C.R.S. § 4-9.5-101 Short title
4-9.5-101. Short title. This article shall be known and may be cited as the "Central Filing of Effective Financing Statement Act".
Central Filing of Effective Financing Statements
C.R.S. tit. 4, art. 9.5
in effectC.R.S. § 4-9.5-102 Legislative declaration
4-9.5-102. Legislative declaration. The general assembly finds, determines, and declares its intent to adopt a central filing system for security interests relating to farm products pursuant to section 1324 of the federal "Food Security Act of 1985", Pub.L. 99-198. The general assembly further finds, determines, and declares that upon the certification and operation of this central filing system, security interest holders shall use such system in lieu of any other notice provided by section 1324 of the federal "Food Security Act of 1985" for farm products used or produced in the state of Colorado which are included in the central filing system, except as otherwise allowed by this article or required by law.
C.R.S. § 4-9.5-103 Definitions
4-9.5-103. Definitions. As used in this article, unless the context otherwise requires:
(1) (Deleted by amendment, L. 2003, p. 1669, § 2, effective July 1, 2003.)
(2) "Buyer of farm products" or "buyer in the ordinary course of business" means a person who, in the ordinary course of business, buys farm products from a person engaged in farming operations who is in the business of selling farm products.
(2.5) "Central filing officer" means the secretary of state.
(3) "Central filing system" means a system for filing effective financing statements on a statewide basis and which has been certified by the secretary of the United States department of agriculture pursuant to section 1324 of the "Food Security Act of 1985". It is the intent of the general assembly that, effective January 1, 2000, the filing system established by section 4-9-501 shall constitute the central filing system.
(4) "Commission merchant" means any person engaged in the business of receiving any farm product for sale, on commission, or for or on behalf of another person.
(5) "Crop year" means:
(a) For a crop grown in soil, the calendar year in which it is harvested or to be harvested;
(b) For animals, the calendar year in which they are born, acquired, or owned;
(c) For poultry or eggs, the calendar year in which they are sold or to be sold.
(6) "Debtor" means a person who owns a product and subjects it to a security interest, whether or not that person owes a debt to the secured party.
(7) "Effective financing statement" means a record that:
(a) Is an original or reproduced copy thereof, a fax copy, or, if permitted by federal law, regulation, rule, or interpretation, an electronically transmitted filing;
(b) Is filed with the central filing officer by the secured party; and
(c) Is signed, authorized, or otherwise authenticated by the debtor, unless the record is filed by electronic transmission, in which case it shall be signed, authorized, or otherwise authenticated electronically pursuant to section 24-71-101, C.R.S.
(d) to (l) (Deleted by amendment, L. 2006, p. 1142, § 1.)
(8) "Farm product" means an agricultural commodity, a species of livestock used or produced in farming operations, or a product of such crop or livestock in its unmanufactured state, that is in the possession of a person engaged in farming operations. "Farm product" includes, but is not limited to, apples, artichokes, asparagus, barley, cantaloupe, carrots, cattle and calves, chickens, corn, cotton, cucumbers, dry beans, eggs, fish, flax seed, fur-bearing animals, grapes, hay, hogs, honey, honeydew melon, horses, legumes, milk, muskmelon, oats, onions, pecans, popcorn, potatoes, pumpkins, raspberries, rye, seed crops, sheep and lambs, silage, sorghum grain, soybeans, squash, strawberries, sugar beets, sunflower seeds, sweet corn, tomatoes, trees, triticale, turkeys, vetch, walnuts, watermelon, wheat, and wool. The central filing officer may add other farm products in addition to those specified in this subsection (8) if such products are covered by the general definition contained in this subsection (8).
(9) "Food Security Act of 1985" means Pub.L. 99-198, as amended: Section 1324 thereof has been codified at section 1631 of Title 7 of the United States Code.
(10) "Person" means any individual or any partnership, corporation, trust, or any other business entity.
(11) "Receipt" and other forms of the word "receive" means the earlier of actual receipt or the tenth day after deposit in the United States mails, first-class mail, postage prepaid.
