Proceeds in Bankruptcy Under Revised Article 9
Two sets of UCC rules must be considered when dealing with after-acquired property. First, both current law and revised Article 9 broadly validate "after-acquired property" clauses. See current §§9-204(1) and 9-204(a). Thus, if proper language is included in the security agreement, the security interest will extend to property acquired by the debtor in the future, even if that future property is not derived from or in any way related to the creditor's original collateral. If, however, the future property qualifies as "proceeds," then the security interest automatically attaches to the future property without the need for any language in the security agreement.
It is difficult to predict the bankruptcy impact of the changes in the UCC proceeds rules. Since these rules extend the reach of the secured creditor's security interest, one likely effect of these and other changes in the UCC will be that the secured creditor's lien will cover more assets at the time bankruptcy is filed. However, as noted above, a similar result can be achieved under both the current law and revised Article 9 by including an "after-acquired property" clause in the security agreement. Thus, sophisticated lenders probably already obtain security interests in most types of after-acquired property that are now included in the expanded "proceeds" definition.
The Article 9 revision is likely to have a significant impact on cash-collateral issues. With the exception of a few non-uniform states, current Article 9 excludes deposit accounts (bank accounts) from its scope. See current §9-104(l). Thus, under current law, it is not possible to take an Article 9 security interest in the debtor's bank accounts as "original collateral."2 A secured creditor can, however, obtain a lien on the funds in the deposit account, but only if those funds are proceeds of some other collateral. Thus, currently cash collateral issues under §363 of the Bankruptcy Code involve primarily proceeds collateral.
Since the revised act permits creditors to take security interests in deposit accounts as original collateral,3 such accounts will likely be subject to liens even when the funds in the accounts are not proceeds of some other collateral. This may make it difficult for the debtor to provide adequate protection, which is required as a pre-condition to the use of cash collateral under §363 of the Bankruptcy Code.
Currently, if the cash collateral is the proceeds of some other item of the same creditor's collateral, it may be possible to provide adequate protection by agreeing to use the cash collateral to enhance or maintain the value of the non-cash collateral. For example, rents can be used to operate and maintain the real estate collateral, or the cash proceeds of inventory can be used to purchase new inventory. However, if the first priority lien on the deposit account is held by a creditor that does not have other collateral, the debtor may be not be able to use the funds in the account to operate the business unless it can provide some other form of adequate protection.
This problem will be exacerbated by the new priority rules for deposit accounts. These rules increase the likelihood that the creditor with the first priority lien in the deposit account will not be the creditor who also holds a lien on the debtor's inventory or other productive assets.
Under current law, when proceeds are deposited into a bank account, the perfected-proceeds lender has priority over the depositary bank's right of set-off.4 Further, since deposit accounts cannot be original collateral under current law, there is rarely a competing non-proceeds creditor with a valid lien on the account. However, under revised Article 9, the depository bank's rights of set-off and recoupment generally will have priority over the proceeds security interest. See §9-340(a). Further, if a competing creditor has obtained a security interest in the bank account as original collateral and has perfected by control, its security interest will also be superior to the proceeds security interest. See §9-327(1). Finally, even if the proceeds creditor foresees the problem and obtains and perfects an Article 9 security interest in the account as original collateral, its perfected security interest generally will be subordinate to an Article 9 security interest held by the depository bank. See §9-327(3) and (4).
In addition to the new deposit account rules, the changes in the proceeds rule will have two significant effects in the cash-collateral area. First, since the proceeds rule now extends to a wider range of income generated by the original collateral, the likelihood that the funds in the debtor's bank account constitute "cash collateral" will be much greater. For example, if rental fees, license fees or stock dividends have been deposited into the debtor's bank account pre-petition, the funds in the account will now be the "cash collateral" of the creditor holding a security interest in the asset that generated those fees. Thus, the debtor-in-possession must seek a cash collateral order under §363 before using those funds.
The second change deals with cash proceeds that have been commingled. Under current law, a special rule applies when the debtor becomes involved in an insolvency proceeding. Current §9-306(4)(d) limits the creditor's proceeds security interest in funds that have been deposited into a commingled bank account to the amount of any cash proceeds received by the debtor within 10 days before the institution of the insolvency proceeding. This provision has generated conflicting case law5 and could have the drastic effect of cutting off the proceeds claim if no funds were received during the 10-day period.6
The revised act eliminates the special insolvency proceeds rule. As a result, the proceeds claim will no longer be artificially limited by the 10-day rule. In addition, the revised act expressly authorizes use of equitable tracing principles, such as the "lowest intermediate balance rule," to establish that commingled funds on deposit are the identifiable proceeds of the creditor's original collateral. See §9-315(b)(2), cmt. 3. The combined effect of these changes will be to enhance the secured creditor's ability to assert cash collateral claims against funds in the debtor's bank accounts.
