landlord by the specified date, or after that contact, fails to remove the personal property within 30 days for recreational vehicles, manufactured dwellings and floating homes or 15 days for all other personal property, the landlord may sell or dispose of the personal property. If the landlord reasonably believes that the personal property will be eligible for disposal pursuant to subsection (10)(b) of this section and the landlord intends to dispose of the property if it is not claimed, the notice shall state that belief and intent; and

(i) If the personal property includes a recreational vehicle, manufactured dwelling or floating home and if applicable, there is a lienholder or owner that has a right to claim the recreational vehicle, dwelling or home, except as provided by subsection (17) of this section.

(6) For purposes of subsection (5) of this section, the specified date by which a tenant, lienholder or owner must contact a landlord to arrange for the disposition of abandoned personal property shall be:

(a) For abandoned recreational vehicles, manufactured dwellings or floating homes, not less than 45 days after personal delivery or first class mailing of the notice; or

(b) For all other abandoned personal property, not less than five days after personal delivery or eight days after first class mailing of the notice.

(7) After notifying the tenant as required by subsection (3) of this section, the landlord:

(a) Shall store any abandoned manufactured dwelling or floating home on the rented space and shall exercise reasonable care for the dwelling or home;

(b) Shall store all other abandoned personal property of the tenant, including goods left inside a recreational vehicle, manufactured dwelling or floating home or left upon the rented space outside a recreational vehicle, dwelling or home, in a place of safekeeping and shall exercise reasonable care for the personal property, except that the landlord may:

(A) Promptly dispose of rotting food; and

(B) Allow an animal control agency to remove any abandoned pets or livestock. If an animal control agency will not remove the abandoned pets or livestock, the landlord shall exercise reasonable care for the animals given all the circumstances, including the type and condition of the animals, and may give the animals to an agency that is willing and able to care for the animals, such as a humane society or similar organization;

(c) Except for manufactured dwellings and floating homes, may store the abandoned personal property at the dwelling unit, move and store it elsewhere on the premises or move and store it at a commercial storage company or other place of safekeeping; and

(d) Shall be entitled to reasonable or actual storage charges and costs incidental to storage or disposal, including any cost of removal to a place of storage. In the case of an abandoned manufactured dwelling or floating home, the storage charge shall be no greater than the monthly space rent last payable by the tenant.

(8) If a tenant, lienholder or owner, upon the receipt of the notice provided by subsection (3) or (4) of this section or otherwise, responds by actual notice to the landlord on or before the specified date in the landlord’s notice that the tenant, lienholder or owner intends to remove the personal property from the premises or from the place of safekeeping, the landlord must make that personal property available for removal by the tenant, lienholder or owner by appointment at reasonable times during the next 15 days or, in the case of a recreational vehicle, manufactured dwelling or floating home, 30 days, subject to subsection (17) of this section. If the personal property is considered to be abandoned pursuant to subsection (2)(a) or (b) of this section, but not pursuant to subsection (2)(c) of this section, the landlord may require payment of removal and storage charges, as provided in subsection (7)(d) of this section, prior to allowing the tenant, lienholder or owner to remove the personal property. Acceptance by a landlord of such payment shall not operate to create or reinstate a tenancy or create a waiver pursuant to ORS 90.415.

(9) Except as provided in subsections (17) to (19) of this section, if the tenant, lienholder or owner of a recreational vehicle, manufactured dwelling or floating home does not respond within the time provided by the landlord’s notice, or the tenant, lienholder or owner does not remove the personal property within the time required by subsection (8) of this section or by any date agreed to with the landlord, whichever is later, the tenant’s, lienholder’s or owner’s personal property shall be conclusively presumed to be abandoned. The tenant and any lienholder or owner that have been given notice pursuant to subsection (3) or (4) of this section shall, except with regard to the distribution of sale proceeds pursuant to subsection (12) of this section, have no further right, title or interest to the personal property and may not claim or sell the property.

(10) If the personal property is presumed to be abandoned under subsection (9) of this section, the landlord then may:

(a) Sell the personal property at a public or private sale, provided that prior to the sale of a recreational vehicle, manufactured dwelling or floating home:

(A) The landlord may seek to transfer the certificate of title and registration to the personal property by complying with the requirements of the appropriate state agency; and

(B) The landlord shall:

(i) Place a notice in a newspaper of general circulation in the county in which the recreational vehicle, manufactured dwelling or floating home is located. The notice shall state:

(I) That the recreational vehicle, manufactured dwelling or floating home is abandoned;

(II) The tenant’s and owner’s name, if of record or actually known to the landlord;

(III) The address and any space number where the recreational vehicle, manufactured dwelling or floating home is located, and if actually known to the landlord, the plate, registration or other identification number as noted on the certificate of title;

(IV) Whether the sale is by private bidding or public auction;

(V) Whether the landlord is accepting sealed bids and, if so, the last date on which bids will be accepted; and

(VI) The name and telephone number of the person to contact to inspect the recreational vehicle, manufactured dwelling or floating home;

(ii) At a reasonable time prior to the sale, give a copy of the notice required by sub-subparagraph (i) of this subparagraph to the tenant and to any lienholder and owner, by personal delivery or first class mail, except that for any lienholder, mail service shall be by first class mail with certificate of mailing;

(iii) Obtain an affidavit of publication from the newspaper to show that the notice required under sub-subparagraph (i) of this subparagraph ran in the newspaper at least one day in each of two consecutive weeks prior to the date scheduled for the sale or the last date bids will be accepted; and

(iv) Obtain written proof from the county that all property taxes on the manufactured dwelling or floating home have been paid or, if not paid, that the county has authorized the sale, with the sale proceeds to be distributed pursuant to subsection (12) of this section;

(b) Destroy or otherwise dispose of the personal property if the landlord determines that:

(A) For a manufactured dwelling or floating home, the current market value of the property is $3,500 or less as determined by the county assessor; or

(B) For all other personal property, the reasonable current fair market value is $500 or less or so low that the cost of storage and conducting a public sale probably exceeds the amount that would be realized from the sale; or

(c) Consistent with paragraphs (a) and (b) of this subsection, sell certain items and destroy or otherwise dispose of the remaining personal property.

(11)(a) A public or private sale authorized by this section shall:

(A) For a recreational vehicle, manufactured dwelling or floating home, be conducted consistent with the terms listed in subsection (10)(a)(B)(i) of this section. Every aspect of the sale including the method, manner, time, place and terms must be commercially reasonable; or

(B) For all other personal property, be conducted under the provisions of [ORS 79.5040 (3)] section 108 of this 2001 Act.

(b) If there is no buyer at a sale of a manufactured dwelling or floating home, the personal property shall be considered to be worth $3,500 or less, regardless of current market value, and the landlord may destroy or otherwise dispose of the personal property.

(12)(a) The landlord may deduct from the proceeds of the sale:

(A) The reasonable or actual cost of notice, storage and sale; and

(B) Unpaid rent.

(b) If the sale was of a manufactured dwelling or floating home, after deducting the amounts listed in paragraph (a) of this subsection, the landlord shall remit the remaining proceeds, if any, to the county tax collector to the extent of any unpaid property taxes owed on the dwelling or home.

(c) If the sale was of a recreational vehicle, manufactured dwelling or floating home, after deducting the amounts listed in paragraphs (a) and (b) of this subsection, if applicable, the landlord shall remit the remaining proceeds, if any, to any lienholder to the extent of any unpaid balance owed on the lien on the recreational vehicle, dwelling or home.

(d) After deducting the amounts listed in paragraphs (a), (b) and (c) of this subsection, if applicable, the landlord shall remit to the tenant or owner the remaining proceeds, if any, together with an itemized accounting.

(e) If the tenant or owner cannot after due diligence be found, the remaining proceeds shall be deposited with the county treasurer of the county in which the sale occurred, and if not claimed within three years shall revert to the general fund of the county available for general purposes.

(13) The county tax collector shall cancel all unpaid property taxes owed on a manufactured dwelling or floating home, as provided under ORS 311.790, if:

(a) The landlord disposes of the manufactured dwelling or floating home after a determination described in subsection (10)(b) of this section;

(b) There is no buyer of the manufactured dwelling or floating home at a sale described under subsection (11) of this section; or

(c) The proceeds of a sale described under subsection (11) of this section are insufficient to satisfy the unpaid property taxes owed on the dwelling or home after distribution of the proceeds pursuant to subsection (12) of this section.

(14) The landlord shall not be responsible for any loss to the tenant, lienholder or owner resulting from storage of personal property in compliance with this section unless the loss was caused by the landlord’s deliberate or negligent act. In the event of a deliberate and malicious violation, the landlord shall be liable for twice the actual damages sustained by the tenant, lienholder or owner.

(15) Complete compliance in good faith with this section shall constitute a complete defense in any action brought by a tenant, lienholder or owner against a landlord for loss or damage to such personal property disposed of pursuant to this section.

(16) If a landlord does not comply with this section:

(a) The tenant shall be relieved of any liability for damage to the premises caused by conduct that was not deliberate, intentional or grossly negligent and for unpaid rent and may recover from the landlord up to twice the actual damages sustained by the tenant;

(b) A lienholder or owner aggrieved by the noncompliance may recover from the landlord the actual damages sustained by the lienholder or owner. ORS 90.255 does not authorize an award of attorney fees to the prevailing party in any action arising under this paragraph; and

(c) A county tax collector aggrieved by the noncompliance may recover from the landlord the actual damages sustained by the tax collector, if the noncompliance is part of an effort by the landlord to defraud the tax collector. ORS 90.255 does not authorize an award of attorney fees to the prevailing party in any action arising under this paragraph.

