AMENDMENTS TO UNIFORM COMMERCIAL CODE ARTICLES 1, 3, 8, AND 9

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1 D R A F T FOR DISCUSSION ONLY AMENDMENTS TO UNIFORM COMMERCIAL CODE ARTICLES 1,,, AND NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS Interim Draft March -, 01 Committee Meeting Draft Copyright 001 By NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS The ideas and conclusions set forth in this draft, including the proposed statutory language and any comments or reporter sreporter s notes, have not been passed upon by the National Conference of Commissioners on Uniform State Laws or the Drafting Committee. They do not necessarily reflect the views of the Conference and its Commissioners and the Drafting Committee and its Members and Reporter. Proposed statutory language may not be used to ascertain the intent or meaning of any promulgated final statutory proposal. November, 01February, 01

2 DRAFTING COMMITTEE ON AMENDMENTS TO UNIFORM COMMERCIAL CODE ARTICLES 1,,, AND The Committee appointed by and representing the Uniform Law Commission in preparing this Act consists of the following individuals: EDWIN E. SMITH, One Federal St., Boston, MA 01-, Chair KRISTEN D. ADAMS, 1 1st St. S., Gulfport, FL 0, ALI Representative BORIS AUERBACH, 1 E. St., Indianapolis, IN AMELIA H. BOSS, Drexel University School of Law, 0 Market St., Philadelphia, PA 1, ALI Representative THOMAS J. BUITEWEG, 0 Boardwalk St., Suite 0, Ann Arbor, MI NEIL B. COHEN, Brooklyn Law School, 0 Joralemon St., Brooklyn, NY 01-00, ALI Representative MICHAEL A. FERRY, 00 N. Broadway, Suite 0, St. Louis, MO PATRICK A. GUIDA, One Financial Plaza, 1th Floor, Providence, RI 00-1 TERESA W. HARMON, One S. Dearborn St., Chicago, IL 00, ALI Representative WILLIAM H. HENNING, Texas A & M School of Law, Commerce St., Fort Worth, TX RONALD J. MANN, Columbia Law School, W. th St., New York, NY 0, ALI Representative H. KATHLEEN PATCHEL, 1 E. th St., Indianapolis, IN NORMAN M. POWELL, Rodney Square, 00 N. King St., Wilmington, DE 1, ALI Representative SANDRA S. STERN, W. rd St., Suite, New York, NY 0- STEVEN O. WEISE, 0 Century Park E., Suite 00, Los Angeles, CA 00-0, ALI Representative STEVEN L. HARRIS, Chicago-Kent College of Law, W. Adams St., Chicago, IL 01-1, Reporter EX OFFICIO ANITA RAMASASTRY, University of Washington School of Law, William H. Gates Hall, Box 00, Seattle, WA 1-00, President JOHN T. MCGARVEY, 01 S. th St., Suite 00, Louisville, KY 00, Division Chair NEIL B. COHEN, Brooklyn Law School, 0 Joralemon St., Brooklyn, NY 01-00, PEB for UCC, Director of Research AMERICAN LAW INSTITUTE DIRECTOR RICHARD L. REVESZ, New York University School of Law, 0 Washington Sq. S., Room, New York, NY 0-0, ALI Director AMERICAN BAR ASSOCIATION ADVISOR EILEEN S. EWING, 1 Country Way, Needham, MA 0, ABA Advisor EXECUTIVE DIRECTOR LIZA KARSAI, 1 N. Wabash Ave., Suite, Chicago, IL 00, Executive Director

3 Copies of this act may be obtained from: NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS 1 N. Wabash Ave., Suite Chicago, Illinois 00 /0-00

