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SENATE BILL NO. 1013 – Uniform Assignment of Rents Act

SENATE BILL NO. 1013

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S1013................................................by JUDICIARY AND RULES
UNIFORM ASSIGNMENT OF RENTS - Adds to existing law to set forth the
"Uniform Assignment of Rents Act"; to define terms; to provide for
notification; to provide for the creation of assignment of rents and
security interests; to provide for recordation, perfection of security
interests and priority of conflicting interests; to provide for enforcement
of security interests by appointment of receiver or notification to
assignor or tenant; to provide for the application of proceeds; to provide
for the turnover of rents, commingling and identifiability of rents and
liability of assignor; to provide for perfection and priority of security
interests; to allow subordination; to provide for uniformity; to provide
for relation to federal law; and to set forth application to existing
relationships.
                                                                        
01/16    Senate intro - 1st rdg - to printing
01/17    Rpt prt - to Jud
01/25    Rpt out - rec d/p - to 2nd rdg
01/26    2nd rdg - to 3rd rdg
02/01    3rd rdg - PASSED - 35-0-0
      AYES -- Andreason, Bair, Bastian, Bilyeu, Broadsword, Burkett,
      Cameron, Coiner, Corder, Darrington, Davis, Fulcher, Gannon, Geddes,
      Goedde, Hammond, Heinrich, Hill, Jorgenson, Kelly, Keough, Langhorst,
      Little, Lodge, Malepeai, McGee, McKague, McKenzie, Pearce,
      Richardson, Schroeder, Siddoway, Stegner, Stennett, Werk
      NAYS -- None
      Absent and excused -- None
    Floor Sponsor - Davis
    Title apvd - to House
02/02    House intro - 1st rdg - to Jud
03/02    Rpt out - rec d/p - to 2nd rdg
03/05    2nd rdg - to 3rd rdg
    Ret'd to Jud

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   First Regular Session - 2007
                                                                        
                                                                        
                                       IN THE SENATE
                                                                        
                                    SENATE BILL NO. 1013
                                                                        
                              BY JUDICIARY AND RULES COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO THE UNIFORM ASSIGNMENT OF RENTS  ACT;  AMENDING  TITLE  55,  IDAHO
  3        CODE,  BY  THE ADDITION OF A NEW CHAPTER 31, TITLE 55, IDAHO CODE, TO PRO-
  4        VIDE A SHORT TITLE, TO DEFINE TERMS, TO PROVIDE FOR NOTIFICATION, TO  PRO-
  5        VIDE  FOR  THE  CREATION OF ASSIGNMENT OF RENTS AND SECURITY INTERESTS, TO
  6        PROVIDE FOR RECORDATION, PERFECTION OF SECURITY INTERESTS AND PRIORITY  OF
  7        CONFLICTING  INTERESTS, TO PROVIDE FOR ENFORCEMENT OF SECURITY INTEREST IN
  8        RENTS, TO PROVIDE FOR ENFORCEMENT BY APPOINTMENT OF RECEIVER,  TO  PROVIDE
  9        FOR ENFORCEMENT BY NOTIFICATION TO ASSIGNOR OR TENANT, TO SET FORTH SATIS-
 10        FACTORY  FORM OF NOTIFICATION TO TENANT, TO PROVIDE FOR EFFECT OF ENFORCE-
 11        MENT, TO PROVIDE FOR APPLICATION OF PROCEEDS, TO PROVIDE FOR THE  APPLICA-
 12        TION  OF  PROCEEDS  TO PAYMENT OF EXPENSES OF PROTECTING REAL PROPERTY, TO
 13        SET FORTH CLAIMS AND DEFENSES OF TENANT, TO PROVIDE FOR TURNOVER OF RENTS,
 14        COMMINGLING AND IDENTIFIABILITY OF RENTS AND  LIABILITY  OF  ASSIGNOR,  TO
 15        PROVIDE FOR THE PERFECTION AND PRIORITY OF ASSIGNEE'S SECURITY INTEREST IN
 16        PROCEEDS, TO PROVIDE THAT PRIORITY IS SUBJECT TO SUBORDINATION, TO PROVIDE
 17        FOR UNIFORMITY OF APPLICATION AND CONSTRUCTION, TO PROVIDE FOR RELATION OF
 18        ACT  TO  THE ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT AND
 19        TO SET FORTH APPLICATION TO EXISTING RELATIONSHIPS.
                                                                        
 20    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 21        SECTION 1.  That Title 55, Idaho Code, be, and the same is hereby  amended
 22    by  the addition thereto of a NEW CHAPTER, to be known and designated as Chap-
 23    ter 31, Title 55, Idaho Code, and to read as follows:
                                                                        