(17) In the case of an abandoned recreational vehicle, manufactured dwelling or floating home, the provisions of this section regarding the rights and responsibilities of a tenant to the abandoned vehicle, dwelling or home shall also apply to any lienholder except that the lienholder shall not sell or remove the vehicle, dwelling or home unless:

(a) The lienholder has foreclosed its lien on the recreational vehicle, manufactured dwelling or floating home;

(b) The tenant has waived the tenant’s rights under this section pursuant to subsection (25) of this section; or

(c) The notice and response periods provided by subsections (6) and (8) of this section have expired.

(18) In the case of an abandoned manufactured dwelling or floating home but not including a dwelling or home abandoned following a termination pursuant to ORS 90.429 and except as provided by subsection (21)(d) and (e) of this section, if a lienholder makes a timely response to a notice of abandoned personal property and so requests, a landlord shall enter into a written agreement with the lienholder providing that the dwelling or home shall not be sold or disposed of by the landlord for up to 12 months, so long as the lienholder makes timely periodic payment of all future storage charges as provided by subsection (7)(d) of this section and maintains the dwelling or home and the rented space on which it is stored. The lienholder’s right to such an agreement shall arise upon the failure of the tenant, owner or, in the case of a deceased tenant, the personal representative, designated person, heir or devisee to remove or sell the dwelling or home within the allotted time.

(19) During the term of an agreement described under subsection (18) of this section, the lienholder shall have the right to remove or sell the property, subject to the provisions of its lien. Selling the property includes a sale to a purchaser who wishes to leave the dwelling or home on the rented space and become a tenant, subject to any conditions previously agreed to by the landlord and tenant regarding the landlord’s approval of a purchaser or, if there was no such agreement, any reasonable conditions by the landlord regarding approval of any purchaser who wishes to leave the dwelling or home on the rented space and become a tenant. The landlord also may condition approval for occupancy of any purchaser of the property upon payment of all storage charges and maintenance costs. If the lienholder violates the agreement, the landlord may terminate it upon 90 days’ written notice stating facts sufficient to notify the lienholder of the reason for the termination. Unless the lienholder corrects the violation within the notice period, the agreement shall terminate as provided and the landlord may sell or dispose of the dwelling or home without further notice to the lienholder.

(20) Upon termination of an agreement described under subsection (18) of this section, unless the parties otherwise agree or the lienholder has sold or removed the manufactured dwelling or floating home, the landlord may sell or dispose of the property pursuant to this section without further notice to the lienholder.

(21) If the personal property consists of an abandoned manufactured dwelling or floating home and is considered abandoned as a result of the death of a tenant who was the only tenant and who owned the dwelling or home, the provisions of subsections (1) to (20), (23), (24) and (26) of this section shall apply, except as follows:

(a) The provisions of this section regarding the rights and responsibilities of a tenant to the abandoned dwelling or home shall apply to any personal representative named in a will or appointed by a court to act for the deceased tenant or any person designated in writing by the tenant to be contacted by the landlord in the event of the tenant’s death.

(b) The notice required by subsection (3) of this section shall be:

(A) Sent by first class mail to the deceased tenant at the premises; and

(B) Personally delivered or sent by first class mail to any personal representative or designated person if actually known to the landlord.

(c) The notice described in subsection (5) of this section shall refer to any personal representative or designated person, instead of the deceased tenant, and shall incorporate the provisions of this subsection.

(d) If a personal representative, designated person or other person entitled to possession of the property, such as an heir or devisee, responds by actual notice to a landlord within the 45-day period provided by subsection (6) of this section and so requests, the landlord shall enter into a written agreement with the representative or person providing that the dwelling or home shall not be sold or disposed of by the landlord for up to 90 days or until conclusion of any probate proceedings, whichever is later, so long as the representative or person makes timely periodic payment of all future storage charges as provided by subsection (7)(d) of this section and maintains the dwelling or home and the rented space on which it is stored. If such an agreement is entered, the landlord shall not enter a similar agreement with a lienholder pursuant to subsection (18) of this section until the agreement with the personal representative or designated person ends.

(e) During the term of an agreement described under paragraph (d) of this subsection, the representative or person shall have the right to remove or sell the dwelling or home, including a sale to a purchaser or a transfer to an heir or devisee where the purchaser, heir or devisee wishes to leave the dwelling or home on the rented space and become a tenant, subject to any conditions previously agreed to by the landlord and tenant regarding the landlord’s approval for occupancy of a purchaser, heir or devisee or, if there was no such agreement, any reasonable conditions by the landlord regarding approval for occupancy of any purchaser, heir or devisee who wishes to leave the dwelling or home on the rented space and become a tenant. The landlord also may condition approval for occupancy of any purchaser, heir or devisee of the dwelling or home upon payment of all storage charges and maintenance costs. If the representative or person violates the agreement, the landlord may terminate it upon 30 days’ written notice stating facts sufficient to notify the representative or person of the reason for the termination. Unless the representative or person corrects the violation within the notice period, the agreement shall terminate as provided and the landlord may sell or dispose of the dwelling or home without further notice to the representative or person.

(22) Upon termination of an agreement described under subsection (21)(d) of this section, unless the parties otherwise agree or the representative or person has sold or removed the manufactured dwelling or floating home, the landlord may sell or dispose of the property pursuant to this section without further notice to the representative or person.

(23) In the case of an abandoned recreational vehicle, manufactured dwelling or floating home that is owned by someone other than the tenant, the provisions of this section regarding the rights and responsibilities of a tenant to the abandoned vehicle, dwelling or home shall also apply to that owner, with regard only to the vehicle, dwelling or home, and not to any goods left inside or outside the vehicle, dwelling or home.

(24) In the case of an abandoned motor vehicle, the procedure authorized by ORS 98.830 and 98.835 for removal of abandoned motor vehicles from private property may be used by a landlord as an alternative to the procedures required in this section.

(25) Except for personal property that is subject to subsection (21) of this section, a landlord may sell or dispose of a tenant’s abandoned personal property without complying with the provisions of this section if, after termination of the tenancy or no more than seven days prior to the termination of the tenancy, the landlord and the tenant and, in the case of a recreational vehicle, manufactured dwelling or floating home, any lienholder and owner so agree in a writing entered into in good faith. A landlord shall not, as part of a rental agreement, require a tenant or any lienholder or owner to waive any right provided by this section.

(26) Until personal property is conclusively presumed to be abandoned under subsection (9) of this section, a landlord shall not have a lien pursuant to ORS 87.152 for storing the personal property.

SECTION 166. ORS 93.806 is amended to read:

93.806. (1) Any instrument creating a lien on unpaid rents and profits of real property within this state, by assignment, mortgage, pledge or otherwise, or memorandum thereof, which is executed by the person from whom the lien is intended to be given, and acknowledged or proved in the manner provided for the acknowledgment or proof of other conveyances, may be indexed and recorded in the records of mortgages of real property in the county where such real property is located, as provided in ORS 93.710. Such recordation constitutes notice to third persons, and shall otherwise have the same effect as recordation pursuant to ORS 93.710, specifically, but without limitation, such lien shall not be voidable by and shall not be subordinate to the rights of either:

(a) A subsequent lien creditor, as defined in [ORS 79.3010 (4)] section 2 of this 2001 Act; or

(b) A subsequent bona fide purchaser of real property.

(2) Such an assignment, mortgage or pledge shall be so perfected by such recording, without the holder thereof obtaining the appointment of receiver, taking possession of the subject real property, filing a financing statement pursuant to ORS chapter 79 or taking any other action in addition to such recording.

(3) As used in this section, “memorandum” has the meaning provided in ORS 93.710 (3).

SECTION 167. ORS 95.270 is amended to read:

95.270. (1) A transfer or obligation is not voidable under ORS 95.230 (1)(a) as against a person who took in good faith and for a reasonably equivalent value or any subsequent transferee or obligee.

(2) Except as otherwise provided in this section, to the extent a transfer is voidable in an action by a creditor under ORS 95.260 (1)(a), the creditor may recover judgment for the value of the asset transferred, as adjusted under subsection (3) of this section, or the amount necessary to satisfy the creditor’s claim, whichever is less. The judgment may be entered against:

(a) The first transferee of the asset or the person for whose benefit the transfer was made; or

(b) Any subsequent transferee.

(3) If the judgment under subsection (2) of this section is based upon the value of the asset transferred, the judgment must be for an amount equal to the value of the asset at the time of the transfer, subject to adjustment as the equities may require.

(4) A creditor may not recover under subsection (2)(b) of this section from a good-faith transferee or obligee who took for value or from any subsequent transferee or obligee.

(5) Notwithstanding voidability of a transfer or an obligation under ORS 95.200 to 95.310, a good-faith transferee or obligee is entitled, to the extent of the value given the debtor for the transfer or obligation, to:

(a) A lien on or a right to retain any interest in the asset transferred;

(b) Enforcement of any obligation incurred; or

(c) A reduction in the amount of the liability on the judgment.

(6) A transfer is not voidable under ORS 95.240 (2):

(a) To the extent the insider gave new value to or for the benefit of the debtor after the transfer was made unless the new value was secured by an otherwise unavoidable lien;

(b) If made in the ordinary course of business or financial affairs of the debtor and the insider; or

(c) If made pursuant to a good-faith effort to rehabilitate the debtor and the transfer secured present value given for that purpose as well as an antecedent debt of the debtor.