4 AMENDMENTS TO UNIFORM COMMERCIAL CODE ARTICLES 1,,, AND TABLE OF CONTENTS SECTION GENERAL DEFINITIONS SECTION -. DEFINITIONS.... SECTION -. NEGOTIABLE INSTRUMENT.... SECTION -01. NEGOTIATION.... SECTION -0. TRANSFER OF INSTRUMENT; RIGHTS ACQUIRED BY TRANSFER... SECTION -01. PERSON ENTITLED TO ENFORCE INSTRUMENT.... SECTION -0. HOLDER IN DUE COURSE.... SECTION -0. PROOF OF SIGNATURES AND STATUS AS HOLDER IN DUE COURSE.... SECTION -0. ENFORCEMENT OF LOST, DESTROYED, OR STOLEN INSTRUMENT.... SECTION -. OBLIGATION OF ISSUER OF NOTE OR CASHIER S CHECK.... SECTION -1. OBLIGATION OF INDORSER.... SECTION -1. TRANSFER WARRANTIES.... SECTION -0. EXCUSED PRESENTMENT AND NOTICE OF DISHONOR.... SECTION -0. PAYMENT.... SECTION -0. DISCHARGE BY CANCELLATION OR RENUNCIATION SECTION -. RULES FOR DETERMINING WHETHER CERTAIN OBLIGATIONS AND INTERESTS ARE SECURITIES OR FINANCIAL ASSETS SECTION -. DEFINITIONS AND INDEX OF DEFINITIONS SECTION -. CONTROL OF ELECTRONIC CHATTEL PAPER; CONTROL OF ELECTRONIC MORTGAGE NOTE SECTION -. SUFFICIENCY OF DESCRIPTION SECTION -0. ATTACHMENT AND ENFORCEABILITY OF SECURITY INTEREST; PROCEEDS; SUPPORTING OBLIGATIONS; FORMAL REQUISITES WHEN SECURITY INTEREST OR AGRICULTURAL LIEN IS PERFECTED; CONTINUITY OF PERFECTION... 1 SECTION -. WHEN FILING REQUIRED TO PERFECT SECURITY INTEREST OR AGRICULTURAL LIEN; SECURITY INTERESTS AND AGRICULTURAL LIENS TO WHICH FILING PROVISIONS DO NOT APPLY SECTION -. PERFECTION OF SECURITY INTERESTS IN CHATTEL PAPER, DEPOSIT ACCOUNTS, DOCUMENTS, GOODS COVERED BY DOCUMENTS, INSTRUMENTS, INVESTMENT PROPERTY, LETTER-OF-CREDIT RIGHTS, AND MONEY; PERFECTION BY PERMISSIVE FILING; TEMPORARY PERFECTION WITHOUT FILING OR TRANSFER OF POSSESSION.... SECTION -. WHEN POSSESSION BY OR DELIVERY TO SECURED PARTY PERFECTS SECURITY INTEREST WITHOUT FILING.... SECTION -1. PERFECTION BY CONTROL.... SECTION -. PRIORITIES AMONG CONFLICTING SECURITY INTERESTS IN AND AGRICULTURAL LIENS ON SAME COLLATERAL.... SECTION -0. PRIORITY OF PURCHASER OF CHATTEL PAPER, ELECTRONIC MORTGAGE NOTE, OR INSTRUMENT....

5 SECTION -0. DISCHARGE OF ACCOUNT DEBTOR; NOTIFICATION OF ASSIGNMENT; IDENTIFICATION AND PROOF OF ASSIGNMENT; RESTRICTIONS ON ASSIGNMENT OF ACCOUNTS, CHATTEL PAPER, PAYMENT INTANGIBLES, AND PROMISSORY NOTES INEFFECTIVE.... SECTION -1. TRANSFER OF RECORD OR LEGAL TITLE.... Appendix...

6 AMENDMENTS TO UNIFORM COMMERCIAL CODE ARTICLES 1,,, AND SECTION GENERAL DEFINITIONS. (b) Subject to definitions contained in other [articles] of [the Uniform Commercial Code] that apply to particular [articles] or [parts] thereof: (1) Holder means: (A) with respect to a negotiable instrument other than an electronic mortgage note, the person in possession of a negotiable instrument that if the negotiable instrument is payable either to bearer or to an identified person that is the person in possession; or (B) with respect to a document of title,: (i) the person in possession of a negotiable tangible document of title if the goods are deliverable either to bearer or to the order of the person in possession; or (C)(ii) the person in control of a negotiable electronic document of title; or (C) with respect to an electronic mortgage note, the registrant if, at the time the related mortgage note was submitted to the repository system, the submitter: (i) was the holder of the mortgage note; or (ii) held a security interest in the mortgage note which was created in favor of the submitter by a person that was the holder at the time the security interest was created. 1

7 (c) The following terms are definedhave the meanings given in the [National Mortgage Note Repository Act of 01] [as it may be amended from time to time:]: (1) Authorized transferor.. () Electronic mortgage note.. () Mortgage note.. () Registered transfer.. () Registrant.. () Repository operator.. () Repository system.. () System rules.. Legislative Notes: 1. These amendments are designed to implement a specificnote: In states in which the constitution, or other law, does not permit the phrase as amended when federal law, the [National Mortgage Note Repository Act of 01]. This federal act, like all laws, is subject to change. Accordingly, rather than restate the relevant federal-statutes are incorporated into state law definitions, these amendments incorporate by reference, the federal-law definitions as they mayphrase should be amended from time to time. Underdeleted in subsection (c). However, under the applicable federal choice-of-law rules, a change in a federal-law definition maymight result in a change to the definitions enacted by a Statestate as they apply to electronic mortgage notes, even if the Statestate enactment does not include the phrase, as it may be amended from time to time.. A Statestate that chooses to restate, rather than incorporate by reference, the federal-law definitions should do so with great carecarefully, inasmuch as some of the definitions may use terms that are defined differently in the federal law than they arein the Uniform Commercial Code. SECTION -. DEFINITIONS. (a) In this [article:]: (1) Transferable record means a transferable record as definedhas the meaning

8 given in the [National Mortgage Note Repository Act of 01] [as it may be amended from time to time.]. Legislative Note: See the Legislative NotesNote to Section SECTION -. NEGOTIABLE INSTRUMENT. (a) Except as otherwise provided in subsections (c) and (d), negotiable instrument means: (1) an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it: (1)(A) is payable to bearer or to order at the time it is issued or first comes into possession of a holder; ()(B) is payable on demand or at a definite time; and ()(C) does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money, but the promise or order may contain (i) an undertaking or power to give, maintain, or protect collateral to secure payment, (ii) an authorization or power to the holder to confess judgment or realize on or dispose of collateral, or (iii) a waiver of the benefit of any law intended for the advantage or protection of an obligor; and () an electronic mortgage note. SECTION -01. NEGOTIATION. (a) Negotiation,, with respect to an instrument other than an electronic mortgage note, means a transfer of possession, whether voluntary or involuntary, of an the instrument by a