 24                                      CHAPTER 31
 25                           UNIFORM ASSIGNMENT OF RENTS ACT
                                                                        
 26        55-3101.  SHORT TITLE. This chapter shall be known and may be cited as the
 27    "Uniform Assignment of Rents Act."
                                                                        
 28        55-3102.  DEFINITIONS. As used in this chapter:
 29        (1)  "Assignee" means a person entitled to enforce an assignment of rents.
 30        (2)  "Assignment of rents" means a transfer of an  interest  in  rents  in
 31    connection  with  an obligation secured by real property located in this state
 32    and from which the rents arise.
 33        (3)  "Assignor" means a person that makes an assignment of  rents  or  the
 34    successor owner of the real property from which the rents arise.
 35        (4)  "Cash  proceeds"  means  proceeds  that  are  money,  checks, deposit
 36    accounts, or the like.
 37        (5)  "Day" means calendar day.
 38        (6)  "Deposit account" means a demand, time, savings, passbook, or similar
 39    account maintained with a bank, savings bank, savings  and  loan  association,
 40    credit union, or trust company.
 41        (7)  "Document"  means  information that is inscribed on a tangible medium
                                                                        
                                           2
                                                                        
  1    or that is stored on an electronic or  other  medium  and  is  retrievable  in
  2    perceivable form.
  3        (8)  "Notification"  means  a  document  containing  information that this
  4    chapter requires a person to provide to another, signed by the person required
  5    to provide the information.
  6        (9)  "Person" means an individual, corporation,  business  trust,  estate,
  7    trust,  partnership,  limited  liability  company, association, joint venture,
  8    public  corporation,  government,  or  governmental  subdivision,  agency,  or
  9    instrumentality, or any other legal or commercial entity.
 10        (10) "Proceeds" means personal property that is received or  collected  on
 11    account of a tenant's obligation to pay rents.
 12        (11) "Purchase" means to take by sale, lease, discount, negotiation, mort-
 13    gage,  pledge,  lien,  security interest, issue or reissue, gift, or any other
 14    voluntary transaction creating an interest in property.
 15        (12) "Rents" means:
 16        (a)  Sums payable for the right to possess or occupy, or  for  the  actual
 17        possession or occupation of, real property of another person;
 18        (b)  Sums  payable  to  an  assignor under a policy of rental interruption
 19        insurance covering real property;
 20        (c)  Claims arising out of a default in the payment of  sums  payable  for
 21        the right to possess or occupy real property of another person;
 22        (d)  Sums  payable  to  terminate  an  agreement to possess or occupy real
 23        property of another person;
 24        (e)  Sums payable to an assignor for payment or reimbursement of  expenses
 25        incurred in owning, operating and maintaining, or constructing or install-
 26        ing improvements on, real property; or
 27        (f)  Any  other sums payable under an agreement relating to the real prop-
 28        erty of another person that constitute rents under law of this state other
 29        than this chapter.
 30        (13) "Secured obligation" means an obligation the performance of which  is
 31    secured by an assignment of rents.
 32        (14) "Security  instrument"  means  a  document, however denominated, that
 33    creates or provides for a security interest in real property, whether  or  not
 34    it also creates or provides for a security interest in personal property.
 35        (15) "Security  interest"  means  an  interest  in property that arises by
 36    agreement and secures performance of an obligation.
 37        (16) "Sign" means, with present intent to authenticate or  adopt  a  docu-
 38    ment:
 39        (a)  To execute or adopt a tangible symbol; or
 40        (b)  To  attach  to or logically associate with the document an electronic
 41        sound, symbol, or process.
 42        (17) "State" means a state of the United States, the District of Columbia,
 43    Puerto Rico, the United States Virgin Islands, or  any  territory  or  insular
 44    possession subject to the jurisdiction of the United States.
 45        (18) "Submit  for  recording"  means  to  submit a document complying with
 46    applicable legal standards, with required fees and taxes, to the office of the
 47    recorder in each county wherein the real property described in the document is
 48    situated.
 49        (19) "Tenant" means a person that has an obligation to pay  sums  for  the
 50    right  to possess or occupy, or for possessing or occupying, the real property
 51    of another person.
                                                                        
 52        55-3103.  MANNER OF GIVING NOTIFICATION. (1) Except as otherwise  provided
 53    in subsections (3) and (4) of this section, a person gives a notification or a
 54    copy of a notification under this chapter:
                                                                        
