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2018 Georgia Code 11-9-102 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 11-9-102 Case Law from Google Scholar Amendments to OCGA 11-9-102

TITLE 11 COMMERCIAL CODE

Section 9. Secured Transactions, 11-9-101 through 11-9-809.

ARTICLE 9 SECURED TRANSACTIONS

PART 1 SHORT TITLE, DEFINITIONS, AND GENERAL CONCEPTS

11-9-102. Definitions and index of definitions.

  1. Article 9 definitions. As used in this article, the term:
    1. "Accession" means goods that are physically united with other goods in such a manner that the identity of the original goods is not lost.
    2. "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.
    3. "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.
    4. "Accounting," except as used in "accounting for," means a record:
      1. Authenticated by a secured party;
      2. 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
      3. Identifying the components of the obligations in reasonable detail.
    5. "Agricultural lien" means an interest in farm products:
      1. Which secures payment or performance of an obligation for:
        1. Goods or services furnished in connection with a debtor's farming operation; or
        2. Rent on real property leased by a debtor in connection with its farming operation;
      2. Which is created by statute in favor of a person that:
        1. In the ordinary course of its business furnished goods or services to a debtor in connection with a debtor's farming operation; or
        2. Leased real property to a debtor in connection with the debtor's farming operation; and
      3. Whose effectiveness does not depend on the person's possession of the personal property.
    6. "As-extracted collateral" means:
      1. Oil, gas, or other minerals that are subject to a security interest that:
        1. Is created by a debtor having an interest in the minerals before extraction; and
        2. Attaches to the minerals as extracted; or
      2. 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.
    7. "Authenticate" means:
      1. To sign; or
      2. With present intent to adopt or accept a record, to attach to or logically associate with such record an electronic sound, symbol, or process.
    8. "Authority" means the Georgia Superior Court Clerks' Cooperative Authority.
    9. "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.
    10. "Cash proceeds" means proceeds that are money, checks, deposit accounts, or the like.
    11. "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. The term shall include another record maintained as an alternative to a certificate of title by the governmental unit that issues certificates of title if a statute permits the security interest in question to be indicated on the record as a condition or result of the security interest's obtaining priority over the rights of a lien creditor with respect to the collateral.
    12. "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 lease of specific goods, or a lease of specific goods and license of software used in the goods. As used 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:
      1. Charters or other contracts involving the use or hire of a vessel; or
      2. 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.