(7) A transfer is not voidable under ORS 95.230 (1)(b) or 95.240 if the transfer results from:

(a) Termination of a lease upon default by the debtor when the termination is pursuant to the terms of the lease and applicable law; or

(b) Enforcement of a security interest in compliance with ORS [79.1010 to 79.5070 and 79.8010] chapter 79.

SECTION 168. ORS 192.440 is amended to read:

192.440. (1) The custodian of any public record which a person has a right to inspect shall give the person, on demand, a certified copy of it, if the record is of a nature permitting such copying, or shall furnish reasonable opportunity to inspect or copy.

(2) If the public record is maintained in a machine readable or electronic form, the custodian shall provide copies of the public record in the form requested, if available. If the public record is not available in the form requested, it shall be made available in the form in which it is maintained.

(3) The public body may establish fees reasonably calculated to reimburse it for its actual cost in making such records available including costs for summarizing, compiling or tailoring such record, either in organization or media, to meet the person’s request. However, when the records are those filed with the Secretary of State under ORS chapter 79 or ORS 79.6020 to 79.7010, the fees for furnishing copies, summaries or compilations of such records are those established by the Secretary of State by rule, under ORS chapter 79 or ORS 79.6020 to 79.7010.

(4) The custodian of any public record may furnish copies without charge or at a substantially reduced fee if the custodian determines that the waiver or reduction of fees is in the public interest because making the record available primarily benefits the general public.

(5) A person who believes that there has been an unreasonable denial of a fee waiver or fee reduction may petition the Attorney General or the district attorney in the same manner as a person petitions when inspection of a public record is denied under ORS 192.410 to 192.505. The Attorney General, the district attorney and the court have the same authority in instances when a fee waiver or reduction is denied as it has when inspection of a public record is denied.

(6) This section does not apply to signatures of individuals submitted under ORS chapter 247 for purposes of registering to vote as provided in ORS 247.973.

SECTION 169. ORS 205.246 is amended to read:

205.246. (1) The county clerk shall record the following instruments required or permitted by law to be recorded and entered in the office of the county clerk:

(a) [Fixture filings] Financing statements recorded in the office of the county clerk under [ORS 79.3130 (1)(b)] section 72 (1)(a) of this 2001 Act;

(b) Hospital and physician liens recorded under ORS 87.565;

(c) Federal tax liens and certificates and notices affecting federal tax liens recorded under ORS 87.806;

(d) Cooperative contracts recorded under ORS 62.360;

(e) Special district assessments attaching to real property;

(f) Lien foreclosure statements recorded under ORS 87.202;

(g) A certified copy of the judgment or a lien record abstract or other liens affecting the title to real property;

(h) Building code exemptions required under ORS 455.320 and 455.345;

(i) Construction liens recorded under ORS 87.050;

(j) Liens upon chattels recorded under ORS 87.246;

(k) Liens on real property recorded under ORS 87.372;

(L) Employee benefit plan liens recorded under ORS 87.860;

(m) Attorney liens recorded under ORS 87.455 and 87.460;

(n) Long term care liens recorded under ORS 87.517;

(o) Ambulance services liens recorded under ORS 87.623;

(p) Agricultural producers liens recorded under ORS 87.720;

(q) Community property records recorded under ORS 108.530;

(r) Sheriff transfer of records recorded under ORS 206.100;

(s) Corrected instruments required under ORS 205.244;

(t) Mineral and mining records required under ORS 517.030, 517.052, 517.160, 517.180, 517.210, 517.220, 517.280, 517.310 and 517.320;

(u) Copies of records certified by a county clerk or court clerk;

(v) Subdivision and partition plats recorded under ORS 92.140;

(w) Authority to solemnize marriage recorded under ORS 106.120; and

(x) Condominiums recorded under ORS chapter 100.

(2) The county clerk shall charge and collect fees specified in ORS 205.320, 205.327 and 205.350 for recording any instrument required to be recorded under subsection (1) of this section.

(3) Indexes may be maintained for instruments recorded under subsection (1) of this section in the same manner as provided in ORS 205.160.

SECTION 170. ORS 283.089 is amended to read:

283.089. With the approval of the State Treasurer, the Director of the Oregon Department of Administrative Services may:

(1) Enter into agreements with trustees to hold financing agreement proceeds, payments and reserves as security for lenders, and to issue certificates of participation in the right to receive payments due from the state under a financing agreement. Amounts held with a trustee shall be invested by the trustee at the direction of the treasurer. Interest earned on any investments held by a trustee as security for a financing agreement may, at the option of the director, be credited to the accounts held by the trustee and applied in payment of sums due under a financing agreement.

(2) Enter into credit enhancement agreements for financing agreements or certificates of participation, provided that such credit enhancement agreements shall be payable solely from available funds and amounts received from the exercise of property rights granted under such financing agreements.

(3) Use financing agreements to finance the costs of acquiring or refinancing property, plus the costs of reserves, credit enhancements and costs associated with obtaining the financing.

(4) Use a single financing agreement to finance property to be used by multiple state agencies.

(5) Subject to ORS 283.087 (2), grant leases of real property with a trustee or lender. Such leases may be for a term which ends on the date on which all amounts due under a financing agreement have been paid or provision for payment has been made, or 10 years after the last scheduled payment under a financing agreement, whichever is later. Such leases may grant the trustee or lender the right to evict the state and exclude it from possession of the real property for the term of the lease if the state fails to pay when due the amounts scheduled to be paid under a financing agreement or otherwise defaults under a financing agreement. Upon default, the trustee or lender may sublease the land to third parties and apply any rentals toward payments scheduled to be made under a financing agreement.

(6) Subject to ORS 283.087 (2), grant security interests in personal property to trustees or lenders. Such security interests shall attach and be perfected on the date the state takes possession of the personal property, or the date the lender advances money under a financing agreement, whichever is later. A security interest authorized by this section shall have priority over all other liens and claims. Upon default, the secured party shall have the rights and remedies available to a secured party under ORS [79.1010 to 79.5070 and 79.8010] chapter 79 for a first, perfected security interest in goods and fixtures. No later than 10 days after a security interest authorized by this section attaches, the state shall cause a financing statement for the security interest to be filed with the Secretary of State in the same manner as financing statements are filed for goods; however, failure to file such a statement shall not affect the perfection of the security interest.

(7) Pledge for the benefit of trustees and lenders any amounts which are deposited with a trustee in accordance with a financing agreement. The pledge shall be valid and binding from the time it is made, the amounts so pledged shall immediately be subject to the lien of the pledge without filing, physical delivery or other act, and the lien of the pledge shall be superior to all other claims and liens of any kind whatsoever.

(8) Bill any state agency which benefits from property acquired with the proceeds of a financing agreement for an appropriate share of the financing costs, including debt service, on a monthly or other periodic basis, and deposit payments received in connection with such billings with a trustee as security for a financing agreement. Any state agency receiving such a bill shall pay the amounts billed from the first amounts legally available to it.

(9) Purchase fire and extended coverage or other casualty insurance for property which is acquired or refinanced with proceeds of a financing agreement, assign the proceeds thereof to a lender or trustee to the extent of their interest, and covenant to maintain such insurance while the financing agreement is unpaid, so long as available funds are sufficient to purchase such insurance.

SECTION 171. ORS 285B.050 is amended to read:

285B.050. As used in ORS 285B.050 to 285B.098, unless the context requires otherwise:

(1) “Business development project” means the acquisition, engineering, improvement, rehabilitation, construction, operation or maintenance of any property, real or personal, that is used or is suitable for use by an economic enterprise and that will result in, or will aid, promote or facilitate, development of one or more of the following activities:

(a) Manufacturing or other industrial production;

(b) Agricultural development or food processing;

(c) Aquacultural development or seafood processing;

(d) Development or improved utilization of natural resources;

(e) Convention facilities and trade centers;

(f) Transportation or freight facilities; and

(g) Other activities that represent new technology or type of economic enterprise the Oregon Economic and Community Development Commission determines is needed to diversify the economic base of an area but not including:

(A) Construction of office buildings, including corporate headquarters; and

(B) Retail businesses, shopping centers or food service facilities.

(2) “Commission” means the Oregon Economic and Community Development Commission established under ORS 285A.040.

(3) “Fund” means the Oregon Business Development Fund.

(4) “Collateral” [means] has the meaning given that term in section 2 of this 2001 Act for property subject to a security interest[, as defined in ORS 79.1050].

(5) “Municipality” means any city, municipal corporation or quasi-municipal corporation.

(6) “Person” means any individual, association of individuals, joint venture, partnership or corporation.

(7) “Local development group” means any public or private corporation which has as one of its primary purposes, as stated in its articles of incorporation, charter or bylaws, the promotion of economic development in any part of the State of Oregon.

(8) “Applicant” means any county, municipality, person or any combination of counties, municipalities or persons applying for a loan from the Oregon Business Development Fund under ORS 285B.050 to 285B.098.

(9) “Owned and operated by women and minorities” means, with regard to any specific business enterprise, the ownership or control of more than 50 percent of the units of proprietary or ownership interest in that business enterprise by individuals who are women or members of minorities, as defined by ORS 430.347 (2).

(10) “Emerging small business” has the meaning given that term by ORS 200.005.

(11) “County” means any county or federally recognized Oregon Indian tribe.