9 person other than the issuer to a person who that thereby becomes its holder. The term includes the conversion of a mortgage note to an electronic mortgage note if, at the time the mortgage note was submitted to the repository system, the submitter: (1) was the holder of the mortgage note; and () held a security interest in the mortgage note which was created by the person whothat becomes the initial registrant of the related electronic mortgage note. (b) This subsection does not apply to an electronic mortgage note. Except for negotiation by a remitter if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder. If an instrument is payable to bearer, it may be negotiated by transfer of possession alone. (c) Negotiation,, with respect to an electronic mortgage note, means a registered transfer of the electronic mortgage note to a person whothat thereby becomes its holder. (d) There cannot be a holder of an electronic mortgage note that the repository operator creates based on submission of a mortgage note that: (1) was not a negotiable instrument or transferable record at the time of submission; or () was not submitted by a person whothat, at the time of submission,: (A) was the holder of the mortgage note, or (B) held a security interest in the mortgage note which was created in favor of the submitter by a person that was the holder at the time the security interest was created.

10 SECTION -0. TRANSFER OF INSTRUMENT; RIGHTS ACQUIRED BY TRANSFER. (a) An instrument, other than an electronic mortgage note, is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. An instrument that is a mortgage note is also transferred also when itthe mortgage note is converted to an electronic mortgage note if the person that submitted the mortgage note to the repository system was the person entitled to enforce the instrument at the time of submission and does not become the initial registrant of the related electronic mortgage note. An electronic mortgage note is transferred when a registered transfer occurs. (b) Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course, but the transferee cannot acquire rights of a holder in due course by a transfer, directly or indirectly, from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument. The transferor of an electronic mortgage note is the person that was the registrant of the electronic mortgage note immediately before the transfer, even if the authorized transferor effected the transfer. SECTION -01. PERSON ENTITLED TO ENFORCE INSTRUMENT. (a) Person entitled to enforce an instrument means: (1) with respect to an instrument other than an electronic mortgage note, : (i)(a) the holder of the instrument,,; (ii)(b) a nonholder in possession of the instrument who which has the

11 rights of a holder,,; or (iii)(c) a person not in possession of the instrument who which is entitled to enforce the instrument pursuant to Section -0 or -1(d); and () with respect to an electronic mortgage note, the registrant of the electronic mortgage note. (b) A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument SECTION -0. HOLDER IN DUE COURSE. (a) Subject to subsection (c) and Section -(d), holder in due course means the holder of an instrument if: (1) the instrument when issued or negotiated to the holder does not bear such apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call into question its authenticity; and () the holder took the instrument (i) for value, (ii) in good faith, (iii) without notice that the instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series, (iv) without notice that the instrument contains an unauthorized signature or has been altered, (v) without notice of any claim to the instrument described in Section -0, and (vi) without notice that any party has a defense or claim in recoupment described in Section -0(a). (b) Notice of discharge of a party, other than discharge in an insolvency proceeding, is not notice of a defense under subsection (a), but discharge is effective against a person who became a holder in due course with notice of the discharge. Public filing or recording of a document does not of itself constitute notice of a defense, claim in recoupment, or claim to the

12 instrument, except that a record of the repository system thatwhich indicates that the obligation of a person on an electronic mortgage note under Section - or -1 has been discharged constitutes notice of the discharge. (g) This section is subject to any law limiting status as a holder in due course in particular classes of transactions. (h) There cannot be a holder in due course of an electronic mortgage note that the repository operator creates based on submission of a mortgage note that: (1) was not a negotiable instrument or transferable record at the time of submission; or () was not submitted by a person who, at the time of submission, was the holder of the mortgage note or held a security interest in the mortgage note which was created in favor of the submitter by a person thatwho was the holder at the time the security interest was created. SECTION -0. PROOF OF SIGNATURES AND STATUS AS HOLDER IN DUE COURSE. (a) In an action with respect to an instrument, the authenticity of, and authority to make, each signature on the instrument is admitted unless specifically denied in the pleadings. If the validity of a signature is denied in the pleadings, the burden of establishing validity is on the person claiming validity, but the signature is presumed to be authentic and authorized unless the action is to enforce the liability of the purported signer and the signer is dead or incompetent at the time of trial of the issue of validity of the signature. If an action to enforce the instrument is brought against a person as the undisclosed principal of a person who signed the instrument as a party to the instrument, the plaintiff has the burden of establishing that the defendant is liable on

13 the instrument as a represented person under Section -0(a). (b) This subsection does not apply to an electronic mortgage note. If the validity of signatures is admitted or proved and there is compliance with subsection (a), a plaintiff producing the instrument is entitled to payment if the plaintiff proves entitlement to enforce the instrument under Section -01, unless the defendant proves a defense or claim in recoupment. If a defense or claim in recoupment is proved, the right to payment of the plaintiff is subject to the defense or claim, except to the extent the plaintiff proves that the plaintiff has rights of a holder in due course which are not subject to the defense or claim. (c) This subsection appliesthe following rules apply to an electronic mortgage note.: (1) If the validity of signatures is admitted or proved and there is compliance with subsection (a), a plaintiff producing a current record of the electronic mortgage note, certified by the repository operator, and a current record of the repository system, certified by the repository operator, which identifies the plaintiff as the registrant of the electronic mortgage note, is entitled to payment unless the defendant: (A) produces a record of the repository system, certified by the repository operator more recently than the record produced by the plaintiff, which identifies a person other than the plaintiff as the registrant; or (B) proves that it has a defense or claim in recoupment. () If a defense or claim in recoupment is proved, the right to payment of the plaintiff is subject to the defense or claim, except to the extent the plaintiff proves that the plaintiff has rights of a holder in due course which are not subject to the defense or claim.