                                           3
                                                                        
  1        (a)  By depositing it with the United States postal service or with a com-
  2        mercially  reasonable delivery service, properly addressed to the intended
  3        recipient's  address as specified in subsection (2) of this section,  with
  4        first-class postage or cost of delivery provided for; or
  5        (b)  If  the  recipient agreed to receive notification by facsimile trans-
  6        mission, electronic mail, or other electronic transmission, by sending  it
  7        to  the  recipient  in  the  agreed manner at the address specified in the
  8        agreement.
  9        (2)  The following rules determine the proper address for giving a notifi-
 10    cation under subsection (1) of this section:
 11        (a)  A person giving a notification to an assignee shall use  the  address
 12        for  notices to the assignee provided in the document creating the assign-
 13        ment of rents, but, if the assignee has provided  the  person  giving  the
 14        notification with a more recent address for notices, the person giving the
 15        notification shall use that address.
 16        (b)  A  person  giving a notification to an assignor shall use the address
 17        for notices to the assignor provided in the document creating the  assign-
 18        ment  of  rents,  but,  if the assignor has provided the person giving the
 19        notification with a more recent address for notices, the person giving the
 20        notification shall use that address.
 21        (c)  If a tenant's agreement with an  assignor  provides  an  address  for
 22        notices  to  the  tenant and the person giving notification has received a
 23        copy of the agreement or knows the address for notices  specified  in  the
 24        agreement,  the  person  giving the notification shall use that address in
 25        giving a notification to the tenant. Otherwise, the person shall  use  the
 26        address of the premises covered by the agreement.
 27        (3)  If  a  person  giving a notification pursuant to this chapter and the
 28    recipient have agreed to the method for giving a notification,  any  notifica-
 29    tion must be given by that method.
 30        (4)  If  a notification is received by the recipient, it is effective even
 31    if it was not given in accordance with subsection (1) or (3) of this section.
                                                                        
 32        55-3104.  SECURITY INSTRUMENT CREATES ASSIGNMENT OF RENTS -- ASSIGNMENT OF
 33    RENTS CREATES SECURITY INTEREST. (1)  An enforceable security instrument  cre-
 34    ates  an  assignment  of rents arising from the real property described in the
 35    security instrument, unless the security instrument provides otherwise.
 36        (2)  An assignment of rents creates a presently effective security  inter-
 37    est  in  all  accrued  and  unaccrued  rents  arising  from  the real property
 38    described in the document creating the assignment, regardless of  whether  the
 39    document is in the form of an absolute assignment, an absolute assignment con-
 40    ditioned  upon  default,  an  assignment  as additional security, or any other
 41    form. The security interest in rents is separate and distinct from  any  secu-
 42    rity interest held by the assignee in the real property.
                                                                        
 43        55-3105.  RECORDATION  -- PERFECTION OF SECURITY INTEREST IN RENTS -- PRI-
 44    ORITY OF CONFLICTING INTERESTS IN RENTS. (1)  A document creating  an  assign-
 45    ment  of rents may be submitted for recording in the office of the recorder in
 46    each county wherein the real property described in the document is situated in
 47    the same manner as any other document evidencing a conveyance of  an  interest
 48    in real property.
 49        (2)  Upon  recording, the security interest in rents created by an assign-
 50    ment of rents is fully perfected, even if a provision of the document creating
 51    the assignment or law of this state other than this chapter would preclude  or
 52    defer  enforcement  of  the security interest until the occurrence of a subse-
 53    quent event, including a subsequent default of the  assignor,  the  assignee's
                                                                        
                                           4
                                                                        
  1    obtaining possession of the real property, or the appointment of a receiver.
  2        (3)  Except  as  otherwise  provided  in subsection (4) of this section, a
  3    perfected security interest in rents takes priority over the rights of a  per-
  4    son that, after the security interest is perfected:
  5        (a)  Acquires  a judicial lien against the rents or the real property from
  6        which the rents arise; or
  7        (b)  Purchases an interest in the rents or the real  property  from  which
  8        the rents arise.
  9        (4)  A  perfected  security interest in rents has priority over the rights
 10    of a person described in subsection (3) of this section with respect to future
 11    advances to the same extent as the assignee's security interest  in  the  real
 12    property  has  priority  over the rights of that person with respect to future
 13    advances.
                                                                        
 14        55-3106.  ENFORCEMENT OF SECURITY INTEREST IN RENTS. (1) An  assignee  may
 15    enforce  an assignment of rents using one (1) or more of the methods specified
 16    in sections 55-3107, 55-3108 and 55-3109, Idaho Code, or any other method suf-
 17    ficient to enforce the assignment under law of  this  state  other  than  this
 18    chapter.
 19        (2)  From  the  date  of  enforcement,  the  assignee  or,  in the case of
 20    enforcement by appointment of a receiver under section  55-3107,  Idaho  Code,
 21    the receiver, is entitled to collect all rents that:
 22        (a)  Have accrued but remain unpaid on that date; and
 23        (b)  Accrue on or after that date, as those rents accrue.
                                                                        