    13. "Collateral" means the property subject to a security interest or agricultural lien. The term includes:
      1. Proceeds to which a security interest attaches;
      2. Accounts, chattel paper, payment intangibles, and promissory notes that have been sold; and
      3. Goods that are the subject of a consignment.
    14. "Commercial tort claim" means a claim arising in tort with respect to which:
      1. The claimant is an organization; or
      2. The claimant is an individual and the claim:
        1. Arose in the course of the claimant's business or profession; and
        2. Does not include damages arising out of personal injury to or the death of an individual.
    15. "Commodity account" means an account maintained by a commodity intermediary in which a commodity contract is carried for a commodity customer.
    16. "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:
      1. 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
      2. 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.
    17. "Commodity customer" means a person for which a commodity intermediary carries a commodity contract on its books.
    18. "Commodity intermediary" means a person that:
      1. Is registered as a futures commission merchant under federal commodities law; or
      2. 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.
    19. "Communicate" means:
      1. To send a written or other tangible record;
      2. To transmit a record by any means agreed upon by the persons sending and receiving the record; or
      3. In the case of transmission of a record to or by a filing office or the authority, to transmit a record by any means prescribed by filing office rule.
    20. "Consignee" means a merchant to which goods are delivered in a consignment.
    21. "Consignment" means a transaction, regardless of its form, in which a person delivers goods to a merchant for the purpose of sale and:
      1. The merchant:
        1. Deals in goods of that kind under a name other than the name of the person making delivery;
        2. Is not an auctioneer; and
        3. Is not generally known by its creditors to be substantially engaged in selling the goods of others;
      2. With respect to each delivery, the aggregate value of the goods is $1,000.00 or more at the time of delivery;
      3. The goods are not consumer goods immediately before delivery; and
      4. The transaction does not create a security interest that secures an obligation.
    22. "Consignor" means a person that delivers goods to a consignee in a consignment.
    23. "Consumer debtor" means a debtor in a consumer transaction.
    24. "Consumer goods" means goods that are used or bought for use primarily for personal, family, or household purposes.
    25. "Consumer goods transaction" means a consumer transaction in which:
      1. An individual incurs an obligation primarily for personal, family, or household purposes; and
      2. A security interest in consumer goods secures the obligation.
    26. "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.
    27. "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.
    28. "Continuation statement" means an amendment of a financing statement which:
      1. Identifies, by its file number, the initial financing statement to which it relates; and
      2. Indicates that it is a continuation statement for, or that it is filed to continue the effectiveness of, the identified financing statement.
    29. "Debtor" means:
      1. A person having an interest, other than a security interest or other lien, in the collateral, whether or not the person is an obligor;
      2. A seller of accounts, chattel paper, payment intangibles, or promissory notes; or
      3. A consignee.
    30. "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.
    31. "Document" means a document of title or a receipt of the type described in subsection (2) of Code Section 11-7-201.
    32. "Electronic chattel paper" means chattel paper evidenced by a record or records consisting of information stored in an electronic medium.
    33. "Encumbrance" means a right, other than an ownership interest, in real property. The term includes mortgages and other liens on real property.
    34. "Equipment" means goods other than inventory, farm products, or consumer goods.
    35. "Farm products" means goods, other than standing timber, with respect to which the debtor is engaged in a farming operation and which are:
      1. Crops grown, growing, or to be grown, including:
        1. Crops produced on trees, vines, and bushes; and
        2. Aquatic goods produced in aquacultural operations;
      2. Livestock, born or unborn, including aquatic goods produced in aquacultural operations;
      3. Supplies used or produced in a farming operation; or
      4. Products of crops or livestock in their unmanufactured states.
    36. "Farming operation" means raising, cultivating, propagating, fattening, grazing, or any other farming, livestock, or aquacultural operation.
    37. "File number" means the number assigned to an initial financing statement pursuant to subsection (a) of Code Section 11-9-519.
    38. "Filing office" means an office designated in Code Section 11-9-501 as the place to file a financing statement.
    39. "Filing office rule" means a rule adopted pursuant to Code Section 11-9-526.
    40. "Financing statement" means a record or records composed of an initial financing statement and any filed record relating to the initial financing statement.
    41. "Fixture filing" means the filing of a financing statement covering goods that are or are to become fixtures and satisfying subsections (a) and (b) of Code Section 11-9-502. The term includes the filing of a financing statement covering goods of a transmitting utility which are or are to become fixtures.
    42. "Fixtures" means goods that have become so related to particular real property that an interest in them arises under real property law.
    43. "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.
    44. Reserved.
    45. "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, and (iv) crops grown, growing, or to be grown, even if the crops are produced on trees, vines, or bushes. 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.
    46. "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.
    47. "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 or to be provided.
    48. "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.
    49. "Inventory" means goods, other than farm products, which:
      1. Are leased by a person as lessor;
      2. Are held by a person for sale or lease or to be furnished under a contract of service;
      3. Are furnished by a person under a contract of service; or
      4. Consist of raw materials, work in process, or materials used or consumed in a business.
    50. "Investment property" means a security, whether certificated or uncertificated, security entitlement, securities account, commodity contract, or commodity account.
    51. "Jurisdiction of organization," with respect to a registered organization, means the jurisdiction under whose law the organization is formed or organized.