14 SECTION -0. ENFORCEMENT OF LOST, DESTROYED, OR STOLEN INSTRUMENT. (a) A Except as otherwise provided insubject to subsection (c), a person not in possession of an instrument is entitled to enforce the instrument if: (1) the person seeking to enforce the instrument: (A) was entitled to enforce the instrument when loss of possession occurred; or (B) has directly or indirectly acquired ownership of the instrument from a person who that was entitled to enforce the instrument when loss of possession occurred; () the loss of possession was not the result of a transfer by the person or a lawful seizure; and () the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process. (c) Subsection (a) does not apply to an instrument that is converted to an electronic mortgage note SECTION -. OBLIGATION OF ISSUER OF NOTE OR CASHIER S CHECK. (a) The issuer of a note or cashier s check or other draft drawn on the drawer is obliged to pay the instrument (i) according to its terms at the time it was issued or, if not issued, at the time it first came into possession of a holder, or (ii) if the issuer signed an incomplete instrument,

15 according to its terms when completed, to the extent stated in Sections - and -0. The obligation is owed to a person entitled to enforce the instrument or to an indorser or transferor who that paid the instrument under Section -1. (b) If the repository system converts a mortgage note to an electronic mortgage note, the obligation of a maker of, or equivalent obligor on, the mortgage note becomes an obligation under subsection (a) on the related electronic mortgage note under subsection (a) SECTION -1. OBLIGATION OF INDORSER. (a) Subject to subsections (b), (c), (d), and (e) and to Section -1(d), if an instrument is dishonored, an indorser is obliged to pay the amount due on the instrument (i) according to the terms of the instrument at the time it was indorsed, or (ii) if the indorser indorsed an incomplete instrument, according to its terms when completed, to the extent stated in Sections - and -0. The obligation of the indorser is owed to a person entitled to enforce the instrument or to a subsequent indorser who or transferor whothat paid the instrument under this section. (b) If Subject to subsection (f), if an indorsement states that it is made without recourse or otherwise disclaims liability of the indorser, the indorser is not liable under subsection (a) to pay the instrument. (c) If notice of dishonor of an instrument is required by Section -0 and notice of dishonor complying with that section is not given to an indorser, the liability of the indorser under subsection (a) is discharged. (d) If a draft is accepted by a bank after an indorsement is made, the liability of the indorser under subsection (a) is discharged. (e) If an indorser of a check is liable under subsection (a) and the check is not presented

16 1 for payment, or given to a depositary bank for collection, within 0 days after the day the indorsement was made, the liability of the indorser under subsection (a) is discharged. (f) If the repository system converts a mortgage note to an electronic mortgage note, the obligation of an indorser of, or equivalent obligor on, the mortgage note becomes an obligation under subsection (a) on the related electronic mortgage note under subsection (a).. (g) Except as otherwise provided in subsection (h): (1) if a mortgage note is transferred when it is converted to an electronic mortgage note and the person that submitted the mortgage note to the repository system was the holder of the mortgage note at the time of submission, the transferor becomes obligatedincurs the obligation of an indorser under subsection (a) as if the transferor were an indorser;); and () a transferor of an electronic mortgage note becomes obligatedincurs the obligation of an indorser under subsection (a) as if the transferor were an indorser.). (h) Subsection (g) does not apply if the records of the repository system indicate that liability has been disclaimed SECTION -1. TRANSFER WARRANTIES. (a) A person who that transfers an instrument for consideration warrants to the transferee and, if the transfer is by indorsement or the instrument is an electronic mortgage note, to any subsequent transferee that: (1) the warrantor is a person entitled to enforce the instrument; () all signatures on the instrument are authentic and authorized; () the instrument has not been altered; () the instrument is not subject to a defense or claim in recoupment of any party

17 which can be asserted against the warrantor; () the warrantor has no knowledge of any insolvency proceeding commenced with respect to the maker or acceptor or, in the case of an unaccepted draft, the drawer; and () with respect to a remotely-created consumer item, that the person on whose account the item is drawn authorized the issuance of the item in the amount for which the item is drawn. (c) The warranties stated in subsection (a) cannot be disclaimed with respect to checks. A disclaimer of the warranties stated in subsection (a) is effective against a subsequent transferee of an electronic mortgage note only to the extent the records of the repository system indicate the existence and nature of the disclaimer. Unless notice of a claim for breach of warranty is given to the warrantor within 0 days after the claimant has reason to know of the breach and the identity of the warrantor, the liability of the warrantor under subsection (b) is discharged to the extent of any loss caused by the delay in giving notice of the claim. (e) A transfer of a mortgage note which occurs when the mortgage note is converted to an electronic mortgage note is not of itself a transfer for consideration under subsection (a) SECTION -0. EXCUSED PRESENTMENT AND NOTICE OF DISHONOR. (a) Presentment for payment or acceptance of an instrument is excused if (i) the person entitled to present the instrument cannot with reasonable diligence make presentment, (ii) the maker or acceptor has repudiated an obligation to pay the instrument or is dead or in insolvency proceedings, (iii) by the terms of the instrument presentment is not necessary to enforce the obligation of indorsers or the drawer, (iv) the drawer or indorser whose obligation is being

