Okla. Stat. tit. 12A § 1-9-201
Okla. Stat. tit. 12A, § 1-9-201
Oklahoma Code Comment
Part 2 of revised Article 9 contains ten sections which, for the most part, follow prior Oklahoma law. Thus:
* Revised section 9-201 is substantially the same as present section 9-201 and section 9-203(4) .
* Revised section 9-202 is the same as present section 9-202 .
* Revised section 9-203 substantially follows, with appropriate changes, old section 9-203 , but contains a rule as to when a person by merger and the like becomes a debtor.
* Revised section 9-204 is essentially old section 9-204 .
* Revised section 9-205 is essentially old section 9-205 .
* Revised section 9-206 essentially is old section 9-116 ; the substance of old section 9-206 is moved to revised sections 9-403 and 9-404 .
* Revised section 9-207 essentially is old section 9-207 .
* Revised sections 9-208 , 9-209 and 9-210 essentially are old section 9-208 and section 9-404 , much modified to reflect the variety of collateral and means of perfection under Revised Article 9. Note under revised section 9-625 the sanction for failure to comply has increased.
The revision of this part generally does not change present Oklahoma law. It does provide more explicit rules for some issues than under prior law and adds rules designed for guidance in the case of new types of collateral and perfection under revised Article 9. However, not all issues are resolved. For example, whether revised section 9-201(a) , which provides a general rule that a security agreement is effective according to its terms between the parties and against third parties, gives priority to a secured party over an interest not controlled by Article 9 if there is no specific provision that addresses priority, remains unresolved. See, e.g., Valley Nat. Bank of Arizona v. Cotton Growers Hail Ins., Inc., 155 Ariz. 526, 747 P.2d 1225 (Ariz. App. 1987) (insurance company's argument that right of setoff was superior to security interest in insurance payable upon loss rebuffed since under old section 9-201 the secured party had priority). Inasmuch as revised section 9-109(d)(10) excludes the application of Article 9 to a right of recoupment or setoff except in explicit cases, it would appear cases on the specific facts of Valley National Bank are no longer good law, and revised section 9-201 should not be read so broadly as to establish priorities with respect to interests specifically excluded under revised section 9-109 . As to other interests, however, the Valley National Bank rationale may remain viable.
Revised section 9-201(b) provides that a transaction subject to Article 9 may be subject to other applicable law for consumers, and revised section 9-201(c) makes that other law paramount if there is a conflict. Oklahoma H.B. 1519, in enacting this section, cites the Oklahoma Uniform Consumer Credit Code, 14A Okla. Stat. section 1-101 et seq., and also includes "any other applicable rule of law which establishes a different rule for consumers, and any other statute or regulation that regulates the rates, charges, agreements and practices for loans, credit sales or other extensions of credit." Revised section 9-201(d) essentially repeats deference for the types of statutes described in the last part of the quoted language of revised section 9-201(b) . What sort of other laws does this general language refer to? Without attempting an exclusive listing, at least the following should qualify, as applicable, in addition to the Uniform Consumer Credit Code (which regulates rates, charges, agreements and practices for loans and credit sales):
* the Consumer Protection Act, 15 Okla. Stat. section 751 et seq.
* the statutes on unsolicited goods, 15 Okla. Stat. sections 721, 722 .
* the Credit Services Organization Act, 24 Okla. Stat. section 131 et seq.
* the Health Spa Act, 59 Okla. Stat. section 2000 et seq.
* the Pawnbroker Act, 59 Okla. Stat. section 1501 et seq.
* the Loan Broker Act, 59 Okla. Stat. section 2081 et seq.
On the other hand, while the Rental Purchase Act, 59 Okla. Stat. section 1950 et seq., clearly is within the quoted language, by its own terms in section 1951(6) a transaction regulated by it is excluded from Article 9. Finally, a number of statutes may or may not qualify depending on the view of a court. An example may be the statutes on secondhand watches. That statute, in 15 Okla. Stat. section 611 et seq., protects "consumers," but that term is defined far more broadly than probably is intended by section 9-201(b) . See revised section 9-103(a)(22)-(26) .
Section 9-201(a) clearly embodies the freedom of contract philosophy so prevalent throughout the Uniform Commercial Code. See First Nat. Bank and Trust Co. of Norman v. Security Nat. Bank and Trust Co., 676 P.2d 837 (Okla. 1984). However, it must be recognized that the Uniform Commercial Code in both Articles 1 and 9 (see 12A Okla. Stat. section 1-102(3) and revised section 9-602) places explicit limits on that freedom, and so have Oklahoma cases. See, e.g., Security Nat. Bank and Trust Co. v. Dentsply Professional Plan, 617 P.2d 1340 (Okla. 1980) (test to determine if future liabilities fall within security agreement's future advance clause is whether debts are of same class as primary obligation and in contemplation of parties). But see Official Comment 5 to revised section 9-204 (rejecting the Dentsply rationale). The thrust of the UCC generally and revised Article 9 in particular continues the traditional public policy in favor of recognizing party autonomy in the absence of explicit limits or a compelling policy to the contrary. See, e.g., section 1-102(3) and revised sections 9-601 --9-603.