 24        55-3107.  ENFORCEMENT BY APPOINTMENT OF RECEIVER. (1) An assignee is enti-
 25    tled  to  the  appointment  of a receiver for the real property subject to the
 26    assignment of rents if:
 27        (a)  The assignor is in default and:
 28             (i)   The assignor has agreed in a signed document to the appointment
 29             of a receiver in the event of the assignor's default;
 30             (ii)  It appears likely that the real property may not be  sufficient
 31             to satisfy the secured obligation;
 32             (iii) The  assignor  has failed to turn over to the assignee proceeds
 33             that the assignee was entitled to collect; or
 34             (iv)  A subordinate assignee of rents obtains the  appointment  of  a
 35             receiver for the real property; or
 36        (b)  Other  circumstances  exist  that  would justify the appointment of a
 37        receiver under law of this state other than this chapter.
 38        (2)  An assignee may file a petition for the appointment of a receiver  in
 39    connection with an action:
 40        (a)  To foreclose the security instrument;
 41        (b)  For specific performance of the assignment;
 42        (c)  Seeking  a remedy on account of waste or threatened waste of the real
 43        property subject to the assignment; or
 44        (d)  Otherwise to enforce the secured obligation or the  assignee's  reme-
 45        dies arising from the assignment.
 46        (3)  An  assignee  that files a petition under subsection (2) of this sec-
 47    tion shall also give a copy of the petition in the manner specified in section
 48    55-3103, Idaho Code, to any other person that, ten (10) days before  the  date
 49    the  petition  is  filed, held a recorded assignment of rents arising from the
 50    real property.
 51        (4)  If an assignee enforces an assignment of rents  under  this  section,
 52    the  date  of  enforcement  is  the  date  on  which the court enters an order
 53    appointing a receiver for the real property subject to the assignment.
                                                                        
                                           5
                                                                        
  1        (5)  From the date of its appointment, a receiver is entitled  to  collect
  2    rents as provided in section 55-3106(2), Idaho Code. The receiver also has the
  3    authority  provided  in  the  order of appointment and law of this state other
  4    than this chapter.
  5        (6)  The following rules govern priority among receivers:
  6        (a)  If more than one (1) assignee qualifies under this  section  for  the
  7        appointment  of  a receiver, a receivership requested by an assignee enti-
  8        tled to priority in rents under this chapter has priority over a receiver-
  9        ship requested by a subordinate assignee, even if a court  has  previously
 10        appointed a receiver for the subordinate assignee.
 11        (b)  If  a subordinate assignee obtains the appointment of a receiver, the
 12        receiver may collect the rents and apply the proceeds in the manner speci-
 13        fied in the order appointing the receiver until a  receiver  is  appointed
 14        under a senior assignment of rents.
                                                                        
 15        55-3108.  ENFORCEMENT BY NOTIFICATION TO ASSIGNOR. (1) Upon the assignor's
 16    default,  or  as  otherwise  agreed by the assignor, the assignee may give the
 17    assignor a notification demanding that the assignor pay over the  proceeds  of
 18    any  rents  that  the  assignee  is entitled to collect under section 55-3106,
 19    Idaho Code. The assignee shall also give a copy of  the  notification  to  any
 20    other person that, ten (10) days before the notification date, held a recorded
 21    assignment of rents arising from the real property.
 22        (2)  If  an  assignee  enforces an assignment of rents under this section,
 23    the date of enforcement is the date on which the assignor receives a notifica-
 24    tion under subsection (1) of this section.
 25        (3)  An assignee's failure to give a notification under subsection (1)  of
 26    this  section  to  any  person holding a recorded assignment of rents does not
 27    affect the effectiveness of the notification as to the assignor, but the other
 28    person is entitled to any relief permitted under law of this state other  than
 29    this chapter.
 30        (4)  An  assignee that holds a security interest in rents solely by virtue
 31    of section 55-3104(1), Idaho Code, may not enforce the security interest under
 32    this section while the assignor occupies the real property as  the  assignor's
 33    primary residence.
                                                                        
