In order for a security interest to be attached to the security held by subsequent buyers, it must be perfected. If the security contract for a security purchase is of interest to consumer products, perfection is automatic. Otherwise, the lender must register either the agreement itself or a UCC-1 funding declaration in an appropriate public place (usually the Secretary of State or a public enterprise commission under that person`s control). The enhancement of interest creates constructive communication, considered legally sufficient to inform the rest of the world of the lender`s rights over guarantees. When a borrower has used the same property as the guarantees for several guarantee agreements with different lenders, the first lender to register the interest is most entitled to that property. The Court of Appeals, which applied UCC 9-203 in New Jersey, found that the guarantee and subordination agreement had not been signed by the borrower and that, in any event, it merely rebutted the mere presumption that a guarantee of net cash flow had been authorized. The absence of a debtor signature is fatal to the applicants` case, despite the parties` obvious expectation that a security interest will be granted. Unfortunately for the complainants, if it were to prove their security interest in court, the judge stated that « I cannot find out where the borrower has ever signed a document that gives a security interest to one of the complainants somewhere, let alone in your claim to cash flow. » The guarantee agreement was signed by the guarantors and not by the borrower. In some cases, the safe parties are able to find something that has been signed by the debtor and that is reviewing a security agreement. Prior to 2001, when funding returns were signed, secured parties could sometimes rely on the financing statement signed with other loan documents under the Composite Document Rule.
Now that the funding declaration is no longer signed, it is more difficult to find a replacement for a properly executed security agreement. Still, safe parties are sometimes lucky, like Wachovia (now Wells Fargo) in In re WL Homes, LLC, 2013 WL 4019397 (3d Cir. 2013). Under Dutch (Dutch) law, the Dutch civil code designates the guarantee as an agreement by which a third party undertakes a contractual creditor to comply with a debtor`s contractual obligations. Such a guarantee agreement is concluded between the surety company and the creditor. The debtor of the guaranteed commitment is not required to participate in such an agreement. It is even possible that such a guarantee agreement will be concluded without the debtor`s knowledge or agreement. Article 7:850 of the Dutch Civil Code is established: 1. A guarantee agreement is an agreement under which one of the parties (hereafter referred to as the guarantee) has committed to the other party (the « creditor ») to fulfil an obligation that a third party (the principal debtor) has owed or returned to the creditor. 2.
For the validity of a guarantee agreement, it is not necessary for the principal debtor to know the existence of the guarantee in question. 3. The legal provisions relating to joint and several bonds apply to a bonding contract, as long as the provisions of this security do not deviate from it. With regard to the nature of the commitment guaranteed by a guarantee agreement under Dutch law, Article 7:854 of the Dutch Civil Code states that if the principal debtor`s guaranteed commitment relates to a benefit other than the payment of a sum of money, the surety contract is considered a guarantee of the creditor`s claim on the sum of money. which is attributable to the principal debtor if it has not fulfilled its primary obligation to the creditor, unless the surety agreement expressly provides for something else.