    52. "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.
    53. "Lien creditor" means:
      1. A creditor that has acquired a lien on the property involved by attachment, levy, or the like;
      2. An assignee for benefit of creditors from the time of assignment;
      3. A trustee in bankruptcy from the date of the filing of the petition; or
      4. A receiver in equity from the time of appointment.
    54. "Mortgage" means a consensual interest in real property, including fixtures, which secures payment or performance of an obligation. The term includes a deed to secure debt.
    55. "New debtor" means a person that becomes bound as debtor under subsection (d) of Code Section 11-9-203 by a security agreement previously entered into by another person.
    56. "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.
    57. "Noncash proceeds" means proceeds other than cash proceeds.
    58. "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.
    59. "Original debtor," except as used in subsection (c) of Code Section 11-9-310, means a person that, as debtor, entered into a security agreement to which a new debtor has become bound under subsection (d) of Code Section 11-9-203.
    60. "Payment intangible" means a general intangible under which the account debtor's principal obligation is a monetary obligation.
    61. "Person related to," with respect to an individual, means:
      1. The spouse of the individual;
      2. A brother, brother-in-law, sister, or sister-in-law of the individual;
      3. An ancestor or lineal descendant of the individual or the individual's spouse; or
      4. Any other relative, by blood or marriage, of the individual or the individual's spouse who shares the same home with the individual.
    62. "Person related to," with respect to an organization, means:
      1. A person directly or indirectly controlling, controlled by, or under common control with the organization;
      2. An officer or director of, or a person performing similar functions with respect to, the organization;
      3. An officer or director of, or a person performing similar functions with respect to, a person described in subparagraph (A) of this paragraph;
      4. The spouse of an individual described in subparagraph (A), (B), or (C) of this paragraph; or
      5. 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.
    63. "Proceeds," except as used in subsection (d) of Code Section 11-9-609, means the following property:
      1. Whatever is acquired upon the sale, lease, license, exchange, or other disposition of collateral;
      2. Whatever is collected on, or distributed on account of, collateral;
      3. Rights arising out of collateral;
      4. 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
      5. 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.
    64. "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.
    65. "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 Code Sections 11-9-620, 11-9-621, and 11-9-622.
    66. "Public finance transaction" means a secured transaction in connection with which:
      1. Debt securities are issued;
      2. All or a portion of the securities issued have an initial stated maturity of at least five years; and
      3. 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.
    67. "Public organic record" means a record that is available to the public for inspection and is:
      1. A record consisting of the record initially filed with or issued by a state or the United States to form or organize an organization and any record filed with or issued by such state or the United States which amends or restates the initial record;
      2. An organic record of a business trust consisting of the record initially filed with a state and any record filed with such state which amends or restates the initial record, if a statute of such state governing business trusts requires that the record be filed with such state; or
      3. A record consisting of legislation enacted by the legislature of a state or the Congress of the United States which forms or organizes an organization, any record amending the legislation, and any record filed with or issued by such state or the United States which amends or restates the name of the organization.
    68. "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.
    69. "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.
    70. "Registered organization" means an organization formed or organized solely under the law of a single state or the United States by the filing of a public organic record with, the issuance of a public organic record by, or the enactment of legislation by a state or the United States. The term shall include a business trust that is formed or organized under the law of a single state if a statute of such state governing business trusts requires that the business trust's organic record be filed with such state.
    71. "Secondary obligor" means an obligor to the extent that:
      1. The obligor's obligation is secondary; or
      2. The obligor has a right of recourse with respect to an obligation secured by collateral against the debtor, another obligor, or property of either.
    72. "Secured party" means:
      1. 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;
      2. A person that holds an agricultural lien;
      3. A consignor;
      4. A person to which accounts, chattel paper, payment intangibles, or promissory notes have been sold;
      5. 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
      6. A person that holds a security interest arising under Code Section 11-2-401, 11-2-505, or subsection (3) of Code Section 11-2-711, subsection (5) of Code Section 11-2A-508, Code Section 11-4-210, or Code Section 11-5-118.
    73. "Security agreement" means an agreement that creates or provides for a security interest.
    74. "Send," in connection with a record or notification, means:
      1. 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
      2. 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.
    75. "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.
    76. "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.
    77. "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.
    78. "Tangible chattel paper" means chattel paper evidenced by a record or records consisting of information that is inscribed on a tangible medium.
    79. "Termination statement" means an amendment of a financing statement which:
      1. Identifies, by its file number, the initial financing statement to which it relates; and
      2. Indicates either that it is a termination statement or that the identified financing statement is no longer effective.
    80. "Transmitting utility" means a person primarily engaged in the business of:
      1. Operating a railroad, subway, street railway, or trolley bus;
      2. Transmitting communications electrically, electromagnetically, or by light;
      3. Transmitting goods by pipeline or sewer; or
      4. Transmitting or producing and transmitting electricity, steam, gas, or water.
  2. Definitions in other articles. "Control" as provided in Code Section 11-7-106 and the following definitions in other articles apply to this article:

