Okla. Stat. tit. 12A § 1-9-705
Okla. Stat. tit. 12A, § 1-9-705
Oklahoma Code Comment
Revised section 9-705 validates after July 1, 2001, certain action taken by creditors prior to the effective date. Thus if action, other than filing a financing statement, was taken before July 1, 2001, and under the applicable law was effective to give priority over a lien creditor, it may perfect a security interest that attaches within one year after revised Article 9 becomes effective, but after a year that interest is unperfected unless the new requirements are satisfied. To illustrate, assume D enters into a security agreement covering all of a kind of collateral in favor of SP. SP and D notify a third party that SP holds a security interest in any of such collateral that may from time to time come into the third party's possession. After revised Article 9 takes effect, the debtor acquires new additional property of the kind and the third party acquires possession of it. SP's security interest attaches to the after-acquired collateral. Under subsection (a) of this section, SP's security interest is perfected when the third party acquires possession by virtue of the pre-effective-date notification. However, as explained in Official Comment 2, Example 2, to section 9-703, the security interest will become unperfected under revised Article 9 unless the third party in addition acknowledges that it holds for SP before the end of the one-year period following the effective date because under revised Article 9 notification to a bailee without more is not sufficient.
A prefiled financing statement that satisfies the requirements of revised Article 9 also is effective even if it was not under prior law. Conversely, a good financing statement filed in the proper jurisdiction under the former law will carry over until it expires under the old law or five years, whichever is earlier, even though it would have to be filed in a different place under revised Article 9. This is an exception to section 9-703(c) . It, however, cannot be continued under revised Article 9 and an initial financing statement instead must be filed under section 9-706, but a continuation valid under revised Article 9 will continue a prior financing statement if filed in that jurisdiction in the same office. Thus, under former section 9-403(3) , a continuation statement filed within six months before a financing statement's period of effectiveness is scheduled to expire extends that financing statement's effectiveness for five more years. This result does not change under revised Article 9 if (1) the financing statement is filed before July 1, 2001, (2) a continuation statement is timely filed either before or after July 1, 2001, and (3) both filings are made in an office that continues to be correct under revised Article 9 for that debtor and type of collateral.
However, if a financing statement and continuation statement are both filed before July 1, 2001, in an office that is no longer the correct filing office under revised Article 9, that continuation statement filed in what later becomes the wrong filing office cannot extend the financing statement's effectiveness past June 30, 2006. For example, assume a financing statement is scheduled to expire on December 15, 2001, but a continuation statement is filed on June 15, 2001. Note the continuation statement is filed exactly six months before the scheduled expiration, and before revised Article 9 changes the correct filing office. Thus, a secured party familiar with former Article 9 might expect this financing statement's effectiveness to be continued to December 15, 2006 (the normal five year period under former Article 9); but because revised Article 9 changes the correct filing office, the special rule in section 9-705(c) allows a continuation statement to extend the previously-filed financing statement's effectiveness only until (1) five years past the original scheduled expiration, or (2) June 30, 2006, whichever occurs first.
If a financing statement was filed before July 1, 2001, in a filing office that, under revised Article 9, became a wrong filing office for that debtor and type of collateral, section 9-705(d) makes clear that it will not be possible to extend that financing statement's effectiveness past its normally scheduled expiration date by filing, after June 30, 2001, a continuation statement in either the formerly correct office or the newly correct filing office. Under revised Article 9 it is improper for either the old filing office or the new filing office to accept a continuation statement for filing under these circumstances. Section 9-705(d) dictates that even if a continuation statement were incorrectly accepted for filing in this situation, it will have no effect.
Instead, (1) if revised Article 9 changes the correct filing office with respect to a particular debtor and the collateral, and (2) the secured party has filed a financing statement on or before June 30, 2001, in a formerly correct filing office that becomes a wrong filing office under revised Article 9, the secured party's only method after June 30, 2001, for extending the effectiveness of the pre-existing financing statement will be to file an Initial Financing Statement (not a continuation statement) in the newly correct filing office. Apart from setting out all of the information required in any initial financing statement under revised Article 9 (so that all of it will be on record in the new filing office), the provisions of revised section 9-706 also require that this filing disclose the existence and date of filing of the previously-filed financing statement in the formerly correct office. The new initial financing statement then "tacks back" to the earlier filing by making reference to it.
The provision in section 9-705(e) as to transmitting utility financing statements is uniform but has little or no application in light of other Oklahoma provisions. Both former section 9-401(6) and revised section 9-501(b) defer to 46 Okla. Stat. section 17 , which provides that the office of the Oklahoma Secretary of State is the correct place to file financing statements covering any real property and personal property located in Oklahoma and belonging to a transmitting utility. The "location" of such a utility is not relevant for tangible assets. Revised section 9-705(e) , in referencing any financing statements that may be described by section 9-705(c)(2) , does not appear to affect any filings made at the Oklahoma Secretary of State's Office with respect to transmitting utilities either before or after revised Article 9's effective date.
Finally, where revised Article 9 reclassifies collateral, then any prior filing or post continuation must comply with revised Article 9 for an initial filing. For example, suppose a pre-effective date financing statement covers "all general intangibles" of a debtor. A "general intangible," as defined under former Article 9 would include rights to payment for lottery winnings. These rights to payment are now "accounts" under revised Article 9, however. A post-effective date continuation statement will not continue the effectiveness of the pre-effective date financing statement with respect to lottery winnings unless it amends the indication of collateral covered to include "accounts," "rights to payment for lottery winnings," or another appropriate indication. If the continuation statement does not amend the indication of collateral, the continuation statement will be effective to continue the effectiveness of the financing statement only with respect to "general intangibles" as defined in revised Article 9. See also Oklahoma Comment to revised section 9-706 .