 34        55-3109.  ENFORCEMENT  BY  NOTIFICATION TO TENANT. (1) Upon the assignor's
 35    default, or as otherwise agreed by the assignor, the assignee may  give  to  a
 36    tenant  of  the  real property a notification demanding that the tenant pay to
 37    the assignee all unpaid accrued rents and all unaccrued rents as they  accrue.
 38    The  assignee shall give a copy of the notification to the assignor and to any
 39    other person that, ten (10) days before the notification date, held a recorded
 40    assignment of rents arising from the real property. The notification  must  be
 41    signed by assignee and:
 42        (a)  Identify  the  tenant,  assignor,  assignee,  premises covered by the
 43        agreement between the tenant and the assignor,  and  assignment  of  rents
 44        being enforced;
 45        (b)  Provide  the  recording data for the document creating the assignment
 46        or other reasonable proof that the assignment was made;
 47        (c)  State that the assignee has the right to collect rents in  accordance
 48        with the assignment;
 49        (d)  Direct the tenant to pay to the assignee all unpaid accrued rents and
 50        all unaccrued rents as they accrue;
 51        (e)  Describe  the manner in which subsections (3) and (4) of this section
 52        affect the tenant's payment obligations;
 53        (f)  Provide the name and telephone number of  a  contact  person  and  an
                                                                        
                                           6
                                                                        
  1        address  to  which  the tenant can direct payment of rents and any inquiry
  2        for additional information about the assignment or the assignee's right to
  3        enforce the assignment; and
  4        (g)  Contain a statement that the tenant may consult a lawyer if the  ten-
  5        ant has questions about its rights and obligations.
  6        (2)  If  an  assignee  enforces an assignment of rents under this section,
  7    the date of enforcement is the date on which the tenant receives  a  notifica-
  8    tion substantially complying with subsection (1) of this section.
  9        (3)  Subject  to  the provisions of subsection (4) of this section and any
 10    other claim or defense that a tenant has under law of this  state  other  than
 11    this chapter, following receipt of a notification substantially complying with
 12    the provisions of subsection (1) of this section:
 13        (a)  A tenant is obligated to pay to the assignee all unpaid accrued rents
 14        and  all  unaccrued rents as they accrue, unless the tenant has previously
 15        received a notification from another  assignee  of  rents  given  by  that
 16        assignee  in  accordance  with this section and the other assignee has not
 17        canceled that notification;
 18        (b)  Unless the tenant occupies the premises as the tenant's primary resi-
 19        dence, a tenant that pays rents to the assignor is not discharged from the
 20        obligation to pay rents to the assignee;
 21        (c)  A tenant's payment to the assignee of rents then  due  satisfies  the
 22        tenant's  obligation under the tenant's agreement with the assignor to the
 23        extent of the payment made; and
 24        (d)  A tenant's obligation to pay rents to the  assignee  continues  until
 25        the  tenant receives a court order directing the tenant to pay the rent in
 26        a different manner or a signed document from the  assignee  canceling  its
 27        notification, whichever occurs first.
 28        (4)  A  tenant  that  has  received a notification under subsection (1) of
 29    this section is not in default for nonpayment of rents accruing within  thirty
 30    (30) days after the date the notification is received before the earlier of:
 31        (a)  Ten (10) days after the date the next regularly scheduled rental pay-
 32        ment would be due; or
 33        (b)  Thirty (30) days after the date the tenant receives the notification.
 34        (5)  Upon  receiving a notification from another creditor that is entitled
 35    to priority under section 55-3105(3), Idaho Code, that the other creditor  has
 36    enforced  and is continuing to enforce its interest in rents, an assignee that
 37    has given a notification to a tenant under  subsection  (1)  of  this  section
 38    shall  immediately  give another notification to the tenant canceling the ear-
 39    lier notification.
 40        (6)  An assignee's failure to give a notification under subsection (1)  of
 41    this  section  to  any  person holding a recorded assignment of rents does not
 42    affect the effectiveness of the notification as to the assignor and those ten-
 43    ants receiving the notification. However, the person entitled to the notifica-
 44    tion is entitled to any relief permitted by law of this state other than  this
 45    chapter.
 46        (7)  An  assignee that holds a security interest in rents solely by virtue
 47    of section 55-3104(1), Idaho Code, may not enforce the security interest under
 48    this section while the assignor occupies the real property as  the  assignor's
 49    primary residence.
                                                                        
 50        55-3110.  NOTIFICATION  TO  TENANT  --  FORM.  No  particular  phrasing is
 51    required for the notification specified in section 55-3109, Idaho  Code.  How-
 52    ever,  the  following form of notification, when properly completed, is suffi-
 53    cient to satisfy the requirements of section 55-3109, Idaho Code:
                                                                        