18 enforced has waived presentment or otherwise has no reason to expect or right to require that the instrument be paid or accepted, or (v) the drawer instructed the drawee not to pay or accept the draft or the drawee was not obligated to the drawer to pay the draft, or (vi) the instrument is an electronic mortgage note SECTION -0. PAYMENT. (a) Subject to subsection (e), an instrument is paid to the extent payment is made by or on behalf of a party obliged to pay the instrument, and to a person entitled to enforce the instrument. (b) Subject to subsection (e), a note is paid to the extent payment is made by or on behalf of a party obliged to pay the note to a person that formerly was entitled to enforce the note only if at the time of the payment the party obliged to pay has not received adequate notification that the note has been transferred and that payment is to be made to the transferee. A notification is adequate only if it is signed by the transferor or the transferee; reasonably identifies the transferred note; and provides an address at which payments subsequently are to be made. Upon request, a transferee shall seasonably furnish reasonable proof that the note has been transferred. Unless the transferee complies with the request, a payment to the person that formerly was entitled to enforce the note is effective for purposes of subsection (c) even if the party obliged to pay the note has received a notification under this paragraph. (c) Subject to subsection (e), to the extent of a payment under subsections (a) and (b), the obligation of the party obliged to pay the instrument is discharged even though payment is made with knowledge of a claim to the instrument under Section -0 by another person. (d) Subject to subsection (e), a transferee, or any party that has acquired rights in the

19 instrument directly or indirectly from a transferee, including any such party that has rights as a holder in due course, is deemed to have notice of any payment that is made under subsection (b) after the date that the note is transferred to the transferee but before the party obliged to pay the note receives adequate notification of the transfer. (e) The obligation of a party to pay the instrument is not discharged under subsections (a) through (d) if: (1) a claim to the instrument under Section -0 is enforceable against the party receiving payment and (i) payment is made with knowledge by the payor that payment is prohibited by injunction or similar process of a court of competent jurisdiction, or (ii) in the case of an instrument other than a cashier s check, teller s check, or certified check, or electronic mortgage note, the party making payment accepted, from the person having a claim to the instrument, indemnity against loss resulting from refusal to pay the person entitled to enforce the instrument; or () the person making payment knows that the instrument, other than an electronic mortgage note, is a stolen instrument and pays a person it knows is in wrongful possession of the instrument. Legislative Note: The relevant provisions of the [National Mortgage Note Repository Act of 01] are consistent with the 00 amendments to this section. A jurisdiction that has not enacted those amendments should do so in conjunction with enactment of the amendment shown here. SECTION -0. DISCHARGE BY CANCELLATION OR RENUNCIATION. (a) A person entitled to enforce an instrument, with or without consideration, may discharge the obligation of a party to pay the instrument (i) by an intentional voluntary act, such 1

20 as surrender of the instrument to the party, destruction, mutilation, or cancellation of the instrument, cancellation or striking out of the party s signature, or the addition of words to the instrument indicating discharge, or (ii) by agreeing not to sue or otherwise renouncing rights against the party by a signed record. Neither submissionthe obligation of a party to pay a mortgage note is not discharged by destruction of a mortgage note in connection with or as a consequence of submission of the mortgage note to the repository system norand conversion of athe mortgage note to an electronic mortgage note discharges the obligation of a party to pay the instrument. (b) Cancellation or striking out of an indorsement pursuant to subsection (a) does not affect the status and rights of a party derived from the indorsement. (c) In this section, signed, with respect to a record that is not a writing, includes the attachment to or logical association with the record of an electronic symbol, sound, or process with the present intent to adopt or accept the record. SECTION -. RULES FOR DETERMINING WHETHER CERTAIN OBLIGATIONS AND INTERESTS ARE SECURITIES OR FINANCIAL ASSETS. (h) An electronic mortgage note is not a security, but. However, an electronic mortgage note is a financial asset if it is held in a securities account SECTION -. DEFINITIONS AND INDEX OF DEFINITIONS. (a) [[[Article] definitions.] In this [article:]: () Account, except as used in account for, means a right to payment of a 1

21 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 state, governmental unit of a State state, or person licensed or authorized to operate the game by a State state or governmental unit of a State state. The term includes health-care-insurance receivables. The term does not include (i) rights to payment evidenced by chattel paper, an electronic mortgage note, 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. () 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. () 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 security interest in specific goods and license of software used in the goods, a lease of specific goods, or a lease of specific goods and license of software used in the goods. In this paragraph, monetary obligation means a monetary obligation secured by the 1