Post-petition Effect of Security Interest
The revisions to the proceeds rule may significantly expand the ability of secured creditors to assert security interests in property generated post-petition. As noted above, an after-acquired property clause is effective outside of bankruptcy and will cause the security interest to attach automatically to the after-acquired property of the debtor. In bankruptcy, however, §552(a) of the Bankruptcy Code cuts off the after-acquired property clause and prevents it from creating a security interest in property acquired after the commencement of the case.
Section 552(b)(1) then creates an exception to the general rule for post-petition property that constitutes proceeds, product, offspring or profits of the original collateral. Under the §552(b)(1) exception, a pre-petition security interest will create a lien on property acquired by the estate post-petition if the debtor entered into a pre-petition security agreement that extends both to property acquired before bankruptcy and to "proceeds, product, offspring or profits" of that property. See 11 U.S.C. §552(b)(1).
What effect will the expanded Article 9 definition of "proceeds" have on §552(b)(1)? First, since an Article 9 security interest automatically extends to proceeds, the expanded-proceeds definition will cause a security agreement that lacks an after-acquired property clause to create a more extensive security interest in after-acquired property than is the case under current law. As a result, the §552(b)(1) requirement that the pre-petition security agreement extend to the post-petition assets will be more easily satisfied in cases of poorly drafted security agreements.
The more difficult question is whether the expansion of the Article 9 definition of "proceeds" will automatically expand the meaning of the term "proceeds" under §552(b)(1). Currently, the courts are split as to the proper interpretation of the term "proceeds" as used in §552(b)(1). Some courts use a restrictive federal bankruptcy law definition that emphasizes the rehabilitative purpose of bankruptcy law, others apply the current Article 9 definition, and some rely on the legislative history of §552 to create a definition that is more liberal than the current Article 9 definition.7
If courts defer to the Article 9 definition, the expanded-proceeds definition will enhance the secured creditor's ability to reach post-petition assets. For example, Hastie v. FDIC, 2 F.3d 1042, 1045 (10th Cir. 1993), relied on the then-current Article 9 definition of proceeds to hold that ordinary cash dividends were not proceeds of stock because they did not result from a disposition of the stock. Since the revised act includes dividends in the definition of proceeds, deference to the Article 9 definition would reverse the Hastie result. See §9-102(a)(64)(B). Similarly, secured creditors may now be able to assert §552(b)(1) secured claims to post-petition rental fees, moneys generated by coin-operated devices, and license fees.8
However, even if the Article 9 change does expand the reach of the secured creditor's §552(b)(1) claim on post-petition assets, the net effect may be minimal. Although §552(b)(1) recognizes the secured creditor's lien on post-petition assets as an initial matter, it also provides the bankruptcy court with wide discretion to limit the lien "based on the equities of the case." See 11 U.S.C. §552(b)(1). Thus, while revised Article 9 extends the reach of the proceeds security interest to property generated by the original collateral, the bankruptcy court might find that the equities do not support recognizing the lien on those proceeds.
As of early February, only 28 states plus the District of Columbia had adopted revised Article 9. With only a few months left before the July 1, 2001, effective date, there will be a major effort to push the revision through the remaining state legislatures. Revision bills have already been reintroduced in 12 states plus the U.S. Virgin Islands.
1 All citations are to the revised 1999 version of Article 9 of the Uniform Commercial Code, unless otherwise indicated. Citations to the currently applicable 1972 version of Article 9 are indicated by the term "current." Return to article
2 See, generally, Warner, G. Ray, "Deposit Accounts as Collateral Under Revised Article 9," 19 ABI Journal 18 (July/August 2000). Return to article
3 Id. Return to article
4 Clark, Barkley, The Law of Secured Transactions Under the Uniform Commercial Code, Para. 3.11, p. 3-190.2 (Rev. ed. 2000). Return to article
5 Compare In re Gibson Products of Arizona, 543 F.2d 652, 656 (9th Cir. 1976), cert. denied, 430 U.S. 946 (1977) (gives creditor a security interest in all funds in account even if only $10 is traceable), with Fitzpatrick v. Philco Finance Corp., 491 F.2d 1288, 1291-92 (7th Cir. 1974) (limits security interest to traceable proceeds received within 10 days); see, also, Dunne, Gerald, "Commingled Proceeds—Clarification, Please!" 104 Banking L.J. 3 (1987). Return to article
6 See Maxl Sales Co. v. Critiques Inc., 796 F.2d 1293, 1301 (10th Cir. 1986). Return to article
7 See 5 Collier on Bankruptcy, Para. 552.02, pp. 552-7 and 552-8 (15th ed. rev. 2000). Return to article
8 See §9-102(64)(A), (B) and (C); compare, In re Cleary Bros. Construction Co., 9 B.R. 40, 41 (Bankr. S.D. Fla. 1980) (rental of equipment does not produce proceeds); In re S&J Holding Corp., 42 B.R. 249, 250 (Bankr. S.D. Fla. 1984) (coins not proceeds of video games); In re Value-Added Communications Inc., 139 F.3d 543, 546 (5th Cir. 1998) (coins not proceeds of pay telephones). Return to article