    "Applicant." Code Section 11-5-102.

    "Beneficiary." Code Section 11-5-102.

    "Broker." Code Section 11-8-102.

    "Certificated security." Code Section 11-8-102.

    "Check." Code Section 11-3-104.

    "Clearing corporation." Code Section 11-8-102.

    "Contract for sale." Code Section 11-2-106.

    "Customer." Code Section 11-4-104.

    "Entitlement holder." Code Section 11-8-102.

    "Financial asset." Code Section 11-8-102.

    "Holder in due course." Code Section 11-3-302.

    "Issuer" (with respect to a letter of credit or letter of credit right). Code Section 11-5-102.

    "Issuer" (with respect to a security). Code Section 11-8-201.

    "Issuer" (with respect to documents of title). Code Section 11-7-102.

    "Lease." Code Section 11-2A-103.

    "Lease agreement." Code Section 11-2A-103.

    "Lease contract." Code Section 11-2A-103.

    "Leasehold interest." Code Section 11-2A-103.

    "Lessee." Code Section 11-2A-103.

    "Lessee in ordinary course of business." Code Section 11-2A-103.

    "Lessor." Code Section 11-2A-103.

    "Lessor's residual interest." Code Section 11-2A-103.

    "Letter of credit." Code Section 11-5-102.

    "Merchant." Code Section 11-2-104.

    "Negotiable instrument." Code Section 11-3-104.

    "Nominated person." Code Section 11-5-102.

    "Note." Code Section 11-3-104.

    "Proceeds of a letter of credit." Code Section 11-5-114.

    "Prove." Code Section 11-3-103.

    "Sale." Code Section 11-2-106.

    "Securities account." Code Section 11-8-501.

    "Securities intermediary." Code Section 11-8-102.

    "Security." Code Section 11-8-102.

    "Security certificate." Code Section 11-8-102.

    "Security entitlement." Code Section 11-8-102.

    "Uncertificated security." Code Section 11-8-102.

  3. Article 1 definitions and principles. Article 1 of this title contains general definitions and principles of construction and interpretation applicable throughout this article.

(Code 1981, §11-9-102, enacted by Ga. L. 2001, p. 362, § 1; Ga. L. 2002, p. 995, § 3; Ga. L. 2010, p. 481, § 2-19/HB 451; Ga. L. 2013, p. 690, § 1/SB 185; Ga. L. 2015, p. 996, § 3B-18/SB 65.)

The 2002 amendment, effective July 1, 2002, in subsection (a), deleted ", other than a security interest," in paragraph (5) and added "or to be provided" at the end of paragraph (47).

The 2010 amendment, effective May 27, 2010, in subsection (b), substituted the present introductory paragraph for the former provisions, which read: "Other definitions applying to this article and the Code sections in which they appear are" and added the provisions on "'Issuer' (with respect to documents of title)". See the Editor's notes for applicability.

The 2013 amendment, effective July 1, 2013, substituted "With present intent to adopt or accept a record, to attach to or logically associate with such record an electronic sound, symbol, or process" for "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" in subparagraph (a)(7)(B); added the last sentence in paragraph (a)(11); inserted "formed or" in paragraph (a)(51); redesignated former paragraphs (a)(67) through (a)(79) as current paragraphs (a)(68) through (a)(80), respectively; added present paragraph (a)(67); and rewrote paragraph (a)(70).

The 2015 amendment, effective January 1, 2016, substituted "Reserved" for " 'Good faith' means honesty in fact and the observance of reasonable commercial standards of fair dealing" in paragraph (a)(44).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2001, "Code Section" was inserted preceding "11-5-118" at the end of subparagraph (a)(71)(F).

Editor's notes.

- Ga. L. 2002, p. 995, § 8, not codified by the General Assembly, provides that: "This Act shall become effective July 1, 2002, and shall apply to a letter of credit that is issued on or after July 1, 2002. This Act does not apply to a transaction, event, obligation, or duty arising out of or associated with a letter of credit that was issued before July 1, 2002."

Ga. L. 2010, p. 481, § 3-1, not codified by the General Assembly, provides that: "This Act applies to a document of title that is issued or a bailment that arises on or after the effective date of this Act. This Act does not apply to a document of title that is issued or a bailment that arises before the effective date of this Act even if the document of title or bailment would be subject to this Act if the document of title had been issued or bailment had arisen on or after the effective date of this Act. This Act does not apply to a right of action that has accrued before the effective date of this Act." This Act became effective May 27, 2010.

Ga. L. 2010, p. 481, § 3-2, not codified by the General Assembly, provides that: "A document of title issued or a bailment that arises before the effective date of this Act and the rights, documents, and interests flowing from that document or bailment are governed by any statute or other rule amended or repealed by this Act as if such amendment or repeal had not occurred and may be terminated, completed, consummated, or enforced under that statute or other rule." This Act became effective May 27, 2010.

Ga. L. 2015, p. 996, § 1-1/SB 65, not codified by the General Assembly, provides: "(a) This Act shall be known and may be cited as the 'Debtor-Creditor Uniform Law Modernization Act of 2015.'

"(b) To promote consistency among the states, it is the intent of the General Assembly to modernize certain existing uniform laws promulgated by the Uniform Law Commission affecting debtor and creditor rights, responsibilities, and relationships and other federally recognized laws affecting such rights, responsibilities, and relationships."

Law reviews.