SECTION 172. ORS 305.182 is amended to read:

305.182. (1) The Department of Revenue may file warrants issued against any taxpayer for unpaid taxes in the Office of the Secretary of State as provided in this section.

(2) Certification of warrants for unpaid taxes by the Director of the Department of Revenue, or the representative of the director, entitles the warrants to be filed and no other certification or acknowledgment is necessary.

(3) If a warrant described in subsection (1) of this section is presented to the Secretary of State for filing, the Secretary of State shall cause the warrant to be marked, held and indexed in accordance with the provisions of [ORS 79.4030 (4)] section 90 of this 2001 Act as if the warrant were a financing statement within the meaning of ORS [79.1010 to 79.7010] chapter 79.

(4) If a certificate of release, cancellation or satisfaction of any warrant is presented to the Secretary of State for filing, the Secretary of State shall:

(a) Cause a certificate of release to be marked, held and indexed as if the certificate were a termination statement within the meaning of [ORS 79.4040] section 83 of this 2001 Act.

(b) Cause a certificate of cancellation or satisfaction to be held, marked and indexed as if the certificate were a release of collateral within the meaning of [ORS 79.4060] section 83 of this 2001 Act.

SECTION 173. ORS 305.184 is amended to read:

305.184. (1) Upon request of any person, the Secretary of State shall issue a certificate showing whether there is on file in the Office of the Secretary of State, on the date and hour stated therein, any warrant described in ORS 305.182 (1), or certificate or notice affecting any warrant naming a particular person, and if a notice or certificate is on file, giving the date and hour of its filing. All financing statements and statements of assignment, if any, filed pursuant to ORS [79.1010 to 79.7010] chapter 79 for a particular debtor whose name is identical to the particular person named in the warrant shall be shown on this certificate. The uniform fee for such a certificate for a particular person shall be prescribed by the Secretary of State by rule. If the request for the certificate is in writing and not in the standard form prescribed by the Secretary of State, an additional fee shall be prescribed. Upon request, the Secretary of State shall furnish a copy of any warrant or notice or certificate affecting a warrant for a fee per page, the fee to be as prescribed by the Secretary of State by rule. No fee prescribed under this subsection shall exceed $5.

(2) Notwithstanding the provisions of [ORS 79.4030, 79.4060, 79.4070] section 96 of this 2001 Act or subsection (1) of this section, relating to the time and manner of the payment of fees to the Secretary of State, the fee for filing and indexing each warrant described in ORS 305.182 (1) shall be charged and collected in the same manner as provided in ORS 205.395 for payment by a state agency of fees due to the county clerk for recording warrants.

SECTION 174. ORS 353.380 is amended to read:

353.380. As used in ORS 353.380 to 353.420:

(1) “Credit enhancement agreement” means any agreement or contractual relationship between the Oregon Health Sciences University and any bank, trust company, insurance company, surety bonding company, pension fund or other financial institution providing additional credit on or security for a financing agreement or certificates of participation authorized by ORS 353.380 to 353.420.

(2) “Financing agreement” means a lease-purchase agreement, an installment sale agreement, a loan agreement, note agreement, short-term promissory notes, commercial papers, lines of credit or similar obligations or any other agreement to finance real or personal property that is or will be owned and operated by the university, or to refinance previously executed financing agreements.

(3) “Personal property” means tangible personal property, software and fixtures.

(4) “Property rights” means, with respect to personal property, the rights of a secured party under ORS [79.1010 to 79.5070 and 79.8010] chapter 79, and, with respect to real property, the rights of a trustee or lender under a lease authorized by ORS 353.410 (4).

(5) “Software” means software and training and maintenance contracts related to the operation of computing equipment.

SECTION 175. ORS 471.292, as amended by section 48, chapter 351, Oregon Laws 1999, is amended to read:

471.292. (1) A license granted under the Liquor Control Act or the Oregon Distilled Liquor Control Act shall:

(a) Be a purely personal privilege.

(b) Be valid for the period stated in the license.

(c) Be renewable in the manner provided in ORS 471.311, except for a cause which would be grounds for refusal to issue such license under ORS 471.313.

(d) Be revocable or suspendible as provided in ORS 471.315.

(e) Be transferable from the place for which the license was originally issued to another location subject to the provisions of the Liquor Control Act, the Oregon Distilled Liquor Control Act, any rules of the Oregon Liquor Control Commission and any municipal ordinance or local regulation.

(f) Cease upon the death of the licensee, except as provided in subsection (2) of this section.

(g) Not constitute property.

(h) Not be alienable.

(i) Not be subject to attachment or execution.

(j) Not descend by the laws of testate or intestate devolution.

(2) The commission may, by order, provide for the manner and conditions under which:

(a) Alcoholic liquors left by any deceased, insolvent or bankrupt person or licensee, or subject to a security interest, may be foreclosed, sold under execution or otherwise disposed of.

(b) The business of any deceased, insolvent or bankrupt licensee may be operated for a reasonable period following the death, insolvency or bankruptcy.

(c) A business licensed pursuant to this chapter subject to a security interest may be continued in business by a secured party as defined in [ORS 79.1050] section 2 of this 2001 Act for a reasonable period after default on the indebtedness by the debtor.

(d) A license granted under this chapter may be transferred from the place for which the license was originally issued to another location.

SECTION 176. ORS 547.510 is amended to read:

547.510. (1) A claim for lien substantially in the following form shall be sufficient:

______________________________________________________________________________

NOTICE OF LIEN UPON CROPS

Notice is given that_________, a drainage district organized under and pursuant to the provisions of ORS chapter 547, claims a lien upon that certain crop of __________ growing on the following described lands located in the drainage district in _______ County, Oregon: _______, for that portion of the annual charges or assessments levied by the above-named drainage district against lands, or owners or occupants of the lands, on which the crop is growing, for maintenance and operation of the district, in the sum of $_____; that the name of the owner or reputed owner of the crop is______; that the owner of the land on which the crop is growing is______; that no part of the charge or assessment for which a lien herein is claimed has been paid, except $_____; and that there now is due and remaining unpaid thereon, after deducting all just credits and offsets, the sum of $_____.

___________________, Claimant.

State of Oregon, )

) ss.

County )

of___________ )

I, ________, being first duly sworn, on oath say that I am _________ of the drainage district named in the foregoing claim, that I have personal knowledge of the facts therein set out; that I know the contents thereof, and believe the same to be true.

____________________

Subscribed and sworn to before me this ____ day of_________, 2____.

____________________

Notary Public for Oregon

(Seal) My commission expires__________.

______________________________________________________________________________

(2) The lien so created may be foreclosed in the manner provided in [ORS 79.5010 to 79.5070] sections 99 to 126 of this 2001 Act.

SECTION 177. ORS 646.551 is amended to read:

646.551. As used in ORS 646.551 to 646.557, unless the context requires otherwise:

(1) “Telephonic seller” means a person who, on the person’s own behalf, or on behalf of another person, causes or attempts to cause a telephone solicitation to be made under the following circumstances:

(a) The person initiates telephonic contact with a prospective purchaser and represents or implies any of the following:

(A) That a prospective purchaser who buys one or more goods or services unit will receive additional units, whether or not of the same type as purchased, without further cost. As used in this subparagraph, “further cost” does not include actual postage or common carrier delivery charges, if any;

(B) That a prospective purchaser will receive a prize or gift if the person also encourages the prospective purchaser to do either of the following:

(i) Purchase or rent any goods or services; or

(ii) Pay any money, including, but not limited to a delivery or handling charge;

(C) That a prospective purchaser who buys goods or services, because of some unusual event or imminent price increase, will be able to buy these items at prices which are below those usually charged or will be charged for those items;

(D) That the seller is a person other than the actual seller;

(E) That the items for sale or rent are manufactured or supplied by a person other than the actual manufacturer or supplier; or

(F) That the items for sale are gold, silver or other precious metals, diamonds, rubies, sapphires or other precious stones or any interest in oil, gas or mineral fields, wells or exploration sites; or

(b) The telephone solicitation is made by the person in response to inquiries from prospective purchasers generated by advertisement, on behalf of the person and the solicitation is conducted as described in paragraph (a) of this subsection.

(2) “Telephonic seller” does not include any of the following:

(a) A person selling a security as defined in ORS 59.015, or securities which are exempt under ORS 59.025.

(b) A person licensed pursuant to ORS chapter 696 when the transaction is governed by that chapter.

(c) A person licensed pursuant to ORS 701.055 when the solicited transaction is governed by ORS chapter 701.

(d) A person licensed pursuant to ORS chapter 744 when the solicited transaction is governed by the Insurance Code.

(e) A person soliciting the sale of a franchise when the solicited transaction is governed by ORS 650.005 to 650.085.

(f) A person primarily soliciting the sale of a subscription to or advertising in a newspaper of general circulation.

(g) A person primarily soliciting the sale of a magazine or periodical, or contractual plans, including book or record clubs:

(A) Under which the seller provides the consumer with a form which the consumer may use to instruct the seller not to ship the offered merchandise, and which is regulated by the Federal Trade Commission trade regulation concerning “Use of Negative Option Plans by Sellers in Commerce”; or

(B) Using arrangements such as continuity plans, subscription arrangements, standing order arrangements, supplements and series arrangements under which the seller periodically ships merchandise to a consumer who has consented in advance to receive such merchandise on a periodic basis.

(h) A person soliciting business from prospective purchasers who have previously purchased from the business enterprise for which the person is calling.