22 goods or owed under a lease of the goods and includes a monetary obligation with respect to software used in the goods. The term chattel paper does not include (i) charters or other contracts involving the use or hire of a vessel, or (ii) 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, or (iii) an electronic mortgage note. If a transaction is evidenced by records that include an instrument or series of instruments, the group of records taken together constitutes chattel paper. () Instrument means a negotiable instrument, other than an electronic mortgage note, 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. () Investment property means a security, whether certificated or uncertificated, security entitlement, securities account, commodity contract, or commodity account. (1) Payment intangible means a general intangible under which the account debtor s principal obligation is a monetary obligation. The term includes an electronic mortgage note. 1

23 SECTION -A. CONTROL OF ELECTRONIC CHATTEL PAPER; CONTROL OF ELECTRONIC MORTGAGE NOTE.. (a) [Authorized transferor.] In this section, authorized transferor means an authorized transferor as defined in the [National Mortgage Note Repository Act of 01] as it may be amended from time to time. (b) [Perfection by control.] (a) [General rule: control of electronic chattel paper.] A secured party has control of electronic chattel paper if a system employed for evidencing the transfer of interests in the chattel paper reliably establishes the secured party as the person to which the chattel paper was assigned. (b) [Specific facts giving control of electronic chattel paper.] A system satisfies subsection (a) if the record or records comprising the chattel paper are created, stored, and assigned in such a manner that: (1) a single authoritative copy of the record or records exists which is unique, identifiable, and, except as otherwise provided in paragraphs (), (), and (), unalterable; () the authoritative copy identifies the secured party as the assignee of the record or records; () the authoritative copy is communicated to and maintained by the secured party or its designated custodian; () copies or amendments that add or change an identified assignee of the authoritative copy can be made only with the consent of the secured party; () each copy of the authoritative copy and any copy of a copy is readily identifiable as a copy that is not the authoritative copy; and () any amendment of the authoritative copy is readily identifiable as authorized 1

24 or unauthorized. (c) [Control of electronic mortgage note.] A secured party has control of an electronic mortgage note if the secured party is: (1) is the authorized transferor of the electronic mortgage note; or () is the registrant of the electronic mortgage note and there is no authorized transferor of the electronic mortgage note. Legislative Note: See the Legislative Notes to Section SECTION -. SUFFICIENCY OF DESCRIPTION. (a) [Sufficiency of description.] Except as otherwise provided in subsections (c), (d), and (e), a description of personal or real property is sufficient, whether or not it is specific, if it reasonably identifies what is described. * * * (f) [Electronic mortgage note.] A description of an electronic mortgage note is sufficient if it describes the electronic mortgage note or the mortgage note from which itthe mortgage note was converted. SECTION -0. ATTACHMENT AND ENFORCEABILITY OF SECURITY INTEREST; PROCEEDS; SUPPORTING OBLIGATIONS; FORMAL REQUISITES. (b) [Enforceability.] Except as otherwise provided in subsections (c) through (i)(j), a security interest is enforceable against the debtor and third parties with respect to the collateral only if: 1

25 (1) value has been given; () the debtor has rights in the collateral or the power to transfer rights in the collateral to a secured party; and () one of the following conditions is met: (A) the debtor has authenticated a security agreement that provides a description of the collateral and, if the security interest covers timber to be cut, a description of the land concerned; (B) the collateral is not a certificated security and is in the possession of the secured party under Section - pursuant to the debtor s security agreement; (C) the collateral is a certificated security in registered form and the security certificate has been delivered to the secured party under Section -01 pursuant to the debtor s security agreement; or (D) the collateral is deposit accounts, electronic chattel paper, an electronic mortgage note, investment property, or letter-of-credit rights, electronic mortgage notes, or electronic documents and the secured party has control under Section -, -, -, -A, -, or - pursuant to the debtor s security agreement. (j) A security interest that is attached to a mortgage note at the time the mortgage note is converted to an electronic mortgage note continues in the electronic mortgage note. SECTION -0. RIGHTS AND DUTIES OF SECURED PARTY HAVING POSSESSION OR CONTROL OF COLLATERAL. 0

26 (c) [Duties and rights when secured party in possession or control.] Except as otherwise provided in subsection (d), a secured party having possession of collateral or control of collateral under Section -, -, -A, -, or -: (1) may hold as additional security any proceeds, except money or funds, received from the collateral; () shall apply money or funds received from the collateral to reduce the secured obligation, unless remitted to the debtor; and () may create a security interest in the collateral. SECTION -0. WHEN SECURITY INTEREST OR AGRICULTURAL LIEN IS PERFECTED; CONTINUITY OF PERFECTION. (h) If a secured party holds a perfected security interest in a mortgage note that is converted to an electronic mortgage note and the security interest in the electronic mortgage note is perfected on conversion, the security interest continues as a perfected security interest in the electronic mortgage note. SECTION -. WHEN FILING REQUIRED TO PERFECT SECURITY INTEREST OR AGRICULTURAL LIEN; SECURITY INTERESTS AND AGRICULTURAL LIENS TO WHICH FILING PROVISIONS DO NOT APPLY. (a) [General rule: perfection by filing.] Except as otherwise provided in subsection (b) and Section -(b), a financing statement must be filed to perfect all security interests and agricultural liens. (b) [Exceptions: filing not necessary.] The filing of a financing statement is not 1