- For article discussing the resolution of conflicting claims to goods between an unsecured seller of goods and a creditor of a buyer claiming under an after-acquired property clause, see 28 Mercer L. Rev. 625 (1977). For article, "The Revisions to Article IX of the Uniform Commercial Code," see 15 Ga. St. B.J. 120 (1977). For article, "The Good Faith Purchase Idea and the Uniform Commercial Code," see 15 Ga. L. Rev. 605 (1981). For article discussing the classification of a continuing security interest in changing collateral as an unenforceable preference under Section 60a of the Bankruptcy Act, see 1 Ga. L. Rev. 257 (1967). For article, "Preparing the Georgia Farmer (or Other Smaller Entrepreneur) for Bankruptcy," see 22 Ga. State Bar J. 186 (1986). For annual survey article on commercial law, see 50 Mercer L. Rev. 193 (1998). For article surveying developments in Georgia commercial law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 33 (1981). For article, "Leveraged Buyouts in Bankruptcy," see 20 Ga. L. Rev. 73 (1985). For annual survey of commercial law, see 43 Mercer L. Rev. 119 (1991). For note discussing creditor's remedy of direct collection of accounts and instruments owed to the defaulting debtor, see 3 Ga. L. Rev. 198 (1968). For comment on Maley v. National Acceptance Co., 250 F. Supp. 841 (N.D. Ga. 1966), see 3 Ga. St. B.J. 248 (1966). For comment on Sherrock v. Commercial Credit Corp., 290 A.2d 648 (Del. S. Ct. 1972), see 10 Ga. St. B.J. 110 (1973).

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In the light of the similarity of the provisions, decisions under former Article 9 are included in the annotations for this Code section. For a table of comparable provisions, see the table at the beginning of the Article.

This section defines "account" in the sense of collateral. Metter Banking Co. v. Fisher Foods, Inc., 183 Ga. App. 441, 359 S.E.2d 145, cert. denied, 183 Ga. App. 906, 359 S.E.2d 145 (1987) (decided under former Code Section11-9-102).

Construction.

- This statute is in derogation of common law and must be strictly construed and followed. Citizens & S. Nat'l Bank v. Weyerhaeuser Co., 152 Ga. App. 176, 262 S.E.2d 485 (1979) (decided under former Code Section11-9-102).

Proceeds of accounts receivable.

- A bankruptcy debtor's unearned postpetition income under a contract for employment did not constitute proceeds of the creditor's prepetition interest in accounts receivable. In re Rumker, 184 Bankr. 621 (Bankr. S.D. Ga. 1995) (decided under former Code Section 11-9-102).

Trademark, trade name, and goodwill.

- In addition to a trademark, a trade name, along with the goodwill it represents, may be the subject of an Article 9 security interest and may be reacquired along with other secured property on foreclosure. Reis v. Ralls, 250 Ga. 721, 301 S.E.2d 40 (1983) (decided under former Code Section11-9-102).

Computer information and programming recorded on magnetic tape were "general intangibles" which are not included in the types of collateral in which security interests can be perfected by possession under former § 11-9-305 (see now O.C.G.A. § 11-9-313), and a security interest therein could therefore only be perfected by filing a financing statement. Dabney v. Information Exch., Inc., 98 Bankr. 603 (Bankr. N.D. Ga. 1989) (decided under former Code Section11-9-102).

Post bankruptcy milk diversion program payments.

- The Farmers Home Administration, which had a pre-petition security agreement extending to the bankruptcy debtors' "farm products," including milk, had a lien which attached to milk proceeds created post bankruptcy. Post-petition milk diversion program payments, therefore, were substitutes for post-petition milk and proceeds, to which the lien attached, and were not "general intangibles." United States v. Hollie, 42 Bankr. 111 (Bankr. M.D. Ga. 1984) (decided under former Code Section 11-9-102).

Property listed in financing statements need not be specific but must only reasonably identify same, giving dates leases and amount of same, "secured by" equipment listed in leases and its location. Stephens v. Bank of Camilla, 133 Ga. App. 210, 210 S.E.2d 358 (1974), aff'd, 234 Ga. 293, 216 S.E.2d 71 (1975) (decided under former Code Section11-9-102).

Classification of goods.

- Goods are classified as consumer goods, equipment, farm products, and inventory. Williams v. Western Pac. Fin. Corp., 643 F.2d 331 (5th Cir. 1981) (decided under former Code Section 11-9-102).

Effect of filing.

- Filing of financing statement can perfect only those interests acquired through security agreements. Tri-County Livestock Auction Co. v. Bank of Madison, 228 Ga. 325, 185 S.E.2d 393 (1971) (decided under former Code Section11-9-102).

Unsecured interest in marital property.

- Where evidence supports trial court's holding that wife is entitled to a special lien, wife's lien is superior to any interest of bank in marital property, as the bank was an unsecured creditor whose lien was based on an invalid handwritten note. First Nat'l Bank v. Blackburn, 254 Ga. 379, 329 S.E.2d 897 (1985) (decided under former Code Section11-9-102).