(11.5) "Record", except as used in "for record", "of record", "record or legal title", and "record owner", means information that is inscribed on a tangible medium or which is stored in an electronic or other medium and is retrievable in perceivable form.
ord "receive" means the earlier of actual receipt or the tenth day after deposit in the United States mails, first-class mail, postage prepaid.
(11.5) "Record", except as used in "for record", "of record", "record or legal title", and "record owner", means information that is inscribed on a tangible medium or which is stored in an electronic or other medium and is retrievable in perceivable form.
(12) "Registrant" or "registered buyer" means any buyer of farm products, commission merchant, or selling agent, who has registered with the central filing officer pursuant to section 4-9.5-104.5 (3).
(13) "Secured party" means a person in whose favor there is a security interest.
(14) "Security interest" means an interest in farm products that secures payment or performance of an obligation.
(15) "Selling agent" means any person, other than a commission merchant, who is engaged in the business of negotiating the sale and purchase of any farm product on behalf of a person engaged in farming operations.
(16) "Unique identifier" means a number, combination of numbers or letters, or other identifier selected by the central filing officer using a system or method approved by the United States secretary of agriculture in accordance with the federal "Food Security Act of 1985".
C.R.S. § 4-9.5-104 Central filing system
4-9.5-104. Central filing system. (1) The central filing officer shall be responsible for the design, implementation, and operation of a central filing system for effective financing statements. The system shall provide a means for filing effective financing statements with the central filing officer. The system shall include requirements:
(a) That an effective financing statement be filed in the office of the central filing officer;
(b) That the central filing officer record the date and hour of the filing of effective financing statements; and
(c) That the central filing officer assign a file number to each effective financing statement.
(2) to (6) Repealed.
(7) (Deleted by amendment, L. 99, p. 747, § 15, effective January 1, 2000.)
(8) and (9) Repealed.
C.R.S. § 4-9.5-104.5 Master list
4-9.5-104.5. Master list. (1) The central filing officer shall compile all effective financing statements or notices into a master list:
(a) Containing the information referred to in section 4-9.5-105.3;
(b) Organized according to farm product; and
(c) Arranged within each such farm product:
(I) In alphabetical order according to the last name of the individual debtors or, in the case of debtors doing business other than as individuals, the first word in the name of such debtors;
(II) In numerical order according to the social security number, or other unique identifier, of the individual debtors or, in the case of debtors doing business other than as individuals, the federal internal revenue service taxpayer identification number, or other unique identifier, of such debtors;
(III) Geographically by county; and
(IV) By crop year.
(2) (a) The central filing officer shall cause the information on the master list to be produced in lists organized in the same manner as the master list.
(b) If a registered buyer or other interested person so requests, the list or lists for such buyer or person may be limited to any county or group of counties where the farm product is used or produced, or to any crop year or years, or a combination of such identifiers.
(3) All buyers of farm products, commission merchants, selling agents, and other persons may register with the central filing officer to access lists described in subsection (2) of this section. Any buyer of farm products, commission merchant, selling agent, or other person conducting business from multiple locations may be considered as one entity, at its option. Such registration shall be on an annual basis. The central filing officer shall prescribe the process for registration, which shall include the name and address of the registrant and the list or lists described in subsection (2) of this section that such registrant desires to receive. A registration shall be complete when the registrant has provided the required information and paid the prescribed fee. A registrant is deemed to be registered only as to those products, counties, and crop years for which the registrant requests a list.
(4) The lists as produced pursuant to subsection (2) of this section shall be published and distributed by the central filing officer and shall reflect all effective financing statements that are effective as of the date of the compilation of the lists. The central filing officer shall determine the frequency with which the lists identified pursuant to subsection (2) of this section shall be compiled and distributed. Such lists may be distributed on an annual basis with three quarterly cumulative supplements or, if cost-effective, requested by registered buyers, and permitted by applicable federal law, the central filing officer may distribute more frequent supplements as determined by the central filing officer reflecting all new filings, changes, and terminations since the last list. The central filing officer may develop the form in which to distribute lists. If the name of the seller of a farm product is not on a list requested and received by a registrant, the sale of the farm product to the registrant shall be free of any security interest granted by that seller with respect to the farm product except as to any farm product for which the registrant has received direct notification of the existence of a security interest pursuant to 7 U.S.C. sec. 1631 (e)(1) and (g)(2)(A). The registrant may rely on the representation of the seller as to the seller's identity, so long as the reliance is in good faith.
