The list of statutory exceptions includes security interests: (1) per ยง 9-302(1)(d) for consumer goods; (2) per ยง 9-304(1) for collateral subject to temporary automatic perfection; and, (3) per ยง 9-305 for security interests perfected by possession, amongst others. See Greg Rest. Equip. & Supplies, Inc. v. Valway, 144 Vt. 59, 63, 472 A.2d 1241, 1243 (1984) (finding that when none of the Vermont UCC exceptions allowing for the perfection of a security interest in collateral in other than by filing apply, filing a financing statement is the correct method for perfection). There are additional requirements for perfection which the Court finds inapplicable: (1) that the means of perfection adhere to applicable state or federal statutes, regulations and treaties (ยง 9-311); (2) that the means of perfection adhere to special provisions for certain classifications of collateral (ยง 9-312); (3) that the means of perfection adhere to the provisions for possession and delivery (ยง 9-313); (4) that the means of perfection adhere to the provisions for perfection by control (ยง 9-314); and, (5) that continued perfection exists following a change in governing law subject to certain conditions (ยง 9-316).
The list of statutory exceptions includes security interests: (1) per ยง 9-302(1)(d) for consumer goods; (2) per ยง 9-304(1) for collateral subject to temporary automatic perfection; and, (3) per ยง 9-305 for security interests perfected by possession, amongst others. See Greg Rest. Equip. & Supplies, Inc. v. Valway, 144 Vt. 59, 63, 472 A.2d 1241, 1243 (1984) (finding that when none of the Vermont UCC exceptions allowing for the perfection of a security interest in collateral in other than by filing apply, filing a financing statement is the correct method for perfection). There are additional requirements for perfection which the Court finds inapplicable: (1) that the means of perfection adhere to applicable state or federal statutes, regulations and treaties (ยง 9-311); (2) that the means of perfection adhere to special provisions for certain classifications of collateral (ยง 9-312); (3) that the means of perfection adhere to the provisions for possession and delivery (ยง 9-313); (4) that the means of perfection adhere to the provisions for perfection by control (ยง 9-314); and, (5) that continued perfection exists following a change in governing law subject to certain conditions (ยง 9-316).
See In re Wardcorp, Inc, 133 B.R. 210, 216 (SD Ind, 1990). See also In re Seventeen South Garment Co, Inc, 145 B.R. 511 (ED NC, 1992); In re Pretzer, 100 B.R. 879 (ND Ohio, 1989); Pearson v Salina Coffee House, Inc, 831 F.2d 1531 (CA 10, 1987); Greg Restaurant Equipment Supplies, Inc v Valway, 144 Vt. 59; 472 A.2d 1241 (1984); anno: Sufficiency of designation of debtor or secured party in security agreement or financing statement under UCC ยง 9-402, 99 ALR3d 478. MCL 440.9402(7); MSA 19.9402(7) provides, in pertinent part:
Some courts have found that the use of the debtor's trade name on the financing statement is "seriously misleading" and not "minor error." See, e.g., Pearson v. Salina Coffee House, Inc., 831 F.2d 1531 (10th Cir. 1987); In re Thomas, 466 F.2d 51 (9th Cir. 1972); and Greg Restaurant Equipment Supplies, Inc. v. Valway, 144 Vt. 59, 472 A.2d 1241 (1984). However, others have upheld the use of a debtor's trade name. See, e.g.
This avoids the vagaries of determining factual issues of knowledge. Greg Restaurant Equip. Supplies v. Valway, 144 Vt. 59, 472 A.2d 1241, 1244 (1984). Indeed, the Article 9 filing system removes any determination of actual knowledge from the issue of perfecting a security interest.
This point is not in dispute. The question is whether the claims asserted against BDC by the Government and by the Pells are distinguishable. Proof of the Government's claim will largely be a matter of determining priority of interest under Vermont's commercial code. See, e.g., Greg Restaurant Equipment Supplies, Inc. v. Valway, 144 Vt. 59, 472 A.2d 1241 (1984). Reading the Government's claim broadly, it may be construed to contain a claim of intentional interference with contract. Nevertheless, however broadly the claim is construed, the facts sustaining the claim will revolve around BDC's conduct vis-a-vis the Government.
Paragraph 3 of the Official Comment ("Comment 3") states that the terms "purchase-money collateral" and "purchase-money obligation" The one case published by the Vermont Supreme Court that refers to ยง 9-103 concerns the perfection of a security interest, see Greg Restaurant Equipment & Supplies, Inc. v. Valway, 144 Vt. 59, 472 A.2d 1241 (1984), and the few earlier bankruptcy decisions from this Court referring to PMSIs are also inapposite. are essential to the description of what constitutes a purchase-money security interest under subsection (b).
Some courts have found that the use of the debtor's trade name on the financing statement is "seriously misleading" and not "minor error." See, e.g., Pearson v. Salina Coffee House, Inc., 831 F.2d 1531 (10th Cir. 1987); Inre Thomas, 466 F.2d 51 (9th Cir. 1972); and Greg Restaurant Equipment Supplies, Inc. v. Valway, 144 Vt. 59, 472 A.2d 1241 (1984). However, others have upheld the use of a debtor's trade name. See, e.g.
The debtor's name is a vital part of the filing procedure because the debtor's name is essential to the notice filing system. Greg Restaurant Equipment Supplies, Inc. v. Valway, 144 Vt. 59, 472 A.2d 1241 (1984). PNB misses the point of the test developed by the courts as to whether a creditor is seriously misled by a filing under a trade name. It is not probative that Gary Davadick signed the bottom signature line of the financing statements in question.
The court further concludes that the extra burden that trade name filing puts on creditors searching the record is contrary to the implied policy of the U.C.C. that those seeking to perfect a security interest bear the burden of proper filing. See Greg Restaurant Equip. Supplies v. Valway, 472 A.2d 1241 (S.Ct.Vt. 1984). Even creditors with knowledge of the debtor's trade name would be justified to search only under the debtor's actual name.