Applying Canadian law to the facts of the case, a remote purchaser could not prevail over a creditor who had perfected its purchase money security interest in a truck within the time specified by Canadian law. Paccar Fin. Servs., Ltd. v. Johnson, 195 Ga. App. 412, 393 S.E.2d 685 (1990) (decided under former Code Section11-9-102).

"Debtor."

- Word "debtor" in former subsection (4) includes transferees who hold proceeds which are validly claimed by secured parties of debtor who initially granted a lien on property which gave rise to the proceeds. Moister v. National Bank (In re Guaranteed Muffler Supply Co.), 1 Bankr. 324 (Bankr. N.D. Ga. 1979) (decided under former Code Section 11-9-102).

Insurance benefits considered "proceeds" and subject to lender's security interest.

- Insurance benefits payable from a third-party tortfeasor's insurer upon the destruction of a vehicle became "proceeds," subject to a lender's security interest, before payment to the victims. JCS Enter., Inc. v. Vanliner Ins., 227 Ga. App. 371, 489 S.E.2d 95 (1997) (decided under former Code Section11-9-102).

Determination of good faith for jury.

- Given the disputed evidence as to the good faith of a transaction, summary judgment awards on the priorities of security interests were not appropriate as the matter had to be remanded to the trial court because the good faith of a transaction was peculiarly a question for the trier of fact. Farm Credit of Northwest Fla., ACA v. Easom Peanut Co., 312 Ga. App. 374, 718 S.E.2d 590 (2011), cert. denied, No. S12C0444, 2012 Ga. LEXIS 315 (Ga. 2012).

Cited in Shepard v. State of Ga., 267 Ga. App. 604, 600 S.E.2d 691 (2004); Motors Acceptance Corp. v. Rozier, 278 Ga. 52, 597 S.E.2d 367 (2004); Bank of Dawson v. Worth Gin Co., 295 Ga. App. 256, 671 S.E.2d 279 (2008).

Debtor

Debtor construed.

- A debtor may be construed as anyone who owes payment. Allis-Chalmers Corp. v. Barbree, 162 Ga. App. 512, 291 S.E.2d 453, rev'd on other grounds, 250 Ga. 409, 297 S.E.2d 465 (1982) (decided under former Code Section11-9-102).

One who is a seller of chattel paper, whether or not that one is the owner of the underlying collateral, with full recourse against the seller in the event of a deficiency is a debtor entitled to notice of the post-default proceedings disposing of the collateral. Barbree v. Allis-Chalmers Corp., 250 Ga. 409, 297 S.E.2d 465 (1982) (decided under former Code Section11-9-102).

Owner of collateral.

- Because former § 11-9-504(3) dealt with disposition of collateral after default, "debtor" in that section meant owner of collateral. Allis-Chalmers Corp. v. Barbree, 162 Ga. App. 512, 291 S.E.2d 453, rev'd on other grounds, 250 Ga. 409, 297 S.E.2d 465 (1982) (decided under former Code Section11-9-102).

When status of "debtor" attaches.

- Buyer of cows who had milked and cared for the cows for several weeks prior to obtaining a loan for their purchase, but who did not finally decide to purchase the cows until after buyer obtained the loan was not a "debtor," and did not take possession until the loan was closed. United States v. Hooks, 40 Bankr. 715 (Bankr. M.D. Ga. 1984) (decided under former Code Section 11-9-102).

Assignment to surety.

- Trial court properly granted a surety's motion for summary judgment because the security interest in the accounts owed was covered by the Uniform Commercial Code, and to the extent that the anti-assignment clauses of the construction contract could be construed to prohibit the roofing company from assigning the company's right to those accounts to the company's surety, the contracts were unenforceable as a matter of law under O.C.G.A. § 11-9-406(d)(1). State Dep't of Corr. v. Developers Sur. & Indem. Co., 324 Ga. App. 371, 750 S.E.2d 697 (2013).

Deposit Accounts

Inapplicability of former article to deposit accounts.

- Since former § 11-9-104(j) clearly provided that former Article 9 did not apply to a transfer of an interest in any deposit account, inasmuch as a depositor's commercial checking account is a "deposit account", the structures of that article were not applicable to the bank's appropriation of the account under its right of set-off. Design Spectrum, Inc. v. First Nat'l Bank, 182 Ga. App. 418, 355 S.E.2d 733 (1987) (decided under former Code Section11-9-102).