                                           7
                                                                        
  1               "NOTIFICATION TO PAY RENTS TO PERSON OTHER THAN LANDLORD
  2        Tenant:..............................................................
  3                                 Name of Tenant
  4        Property Occupied by Tenant (the "Premises"):........................
  5                                                            Address
  6        Landlord:............................................................
  7                                Name of Landlord
  8        Assignee:............................................................
  9                                Name of Assignee
 10        Address of Assignee and Telephone Number of Contact Person:
 11        .....................................................................
 12                               Address of Assignee
 13        .....................................................................
 14                      Telephone number of person to contact
 15             1.   The Assignee named above has become the person entitled  to
 16        collect   your   rents   on   the   Premises   listed   above   under
 17        ...........(Name of Document)...........
 18        (the "Assignment of Rents") dated ......(Date)......, and recorded at
 19        ......(Recording Data)......
 20        in  the  Office  of  the  Recorder of .......... County on ....... as
 21        Instrument No. .....
 22        You may obtain additional information about the Assignment  of  Rents
 23        and the Assignee's right to enforce it at the address listed above.
 24             2.   The  Landlord  is in default under the Assignment of Rents.
 25        Under the Assignment of Rents, the Assignee is  entitled  to  collect
 26        rents from the Premises.
 27             3.   This notification affects your rights and obligations under
 28        the agreement under which you occupy the Premises (your "Agreement").
 29        In order to provide you with an opportunity to consult with a lawyer,
 30        if your next scheduled rental payment is due within 30 days after you
 31        receive  this notification, neither the Assignee nor the Landlord can
 32        hold you in default under  your  Agreement  for  nonpayment  of  that
 33        rental payment until 10 days after the due date of that payment or 30
 34        days  following  the  date  you  receive this notification, whichever
 35        occurs first. You may consult a lawyer  at  your  expense  concerning
 36        your  rights  and  obligations under your Agreement and the effect of
 37        this notification.
 38             4.   You must pay to the Assignee at the  address  listed  above
 39        all  rents under your Agreement which are due and payable on the date
 40        you receive this notification  and  all  rents  accruing  under  your
 41        Agreement  after  you receive this notification.  If you pay rents to
 42        the Assignee after receiving this notification, the payment will sat-
 43        isfy your rental obligation to the extent of that payment.
 44             5.   Unless you occupy the Premises as your  primary  residence,
 45        if  you  pay any rents to the Landlord after receiving this notifica-
 46        tion, your payment to the Landlord will  not  discharge  your  rental
 47        obligation,  and  the  Assignee  may  hold you liable for that rental
 48        obligation notwithstanding your payment to the Landlord.
 49             6.   If you have previously received a notification from another
 50        person that also holds an assignment of  the  rents  due  under  your
 51        Agreement,  you  should continue paying your rents to the person that
 52        sent that notification until that person cancels  that  notification.
 53        Once  that  notification  is canceled, you must begin paying rents to
 54        the Assignee in accordance with this notification.
 55             7.   Your obligation to pay rents to the Assignee will  continue
                                                                        
                                           8
                                                                        
  1        until you receive either:
  2                  (a)  a  written order from a court directing you to pay the
  3             rent in a manner specified in that order; or
  4                  (b)  written instructions from the Assignee canceling  this
  5             notification.
                                                                        
  6        ..........................
  7            Name of Assignee
                                                                        
  8        .......................................
  9            By: Officer/Authorized Agent of Assignee."
                                                                        
 10        55-3111.  EFFECT  OF ENFORCEMENT. The enforcement of an assignment of
 11    rents by one (1) or more of the methods identified in  sections  55-3107,
 12    55-3108  and  55-3109,  Idaho  Code,  the  application of proceeds by the
 13    assignee under section 55-3112, Idaho Code, after enforcement,  the  pay-
 14    ment  of  expenses  under section 55-3113, Idaho Code, or an action under
 15    section 55-3114(4), Idaho Code, does not:
 16        (1)  Make the assignee a mortgagee in possession of  the  real  prop-
 17    erty;
 18        (2)  Make the assignee an agent of the assignor;
 19        (3)  Constitute an election of remedies that precludes a later action
 20    to enforce the secured obligation;
 21        (4)  Make the secured obligation unenforceable;
 22        (5)  Limit  any  right  available to the assignee with respect to the
 23    secured obligation;
 24        (6)  Violate section 6-101, Idaho Code; or
 25        (7)  Bar a deficiency judgment pursuant to any law of this state gov-
 26    erning or relating to deficiency judgments following the  enforcement  of
 27    any encumbrance, lien, or security interest.
                                                                        