(i) A person soliciting without the intent to complete and who does not complete the sales presentation during the telephone solicitation and who only completes the sale presentation at a later face-to-face meeting between the solicitor and the prospective purchaser, unless at that later meeting the solicitor collects or attempts to collect payment for delivery of items purchased.

(j) Any supervised financial institution or parent, subsidiary, or affiliate thereof. As used in this paragraph, “supervised financial institution” means any financial institution or trust company, as those terms are defined in ORS 706.008, or any personal property broker, consumer finance lender, commercial finance lender or insurer that is subject to regulation by an official or agency of this state or the United States.

(k) A person soliciting the sale of funeral or burial services regulated by ORS 59.670 and 59.680 or by ORS chapter 692.

(L) A person soliciting the sale of services provided by a cable television system operating under authority of a franchise or permit issued by a governmental agency of this state, or subdivision thereof.

(m) A person or affiliate of a person whose business is regulated by the Public Utility Commission, or a telecommunications utility with access lines of 15,000 or less or a cooperative telephone association.

(n) A person soliciting the sale of a farm product, as defined in [ORS 79.1090 (3)] section 2 of this 2001 Act, if the solicitation does not result in a sale which costs the purchaser in excess of $100.

(o) An issuer or a subsidiary of an issuer that has a class of securities that is subject to section 12 of the Securities Exchange Act of 1934 and that is either registered or exempt from registration under paragraph (A), (B), (C), (E), (F), (G) or (H) of subsection (g) of that section.

(p) A person soliciting exclusively the sale of telephone answering services to be provided by that person or that person’s employer.

(q) A person registered under the Charitable Solicitations Act.

SECTION 178. ORS 657.394 is amended to read:

657.394. (1) Any warrant attaching the lien under ORS 657.392 may also be filed in the office of the Secretary of State. Filing in the office of the Secretary of State shall have no effect until a copy of the statement of lien or the warrant has been recorded with the county clerk.

(2) When a copy of the statement of lien or the warrant is filed with the Secretary of State in compliance with subsection (1) of this section, such filing shall have the same effect with respect to personal property as if the copy of the statement of lien or the warrant had been duly recorded with the county clerk in each county of this state.

(3) A copy of the statement of lien or the warrant so filed with the Secretary of State shall be filed and indexed by the Secretary of State in the same manner as is provided in [ORS 79.4010] section 72 of this 2001 Act for the filing and indexing of financing statements.

SECTION 179. ORS 657.542 is amended to read:

657.542. (1) A copy of any statement of lien filed as provided in ORS 657.535 or any warrant attaching the lien of ORS 657.540 may also be filed in the office of the Secretary of State. Filing in the office of the Secretary of State shall have no effect until a copy of the statement of lien or a warrant has been recorded with a county clerk.

(2) When a copy of the statement of lien or the warrant is filed with the Secretary of State in compliance with subsection (1) of this section, such filing shall have the same effect with respect to personal property as if the copy of the statement of lien or the warrant had been duly recorded with the county clerk in each county of this state.

(3) A copy of the statement of lien or the warrant so filed with the Secretary of State shall be filed and indexed by the Secretary of State in the same manner as is provided in [ORS 79.4010] section 72 of this 2001 Act for the filing and indexing of financing statements.

SECTION 180. ORS 708A.535 is amended to read:

708A.535. (1) An institution may only grant security interests in its assets:

(a) To secure its indebtedness to a Federal Reserve Bank or Federal Home Loan Bank.

(b) To secure its borrowings from others with a maturity of 90 days or less, provided the value of the assets pledged shall not be more than 50 percent greater than the amount borrowed. If the value of the assets pledged is more than 25 percent greater than the amount borrowed or if the amount borrowed is greater than the stockholders’ equity of the bank, the transaction shall first be approved in writing by the Director of the Department of Consumer and Business Services.

(c) To secure its deposits that are not insured by the Federal Deposit Insurance Corporation provided:

(A) The value of aggregate assets pledged does not exceed 20 percent of its stockholders’ equity; and

(B) The prior written approval of the director is obtained.

(d) To secure public funds, trust funds awaiting investment or distribution, or trust funds deposited with it by an institution.

(2) Notwithstanding any other provision of state law, when an institution grants a security interest in assets to secure public funds, the depositor of the public funds and any bailee of pledged securities or other assets shall be entitled to the status of a lien creditor as defined in [ORS 79.3010 (3)] section 2 of this 2001 Act.

(3) An institution shall grant a security interest in its assets only when authorized by a general or specific prior resolution or its board of directors.

(4) As used in this section, “public funds” means deposits belonging to:

(a) The State of Oregon that may be deposited to the official credit of the State Treasurer, and funds that may be deposited in an official capacity by any state officer, board or commission.

(b) Any county within this state deposited to the official credit of the county treasurer, including the funds of any irrigation or drainage district organized under the laws of this state, or any school district within this state where funds of the school district are deposited with the county treasurer, and funds that may be deposited in an official capacity by any county officer.

(c) Any port, port commission, dock or dock commission within this state that may be deposited to the credit of the port, port commission, dock or dock commission, or the treasurer thereof.

(d) Any city within this state deposited to the official credit of the city treasurer, and funds that may be deposited in an official capacity by any officer of any municipal corporation.

(e) Any school district within this state.

(f) Any district organized under the laws of this state with the power to levy taxes.

(g) Any housing authority organized and operating pursuant to ORS 456.055 to 456.235.

(h) The United States and any of its agencies and instrumentalities to be deposited in the manner and under the rules prescribed by the United States Government.

SECTION 181. ORS 722.264 is amended to read:

722.264. (1) Personal representatives, trustees and other fiduciaries; banks, trust companies, credit unions and similar financial organizations; charitable, educational and eleemosynary corporations, funds and organizations; and municipal and other public corporations and public officials may invest funds held by them, without any order of any court, in savings accounts of savings associations and federal associations. Such investments shall be considered legal investments.

(2) A savings association may pledge its assets to secure public funds as provided under ORS chapter 295. For the purposes of this section, “public funds” has the meaning given that term by ORS 295.005.

(3) When a deposit of securities or a bond with security is required for any purpose under the laws of this state or otherwise, a savings account of an association or federal association is acceptable for such a deposit or security.

(4) This section is supplemental to other laws relating to legal investments and to the deposit of securities and the filing of bonds for any purpose.

(5) Notwithstanding any other provision of law, when a savings association or federal association pledges securities or any other assets to secure public funds, the custodian of such public funds shall be a lien creditor, as defined in [ORS 79.3010] section 2 of this 2001 Act, with respect to the securities or assets which have been pledged to secure such funds.

SECTION 182. ORS 725.360 is amended to read:

725.360. Every licensee shall:

(1) Deliver to the borrower at the time any loan is made a statement in the English language showing in clear and distinct terms:

(a) The name and address of the borrower and of the licensee.

(b) The amount and the date of the loan and of its maturity or terms of payment.

(c) The rate of interest agreed upon or consideration to be charged therefor.

(d) The nature of the security for the loan, if a lien on personal property has been taken by chattel mortgage, bill of sale, collateral agreement or otherwise.

(2) Make available to the borrower upon request a plain and complete receipt for all payments made on account of any such loan at the time such payments are received by the licensee, specifying the amount applied to interest, if any, the date to which the interest is paid, the amount applied to principal, if any, and the unpaid principal balance of such loan, if any remains.

(3) Permit payment to be made in advance in any amount on any loan at any time.

(4) Upon repayment of the loan in full or upon renewal thereof, mark indelibly such obligation signed by the borrower with the word “Paid” or “Renewed.” In the case of repayment in full the licensee also shall do the following:

(a) To the extent and in the manner required by law, release any mortgage or security agreement that no longer secures a loan, and restore any security or collateral.

(b) Release any Uniform Commercial Code filing that no longer secures a loan, to the extent and in the manner required by [ORS 79.4040] section 84 of this 2001 Act.

(c) Return any assignment given by the borrower.

(d) Return to the borrower the canceled note evidencing the loan or alternatively, acknowledge in writing to the borrower that the loan has been repaid.

SECTION 183. ORS 803.015 is amended to read:

803.015. The Department of Transportation shall design a certificate of title for vehicles for situations in which the department determines that certificates will be issued. A certificate of title issued by the department shall conform to all of the following:

(1) The certificate shall be numbered in a manner prescribed by the department.

(2) The certificate shall contain a description of the vehicle.

(3) The certificate shall contain evidence of identification of the vehicle the department deems proper.

(4) The certificate shall contain the name of the owner of the vehicle.

(5) The certificate shall identify any security interest holders in the order of their priority. This subsection does not apply to the security interests where the debtor who granted the security interest is in the business of selling vehicles and the vehicle constitutes inventory held for sale or lease.

(6) The certificate shall identify any lessor of the vehicle.

(7) The certificate shall be authenticated by a seal of the State of Oregon printed on the certificate.

(8) The certificate shall have space to fill in information required by the department upon the transfer of a vehicle under ORS 803.094 and space for the odometer disclosure required on transfer of an interest under ORS 803.102.

(9) If the vehicle is a reconstructed vehicle, the certificate shall:

(a) Show the original year model and make of the vehicle.

(b) Indicate that the vehicle is reconstructed. A certificate of title shall not indicate that a vehicle is reconstructed as otherwise required by this paragraph if the reconstructed vehicle is an antique vehicle.

(10) If the vehicle is an assembled vehicle, the certificate shall:

(a) Show the make of the vehicle as “assembled.”

(b) Show the year the building of the vehicle is completed as the year model of the vehicle.