(5) The central filing officer shall remove from the master list any effective financing statement that has lapsed pursuant to section 4-9.5-105.3 (2) or has been terminated pursuant to section 4-9.5-107.
(6) As soon as practicable, the central filing officer shall publish and distribute the master list electronically.
C.R.S. § 4-9.5-105 Confirmations
4-9.5-105. Confirmations.
(1) (Deleted by amendment, L. 2006, p. 1148, § 4.)
(2) to (4) (Deleted by amendment, L. 96, p. 1385, § 7, effective July 1, 1996.)
(5) A buyer of farm products, whether or not registered, may rely conclusively on information obtained from the master list published and distributed electronically, regardless of any errors or omissions committed by the central filing officer in the electronic publication or distribution of the master list. If the information obtained electronically confirms that the name of the seller of a specified farm product is not on the master list, the sale of the farm product to the buyer shall be free of any security interest granted by that seller with respect to the farm product and the buyer may rely on the representation of the seller as to the seller's identity, so long as the reliance is in good faith.
C.R.S. § 4-9.5-105.3 Effective financing statements
4-9.5-105.3. Effective financing statements. (1) An effective financing statement shall state:
(a) The name and address of the secured party;
(b) The name and address of the debtor, which, in the case of an individual, shall have the surname appear first, and in the case of a corporation or other entity that is not an individual, shall have the name appear beginning with the first word or character that is not an article or punctuation mark;
(c) The social security number, or other unique identifier, of the debtor or, in the case of a debtor doing business other than as an individual, the federal internal revenue service taxpayer identification number, or other unique identifier, of such debtor;
(d) A description of the farm products subject to the security interest created by the debtor, including:
(I) The amount of the farm products, unless all of a particular farm product is subject to the particular security interest;
(II) The name of each county in which the farm products are produced, stored, or otherwise located or to be produced, stored, or otherwise located; and
(III) The crop year, unless every crop year for the duration of the effective financing statement is subject to the particular security interest.
(e) Further details of the farm products subject to the security interest, if needed to distinguish them from other farm products owned by the same person but not subject to the particular security interest; and
(f) Such other additional information as the central filing officer may require to comply with 7 U.S.C. sec. 1631 or to more effectively carry out the purposes of this article.
(2) An effective financing statement shall remain effective for a period of five years after the date of filing, unless its effectiveness is extended by filing one or more continuation statements in accordance with section 4-9.5-106 (1).
(3) An effective financing statement may:
(a) Cover more than one farm product located in more than one county for any given debtor; and
(b) Cover more than one debtor.
(4) An effective financing statement may not be created by amending a financing statement filed under article 9 of this title.
C.R.S. § 4-9.5-105.7 Amendment of effective financing statements
4-9.5-105.7. Amendment of effective financing statements. (1) An effective financing statement may be amended to add or delete collateral, or otherwise to amend the information provided in the effective financing statement, by filing an amendment with the central filing officer that identifies the effective financing statement to which the amendment relates by providing its file number, filing office where originally filed, and date filed.
(2) An effective financing statement that is amended by an amendment that adds collateral is effective as to the added collateral only from the date of the filing of the amendment.
(3) An effective financing statement that is amended by an amendment that adds a debtor is effective as to the added debtor only from the date of the filing of the amendment.
(4) If the security interest is terminated as to one or more of the farm products shown on the filed effective financing statement and the effective financing statement is to remain effective as to one or more other farm products, the secured party shall, within thirty days after such partial termination, file an amendment reflecting such partial termination with the central filing officer. If the affected secured party fails to file an amendment reflecting such partial termination within the thirty-day period, the secured party shall be liable to the debtor for five hundred dollars and, in addition, for any loss caused to the debtor by such failure.
(5) An amendment to an effective financing statement to delete collateral does not amend or otherwise impair the perfection of any security interest perfected by the effective financing statement for purposes of article 9 of this title.