 28        55-3112.  APPLICATION   OF  PROCEEDS.  Unless  otherwise  agreed,  an
 29    assignee that collects rents under this chapter or collects upon a  judg-
 30    ment  in  an action under section 55-3114(4), Idaho Code, shall apply the
 31    sums collected in the following order to:
 32        (1)  The assignee's reasonable expenses of enforcing  its  assignment
 33    of rents, including, to the extent provided for by agreement and not pro-
 34    hibited  by  law of this state other than this chapter, reasonable attor-
 35    ney's fees and costs incurred by the assignee;
 36        (2)  Reimbursement of any expenses incurred by the assignee  to  pro-
 37    tect or maintain the real property subject to the assignment;
 38        (3)  Payment of the secured obligation;
 39        (4)  Payment  of  any  obligation  secured  by a subordinate security
 40    interest or other lien on the rents if, before distribution of  the  pro-
 41    ceeds,  the  assignor and assignee receive a notification from the holder
 42    of the interest or lien demanding payment of the proceeds; and
 43        (5)  The assignor.
                                                                        
 44        55-3113.  APPLICATION OF PROCEEDS TO PAYMENT OF EXPENSES OF  PROTECT-
 45    ING  REAL PROPERTY -- CLAIMS AND DEFENSES OF TENANT. (1) Unless otherwise
 46    agreed by the assignee, and subject to subsection (3) of this section, an
 47    assignee that collects rents following enforcement under section  55-3108
 48    or 55-3109, Idaho Code, need not apply them to the payment of expenses of
 49    protecting or maintaining the real property subject to the assignment.
 50        (2)  Unless  a tenant has made an enforceable agreement not to assert
                                                                        
                                           9
                                                                        
  1    claims or defenses, the right of the assignee to collect rents  from  the
  2    tenant  is subject to the terms of the agreement between the assignor and
  3    tenant and any claim or defense arising from  the  assignor's  nonperfor-
  4    mance of that agreement.
  5        (3)  This chapter does not limit the standing or right of a tenant to
  6    request  a  court  to appoint a receiver for the real property subject to
  7    the assignment or to seek other relief on the ground that the  assignee's
  8    nonpayment of expenses of protecting or maintaining the real property has
  9    caused  or  threatened  harm  to  the  tenant's interest in the property.
 10    Whether the tenant is entitled to the appointment of a receiver or  other
 11    relief is governed by law of this state other than this chapter.
                                                                        
 12        55-3114.  TURNOVER  OF  RENTS  --  COMMINGLING AND IDENTIFIABILITY OF
 13    RENTS -- LIABILITY OF ASSIGNOR. (1) In this section, "good  faith"  means
 14    honesty  in fact and the observance of reasonable commercial standards of
 15    fair dealing.
 16        (2)  If an assignor collects rents that the assignee is  entitled  to
 17    collect under this chapter:
 18        (a)  The  assignor shall turn over the proceeds to the assignee, less
 19        any  amount  representing  payment  of  expenses  authorized  by  the
 20        assignee; and
 21        (b)  The assignee continues to have a security interest in  the  pro-
 22        ceeds so long as they are identifiable.
 23        (3)  For  purposes of this chapter, cash proceeds are identifiable if
 24    they are maintained in a segregated account or, if commingled with  other
 25    funds,  to the extent the assignee can identify them by a method of trac-
 26    ing, including application of equitable  principles,  that  is  permitted
 27    under  law  of this state other than this chapter with respect to commin-
 28    gled funds.
 29        (4)  In addition to any other remedy available to the assignee  under
 30    law  of  this state other than this chapter, if an assignor fails to turn
 31    over proceeds to the assignee as required by subsection (2) of this  sec-
 32    tion, the assignee may recover from the assignor in a civil action:
 33        (a)  The  proceeds,  or  an  amount  equal  to the proceeds, that the
 34        assignor was obligated to turn over under subsection (2) of this sec-
 35        tion; and
 36        (b)  Reasonable attorney's fees and costs incurred by the assignee to
 37        the extent provided for by agreement and not  prohibited  by  law  of
 38        this state other than this chapter.
 39        (5)  The assignee may maintain an action under subsection (4) of this
 40    section  without  bringing  an  action to foreclose any security interest
 41    that it may have in the real property. Any sums recovered in  the  action
 42    must be applied in the manner specified in section 55-3112, Idaho Code.
 43        (6)  Unless  otherwise  agreed,  if  an assignee entitled to priority
 44    under section 55-3105(3), Idaho Code,  enforces  its  interest  in  rents
 45    after  another  creditor holding a subordinate security interest in rents
 46    has enforced its interest under section 55-3108 or 55-3109,  Idaho  Code,
 47    the  creditor  holding  the subordinate security interest in rents is not
 48    obligated to turn over any proceeds that it collects in good faith before
 49    the creditor receives notification that the senior assignee has  enforced
 50    its  interest  in  rents.  The  creditor  shall  turn  over to the senior
 51    assignee any proceeds that it collects after it  receives  the  notifica-
 52    tion.
                                                                        
