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#2194780 - 10/04/18 11:16 PM UCC / Fixture Filing
Susan Offline
Member
Joined: Jun 2003
Posts: 75
South Dakota
It was my understanding that if we have a mortgage on real estate it has language that includes fixtures, so we do not need to file an additional UCC fixture filing at the county level.

We have a lender who disagrees and is adamant that whenever we expect to perfect fixtures, we MUST file the UCC fixture filing at the county level. And, that if we have mortgage recorded 8/1/2017, but another lender files fixture filing 2/1/2018 , we would be in junior lien position.

What's the right answer?

thanks!

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Article 9
#2194782 - 10/05/18 10:55 AM Re: UCC / Fixture Filing Susan
rlcarey Offline
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rlcarey
Joined: Jul 2001
Posts: 85,048
Galveston, TX
What is in your mortgage documents, what type of loans and what specific types of fixture are you referring too and concerned about? These questions are best asked of your legal counsel.
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#2194901 - 10/08/18 08:09 PM Re: UCC / Fixture Filing Susan
rainman Offline
Power Poster
rainman
Joined: Nov 2004
Posts: 3,311
This is from SDCL 57A-9-502:

(c) A record of a mortgage is effective, from the date of recording, as a financing statement filed as a fixture filing or as a financing statement covering as-extracted collateral or timber to be cut only if:
(1) The record indicates the goods or accounts that it covers;
(2) The goods are or are to become fixtures related to the real property described in the record or the collateral is related to the real property described in the record and is as-extracted collateral or timber to be cut;
(3) The record satisfies the requirements for a financing statement in this section, but:
(A) The record need not indicate that it is to be filed in the real property records; and
(B) The record sufficiently provides the name of a debtor who is an individual if it provides the individual name of the debtor or the surname and first personal name of the debtor, even if the debtor is an individual to whom § 57A-9-503(a)(4) applies; and
(4) The record is recorded.
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