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In
finance Finance is the study and discipline of money, currency and capital assets. It is related to, but not synonymous with economics, the study of production, distribution, and consumption of money, assets, goods and services (the discipline of f ...
, a secured transaction is a
loan In finance, a loan is the lending of money by one or more individuals, organizations, or other entities to other individuals, organizations, etc. The recipient (i.e., the borrower) incurs a debt and is usually liable to pay interest on that ...
or a credit transaction in which the lender acquires a security interest in
collateral Collateral may refer to: Business and finance * Collateral (finance), a borrower's pledge of specific property to a lender, to secure repayment of a loan * Marketing collateral, in marketing and sales Arts, entertainment, and media * ''Collate ...
owned by the borrower and is entitled to foreclose on or
repossess Repossession, colloquially repo, is a "self-help" type of action, mainly in the United States, in which the party having right of ownership of the property in question takes the property back from the party having right of possession without inv ...
the collateral in the event of the borrower's default. The terms of the relationship are governed by a
contract A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tr ...
, or
security agreement A security agreement, in the law of the United States, is a contract that governs the relationship between the parties to a kind of financial transaction known as a secured transaction. In a secured transaction, the Grantor (typically a borrower bu ...
. A common example would be a consumer who purchases a car on credit. If the consumer fails to make the payments on time, the lender will take the car and resell it, applying the proceeds of the sale toward the loan.
Mortgages A mortgage loan or simply mortgage (), in civil law jurisdicions known also as a hypothec loan, is a loan used either by purchasers of real property to raise funds to buy real estate, or by existing property owners to raise funds for any ...
and deeds of trust are another example. In the United States, secured transactions in
personal property property is property that is movable. In common law systems, personal property may also be called chattels or personalty. In civil law systems, personal property is often called movable property or movables—any property that can be moved fr ...
(that is, anything other than
real property In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, is land which is the property of some person and all structures (also called improvements or fixtures) integrated with or aff ...
) are governed by Article 9 of the Uniform Commercial Code (U.C.C.). The law treats differently those creditors who are secured (i.e. have an authenticated, perfected security interest) from those creditors who are unsecured. An unsecured creditor is simply a person who is owed money and has not received payment according to the terms of the agreed upon transaction. Upon default of a debtor who has multiple creditors, the distinction between being a secured creditor and an unsecured creditor is legally significant. The secured creditor will generally always have priority to getting his money before the unsecured creditors do. In other words, the unsecured creditor is at the back of the line of priority – his only remedy is to obtain a judgment from the court for the amount of the defaulted loan. The following example is given: A debtor borrows $10,000 from a car dealership to purchase an automobile, using the automobile itself as collateral for the loan (in other words the dealership retains a right to repossess the automobile in the event the debtor defaults on the loan). The dealership makes this loan using an authenticated security agreement – a signed agreement giving the dealership the secured right to repossess the car in the event of default of the debtor. The debtor also has two unsecured creditors who have made loans of $1000 each to the debtor. Neither of these creditors has a security agreement – their only method of recovering their money in the event that the debtor defaults on the loan is through the judicial system, whereas the secured creditor can simply repossess the car at his option (This is called self-help repossession and is completely legal provided the secured creditor does not breach the peace in doing so). The debtor is in debt $10K to the secured creditor and $2000 to the unsecured creditors. Assume the debtor defaults and his only asset is the automobile. The dealership can repossess the auto and sell it to satisfy its debt. Two things can happen here: 1) The dealership sells the collateral (car) for more than the amount of the debt (let's say $15K). In this case, the debtor would receive the excess $5K (surplus) which he would use to satisfy the debts of his unsecured creditors (and then would have $3K left over). 2) The dealership repossess the car and sells it for less than the amount of the debt, let's say $9K (more likely scenario). In this case, the secured creditor dealership keeps the $9K, and the remaining $1K (deficiency) that the dealership is owed becomes unsecured – it is on the same level of priority as the other two unsecured loans. Those three unsecured claims of $1K each will be paid off equally. Thus, if the debtor has $1500 to satisfy its debts – each unsecured creditor would get $500 (1/3 of amount each). The remaining debt will probably never be repaid because, in cases such as these with the debtor having multiple loans on default, the debtor has most likely filed for Ch. 7 Bankruptcy. It is crucial, if you are a lender, to have a security agreement in collateral that you are confident is worth at least as much as the amount of the loan you made to the debtor. If not, your deficiency in that amount is unsecured. In the previous example – the dealership loaned $10K on a car that had a
fair market value The fair market value of property is the price at which it would change hands between a willing and informed buyer and seller. The term is used throughout the Internal Revenue Code, as well as in bankruptcy laws, in many state laws, and by sever ...
of only $9K. Thus, they were deficient $1K which becomes unsecured. To perfect a security agreement, the filing of a public notice is usually required. See §§ 9-302 – 9-305 of the code.


See also

* Secured transactions in the United States * Security interest * Chattel mortgage


References

{{Reflist Contract law