Instrument

Money came within the definition of "instrument". In re Atlanta Times, Inc., 259 F. Supp. 820 (N.D. Ga. 1966), aff'd sub nom. Sanders v. National Acceptance Co. of Am., 383 F.2d 606 (5th Cir. 1967) (decided under former Code Section 11-9-102).

Promissory note.

- Under the promissory note, the debtors were consumers who were to pay money to the lender, and the debtor's obligation to do so arose from a transaction involving property that was primarily for the debtors' personal, family, or household purposes; the promissory note was a debt within the plain language of 15 U.S.C. § 1692a(5), and the law firm's letter and enclosed documents were an attempt to collect that debt - the complaint sufficiently alleged that the notice was a communication related to the collection of a debt within the meaning of 15 U.S.C. § 1692e. Even if the firm intended the letter and documents to give notice of the foreclosure to the debtors, the letters also demanded payment on the underlying debt and the fact that the letter and documents related to the enforcement of a security interest did not prevent the letters from also relating to the collection of a debt within the meaning of § 1692e; the complaint contained enough factual content to allow a reasonable inference that the firm was a debt collector because the firm regularly attempted to collect debts. Reese v. Ellis, Painter, Ratterree & Adams LLP, 678 F.3d 1211 (11th Cir. 2012).

Security Agreement

Intent to create a security interest is sole requisite for security agreement. Barton v. Chemical Bank, 577 F.2d 1329 (5th Cir. 1978) (decided under former Code Section 11-9-102).

Financing statement alone cannot serve as "security agreement," however, financing statement accompanied by other documents or circumstances may suffice as valid "security agreement." In re Carmichael Enters., Inc., 334 F. Supp. 94 (N.D. Ga. 1971), aff'd, 460 F.2d 1405 (5th Cir. 1972) (decided under former Code Section 11-9-102).

Writing signed by debtor, describing collateral and including "security agreement".

- For security interest to be enforceable, there must be a writing, signed by debtor, which includes "security agreement" as that term is defined, and which describes collateral. In re Carmichael Enters., Inc., 334 F. Supp. 94 (N.D. Ga. 1971), aff'd, 460 F.2d 1405 (5th Cir. 1972) (decided under former Code Section 11-9-102).

Letter agreeing to execute financing statement for stated consideration together with financing statement.

- Letter agreeing to execute and return financing statement in consideration of creditor's acceptance of debtor's notes to cover its indebtedness and financing statement, taken together, meet requirements for creation of security agreement; which requires that debtor sign security agreement which contains description of collateral. In re Carmichael Enters., Inc., 334 F. Supp. 94 (N.D. Ga. 1971), aff'd, 460 F.2d 1405 (5th Cir. 1972) (decided under former Code Section 11-9-102).

Three-year "lease agreement contract," by which "lessee" would make monthly payments and, at the end of the three years, without any additional payments, would own the leased equipment, was a security agreement and not a lease. National Traveler, Inc. v. Paccom Leasing Corp., 110 Bankr. 619 (Bankr. M.D. Ga. 1990) (decided under former Code Section 11-9-102).

Agreement which did not stipulate a purchase price but indicated an intent to negotiate a purchase price was a true lease, and not a conditional sale. Chapman v. Avco Fin. Servs. Leasing Co., 193 Ga. App. 147, 387 S.E.2d 391 (1989) (decided under former Code Section11-9-102).

Farmers Home Administration.

- Despite the fact that the form executed by the debtors did not contain a clause that "granted" a security interest to the Farmers Home Administration (FmHA), considering other language in the form, including a heading "Security Agreement (chattels and crops)," a reference to the FmHA as the "Secured Party," and a provision which read: "It is the purpose and intent of this instrument that . . . this instrument shall secure payment of the note," the debtors did grant the FmHA a security interest in crops, livestock and offspring, farm equipment, and farm products. United States v. Hollie, 42 Bankr. 111 (Bankr. M.D. Ga. 1984) (decided under former Code Section 11-9-102).

No writing established.

- Creditor did not establish that the creditor had a valid security interest under Georgia law because there was no evidence of a specific writing, signed by the debtor, that reflected an intent to create a security interest, and that reasonably identified the personal property as collateral. First Nat'l Bank v. Alba (In re Alba), 429 Bankr. 353 (Bankr. N.D. Ga. 2008).

Secured Party

Automobile lessor did not, merely by initiating a foreclosure action in regard to the vehicle, thereby acquire any status as a secured party for purposes of obtaining a priority over the holder of a prior validly perfected mechanic's lien. First Nat'l Bank v. Strother Ford, Inc., 188 Ga. App. 749, 374 S.E.2d 203, rev'd on other grounds, 258 Ga. 319, 368 S.E.2d 489 (1988) (decided under former Code Section11-9-102).