(11) The certificate shall show the mileage of the vehicle as reported to the department at the time the most recent title transfer was reported to the department, or the mileage reported to the department at the time the vehicle was initially titled in Oregon, whichever occurred last. The information required by this subsection shall be shown as reported to the department on odometer disclosure reports required by law to be submitted to the department.

(12) If the vehicle is a replica, the certificate shall indicate that the vehicle is a replica.

(13) The certificate shall contain a notation that a vehicle has been damaged if the vehicle is from another jurisdiction and:

(a) The title from the other jurisdiction carries a brand or notation that indicates that the vehicle was damaged, destroyed, salvaged or words of similar import, whether or not the definitions of such terms in the other jurisdiction are in accord with the definitions of those words in Oregon; or

(b) The department receives a salvage title, salvage certificate, wrecker’s bill of sale or similar document or information that indicates the vehicle has been damaged.

(14) The department shall adopt rules covering the content and circumstances under which the notation provided for in subsection (13) of this section is used.

(15) The department may omit the notation or remove the notation provided for in subsection (13) of this section if:

(a) The department is provided with information from the originating jurisdiction that indicates that its title incorrectly reflects a brand or notation;

(b) The department is provided with information from the originating jurisdiction indicating that jurisdiction would not identify the vehicle as damaged; or

(c) The department is satisfied the notation was placed on an Oregon title in error.

(16) Notwithstanding subsection (15) of this section, if the department determines the vehicle in question meets Oregon requirements for assembled or reconstructed vehicles or replicas, the department shall title the vehicle in accordance with requirements for those vehicles.

(17) If the vehicle has been reported to the department as a totaled vehicle under the provisions of ORS 819.012 or 819.014, the certificate shall contain the word “totaled” unless the reason for the report was theft and the vehicle has been recovered.

(18) The certificate shall contain any other information required by the department.

(19) The certificate shall be produced by a secure process that meets or exceeds the requirements of federal law.

SECTION 184. ORS 803.097 is amended to read:

803.097. (1) Except as provided in subsection [(4)] (5) of this section, the exclusive means for perfecting a security interest in a vehicle is by application for notation of the security interest on the title in accordance with this section. The application may accompany the application for a title or may be made separately at any time prior to issuance of title and must be accompanied by evidence of ownership as defined by the Department of Transportation by rule unless the department is in possession of evidence of ownership when it receives the application. If title to the vehicle has been issued in a form other than a certificate, and the title reflects a security interest, the application for perfection shall include authorization from the previous security interest holder for the new security interest to be recorded on the title. Authorization under this subsection is not required if:

(a) A release of interest is submitted by the prior security interest holder or the department is otherwise satisfied that the prior holder no longer holds an interest or is otherwise not entitled to title to the vehicle;

(b) The security interest is being added to the title in conjunction with the cancellation of previous title or other action the department takes to correct ownership information reflected on a title; or

(c) Title is being transferred by operation of law.

(2) When the department processes an application for a security interest the department shall mark on the application or otherwise indicate on the record the date the application was first received by the department. The department shall determine by rule what constitutes receipt of an application for purposes of this subsection.

(3) If the department has the evidence required by subsection (1) of this section and if the application contains the name of each owner of the vehicle, the name and address of the secured party and the vehicle identification number of the collateral, the security interest is perfected as of the date marked on the application or indicated in the record by the department. If the application does not contain the information required by this subsection, or if the department does not have the required evidence, the department shall indicate on the application or on the record that the date placed on the application or the record pursuant to subsection (2) of this section is not the date of perfection of the security interest.

(4) The security interest remains effective until released or terminated by the secured party.

[(4)] (5) A security interest in a vehicle may not be perfected as described under this section but is subject to the perfection provisions under ORS chapter 79 if the debtor who granted the security interest is in the business of selling vehicles and the vehicle constitutes inventory held for sale or lease.

SECTION 185. ORS 830.740 is amended to read:

830.740. (1) Except as provided in subsection (2) of this section, the exclusive means of perfecting a security interest in a boat, boathouse or floating home covered by a certificate of title is by application for and notation of the security interest on the certificate of title in accordance with the provisions of ORS 830.720, 830.740 to 830.755, 830.785, 830.810, 830.850 and 830.855. The security interest remains effective until released or terminated by the secured party.

(2) A security interest may not be perfected by notation of the security interest on the certificate of title if the debtor who granted the security interest is in the business of selling boats, boathouses or floating homes, and the boat, boathouse or floating home constitutes inventory held for sale or lease or the boat, boathouse or floating home is leased by the debtor as lessor. The filing provisions of [ORS 79.4010 to 79.4070] sections 72 to 98 of this 2001 Act shall apply to security interests in such boats, boathouses or floating homes.

(3) The rights and remedies of all persons in boats, boathouses and floating homes covered by this section shall be determined by the provisions of the Uniform Commercial Code.

SECTION 186. ORCP 81 A is amended to read:

A Definitions. As used in Rules 81 through 85, unless the context otherwise requires:

A(1) Attachment. “Attachment” is the procedure by which an unsecured plaintiff obtains a judicial lien on defendant’s property prior to judgment.

A(2) Bank. “Bank” includes commercial and savings banks, trust companies, savings and loan associations, and credit unions.

A(3) Clerk. “Clerk” means clerk of the court or any person performing the duties of that office.

A(4) Consumer goods. “Consumer goods:q2e. means consumer goods as defined in [ORS 79.1090] section 2 of this 2001 Act.

A(5) Consumer transaction. “Consumer transaction:q2e. means a transaction in which the defendant becomes obligated to pay for goods sold or leased, services rendered, or monies loaned, primarily for purposes of the defendant’s personal, family, or household use.

A(6) Issuing officer. “Issuing officer:q2e. means any person who on behalf of the court is authorized to issue provisional process.

A(7) Levy. “Levy” means to create a lien upon property prior to judgment by any of the procedures provided by Rules 81 through 85 that create a lien.

A(8) Plaintiff and defendant. :q2.Plaintiff:q2e. includes any party asserting a claim for relief whether by way of claim, third party claim, cross-claim, or counterclaim, and “defendant” includes any person against whom such claim is asserted.

A(9) Provisional process. :q2.Provisional process:q2e. means attachment under Rule 84, claim and delivery under Rule 85, temporary restraining orders under Rule 83, preliminary injunctions under Rule 83, or any other legal or equitable judicial process or remedy which before final judgment enables a plaintiff, or the court on behalf of the plaintiff, to take possession or control of, or to restrain use or disposition of, or fix a lien on property in which the defendant claims an interest, except an order appointing a provisional receiver under Rule 80 or granting a temporary restraining order or preliminary injunction under Rule 79.

A(10) Security interest. “Security interest:q2e. means a lien created by agreement, as opposed to a judicial or statutory lien.

A(11) Sheriff. “Sheriff:q2e. includes a constable of a justice court.

A(12) Writ. A “writ” is an order by a court to a sheriff or other official to aid a creditor in attachment.

SECTION 187. ORS 79.1010, 79.1020, 79.1030, 79.1040, 79.1050, 79.1060, 79.1070, 79.1080, 79.1090, 79.1100, 79.1120, 79.1130, 79.1150, 79.1160, 79.2010, 79.2020, 79.2030, 79.2040, 79.2050, 79.2060, 79.2070, 79.2080, 79.3010, 79.3015, 79.3020, 79.3030, 79.3040, 79.3050, 79.3060, 79.3070, 79.3080, 79.3090, 79.3100, 79.3110, 79.3120, 79.3130, 79.3132, 79.3140, 79.3150, 79.3160, 79.3170, 79.3180, 79.4010, 79.4016, 79.4020, 79.4023, 79.4025, 79.4030, 79.4040, 79.4050, 79.4060, 79.4070, 79.4080, 79.4090, 79.5010, 79.5020, 79.5030, 79.5040, 79.5050, 79.5060 and 79.5070 are repealed.

TRANSITION

SECTION 188. 9-702. Savings clause. (1) Pre-effective-date transactions or liens. Except as otherwise provided in this section and sections 189 to 195 of this 2001 Act, sections 1 to 128, 147, 148, 158 and 188 to 195 of this 2001 Act, the amendments to statutes by sections 129 to 146, 149 to 157 and 159 to 185 of this 2001 Act, the amendments to ORCP 81 A by section 186 of this 2001 Act and the repeal of statutes by section 187 of this 2001 Act apply to a transaction or lien within its scope, even if the transaction or lien was entered into or created before the effective date of this 2001 Act.

(2) Continuing validity. Except as otherwise provided in subsection (3) of this section and sections 189 to 195 of this 2001 Act:

(a) Transactions and liens that were not governed by ORS 79.1010 to 79.5070 and 79.8010 (1999 Edition), were validly entered into or created before the effective date of this 2001 Act, and would be subject to sections 1 to 128, 147, 148, 158 and 188 to 195 of this 2001 Act, the amendments to statutes by sections 129 to 146, 149 to 157 and 159 to 185 of this 2001 Act, the amendments to ORCP 81 A by section 186 of this 2001 Act and the repeal of statutes by section 187 of this 2001 Act if they had been entered into or created after the effective date of this 2001 Act, and the rights, duties and interests flowing from those transactions and liens, remain valid after the effective date of this 2001 Act; and

(b) The transactions and liens may be terminated, completed, consummated and enforced as required or permitted by sections 1 to 128, 147, 148, 158 and 188 to 195 of this 2001 Act, the amendments to statutes by sections 129 to 146, 149 to 157 and 159 to 185 of this 2001 Act, the amendments to ORCP 81 A by section 186 of this 2001 Act and the repeal of statutes by section 187 of this 2001 Act or by the law that otherwise would apply if sections 1 to 128, 147, 148, 158 and 188 to 195 of this 2001 Act, the amendments to statutes by sections 129 to 146, 149 to 157 and 159 to 185 of this 2001 Act, the amendments to ORCP 81 A by section 186 of this 2001 Act and the repeal of statutes by section 187 of this 2001 Act had not taken effect.

