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UCC Filings - Location of Foreign Debtor under Revised Article 9.
Under Revised Article 9 of the Uniform Commercial Code, a creditor/secured party is able to record a security interest against a foreign entity (non-US) within the US, when the jurisdiction of the debtor’s place of business (if only one place) or chief executive office (if more than one place) does not have a comparable security interest recording system. § 9-307(a)-(c).
When the foreign jurisdiction does not have such a recording system and the debtor has a place of business/chief executive office in the United States, the location of the debtor, and the location of the recording, is the place of business/chief executive office. Where no US place of business/chief executive office exists, the location of the debtor is the District of Columbia. § 9-307(c). When the debtor is registered in a State within the US, that state is the debtor’s location. § 9-307(e).
Thus, when a debtor organized under the laws of the United Kingdom, for example, has a place of business in New York, a UCC financing statement would be filed in New York. However, to protect the creditor/secured party, a filing should also be made in D.C., just in case the debtor moves its chief executive office to a jurisdiction that did not have a comparable security interest recording system. See UCC § 9-307. If the debtor is located in France, which clearly does not have a comparable system and does not have an office in the US, the filing would be made in DC.
Most international jurisdictions which are based on civil law as opposed to English common law do not have systems comparable to the UCC. The majority of these systems are possessory and pledge-based in nature and information regarding these interests are not generally available.
These filings in the District of Columbia can be considered somewhat analogous to “Slavenburg” filings in the UK. The UK system of registration of charges against UK-registered companies would normally reject filings against companies not registered in the UK. The Slavenburg case held that filings made against a company which had not registered in the UK but which was doing business and should have registered should not be rejected.
Section 9--307. Location of Debtor.
(a) "Place of business." In this section, "place of business" means a
place where a debtor conducts its affairs.
(b) Debtor`s location: general rules. Except as otherwise provided in
this section, the following rules determine a debtor`s location:
(1) A debtor who is an individual is located at the individual`s
(2) A debtor that is an organization and has only one place of
business is located at its place of business.
(3) A debtor that is an organization and has more than one place
of business is located at its chief executive office.
(c) Limitation of applicability of subsection (b). Subsection (b)
applies only if a debtor`s residence, place of business, or chief
executive office, as applicable, is located in a jurisdiction whose law
generally requires information concerning the existence of a
nonpossessory security interest to be made generally available in a
filing, recording, or registration system as a condition or result of
the security interest`s obtaining priority over the rights of a lien
creditor with respect to the collateral. If subsection (b) does not
apply, the debtor is located in the District of Columbia.
(d) Continuation of location: cessation of existence, etc. A person
that ceases to exist, have a residence, or have a place of business
continues to be located in the jurisdiction specified by subsections
(b) and (c).
(e) Location of registered organization organized under state law. A
registered organization that is organized under the law of a state is
located in that state.
(f) Location of registered organization organized under federal law;
bank branches and agencies. Except as otherwise provided in subsection
(i), a registered organization that is organized under the law of the
United States and a branch or agency of a bank that is not organized
under the law of the United States or a state are located:
(1) in the state that the law of the United States designates, if
the law designates a state of location;
(2) in the state that the registered organization, branch, or
agency designates, if the law of the United States authorizes
the registered organization, branch, or agency to designate
its state of location; or
(3) in the District of Columbia, if neither paragraph (1) nor
paragraph (2) applies.
(g) Continuation of location: change in status of registered
organization. A registered organization continues to be located in the
jurisdiction specified by subsection (e) or (f) notwithstanding:
(1) the suspension, revocation, forfeiture, or lapse of the
registered organization`s status as such in its jurisdiction
of organization; or
(2) the dissolution, winding up, or cancellation of the existence
of the registered organization.
(h) Location of United States. The United States is located in the
District of Columbia.
(i) Location of foreign bank branch or agency if licensed in only one
state. A branch or agency of a bank that is not organized under the law
of the United States or a state is located in the state in which the
branch or agency is licensed, if all branches and agencies of the bank
are licensed in only one state.
(j) Location of foreign air carrier. A foreign air carrier under the
Federal Aviation Act of 1958, as amended, is located at the designated
office of the agent upon which service of process may be made on behalf
of the carrier.
(k) Section applies only to this part. This section applies only for
purposes of this part.
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