Okla. Stat. tit. 12A § 1-9-514
Okla. Stat. tit. 12A, § 1-9-514
Oklahoma Code Comment
Under former Article 9, a third party could reasonably conclude that a secured party named in a financing statement, or its assignee, was the original lender or current owner of a particular loan--subject to some exceptions for participation agreements, or further assignments not yet recorded. Former section 9-402 required the "name of secured party (or assignee)" to be disclosed on the financing statement. When an "assignment" was filed under former section 9-405 , this was public disclosure of the transfer of the security interest.
Revised section 9-514 contains a different concept of "assignment." Revised Article 9 does not automatically imply or require that the "secured party of record" is also the original lender or a subsequent assignee of rights in the security interest. The filing of an "assignment of powers" ( Section 9-514), changing the person who is listed as the "secured party of record," does not automatically imply that any security interest is being transferred. An "assignment of powers" is a specific type of amendment to a financing statement. Strictly speaking, it tells third parties only that in the future a different person will be authorized to make filings relating to a particular financing statement. That party may be merely a nominee or agent of the secured party. See also section 9-503(d), (e) .
Under sections 9-502(a)(2), 9-503(d) , 9-509, and 9-511, it is possible (and permissible) for the person listed as "secured party of record" on a financing statement to be an undisclosed agent for the actual secured party. A later assignment may list a new "secured party of record," which might be either a new secured party or a new agent for a new secured party. It's also possible that a new "secured party of record" is merely a new, undisclosed agent for the original secured party. In this last example, nothing changes except the identity of the agent.
In some cases, a financing statement and a subsequently filed assignment will give third parties no clues whether the first "secured party of record" and the second "secured party of record" are the original secured party and assignee of the related loan, or are agents for two different secured parties, or are serving in succession as two different agents for the same secured party.
Except for section 9-514(c), relating to the transfer of a security interest in fixtures covered by a mortgage, section 9-514 (in contrast to former section 9- 405) is not written in terms of transfer of ownership of a security interest. An "assignment of powers" under section 9-514 does not transfer a security interest to a new owner, and is not required at the time a security interest is transferred.
However, an "assignment of powers" is necessary to prevent a previous "secured party of record" from continuing to take actions that will bind the new owner of a loan. As indicated in section 9-511(c) , if a person remains listed as the "secured party of record" (in the absence of filing an assignment, that person continues to be the party authorized to deal with the debtor, other creditors, and the filing office. For example, the listed "secured party of record" has authorization under sections 9-509 and 9-511(c) to file, amend, or release records. A change in ownership of the loan does not, in itself, take away the right of the previously disclosed "secured party of record" to continue to take binding action.
Although there is no requirement to file an "assignment of powers" when a loan is assigned, failing to do so could leave the assignee vulnerable to a variety of problems. For example, with no assignment filed: (1) the "secured party of record" could improperly release the assignee's security interest; (2) creditors of the assignor could be misled; and (3) the assignee would not be able to file a termination statement, later, when the loan has been paid in full. Some of these problems are illustrated by General Electric Credit Corp. v. Bankers Commercial Corp., 429 S.W.2d 60 (Ark. 1968). For these and other reasons, a purchaser has every incentive to file an assignment promptly, naming either the purchaser or the purchaser's agent as the new "secured party of record."