Where do I file my UCC again?
Although the creditor filed a UCC-1 Financing Statement in the State of New Hampshire prior to the bankruptcy petition, it filed it in the wrong jurisdiction. The Debtor is actually a Massachusetts domestic corporation, having filed Articles of Incorporation with the Secretary of the Commonwealth years previously. Subsequently, the Debtor also registered as a foreign corporation with the Secretary of the State of New Hampshire. The subsequent, foreign registration in New Hampshire, clearly indicates that the Debtor is a foreign (to New Hampshire) corporation and that it was previously incorporated in Massachusetts as a domestic corporation.
Pursuant to M.G.L. c. 106 § 9-301(1), the local law of the jurisdiction where the debtor is located governs perfection, the effect of perfection, and non-perfection. Pursuant to M.G.L. c. 106 § 9-307(e), entitled “Location of Debtor,” for the purposes of perfection of security interests, a “registered organization that is organized under the law of a state is located in that state.” The official comments to this section also state: “Under subsection (e), a registered organization (e.g., a corporation or limited partnership) organized under the law of a “State” (defined in Section 9-102) is located in its State of organization.
Pursuant to M.G.L. c. § 9-102(71), a “registered organization” is defined as “an organization formed or organized solely under the law of a single state or the United States by the filing of a public organic record with, the issuance of a public organic record by, or the enactment of legislation by the state or the United States. …”
Under the UCC as adopted by the Massachusetts legislature, the Debtor is a “registered organization” having filed articles of incorporation in Massachusetts under Massachusetts law, therefore Massachusetts law applies for the purposes of lien perfection, the effect of perfection, and non-perfection. Since the Debtor is located in Massachusetts for purposes of perfecting a lien, any liens must be filed in Massachusetts in order to be perfected. The creditor in this case filed its UCC financing statement in New Hampshire, not Massachusetts, therefore it does not have a valid perfected pre-petition lien and must be treated as an unsecured creditor in the bankruptcy case.
If you are a secured creditor or a corporate debtor, do not guess about UCC filings, contact Amann Burnett, PLLC for the most up-to-date and correct information.