C.R.S. § 4-9.5-106 Continuation statements
4-9.5-106. Continuation statements. (1) A continuation statement may be filed within six months prior to the expiration of the five-year period of effectiveness of an effective financing statement. A continuation statement shall identify the effective financing statement by file number, filing office where originally filed, and date filed. Upon timely filing of the continuation statement, the effectiveness of the effective financing statement shall be continued for five years after the last date to which the effective financing statement was effective, whereupon its effectiveness shall lapse unless another continuation statement is filed prior to such lapse. Succeeding continuation statements may be filed in the same manner to continue the effectiveness of the effective financing statement.
(2) The effectiveness of an effective financing statement that was filed before July 1, 1996, and that had not otherwise lapsed by December 31, 1997, shall be deemed to have lapsed in the manner provided in subsection (1) of this section on December 31, 1997, unless a continuation statement was filed on or after July 1, 1996, but on or before December 31, 1997, that complied with the requirements of subsection (1) of this section. The filing of a continuation statement pursuant to this subsection (2) shall have extended the effectiveness of the effective financing statement for five years after the last date to which the effective financing statement would otherwise have been effective, whereupon it shall have lapsed in the manner set forth in subsection (1) of this section unless further continuation statements were filed in the manner and within the time periods prescribed in subsection (1) of this section in order to prevent such lapse.
(3) (Deleted by amendment, L. 2006, p. 1150, § 6.)
(4) No continuation statement filed pursuant to this section on or after July 1, 1995, shall be ineffective solely because it failed to include a statement that the original financing statement is still effective.
C.R.S. § 4-9.5-107 Termination statement
4-9.5-107. Termination statement. (1) The secured party identified in an effective financing statement may at any time, and without regard to whether there is any outstanding secured obligation or commitment to make advances, incur obligations, or otherwise give value, file with the central filing officer a termination statement with respect to such effective financing statement pursuant to this section and provide notice to the debtor of such filing.
(1.3) (a) Unless the debtor otherwise requests, whenever there is no outstanding secured obligation and no commitment to make advances, incur obligations, or otherwise give value, the secured party identified in an effective financing statement relating to such obligation or commitment shall, within thirty days, terminate such effective financing statement by filing with the central filing officer either:
(I) A termination statement pursuant to this section; or
(II) A termination statement pursuant to article 9 of this title.
(b) If a termination statement is filed pursuant to either subparagraph (I) or (II) of paragraph (a) of this subsection (1.3), the secured party shall provide notice to the debtor of such filing. If the secured party fails to file a required termination statement within the thirty-day period, the secured party shall be liable to the debtor for one thousand dollars, and, in addition, for any loss caused to the debtor by such failure.
(1.5) A termination statement filed pursuant to either subsection (1) or subparagraph (I) of paragraph (a) of subsection (1.3) of this section does not terminate or otherwise impair the perfection of any security interest perfected by the effective financing statement for purposes of article 9 of this title.
(2) (a) The termination statement shall:
(I) Be signed, authorized, or otherwise authenticated by the secured party, and if such notice is filed by electronic transmission it shall be signed electronically, pursuant to section 24-71-101, C.R.S.;
(II) Identify the effective financing statement, the effectiveness of which is to be terminated, by file number, filing office where originally filed, and date filed; and
(III) State that the effective financing statement is to be removed from the master list.
(b) The effectiveness of a terminated effective financing statement shall cease as of the date and hour of filing the termination statement by the central filing officer.
C.R.S. § 4-9.5-108 Filings generally
4-9.5-108. Filings generally. (1) Each record filed in the central filing system shall contain all information required by the laws of this state to be contained in the record. Each such record shall:
(a) Be on or in such medium as may be acceptable to the central filing officer and from which the central filing officer may create a physical document that contains all of the information in the record. The central filing officer may require that the record be delivered by any one or more means or on or in any one or more media as may be acceptable to the central filing officer. The central filing officer is not required to accept for filing a record that is not delivered by a means and in a medium that complies with the requirements then established by the central filing officer for the delivery and filing of records. If the central filing officer permits a record to be delivered on paper, the record shall be typewritten or machine printed, and the central filing officer may impose reasonable requirements upon the dimensions, legibility, quality and color of such paper, and typewriting or printing. If the delivery of a record subject to this article for filing is required or permitted to be accomplished electronically, then the central filing officer may prescribe the format and other attributes of the record and may refuse to permit such record to be accompanied by any physical document.