27 necessary to perfect a security interest: (1) that is perfected under Section -0(d), (e), (f), or (g); () that is perfected under Section -0 when it attaches; () in property subject to a statute, regulation, or treaty described in Section - (a); () in goods in possession of a bailee which is perfected under Section - (d)(1) or (); () in certificated securities, documents, goods, or instruments, or mortgage notes which is perfected without filing, control, or possession under Section -(e), (f), or (g), or (h); () in collateral in the secured party s possession under Section -; () in a certificated security which is perfected by delivery of the security certificate to the secured party under Section -; () in deposit accounts, electronic chattel paper, electronic documents, electronic mortgage notes, investment property, or letter-of-credit rights which is perfected by control under Section -1; () in proceeds which is perfected under Section -1; or () that is perfected under Section -1.

28 SECTION -. PERFECTION OF SECURITY INTERESTS IN CHATTEL PAPER, DEPOSIT ACCOUNTS, DOCUMENTS, GOODS COVERED BY DOCUMENTS, INSTRUMENTS, INVESTMENT PROPERTY, LETTER-OF-CREDIT RIGHTS, AND MONEY; PERFECTION BY PERMISSIVE FILING; TEMPORARY PERFECTION WITHOUT FILING OR TRANSFER OF POSSESSION. (a) [Perfection by filing permitted.] A security interest in chattel paper, negotiable documents, instruments, or investment property may be perfected by filing. (e) [Temporary perfection: new value.] A security interest in certificated securities, negotiable documents, or instruments is perfected without filing or the taking of possession or control for a period of 0 days from the time it attaches to the extent that it arises for new value given under an authenticated security agreement. (f) [Temporary perfection: goods or documents made available to debtor.] A perfected security interest in a negotiable document or goods in possession of a bailee, other than one that has issued a negotiable document for the goods, remains perfected for 0 days without filing if the secured party makes available to the debtor the goods or documents representing the goods for the purpose of: (1) ultimate sale or exchange; or () loading, unloading, storing, shipping, transshipping, manufacturing, processing, or otherwise dealing with them in a manner preliminary to their sale or exchange. (g) [Temporary perfection: delivery of security certificate or instrument to debtor.] A perfected security interest in a certificated security or instrument remains perfected for 0 days without filing if the secured party delivers the security certificate or instrument to the debtor for

29 the purpose of: (1) ultimate sale or exchange; or () presentation, collection, enforcement, renewal, or registration of transfer. (h) [Temporary perfection: delivery of mortgage note to debtor.] A perfected security interest in a mortgage note remains perfected for 0 days without filing if the secured party delivers the mortgage note to the debtor for the purpose of submission to the repository system. (h)(i) [Expiration of temporary perfection.] After the 0-day period specified in subsection (e), (f), or (g), or (h) expires, perfection depends upon compliance with this [article.]. SECTION -. WHEN POSSESSION BY OR DELIVERY TO SECURED PARTY PERFECTS SECURITY INTEREST WITHOUT FILING. (a) [Perfection by possession or delivery.] Except as otherwise provided in subsection (b), a secured party may perfect a security interest in tangible negotiable documents, goods, instruments, other than a mortgage notenotes that hashave been converted to an electronic mortgage notenotes, money, or tangible chattel paper by taking possession of the collateral. A secured party may perfect a security interest in certificated securities by taking delivery of the certificated securities under Section -01. (d) [Time of perfection by possession; continuation of perfection.] If perfection of a security interest depends upon possession of the collateral by a secured party, perfection occurs no earlier than the time the secured party takes possession and continues only while the secured party retains possession. In this subsection: (1) a secured party that has possession of a mortgage note and delivers the

30 mortgage note to the repository system for conversion retains possession until the repository system converts the mortgage note to an electronic mortgage note; () a secured party that has possession of a mortgage note and delivers the mortgage note to the debtor for the purpose of submission to the repository system is deemed to retainretains possession: (A) until the mortgage note is converted to an electronic mortgage note if the mortgage note is converted not later than 0 days after the delivery; or (B) until the debtor redelivers the mortgage note to the secured party if the mortgage note is redelivered not later than 0 days after the delivery without having been converted; and () a secured party is deemeddoes not to retain possession of a mortgage note that has been converted to an electronic mortgage note. SECTION -1. PERFECTION BY CONTROL. (a) [Perfection by control.] A security interest in investment property, deposit accounts, letter-of-credit rights, electronic mortgage noteschattel paper, or electronic chattel paperdocuments, or electronic mortgage notes may be perfected by control of the collateral under Section -, -, -, -A, -, or -. (b) [Specified collateral: time of perfection by control; continuation of perfection.] A security interest in deposit accounts, electronic chattel paper, letter-of-credit rights, or electronic documents, or electronic mortgage notes, or letter-of-credit rights is perfected by control under Section -, -, -, -A, or - when the secured party obtains control and remains perfected by control only while the secured party retains control.