 53        55-3115.  PERFECTION  AND PRIORITY OF ASSIGNEE'S SECURITY INTEREST IN
                                                                        
                                           10
                                                                        
  1    PROCEEDS. (1) In this section:
  2        (a)  "Article 9" means chapter 28, title 9, Idaho Code,  or,  to  the
  3        extent  applicable  to  any particular issue, article 9 as adopted by
  4        the state whose laws govern that issue under the choice-of-laws rules
  5        contained in article 9 as adopted by this state.
  6        (b)  "Conflicting interest" means an interest in proceeds, held by  a
  7        person other than an assignee, that is:
  8             (i)   A security interest arising under article 9; or
  9             (ii)  Any other interest if article 9 resolves the priority con-
 10             flict between that person and a secured party with a conflicting
 11             security interest in the proceeds.
 12        (2)  An assignee's security interest in identifiable cash proceeds is
 13    perfected  if  its security interest in rents is perfected. An assignee's
 14    security interest in identifiable noncash proceeds is perfected  only  if
 15    the assignee perfects that interest in accordance with article 9.
 16        (3)  Except  as otherwise provided in subsection (4) of this section,
 17    priority between an assignee's security interest in identifiable proceeds
 18    and a conflicting interest is governed by the priority rules  in  article
 19    9.
 20        (4)  An  assignee's  perfected security interest in identifiable cash
 21    proceeds is subordinate to a conflicting interest that  is  perfected  by
 22    control under article 9 but has priority over a conflicting interest that
 23    is perfected other than by control.
                                                                        
 24        55-3116.  PRIORITY  SUBJECT  TO  SUBORDINATION. This chapter does not
 25    preclude subordination by agreement as to rents or proceeds.
                                                                        
 26        55-3117.  UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying and
 27    construing this uniform act, consideration must be given to the  need  to
 28    promote  uniformity  of  the law with respect to its subject matter among
 29    states that enact it.
                                                                        
 30        55-3118.  RELATION TO ELECTRONIC SIGNATURES IN  GLOBAL  AND  NATIONAL
 31    COMMERCE  ACT.  This chapter modifies, limits, and supersedes the federal
 32    electronic signatures in global and national commerce act (15 U.S.C. sec-
 33    tion 7001 et seq.) but does  not  modify,  limit,  or  supersede  section
 34    101(c) of  that  act  (15 U.S.C. section 7001(c)) or authorize electronic
 35    delivery  of  any  of the notices described in section 103(b) of that act
 36    (15 U.S.C. section 7003(b)).
                                                                        
 37        55-3119.  APPLICATION TO EXISTING RELATIONSHIPS. (1) Except as other-
 38    wise provided in this section, this chapter governs the enforcement of an
 39    assignment of rents and the perfection and priority of a security  inter-
 40    est in rents, even if the document creating the assignment was signed and
 41    delivered before July 1, 2007.
 42        (2)  This  chapter  does not affect an action or proceeding commenced
 43    before July 1, 2007.
 44        (3)  Section 55-3104(1), Idaho Code, does not apply to  any  security
 45    instrument signed and delivered before July 1, 2007.
 46        (4)  This chapter does not affect:
 47        (a)  The  enforceability  of an assignee's security interest in rents
 48        or proceeds if, immediately before July 1, 2007, that security inter-
 49        est was enforceable;
 50        (b)  The perfection of an assignee's security interest  in  rents  or
 51        proceeds  if, immediately before July 1, 2007, that security interest
                                                                        
                                           11
                                                                        
  1        was perfected; or
  2        (c)  The priority of an assignee's security interest in rents or pro-
  3        ceeds with respect to the interest of another person if,  immediately
  4        before July 1, 2007, the interest of the other person was enforceable
  5        and perfected, and that priority was established.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE

                             RS 16452

The Uniform Assignment of Rents Act seeks to bring
consistency to commercial real property transactions by
establishing a comprehensive model for the creation, perfection,
and enforcement of security interests in rents derived from real
estate.


                           FISCAL NOTE

     There will be no impact on the state's general fund.





Contact
Name:  Senator Bart Davis 
Phone: 322-1305
Name:  Dale Higer
Phone: 345-1432


STATEMENT OF PURPOSE/FISCAL NOTE                          S 1013