Okla. Stat. tit. 12A § 2A-307
Okla. Stat. tit. 12A, § 2A-307
Oklahoma Code Comment
The 1991 amendments resolve the controversies described below. See the Supplementary Commentary. Thus this Commentary should be read to uncle' stand the original provision of § 2A-307 and its relation to prior law.
The rule in subsection (1) appears to be in accord with prior general Oklahoma law. See Osborn v. Moasco, 73 P.2d 113 (Okla.1937) (non-possessor lien claimed by supplier of labor and materials to lessee of casing did not impair title of lessor owner). See also Leger Mill Company, Inc. v. Kleen Leen, Inc., 563 P.2d 132 (Okla.1977) (issue of whether lessor of swine was prior to suppliers of feed to lessee who claimed feedmen's liens not reached a suppliers had waived claim; bank which loaned lessee funds and took security interest in swine subordinate to lessor by agreement).
There are two rules in subsection (2). Subsection (2)(a) awards a creditor with a lien (this does not include a security interest under § 2A-103(1)(r) priority over a lessee if the lien attached to the goods before the lease became enforceable. If the lien depends on possession, this should pose no problem a' the lessee would be alerted. See, e.g., 12 Oklahoma Statutes § 734 (goods and chattels of the debtor bound from the time seized in execution). If the lien is not dependent upon possession, whether the lessee will prevail must depend upon the law creating and governing the particular lien. While no Oklahoma case in point was located, the reasoning of the court as to priority between such a lien and a secured party in Leger Mill Company, Inc. v. Kleen-Leen, Inc., 563 P.2d 132 (Okla.1977) would indicate that a lessee without notice of a non. possessory lien should prevail. In any event, the lessee would have the protection of the implied warranty against interference in § 2A-211(1) and any similar express warranty.
Special Oklahoma statutes raise additional issues. See 60 Oklahoma Statutes §§ 321 and 319. Section 321 voids a verbal lease of personal property used in connection with an oil and gas well as against innocent purchasers or creditors of the lessee. Many of such leases might be unenforceable even against the lessee under § 2A-201. The more important provision is § 319. It makes a written lease of equipment used in connection with an oil and gas well void against the described third parties unless filed in the county clerk's office in the county in which the property is kept or used. Under this provision, a lien by an oil well driller on a rig and tools was held to be superior to the claim of the lessor of the equipment where the lease was not recorded. Smith v. Benson, 262 P.2d 438 (Okla.1953). Are these provisions repealed by the enactment of Article 2A? One can argue that they are unless the creditor is protected under § 2A-306 as §§ 2A-307(1) and 2A-301 state that, except as provided in § 2A-306, a creditor of a lessee takes subject to the lease contract (assuming § 2A-201 is satisfied). However, these statutes are not expressly repealed by Section 86 of H.B.1683 and, as more particular enactments, it is dubious they should be considered as impliedly repealed under Section 87 .
Subsection (2)(b) awards a secured party priority over a lessee if the secured party under UCC Article 9 would prevail over the lessee, were the lessee treated as a secured party who perfected by filing a financing statement at the time the lease became enforceable. The amendments delete this test and treat the lessee similarly to a buyer, but without any important change in result. See infra. Under the original section, the status as a secured party for the lessee is not its actual status but a hypothetical one for the purpose of determining priority. The Article 2A rule should produce the same results as were reached under Oklahoma law prior to Article 2A. For example, in Rozen v. Mannford State Bank 58 P.2d 119 (Okla.1936), a secured party held a security interest in well casing that was perfected by filing under the then applicable law. The debtor leased the casing to a third party, and the third party sold it to another. The court held for the secured party. Under subsection (2)(b), had the third party been a secured party and filed to perfect its security interest on the date the actual lease was made, under 12A Oklahoma Statutes §9-312(5)(a) (no special priority such as purchase money being available) the first secured party would prevail. Note, however, if instead the facts were that the lessee had leased a care from a dealer. The lessee, as a lessee in the ordinary course of business ( § 2A-103(1)(o)), would take its leasehold interest in the automobile free of the security interest of a lender that floor-planned the dealer, just as a buyer in the ordinary course of business would under UCC § 9-307(1). See § 2A-307(3). However, in the case of the buyer the secured party will obtain the proceeds in substitution for the goods under UCC § 9-306(1); in the case of the lease there is a question of whether it is such a "disposition" that the chattel paper is proceeds. See DeKoven, Secured Transactions, 37 Bus.Law. 1011, at 1027-28 (1982). The security agreement should specifically claim chattel paper 80 as to create an interest in this property.
Note § 2A-307 before amendment treats a lessee like a secured party in one instance but like a buyer in another. Accordingly, if the secured party of a lessor had filed a financing statement but had not yet closed the loan, a lessee from a non-dealer lessor-debtor would lose once the loan is made as UCC § 9-312(5)(a) stems priority from filing. However, a buyer in this instance under UCC § 9-301(1)(c) would prevail. But as presumably a lessee (and a buyer) should check all of indicia of title, possession and flings to assure that their lessor owns and holds the goods free of encumbrances, this rule does not seem onerous. Rather, the "ordinary course rules" in Articles 9, 2A and 2 are justified because one normally does not check in that context.