Parent was not secured party and had no standing.

- No public record allowed a criminal defendant's parent to perfect an implied trust (based on the parent's allegation that the parent paid for cars but titled them in the son's name for insurance purposes) against bona fide purchaser for value; so, in a O.C.G.A. § 16-13-49 forfeiture proceeding of two cars, the parent was not the statutory "owner" or "interest holder" as those terms were defined in O.C.G.A. § 11-9-102 and O.C.G.A. § 16-13-49(a)(7), (n)(3), (o)(3), (a)(6), and the parent thus lacked standing to contest the forfeiture. McFarley v. State of Ga., 268 Ga. App. 621, 602 S.E.2d 341 (2004).

RESEARCH REFERENCES

Am. Jur. 2d.

- 68A Am. Jur. 2d, Secured Transactions, §§ 31-110, 121, 291-293, 471, 474-475, 482-486, 527, 550-554, 777, 780-835, 931-934, 962-982.

Consignment, 1 POF2d 223.

C.J.S.

- 72 C.J.S., Pledges, §§ 20, 23, 28, 36. 82 C.J.S., Statutes, § 309.

U.L.A.

- Uniform Commercial Code (U.L.A.) § 9-102.

ALR.

- Realization on security deposited as collateral as interrupting the statute of limitations, 25 A.L.R. 58; 165 A.L.R. 1400.

Note or bond purporting to be given as collateral security for obligation of third person as guaranty or unconditional obligation, 43 A.L.R. 185.

Creditor levying upon subject of unfiled conditional sale contract under prior judgment, 55 A.L.R. 1137.

Interest of vendee under conditional sales contract as subject to attachment, garnishment, or execution, 61 A.L.R. 781.

Lien which attaches under chattel mortgage of livestock to offspring subsequently born, as surviving period of suitable nurture, 144 A.L.R. 330.

What constitutes "accounts receivable" under contract selling, assigning, pledging, or reserving such items, 41 A.L.R.2d 1395.

Rights and duties of parties to conditional sales contract as to resale of repossessed property, 49 A.L.R.2d 15.

Consignment transactions under the Uniform Commercial Code, 40 A.L.R.3d 1078.

Uniform Commercial Code: Burden of proof as to commercially reasonable disposition of collateral, 59 A.L.R.3d 369.

Effectiveness of original financing statement under UCC Article 9 after change in debtor's name, identity, or business structure, 99 A.L.R.3d 1194.

Secured transactions: What constitutes "consumer goods" under UCC § 9-109(1), 77 A.L.R.3d 1225.

Secured Transactions: What constitutes "inventory" under UCC § 9-109(4), 77 A.L.R.3d 1266.

Effect of UCC Article 9 upon conflict, as to funds in debtor's bank account, between secured creditor and bank claiming right of setoff, 3 A.L.R.4th 998.

What is "commercially reasonable" disposition of collateral required by UCC § 9-504(3), 7 A.L.R.4th 308.

What constitutes secured party's authorization to transfer collateral free of lien under UCC § 9-306(2), 37 A.L.R.4th 787.

Secured transactions: government agricultural program payments as "proceeds" of agricultural products under UCC § 9-306, 79 A.L.R.4th 903.

Conveyance of land as including mature but unharvested crops, 51 A.L.R.4th 1263.

Construction mortgagee-lender's duty to protect interest of subordinated purchase-money mortgagee, 13 A.L.R.5th 684.

Consignment transactions under Uniform Commercial Code Article 9 on secured transactions, 58 A.L.R.6th 289.

Cases Citing Georgia Code 11-9-102 From Courtlistener.com

Total Results: 2

Motors Acceptance Corp. v. Rozier

Court: Supreme Court of Georgia | Date Filed: 2004-06-07

Citation: 597 S.E.2d 367, 278 Ga. 52, 2004 Fulton County D. Rep. 1875, 54 U.C.C. Rep. Serv. 2d (West) 31, 2004 Ga. LEXIS 470

Snippet: 11-9-617(a)(1). [15] 292 F.3d at 1354. [16] OCGA § 11-9-102(a)(29) ("debtor" defined as "a person having an

Reis v. Ralls

Court: Supreme Court of Georgia | Date Filed: 1983-03-10

Citation: 301 S.E.2d 40, 250 Ga. 721, 35 U.C.C. Rep. Serv. (West) 951, 1983 Ga. LEXIS 614

Snippet: security interests in "general intangibles." OCGA § 11-9-102 (1) (a) (Code Ann. § 109A-9-102). "General intangibles"