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Monday, August 15, 2022

Consumer to Consumer Exception (Article 9 UCC)

Many are aware that there's an exception under UCC 9 by which a buyer in the ordinary course of business ("BIOCOB") takes free of a security interest created by its seller even if the security interest was perfected. For those issues, it's important to ensure that the buyer satisfies that BIOCOB status before applying that exception.

But there's another exception that I find to be less well known that the NCBE has tested over the years. The exception is often called the "consumer to consumer exception." 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 that security interest has been perfected. Simply put, the buyer needs to have purchased the goods from a seller who was using the collateral as consumer goods as that term is defined by the UCC.

There are some additional requirements, however. For the buyer to take free of the security interest, the buyer must (1) have purchased the goods from the seller without knowledge of the security interest, (2) for value, (3) primarily for the buyer's personal, family, or household purposes, and (4) before anyone else has filed a financing statement covering the goods. 

Number 4 above is especially important. When consumer goods are at issue there's the option of automatic perfection if the security interest is a purchase money security interest. With automatic perfection, there's no need to file in order to perfect. But, it still might be in the interest of the secured party to file even if automatic perfection is possible. Because a secured party, by filing a financing statement, will prevent a buyer from claiming the consumer to consumer exception and thereby having better rights to the collateral than the secured party. 

See more @ https://www.law.cornell.edu/ucc/9/9-320


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