(Code 1981, §11-9-502, enacted by Ga. L. 2001, p. 362, § 1; Ga. L. 2002, p. 995, § 7; Ga. L. 2013, p. 690, § 10/SB 185.)
The 2002 amendment, effective July 1, 2002, inserted "growing" near the middle of the introductory language of subsection (b).
The 2013 amendment, effective July 1, 2013, substituted the present provisions of subsection (c) for the former provisions, which read: "Real estate mortgages as fixture filings. A real estate mortgage may not be filed as a fixture filing, but one filed prior to January 1, 1995, which was effective as a fixture filing when filed, remains effective as a fixture filing until the mortgage is released or satisfied of record or its effectiveness otherwise terminates as to the real estate."
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."
Law reviews.- For article discussing Uniform Commercial Code provisions establishing a security interest in fixtures as a means of protecting sellers, see 16 Mercer L. Rev. 404 (1965). For article discussing the Uniform Commercial Code provisions regarding the sufficiency of "The Description of Collateral in Security Agreements and Financing Statements," see 28 Mercer L. Rev. 611 (1977). For article, "The Revisions to Article IX of the Uniform Commercial Code," see 15 Ga. St. B.J. 120 (1977). For article, "Fixture Financing Under Georgia's New Article 9," see 16 Ga. St. B.J. 110 (1980). For article, "H.B. 712: New Requirements for Financing Statements and Continuation Statements Filed in Georgia," see 22 Ga. St. B.J. 6 (1985). For article, "H.B. 1364: Revised Requirements for Financing Statements and Continuation Statements Filed in Georgia," see 23 Ga. St. B.J. 50 (1986). For annual survey of law of real property, see 38 Mercer L. Rev. 319 (1986). For annual survey article on commercial law, see 50 Mercer L. Rev. 193 (1998). For comment on United States v. Crittenden, 563, F.2d 678 (5th Cir. 1977), appearing below, see 12 Ga. L. Rev. 692 (1977).
JUDICIAL DECISIONS
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.
Applicability to financing statements, not security agreements.
- Requirement that identification of collateral indicate type of collateral is applicable to financing statements, not security agreements. Personal Thrift Plan of Perry, Inc. v. Georgia Power Co., 242 Ga. 388, 249 S.E.2d 72 (1978) (decided under former Code Section11-9-402).
"Type" of collateral construed.- This section allowed a secured party to file a financing statement which describes the property only by its "type." A type of collateral is, for example, goods, accounts, chattel paper, general intangibles, etc. Woodrum v. Ford Motor Credit Co., 940 F.2d 1507 (11th Cir. 1991) (decided under former Code Section 11-9-402).
Serial number alone does not "indicate the type" of collateral. Personal Thrift Plan of Perry, Inc. v. Georgia Power Co., 242 Ga. 388, 249 S.E.2d 72 (1978) (decided under former Code Section11-9-402).
Question of fact as to whether financing statement seriously misleading.
- In a suit involving the defendant defaulting on loans secured by property that was allegedly tortuously converted by sale, the grant of summary judgment to the plaintiff was reversed, in part, because an issue of material fact remained as to whether the financing statement was valid as to the name provided on the financing statement and whether the incorrect name made the statement seriously misleading. Rebel Auction Co. v. Citizens Bank, 343 Ga. App. 81, 805 S.E.2d 913 (2017).
Security interest not perfected.
- Where a search of the county records did not reveal a financing statement due to a mistake in the name of the debtor shown on the financing statement, the security interest in the funds relating to the financing statement was not perfected, and the money was awarded to a judgment creditor in an interpleader action. Receivables Purchasing Co. v. R & R Directional Drilling, L.L.C., 263 Ga. App. 649, 588 S.E.2d 831 (2003).
Because an attorney who handled a closing in the capacity of an escrow agent for the client's business had no actual or constructive notice of a creditor's security interest in the business due to the improper filing pursuant to O.C.G.A. §§ 11-9-502,11-9-503, and11-9-506, because the debtor's name was not properly listed and the interest was accordingly not perfected, claims as to conversion of the business closing proceeds failed. All Bus. Corp. v. Choi, 280 Ga. App. 618, 634 S.E.2d 400 (2006).
Perfection of security interest in the debtor's accounts receivable granted under the agreements was not properly perfected because neither of the two elements required for perfection by Georgia law was met: first, the debtor's name as listed in the financing statement was inconsistent with its legal name on the public record, and moreover, a search of Georgia Superior Court Clerks' Cooperative Authority's Lien records for the debtor's correct name would not have disclosed the financing statement's existence; second, the financing statement did not indicate that the statement covered all assets or all personal property of the debtor, and the statement failed to provide a description of, or reasonably identify, the debtor's accounts receivable subject to the security interest. Scarver v. Silverline Servs. (In re Wastetech, LLC), 605 Bankr. 264 (Bankr. N.D. Ga. 2019).
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In the light of the similarity of the provisions, opinions 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.
Duty of superior court clerks.- Clerks of superior court are not required to determine that property subject to a U.C.C. financing statement is properly described before recording the statement. 1982 Op. Att'y Gen. No. U82-38.
RESEARCH REFERENCES
Am. Jur. 2d.
- 68A Am. Jur. 2d, Secured Transactions, §§ 32, 192 et seq., 310, 311, 329 et seq., 352-354, 365, 395.
C.J.S.- 76 C.J.S., Records, § 4.
U.L.A.- Uniform Commercial Code (U.L.A.) § 9-502.
ALR.
- What amounts to a conditional sale, 17 A.L.R. 1421; 43 A.L.R. 1247; 92 A.L.R. 304; 175 A.L.R. 1366.
Violation of statute as to form of, or terms to be included in, conditional sale contract, as invalidating entire transaction or merely its effect to reserve title in vendor, 144 A.L.R. 1103.
Priority as between federal tax lien and mortgage to secure future advances or expenditures by mortgagee, 90 A.L.R.2d 1179.
Sufficiency of description of crops under UCC §§ 9-203(1)(b) and 9-402(1), 67 A.L.R.3d 308; 100 A.L.R.3d 10; 100 A.L.R.3d 940.
Sufficiency of designation of debtor or secured party in security agreement or financing statement under UCC § 9-402, 99 A.L.R.3d 478.
Sufficiency of address of debtor in financing statement required by UCC § 9-402(1), 99 A.L.R.3d 807.
Sufficiency of address of secured party in financing statement required under UCC § 9-402(1), 99 A.L.R.3d 1080.
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.
Sufficiency of secured party's signature on financing statement or security agreement under UCC § 9-402, 100 A.L.R.3d 390.
Sufficiency of debtor's signature on security agreement or financing statement under UCC §§ 9-203 and 9-402, 3 A.L.R.4th 502.
Choice of State Law Governing Perfection of Security Interest or Agricultural Lien Under Revised Article 9 of Uniform Commercial Code, 39 A.L.R.7th Art. 3.