| | | transferee of funds, should be severely limited. Although the | | giving of value usually is a prerequisite for receiving the | | ability to take free from third-party claims, where payments are | | concerned the law is even more protective. Thus, Section 3- | | 418(c) provides that, even where the law of restitution otherwise | | would permit recovery of funds paid by mistake, no recovery may | | be had from a person "who in good faith changed position in | | reliance on the payment." Rather than adopt this standard, this | | section eliminates all reliance requirements whatsoever. | | Payments made by mistake are relatively rare, but payments of | | funds from encumbered deposit accounts (e.g., deposit accounts | | containing collections from accounts receivable) occur with great | | regularity. In the mine run of cases, unlike payment by mistake, | | no one would object to these payments. In the vast proportion of | | cases, the transferee probably would be able to show a change of | | position in reliance on the payment. This section does not put | | the transferee to the burden of having to make this proof. |
|
| | | 4. "Bad Actors." To deal with the question of the "bad | | actor," this section borrows "collusion" language from Article 8. | | See, e.g., Sections 8-115, 8-503(e). This is the most protective | | (i.e., least stringent) of the various standards now found in the | | UCC. Compare, e.g., Section 1-201(9) ("without knowledge that | | the sale . . . is in violation of the . . . security interest"); | | Section 1-201(19) ("honesty in fact in the conduct or transaction | | concerned"); Section 3-302(a)(2)(v) ("without notice of any | | claim"). |
|
| | | 5. Transferee Who Does Not Take Free. This section sets | | forth the circumstances under which certain transferees of money | | or funds take free of security interests. It does not determine | | the rights of a transferee who does not take free of a security | | interest. |
|
| | | Example 3: The facts are as in Example 2, but, in wrongfully | | moving the funds from the deposit account at Bank A to Debtor's | | deposit account with Bank B, Debtor acts in collusion with Bank | | B. Bank B does not take the funds free of Lender's security | | interest under this section. If Debtor grants a security | | interest to Bank B, Section 9-327 [Maine cite section 9-1327] | | governs the relative priorities of Lender and Bank B. Under | | Section 9-327(3) [Maine cite section 9-1327, subsection (3)], | | Bank B's security interest in the Bank B deposit account is | | senior to Lender's security interest in the deposit account as | | proceeds. However, Bank B's senior security interest does not | | protect Bank B against any liability to Lender that might arise | | from Bank B's wrongful conduct. |
|
| | | §9-1333.__Priority of certain liens arising by operation of law |
|
|
