By Jeffrey N. Schatzman, Esq.
Schatzman & Schatzman, P.A.
Miami, Florida
On September 29, 2022, the Eleventh Circuit Court of Appeals issued its opinion in 1944 Beach Boulevard, LLC v. Live Oak Banking Co. (In re NRP Lease Holdings, LLC), No. 21-11742, at *9 (11th Cir. Sep. 29, 2022), which reversed the Florida Middle District and Middle District Bankruptcy Courts’ decisions concerning perfection of a UCC-1 financing statement under Florida law. The case involves 1944 Beach Boulevard, LLC’s, a chapter 11 debtor (“Beach Boulevard”) action to avoid Live Oak Banking Co.’s (“Live Oak”) blanket lien on its assets.
Live Oak had made two $2.5 million
loans to Beach Boulevard and attempted to perfect its liens on all of Beach
Boulevard’s assets by filing a UCC-1 financing statements for each loan with
the Florida Secured Transactions Registry.
However, in its filings, Live Oak incorrectly named the debtor as 1944
Beach Blvd, LLC as opposed to its legal name, 1944 Beach Boulevard,
LLC. In its avoidance action, Beach
Boulevard asserted that Live Oak’s financing statements failed to correctly
name the debtor, making them “seriously misleading” within the meaning of §
679.5061(2), Florida Statutes and thus rendering Live Oak’s security interest
unperfected. The parties filed cross
motions for summary judgment.
Florida Statutes § 679.5061
addresses the effects of errors in financing statements and provides:
(1) A financing statement
substantially complying with the requirements of this part is effective, even
if it has minor errors or omissions, unless the errors or omissions make the
financing statement seriously misleading.
(2) Except as otherwise provided
in subsection (3), a financing statement that fails sufficiently to provide the
name of the debtor in accordance with s. 679.5031(1) is
seriously misleading.
(3) If a search of the records of
the filing office under the debtor’s correct name, using the filing office’s
standard search logic, if any, would disclose a financing statement that fails
sufficiently to provide the name of the debtor in accordance with s. 679.5031(1), the name provided does not make the
financing statement seriously misleading.
§ 679.5061, Fla. Stat.
The Bankruptcy Court ruled in favor
of Live Oak by finding that although Live Oak’s UCC filings did not correctly identify
the debtor, the safe harbor provision of § 679.5061(3) was applicable since a
search of the Florida Secured Transaction Registry discloses the financing
statements containing the wrongly named debtor on the page immediately
preceding the initial page that appears when searching by the proper name of
the debtor. The Bankruptcy Court
believed that such a search result was consistent with standard search logic
and thus the filings were not “seriously misleading”. The Florida Middle District Court, sitting as
an appellate court, followed the Bankruptcy Court’s logic and affirmed.
Beach
Boulevard appealed to the Eleventh Circuit where the court certified three
questions to the Florida Supreme Court:
(1) Is
the “search of the records of the filing office under the debtor’s correct name,
using the filing office’s standard search logic,” as provided for by Florida
Statute § 679.5061(3), limited to or otherwise satisfied by the initial page of
twenty names displayed to the user of the Registry’s search function?
(2) If
not, does that search consist of all names in the filing office’s database,
which the user can browse to using the command tabs displayed on the initial
page?
(3) If
the search consists of all names in the filing office’s database, are there any
limitations on a user’s obligation to review the names and, if so, what factors
should courts consider when determining whether a user has satisfied those
obligations?
1944 Beach Boulevard, LLC v.
Live Oak Banking Co. (In re NRP Lease Holdings, LLC), 20 F.4th 746, 758 (11th Cir.
2021).
In analyzing the questions
presented, the Florida Supreme Court determined that the more appropriate
question was: “Is the filing office’s use of a ‘standard search logic’
necessary to trigger the safe harbor protection of section 679.5061(3)?”, which
they answered in the affirmative.[1] In coming to that conclusion, the Court found
that under subsection 1, a financing statement can overcome errors if the
errors do not make the financing statement seriously misleading. However, under
subsection 2, the Court states that it is seriously misleading and there is a
zero-tolerance where the name of the debtor is not correctly stated as required
by § 679.5031(1)[2].
The Safe Harbor of subsection 3 is only applicable if the Registry employs
“standard search logic”.
In
deciding the matter, the Florida Supreme Court analyzed and adopted the UCC’s
definition of standard search logic and concluded that Florida’s UCC registry
does not employ standard search logic.
Whereas a search using standard search logic will generate a finite list
of names, Florida’s UCC registry searches return 20 names on a page starting
with the most relevant name. The results
are located in a section of the entire list of filings and a user would have to
toggle forward and backwards to find additional results. The Court agreed with the analysis of Professor
Kenneth C. Kettering, that a “search procedure that returns as hits, for any
search string, all financing statements in the filing office’s database cannot
rationally be treated as a ‘standard search logic.’” [3]
Since
the Florida Secured Transaction Registry does not apply standard search logic,
making the Safe Harbor inapplicable, the Court did not reach the questions certified
by the 11th Circuit and held that as long as the Registry does not
employ standard search logic, any error in stating the debtor’s name will cause
a financing statement to be seriously misleading and render the secured
interest unperfected.
[1]
1944 Beach Boulevard, LLC v. Live Oak
Banking Co., No. SC21-1717, 2022 WL 3650803, at *1 (Fla. Aug. 25, 2022).
[2]
(1) A financing statement sufficiently provides the
name of the debtor:
(a) Except
as otherwise provided in paragraph (c), if the debtor is a registered
organization or the collateral is held in a trust that is a registered
organization, only if the financing statement provides the name that is stated
to be the registered organization’s name on the public organic record most
recently filed with or issued or enacted by the registered organization’s
jurisdiction of organization that purports to state, amend, or restate the
registered organization’s name.
[3]
Id. at *12, citing to Kenneth C. Kettering, Standard Search Logic under Article 9 and the
Florida Debacle, 66 U. Miami L. Rev. 907, 913 (2012).