Oftentimes, SBA loan proceeds are used to refinance business debt or finance the acquisition of business assets. When navigating these types of transactions, one of the most common pitfalls for lenders is obtaining and perfecting the correct lien position on the assets that were purchased or refinanced using SBA loan proceeds. Issues may arise about what to do when a creditor that was paid in full using the SBA loan proceeds fails to file a UCC-3 termination statement to terminate the UCC-1 encumbering such assets.
Pursuant to the Uniform Commercial Code (“UCC”), as adopted by each individual state, in order to perfect lender’s security interest in personal property of the debtor, a UCC-1 financing statement must be recorded with the filing office of the state where the debtor is incorporated (e.g., Secretary of State). In conjunction with obtaining a security agreement from debtor, the lender then creates and perfects its security interest in the personal property of the debtor. Should the debtor default pursuant to the terms of the loan documents, the lender can liquidate the personal property of the debtor, as identified on the UCC-1, to recover the outstanding balance of the loan, and miscellaneous fees owed to the lender. Conversely, when a debtor has paid in full all outstanding obligations owed to the lender, which is secured by a UCC-1, the lender is obligated to file a UCC-3 termination statement to terminate its interest in debtor’s personal property. Many lenders find that existing secured parties of record neglect to file a UCC-3 termination statement. As such, what can the lender do to make sure that other secured parties that are paid in full with SBA loan proceeds terminate their UCC-1 financing statements?
Generally, the debtor must first make a formal (or authenticated) demand to the secured party of record to terminate the UCC-1. This process involves sending a signed written request to the secured party of record demanding for said party to file a UCC-3 termination statement. Upon receipt, the secured party of record has 20 days to review the request from the debtor and file a UCC-3 termination statement. In the event the secured party of record fails, or otherwise neglects, to file the UCC-3, the debtor may then record the termination statement, together with an attestation from the debtor that it has satisfied the debt in full.
So what liabilities can a secured party of record incur for its failure to timely terminate the UCC-1? Pursuant to UCC § 9-625, which has been widely adopted by most states, the secured party of record may be liable to debtor in the amount of $500.00 per case plus actual damages, if failure to terminate the UCC-1 resulted in debtor’s inability to obtain alternative financing. SBA lenders should confer with secured parties prior to loan closing to confirm all UCC-1 financing statements will be terminated upon receipt of payoff proceeds to avoid issues in obtaining the correct lien position post-closing.
For further assistance, please contact the attorneys at Starfield & Smith, P.C. at 215-542-7070 or email us at firstname.lastname@example.org.