(b) Be in the English language;
(c) Include any form or cover sheet, or both, required pursuant to section 4-9.5-108.5;
(d) Be delivered to the central filing officer for filing; and
(e) Be accompanied by all required fees.
(2) A record filed pursuant to this article shall not constitute notice for purposes of section 38-35-109, C.R.S.
(3) Any continuation, termination, amendment, or assignment of an effective financing statement shall be signed, authorized, or otherwise authenticated by the secured party, and, in the case of an amendment that adds collateral or adds an additional debtor, by the affected debtor or debtors. If such filing is made by electronic transmission, it shall be signed electronically, pursuant to section 24-71-101, C.R.S.
(4) The provisions of part 5 of article 9 of this title regarding the filing of records shall apply to the filing of records under this article to the extent not inconsistent therewith.
C.R.S. § 4-9.5-108.5 Forms
4-9.5-108.5. Forms. The central filing officer may prepare and furnish a form for any record that is subject to this article and may require the use of any such form.
C.R.S. § 4-9.5-109 "Food Security Act of 1985"
4-9.5-109. "Food Security Act of 1985". Whether a buyer of farm products takes subject to a security interest shall be determined by section 1324 of the federal "Food Security Act of 1985" and applicable provisions of Colorado law.
C.R.S. § 4-9.5-110 Fees - rules - federal certification
4-9.5-110. Fees - rules - federal certification.
(1) Repealed.
(1.5) The central filing officer shall charge and collect fees and other charges, which shall be determined and collected pursuant to section 24-21-104 (3), C.R.S., for:
(a) Distributing the master list;
(b) Furnishing any information;
(c) Furnishing a copy of any filed record;
(d) Filing any record required or permitted to be filed under this article.
(2) The central filing officer is hereby authorized to adopt such rules as are necessary to carry out the provisions of this article and to conform the central filing system to the requirements of the federal "Food Security Act of 1985".
(3) The central filing officer may contract with one or more public or private parties to perform some or all of its duties under this article; except that the central filing officer may not delegate the power to make rules or regulations, conduct public hearings, prescribe forms, and establish services and fees therefor.
(4) (Deleted by amendment, L. 2003, p. 1672, § 6, effective July 1, 2003.)
(5) Revenues collected by the central filing officer pursuant to this article shall be transmitted to the state treasurer, who shall credit the same to the department of state cash fund created in section 24-21-104 (3), C.R.S.
(6) Repealed.
C.R.S. § 4-9.5-111 Penalties
4-9.5-111. Penalties. Any debtor or third party who provides any false or misleading information concerning the name of the owner of any farm products or the existence of any security interest affecting farm products with the intent to deprive the secured party of any of his or her security under the security interest or to defraud or mislead the buyer of any farm product as to the existence of the security interest or fails to pay to the secured party any moneys realized out of the sale of collateral in violation of any security agreement and with the intent to deprive the secured party of such party's rights thereto, or makes a filing subject to section 4-9.5-108 (3) that is not signed, authorized, or otherwise authenticated by the secured party as required by section 4-9.5-108 (3), shall be deemed to have violated section 18-5-206, C.R.S., and shall be subject to the penalties described in said section. Any penalty so collected shall be transmitted to the state treasurer, who shall credit the same to the department of state cash fund created in section 24-21-104 (3), C.R.S.
C.R.S. § 4-9.5-112 Severability of provisions
4-9.5-112. Severability of provisions. (Repealed)
C.R.S. § 4-9.5-112.5 Immunity
4-9.5-112.5. Immunity. (1) Except in cases of willful misconduct or bad faith, the contractors retained by the central filing officer, as well as the employees of such contractors, shall be exempt from personal liability as a result of an error or omission in receiving, entering, storing, or providing information or performing their duties as required by this title.
(2) Any error or omission described in subsection (1) of this section shall constitute a tort and not a breach of any express or implied contract.
C.R.S. § 4-9.5-113 Repeal of article
4-9.5-113. Repeal of article. (Repealed)
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