TITLE 28

COMMERCIAL TRANSACTIONS

CHAPTER 9

SECURED TRANSACTIONS

PART 3.

PERFECTION AND PRIORITY

28-9-328.  Priority of security interests in investment property. The following rules govern priority among conflicting security interests in the same investment property:

(1)  A security interest held by a secured party having control of investment property under section 28-9-106 has priority over a security interest held by a secured party that does not have control of the investment property.

(2)  Except as otherwise provided in subsections (3) and (4) of this section, conflicting security interests held by secured parties each of which has control under section 28-9-106 rank according to priority in time of:

(A)  If the collateral is a security, obtaining control;

(B)  If the collateral is a security entitlement carried in a securities account and:

(i)   if the secured party obtained control under section 28-8-106(4)(a), the secured party’s becoming the person for which the securities account is maintained;

(ii)  if the secured party obtained control under section 28-8-106(4)(b), the securities intermediary’s agreement to comply with the secured party’s entitlement orders with respect to security entitlements carried or to be carried in the securities account; or

(iii) if the secured party obtained control through another person under section 28-8-106(4)(c), the time on which priority would be based under this paragraph if the other person were the secured party; or

(C)  If the collateral is a commodity contract carried with a commodity intermediary, the satisfaction of the requirement for control specified in section 28-9-106(b)(2) with respect to commodity contracts carried or to be carried with the commodity intermediary.

(3)  A security interest held by a securities intermediary in a security entitlement or a securities account maintained with the securities intermediary has priority over a conflicting security interest held by another secured party.

(4)  A security interest held by a commodity intermediary in a commodity contract or a commodity account maintained with the commodity intermediary has priority over a conflicting security interest held by another secured party.

(5)  A security interest in a certificated security in registered form which is perfected by taking delivery under section 28-9-313(a) and not by control under section 28-9-314 has priority over a conflicting security interest perfected by a method other than control.

(6)  Conflicting security interests created by a broker, securities intermediary or commodity intermediary which are perfected without control under section 28-9-106 rank equally.

(7)  In all other cases, priority among conflicting security interests in investment property is governed by sections 28-9-322 and 28-9-323.

History:

[28-9-328, added 2001, ch. 208, sec. 2, p. 749.]