| | | Example 2: A debtor, D, grants to SP a security interest to | | secure a debt in excess of the value of the collateral. D agrees | | with SP that it will not create a subsequent security interest in | | the collateral and that any security interest purportedly granted | | in violation of the agreement will be void. Subsequently, in | | violation of its agreement with SP, D purports to grant a | | security interest in the same collateral to another secured | | party. |
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| | | Subsection (b) [Maine cite subsection (2)] validates D's creation | | of the subsequent (prohibited) security interest, which might | | even achieve priority over the earlier security interest. See | | Comment 7. However, unlike some other provisions of this Part, | | such as Section 9-406, subsection (b) [Maine cite section 9-1406, | | subsection (2)] does not provide that the agreement restricting | | assignment itself is "ineffective." Consequently, the debtor's | | breach may create a default. |
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| | | 6. Rights of Lien Creditors. Difficult problems may arise | | with respect to attachment, levy, and other judicial procedures | | under which a debtor's creditors may reach collateral subject to | | a security interest. For example, an obligation may be secured | | by collateral worth many times the amount of the obligation. If | | a lien creditor has caused all or a portion of the collateral to | | be seized under judicial process, it may be difficult to | | determine the amount of the debtor's "equity" in the collateral | | that has been seized. The section leaves resolution of this | | problem to the courts. The doctrine of marshaling may be | | appropriate. |
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| | | 7. Sale of Receivables. If a debtor sells an account, | | chattel paper, payment intangible, or promissory note outright, | | as against the buyer the debtor has no remaining rights to | | transfer. If, however, the buyer fails to perfect its interest, | | then solely insofar as the rights of certain third parties are | | concerned, the debtor is deemed to retain its rights and title. | | See Section 9-318 [Maine cite section 9-1318]. The debtor has | | the power to convey these rights to a subsequent purchaser. If | | the subsequent purchaser (buyer or secured lender) perfects its | | interest, it will achieve priority over the earlier, unperfected | | purchaser. See Section 9-322(a)(1) [Maine cite section 9-1322, | | subsection (1), paragraph (a)]. |
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| | | §9-1402.__Secured party not obligated on contract of debtor or in |
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| | | The existence of a security interest, agricultural lien or | | authority given to a debtor to dispose of or use collateral, | | without more, does not subject a secured party to liability in | | contract or tort for the debtor's acts or omissions. |
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