(3) Pre-effective-date proceedings. Sections 1 to 128, 147, 148, 158 and 188 to 195 of this 2001 Act, the amendments to statutes by sections 129 to 146, 149 to 157 and 159 to 185 of this 2001 Act, the amendments to ORCP 81 A by section 186 of this 2001 Act and the repeal of statutes by section 187 of this 2001 Act do not affect an action, case or proceeding commenced before the effective date of this 2001 Act.

SECTION 189. 9-703. Security interest perfected before effective date. (1) Continuing priority over lien creditor: Perfection requirements satisfied. A security interest that is enforceable immediately before the effective date of this 2001 Act and would have priority over the rights of a person that becomes a lien creditor at that time is a perfected security interest under sections 1 to 128, 147, 148, 158 and 188 to 195 of this 2001 Act, the amendments to statutes by sections 129 to 146, 149 to 157 and 159 to 185 of this 2001 Act, the amendments to ORCP 81 A by section 186 of this 2001 Act and the repeal of statutes by section 187 of this 2001 Act if, on the effective date of this 2001 Act, the applicable requirements for enforceability and perfection under sections 1 to 128, 147, 148, 158 and 188 to 195 of this 2001 Act, the amendments to statutes by sections 129 to 146, 149 to 157 and 159 to 185 of this 2001 Act, the amendments to ORCP 81 A by section 186 of this 2001 Act and the repeal of statutes by section 187 of this 2001 Act are satisfied without further action.

(2) Continuing priority over lien creditor: Perfection requirements not satisfied. Except as otherwise provided in section 191 of this 2001 Act, if, immediately before the effective date of this 2001 Act, a security interest is enforceable and would have priority over the rights of a person that becomes a lien creditor at that time, but the applicable requirements for enforceability or perfection under sections 1 to 128, 147, 148, 158 and 188 to 195 of this 2001 Act, the amendments to statutes by sections 129 to 146, 149 to 157 and 159 to 185 of this 2001 Act, the amendments to ORCP 81 A by section 186 of this 2001 Act and the repeal of statutes by section 187 of this 2001 Act are not satisfied on the effective date of this 2001 Act, the security interest:

(a) Is a perfected security interest for one year after the effective date of this 2001 Act;

(b) Remains enforceable thereafter only if the security interest becomes enforceable under section 13 of this 2001 Act before the year expires; and

(c) Remains perfected thereafter only if the applicable requirements for perfection under sections 1 to 128, 147, 148, 158 and 188 to 195 of this 2001 Act, the amendments to statutes by sections 129 to 146, 149 to 157 and 159 to 185 of this 2001 Act, the amendments to ORCP 81 A by section 186 of this 2001 Act and the repeal of statutes by section 187 of this 2001 Act are satisfied before the year expires.

SECTION 190. 9-704. Security interest unperfected before effective date. A security interest that is enforceable immediately before the effective date of this 2001 Act but would be subordinate to the rights of a person that becomes a lien creditor at that time:

(1) Remains an enforceable security interest for one year after the effective date of this 2001 Act;

(2) Remains enforceable thereafter if the security interest becomes enforceable under section 13 of this 2001 Act on the effective date of this 2001 Act or within one year thereafter; and

(3) Becomes perfected:

(a) Without further action, on the effective date of this 2001 Act if the applicable requirements for perfection under sections 1 to 128, 147, 148, 158 and 188 to 195 of this 2001 Act, the amendments to statutes by sections 129 to 146, 149 to 157 and 159 to 185 of this 2001 Act, the amendments to ORCP 81 A by section 186 of this 2001 Act and the repeal of statutes by section 187 of this 2001 Act are satisfied before or at that time; or

(b) When the applicable requirements for perfection are satisfied if the requirements are satisfied after that time.

SECTION 191. 9-705. Effectiveness of action taken before effective date. (1) Pre-effective-date action; one-year perfection period unless reperfected. If action, other than the filing of a financing statement, is taken before the effective date of this 2001 Act and the action would have resulted in priority of a security interest over the rights of a person that becomes a lien creditor had the security interest become enforceable before the effective date of this 2001 Act, the action is effective to perfect a security interest that attaches under sections 1 to 128, 147, 148, 158 and 188 to 195 of this 2001 Act, the amendments to statutes by sections 129 to 146, 149 to 157 and 159 to 185 of this 2001 Act, the amendments to ORCP 81 A by section 186 of this 2001 Act and the repeal of statutes by section 187 of this 2001 Act within one year after the effective date of this 2001 Act. An attached security interest becomes unperfected one year after the effective date of this 2001 Act unless the security interest becomes a perfected security interest under sections 1 to 128, 147, 148, 158 and 188 to 195 of this 2001 Act, the amendments to statutes by sections 129 to 146, 149 to 157 and 159 to 185 of this 2001 Act, the amendments to ORCP 81 A by section 186 of this 2001 Act and the repeal of statutes by section 187 of this 2001 Act before the expiration of that period.

(2) Pre-effective-date filing. The filing of a financing statement before the effective date of this 2001 Act is effective to perfect a security interest to the extent the filing would satisfy the applicable requirements for perfection under sections 1 to 128, 147, 148, 158 and 188 to 195 of this 2001 Act, the amendments to statutes by sections 129 to 146, 149 to 157 and 159 to 185 of this 2001 Act, the amendments to ORCP 81 A by section 186 of this 2001 Act and the repeal of statutes by section 187 of this 2001 Act.

(3) Pre-effective-date filing in jurisdiction formerly governing perfection. Sections 1 to 128, 147, 148, 158 and 188 to 195 of this 2001 Act, the amendments to statutes by sections 129 to 146, 149 to 157 and 159 to 185 of this 2001 Act, the amendments to ORCP 81 A by section 186 of this 2001 Act and the repeal of statutes by section 187 of this 2001 Act do not render ineffective an effective financing statement that, before the effective date of this 2001 Act, is filed and satisfies the applicable requirements for perfection under the law of the jurisdiction governing perfection as provided in ORS 79.1030 (1999 Edition). However, except as otherwise provided in subsections (4) and (5) of this section and section 192 of this 2001 Act, the financing statement ceases to be effective at the earlier of:

(a) The time the financing statement would have ceased to be effective under the law of the jurisdiction in which it is filed; or

(b) June 30, 2006.

(4) Continuation statement. The filing of a continuation statement after the effective date of this 2001 Act does not continue the effectiveness of the financing statement filed before the effective date of this 2001 Act. However, upon the timely filing of a continuation statement after the effective date of this 2001 Act and in accordance with the law of the jurisdiction governing perfection as provided in sections 21 to 62 of this 2001 Act, the effectiveness of a financing statement filed in the same office in that jurisdiction before the effective date of this 2001 Act continues for the period provided by the law of that jurisdiction.

(5) Application of subsection (3)(b) to transmitting utility financing statement. Subsection (3)(b) of this section applies to a financing statement that, before the effective date of this 2001 Act, is filed against a transmitting utility and satisfies the applicable requirements for perfection under the law of the jurisdiction governing perfection as provided in ORS 79.1030 (1999 Edition) only to the extent that sections 21 to 62 of this 2001 Act provide that the law of a jurisdiction other than the jurisdiction in which the financing statement is filed governs perfection of a security interest in collateral covered by the financing statement.

(6) Application of sections 72 to 98 of this 2001 Act. A financing statement that includes a financing statement filed before the effective date of this 2001 Act and a continuation statement filed after the effective date of this 2001 Act is effective only to the extent that it satisfies the requirements of sections 72 to 98 of this 2001 Act for an initial financing statement.

SECTION 192. 9-706. When initial financing statement suffices to continue effectiveness of financing statement. (1) Initial financing statement in lieu of continuation statement. The filing of an initial financing statement in the office specified in section 72 of this 2001 Act continues the effectiveness of a financing statement filed before the effective date of this 2001 Act if:

(a) The filing of an initial financing statement in that office would be effective to perfect a security interest under sections 1 to 128, 147, 148, 158 and 188 to 195 of this 2001 Act, the amendments to statutes by sections 129 to 146, 149 to 157 and 159 to 185 of this 2001 Act, the amendments to ORCP 81 A by section 186 of this 2001 Act and the repeal of statutes by section 187 of this 2001 Act;

(b) The pre-effective-date financing statement was filed in an office in another state or another office in this state; and

(c) The initial financing statement satisfies subsection (3) of this section.

(2) Period of continued effectiveness. The filing of an initial financing statement under subsection (1) of this section continues the effectiveness of the pre-effective-date financing statement:

(a) If the initial financing statement is filed before this the effective date of this 2001 Act, for the period provided in ORS 79.4030 (1999 Edition) with respect to a financing statement; and

(b) If the initial financing statement is filed after the effective date of this 2001 Act, for the period provided in section 86 of this 2001 Act with respect to an initial financing statement.

