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Navigating UCC Issues in Real Estate Finance Opinions: The ABA/ACMA/ACREL/ACCFL Opinion Report

Necessary Background for Rendering and Receiving Opinion Letters for Transactions Beyond Real Property

Recording of a 90-minute premium CLE video webinar with Q&A

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Conducted on Tuesday, August 29, 2023

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This CLE course will provide real estate practitioners with guidance on giving and reviewing opinion letters relating to Uniform Commercial Code (U.C.C.) matters. The webinar will be based on the U.C.C. Opinion Report released in 2019 by the American Bar Association (ABA), the American College of Mortgage Attorneys (ACMA), and the American College of Real Estate Lawyers (ACREL), with the approval of the American College of Commercial Finance Lawyers (ACCFL). In connection with that, the panel will examine various issues associated with creating and perfecting a security interest in personal property collateral, fixtures, and non-fixture real estate collateral under the U.C.C.

Description

While some real estate financings involve only real property, many transactions involve U.C.C. collateral such as fixtures, as-extracted collateral, uncut timber, deposit accounts, investment property, and ordinary personal property used to run the business. Real estate counsel must have a thorough understanding of the U.C.C. when a financing transaction includes these types of collateral.

There are three steps necessary to create a security interest and be in a position so that it may be enforced against the debtor, other secured parties, purchasers, bankruptcy trustees, and other third parties: creation, attachment, and perfection. Critical to the creation and attachment of a security interest is the inclusion of a legally sufficient description of the collateral. Various methods (depending on the collateral) recognized under the U.C.C. work to achieve perfection of the interest.

The U.C.C. Opinion Report explains applicable U.C.C. provisions regarding creation, attachment, and perfection of security interests in various collateral types most often included in real estate financing and includes representative forms of U.C.C. opinions to cover multiple issues. The opinions and accompanying practice points provide a useful framework for U.C.C. practice in real estate finance transactions.

Listen as our authoritative panel provides perspectives and insights into giving and reviewing opinion letters relating to U.C.C. matters and the 2019 Opinion Report.

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Outline

  1. Types of U.C.C. collateral often encountered in real estate financings
    1. Personal property
    2. Fixtures
    3. As-extracted collateral, timber
    4. Deposit accounts
    5. Investment property
  2. Requirements for establishing a security interest enforceable against third parties
    1. Creation of the security agreement
    2. Attachment
    3. Perfection
    4. Importance of collateral description
  3. The guidance provided by the 2019 ABA/ACMA/ACREL/ACCFL U.C.C. Opinion Report

Benefits

The panel will review these and other relevant topics:

  • What types of U.C.C. collateral are frequently part of a real estate finance transaction?
  • What terms should be included in a security agreement to ensure the creation of security interests?
  • When is a blanket collateral description sufficient under the U.C.C., and when is it not?
  • How do methods of perfection vary with the type of collateral?
  • What are the best practices in rendering UCC opinions according to the ABA/ACMA/ACREL/ACCFL U.C.C. Opinion Report?

Faculty

Grodner, R. Marshall
R. Marshall Grodner
Member
McGlinchey Stafford

Mr. Grodner's practice focuses primarily on commercial transactions, secured transactions, commercial finance,...  |  Read More

Levin, Edward
Edward J. Levin
Member
Gordon Feinblatt

Mr. Levin focuses his practice in the area of real property law, including real estate financing, leasing, purchase and...  |  Read More

Weise, Steven
Steven O. Weise
Partner
Proskauer Rose

Mr. Weise practices in all areas of commercial law and has extensive experience in financing, especially in those...  |  Read More

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