31 SECTION -. PRIORITIES AMONG CONFLICTING SECURITY INTERESTS IN AND AGRICULTURAL LIENS ON SAME COLLATERAL. (b) [Time of perfection: proceeds, and supporting obligations, and electronic mortgage notes.] For the purposes of subsection (a)(1): (1) the time of filing or perfection as to a security interest in collateral is also the time of filing or perfection as to a security interest in proceeds; and () the time of filing or perfection as to a security interest in collateral supported by a supporting obligation is also the time of filing or perfection as to a security interest in the supporting obligation; and () the time of filing or perfection as to a security interest in a mortgage note that is converted to an electronic mortgage note is also the time of filing or perfection as to the security interest in the related electronic mortgage note if there is no period thereafter when there is neither filing nor perfection. SECTION -0. PRIORITY OF PURCHASER OF CHATTEL PAPER, ELECTRONIC MORTGAGE NOTE, OR INSTRUMENT. (d) [Electronic-mortgage-note purchaser s priority.] Except as otherwise provided in Section -1(a), a purchaser of an electronic mortgage note has priority over a security interest in the electronic mortgage note perfected by a method other than control if the purchaser gives value and obtains control of the electronic mortgage note in good faith and without knowledge

32 that the purchase violates the rights of the secured party. (d)(e) [Instrument purchaser s priority.] Except as otherwise provided in Section - 1(a), a purchaser of an instrument has priority over a security interest in the instrument perfected by a method other than possession if the purchaser gives value and takes possession of the instrument in good faith and without knowledge that the purchase violates the rights of the secured party. In this subsection, a security interest perfected by deemed retention of possession under Section -(d)() is perfected by a method other than possession.. (e)(f) [Holder of purchase-money security interest gives new value.] For purposes of subsections (a) and (b), the holder of a purchase-money security interest in inventory gives new value for chattel paper constituting proceeds of the inventory. (f)(g) [Indication of assignment gives knowledge.] For purposes of subsections (b) and (d)(e), if chattel paper or an instrument indicates that it has been assigned to an identified secured party other than the purchaser, a purchaser of the chattel paper or instrument has knowledge that the purchase violates the rights of the secured party. SECTION -0. DISCHARGE OF ACCOUNT DEBTOR; NOTIFICATION OF ASSIGNMENT; IDENTIFICATION AND PROOF OF ASSIGNMENT; RESTRICTIONS ON ASSIGNMENT OF ACCOUNTS, CHATTEL PAPER, PAYMENT INTANGIBLES, AND PROMISSORY NOTES INEFFECTIVE. (d) [Term restricting assignment generally ineffective.] Except as otherwise provided in subsection (e) and Sections A-0 and -0, and subject to subsection (h), a term in an agreement between an account debtor and an assignor or in a promissory note or electronic mortgage note is ineffective to the extent that it:

33 1 1 1 (1) prohibits, restricts, or requires the consent of the account debtor or person obligated on the promissory note or electronic mortgage note to the assignment or transfer of, or the creation, attachment, perfection, or enforcement of a security interest in, the account, chattel paper, payment intangible, or promissory note; or () provides that the assignment or transfer or the creation, attachment, perfection, or enforcement of the security interest may give rise to a default, breach, right of recoupment, claim, defense, termination, right of termination, or remedy under the account, chattel paper, payment intangible, or promissory note. SECTION -1. TRANSFER OF RECORD OR LEGAL TITLE. (d) [Authorized transfer not a disposition; no relief of collateral; secured party sparty not relieved of duties.] A registered transfer of an electronic mortgage note effected by a secured party to itself is not of itself a disposition of collateral under this [article] and does not of itself relieve the secured party of its duties under this [article.].

34 Appendix Definitions from the National Electronic Mortgage Repository Act of 01 (draft of September, 01January, 01) AUTHORIZED TRANSFEROR. means, with respect to an electronic mortgage note, the person identified on the records of the repository system as the authorized transferor of such electronic mortgage note. ELECTRONIC MORTGAGE NOTE. means a record on the repository system created by the repository operator pursuant to paragraph (c)() that has the effect given in subsection (a). MORTGAGE NOTE. means an instrument, a transferable record, or a controlled record secured by a residential mortgage. The term does not include: (i) lost, missing, or destroyed negotiable instruments; (ii) a mortgage note secured by real property situated within the lands of a federally recognized Indian tribe, as defined by the Secretary of the Interior pursuant to U.S.C. 1, if such tribe has not consented to be deemed to be a state for purposes of the Act; or (iii) electronic mortgage notes. REGISTERED TRANSFER. means a change in the identity of the registrant in the repository system that is the effect of an instruction by the registrant or the authorized transferor of the relevant electronic mortgage note received by the repository operator. An instruction of a registrant to reflect a change of its name on the repository system is not a registered transfer. REGISTRANT. means, with respect to an electronic mortgage note, the person identified on the records of the repository system as the registrant of such electronic mortgage note. REPOSITORY OPERATOR. means the entity [AltA: organized under] [AltB: licensed by] by this Act to operate the repository system. REPOSITORY SYSTEM. means the electronic database and registered transfer service established by the repository operator. SYSTEM RULES. means the rules the repository operator adopts concerning the operations, security, and rights or obligations of persons who may use the repository system. TRANSFERABLE RECORD. has the meaning assigned to such term in 1 U.S.C. 01, except that no recording of an oral communication may be the basis of a transferable record.