(3) Requirements for initial financing statement under subsection (1). To be effective for purposes of subsection (1) of this section, an initial financing statement must:

(a) Satisfy the requirements of sections 72 to 98 of this 2001 Act for an initial financing statement;

(b) Identify the pre-effective-date financing statement by indicating the office in which the financing statement was filed and providing the dates of filing and file numbers, if any, of the financing statement and of the most recent continuation statement filed with respect to the financing statement; and

(c) Indicate that the pre-effective-date financing statement remains effective.

SECTION 193. 9-707. Amendment of pre-effective-date financing statement. (1) “Pre-effective-date financing statement.” As used in this section, “pre-effective-date financing statement” means a financing statement filed before the effective date of this 2001 Act.

(2) Applicable law. After the effective date of this 2001 Act, a person may add or delete collateral covered by, continue or terminate the effectiveness of, or otherwise amend the information provided in, a pre-effective-date financing statement only in accordance with the law of the jurisdiction governing perfection as provided in sections 21 to 62 of this 2001 Act. However, the effectiveness of a pre-effective-date financing statement also may be terminated in accordance with the law of the jurisdiction in which the financing statement is filed.

(3) Method of amending: general rule. Except as otherwise provided in subsection (4) of this section, if the law of this state governs perfection of a security interest, the information in a pre-effective-date financing statement may be amended after the effective date of this 2001 Act only if:

(a) The pre-effective-date financing statement and an amendment are filed in the office specified in section 72 of this 2001 Act;

(b) An amendment is filed in the office specified in section 72 of this 2001 Act concurrently with, or after the filing in that office of, an initial financing statement that satisfies section 192 (3) of this 2001 Act; or

(c) An initial financing statement that provides the information as amended and satisfies section 192 (3) of this 2001 Act is filed in the office specified in section 72 of this 2001 Act.

(4) Method of amending: continuation. If the law of this state governs perfection of a security interest, the effectiveness of a pre-effective-date financing statement may be continued only under sections 191 (4) and (6) or 192 of this 2001 Act.

(5) Method of amending: additional termination rule. Whether or not the law of this state governs perfection of a security interest, the effectiveness of a pre-effective-date financing statement filed in this state may be terminated after the effective date of this 2001 Act by filing a termination statement in the office in which the pre-effective-date financing statement is filed, unless an initial financing statement that satisfies section 192 (3) of this 2001 Act has been filed in the office specified by the law of the jurisdiction governing perfection as provided in sections 21 to 62 of this 2001 Act as the office in which to file a financing statement.

SECTION 194. 9-708. Persons entitled to file initial financing statement or continuation statement. A person may file an initial financing statement or a continuation statement under sections 188 to 195 of this 2001 Act if:

(1) The secured party of record authorizes the filing; and

(2) The filing is necessary under sections 188 to 195 of this 2001 Act:

(a) To continue the effectiveness of a financing statement filed before the effective date of this 2001 Act; or

(b) To perfect or continue the perfection of a security interest.

SECTION 195. 9-709. Priority. (1) Law governing priority. Sections 1 to 128, 147, 148, 158 and 188 to 195 of this 2001 Act, the amendments to statutes by sections 129 to 146, 149 to 157 and 159 to 185 of this 2001 Act, the amendments to ORCP 81 A by section 186 of this 2001 Act and the repeal of statutes by section 187 of this 2001 Act determine the priority of conflicting claims to collateral. However, if the relative priorities of the claims were established before the effective date of this 2001 Act, ORS 79.1010 to 79.5070 and 79.8010 (1999 Edition) determine priority.

(2) Priority if security interest becomes enforceable under section 13 of this 2001 Act. For purposes of section 42 (1) of this 2001 Act, the priority of a security interest that becomes enforceable under section 13 of this 2001 Act dates from the effective date of this 2001 Act if the security interest is perfected under sections 1 to 128, 147, 148, 158 and 188 to 195 of this 2001 Act, the amendments to statutes by sections 129 to 146, 149 to 157 and 159 to 185 of this 2001 Act, the amendments to ORCP 81 A by section 186 of this 2001 Act and the repeal of statutes by section 187 of this 2001 Act by the filing of a financing statement before the effective date of this 2001 Act which would not have been effective to perfect the security interest under ORS 79.1010 to 79.5070 and 79.8010 (1999 Edition). This subsection does not apply to conflicting security interests each of which is perfected by the filing of such a financing statement.

TITLE LOANS

SECTION 196. Sections 197 to 202 of this 2001 Act are added to and made a part of ORS chapter 725.

SECTION 197. As used in sections 197 to 202 of this 2001 Act:

(1) A lender is “in the business of making title loans” if at least 10 percent of all loans made by the lender are title loans.

(2) “Lender” includes individuals, corporations, associations, firms, partnerships, limited liability companies and joint stock companies. “Lender” does not include a financial institution or trust company, as those terms are defined in ORS 706.008.

(3) “Title loan” means a loan, other than a purchase money loan:

(a)(A) Secured by the title to a motor vehicle, recreational vehicle, boat or mobile home;

(B) Made for a period of 60 days or less;

(C) With a single payment payback; and

(D) Made by a lender in the business of making title loans; or

(b) That is secured, substantially equivalent to a title loan as defined in paragraph (a) of this subsection, and designated as a title loan by rule or order of the Director of the Department of Consumer and Business Services.

SECTION 198. A lender may not make a title loan to a consumer without forming a good faith belief that the consumer has the ability to repay the title loan. In forming a good faith belief, the lender shall consider factors adopted by the Director of the Department of Consumer and Business Services by rule. A lender that meets conditions adopted by the director by rule shall be deemed to be in compliance with this section.

SECTION 199. A lender in the business of making title loans may not:

(1) Include any of the following provisions in a title loan contract:

(a) A hold-harmless clause;

(b) A confession of judgment or other waiver of the right to notice and the opportunity to be heard in an action;

(c) An agreement by the consumer not to assert any claim or defense arising out of the contract against the lender or any holder in due course;

(d) An executory waiver or a limitation of exemption from attachment, execution or other process on real or personal property held by, owned by or due to the consumer, unless the waiver or limitation applies only to property subject to a security interest executed in connection with the loan; or

(e) A clause permitting the continuation of interest after repossession of the consumer’s motor vehicle, recreational vehicle, boat or mobile home;

(2) Conduct a title loan business where liquor or lottery tickets are sold or where gambling devices are located;

(3) Charge the consumer more than one fee under ORS 30.701 for dishonored checks when the consumer issues more than one check to the lender. However, the lender may recover from the consumer any fee charged to the lender by an unaffiliated financial institution for each dishonored check;

(4) Require or accept from a consumer a set of keys to the motor vehicle, recreational vehicle, boat or mobile home whose title secures the title loan;

(5) Make more than one outstanding loan that is secured by one title;

(6) Renew a loan that is secured by one title more than six times after the loan is first made; or

(7) Make a new loan, secured by a title, to a consumer on the same day that a previous loan, secured by the same title, expires if the lender has renewed the previous loan six times. The lender shall wait at least until the next day after the expiration date of the previous loan before making the new loan to the consumer.

SECTION 200. A person may not act as an agent or facilitator for the purpose of making a title loan without first obtaining a license under this chapter, regardless of whether the principal making the loan is required to obtain a license.

SECTION 201. (1) A lender in the business of making title loans shall include in every title loan contract a notice, printed in type size equal to at least 12-point type, stating that the consumer or the consumer’s attorney may file a complaint with the Director of the Department of Consumer and Business Services as provided in this section.

(2) Any person claiming to be aggrieved by a practice that violates a provision of section 198, 199 or 200 of this 2001 Act or any rule adopted under section 202 of this 2001 Act, or the person’s attorney, may file with the director a verified complaint in writing. The person shall state in the complaint the name and address of the lender alleged to have committed the unlawful practice and the particulars of the alleged unlawful practice. The director may require the person to set forth in the complaint other information that the director considers pertinent. The person may file the complaint no later than one year after the alleged unlawful practice.

(3) After the filing of a complaint under this section, the director may cause an investigation to be made under ORS 725.310.

SECTION 202. In accordance with ORS 183.310 to 183.550, the Director of the Department of Consumer and Business Services may adopt rules for the purpose of carrying out the provisions of sections 197 to 202 of this 2001 Act, including but not limited to establishing contract terms, charges and fees for title loans.

SECTION 203. ORS 725.910 is amended to read:

725.910. (1) The Director of the Department of Consumer and Business Services may assess against any person who violates any provision of this chapter, or any rule or final order of the director under this chapter, a civil penalty in an amount determined by the director of not more than $2,500. In addition, if a licensee commits such a violation, the director may revoke the license of the licensee.

(2) Civil penalties under this section shall be imposed as provided in ORS 183.090.

(3) Except as provided in subsection (4) of this section, all moneys collected under this section shall be paid to the State Treasurer and credited as provided in ORS 705.145.

(4) In addition to any other penalty provided by law, the director may assess against any person who lends money without the license required under this chapter a civil penalty in an amount equal to the interest received that exceeds nine percent per annum. The director shall pay all moneys collected under this subsection to the Division of State Lands for the benefit of the Common School Fund.

CAPTIONS

SECTION 204. The unit, section and subsection captions used in this 2001 Act are provided only for the convenience of the reader and do not become part of the statutory law of this state or express any legislative intent in the enactment of this 2001 Act.

EMERGENCY CLAUSE

SECTION 205. This 2001 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2001 Act takes effect July 1, 2001.

Approved by the Governor June 19, 2001

Filed in the office of Secretary of State June 19, 2001

Effective date July 1, 2001

__________