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Sender:
Lionel Smith
Date:
Wed, 1 Mar 2000 09:58:03
Re:
Tracing/following rules

 

Much depends on the wording of your proceeds provision. UCC 9-306 has caused great difficulties of interpretation, especially 9-306(4)(d)(ii). See citations in the Law of Tracing, p. 26 n. 58; p. 142 n. 35. Revised article 9's provision will be reworded.

My own view is that much depends on whether the debtor acted lawfully or wrongfully in mixing the proceeds of sale: Tracing, 199-201, 211-212. The process is not difficult if the rule of law is that holders of security interests are allowed to assert that their proceeds are in the account, so long as the balance is enough to be consistent with the assertion. It would be difficult if you used something like the rule in Clayton's Case.

For a slightly different view from a PPSA expert, see RCC Cuming, "Protecting Interests in Proceeds: Equity and Canadian Personal Property Security Acts" ch 18 in DWM Waters ed., Equity Fiduciaries and Trusts 1993 (Carswell, 1993).

The particular situation I wish to address is one which is common following a corporate failure: a single bank account through which there are voluminous transactions and all sorts of unpaid vendors of products which have been onsold trying to unravel the bank account and recover the proceeds of their individual sales. It seems self evident to me that even if there was a bank account with a credit balance, this process would be simply too difficult. I can analyse it through in terms of principle, but it would be nice to be able to refer to authority on point.

 


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