Okla. Stat. tit. 12A § 1-9-513
Okla. Stat. tit. 12A, § 1-9-513
Oklahoma Code Comment
Under section 9-513, a debtor can demand that a secured party of record file a termination statement (1) when the debtor no longer has any obligation outstanding (and the secured party no longer has any commitment to make additional advances), or (2) when the debtor did not authorize the filing of a financing statement (for example, when a secured party mistakenly filed against the wrong person, who has an identical or similar name). In these two circumstances, if the filing of a termination statement is appropriate but if the secured party impermissibly delays or wrongfully refuses, the debtor is permitted to file a "self-help" termination statement complying with section 9- 509(d)(2) . This is a new remedy under revised Article 9.
Filing a termination statement that describes only part of the collateral indicated in a financing statement has never been an appropriate method for releasing part of a debtor's pledged collateral. Filing a termination statement causes the entire financing statement to cease to be effective. See Koehring Co. v. Nolden (In re Pacific Trenching & Equipment Corp.), 735 F.2d 362 (9th Cir. 1984). A secured party desiring to release only part of the collateral should file an "amendment" or "partial release," deleting certain items or categories of collateral, as appropriate. See section 9-512 .
Secured parties unfamiliar with how section 9-509(d)(2) operates may reach the erroneous conclusion that a secured party risks losing its security interest to any debtor who files a termination statement. There is no such danger. Under section 9-510, a filed record (including a termination statement) is effective only if it is filed by a person entitled to do so under section 9-509 .
Other parties have expressed fears that the lack of a signature requirement on records filed under revised Article 9 will make it easier for a debtor somehow to impersonate the secured party, filing a fraudulent termination statement that would result in the secured party losing its perfected security interest. Under section 9-509(d)(1) , a filing not actually authorized by the secured party cannot become the act of the secured party, and will be as ineffective as if it were never filed. A court may need to determine that the filing was unauthorized, but the secured party will not lose its security interest. Section 9-509(d)(2) provides that no termination statement actually filed by a debtor can ever become effective unless the termination statement discloses either that the debtor is the one filing it or that the debtor is the one authorizing its filing.
Furthermore, a filing made by the debtor can never achieve a result to which the debtor is not entitled. Under section 9-509(d)(2) , which allows a debtor to file a termination statement, it must be true that (1) the filing of that termination statement is already warranted under the circumstances (e.g., the debt is paid off), and (2) the debtor has already properly asked the secured party to file a termination statement, but the secured party has failed to take action.
Administrative rules adopted by the Oklahoma County Clerk's Office (the central filing office in Oklahoma) will provide further protection for secured parties. After a termination statement is filed, documents will be returned to the secured party of record, which should alert the secured party if a bogus or unauthorized filing has been made. In addition, the Oklahoma County Clerk's office will document the method of payment for each filing (check, automated clearing house transfer, credit card, etc.). Although a person making a filing will not be required to prove his identity or authority, in most cases it will be a simple process to determine, after the fact, whether it was the debtor or the secured party who paid the filing fee.