Fun with Filings Down on the Farm
The Food Security Act (FSA) states that a buyer may buy farm products without being subject to a security interest created by the seller. However, the FSA does allow a secured party to take action to prevent a buyer from obtaining clear of security interest. The FSA preempts Article 9 as federal law. The action available to the secured party depends on whether the state involved has established a Central Notification System (“CNS”) that has been certified by the Secretary of Agriculture. Not every state in the United States maintains a CNS index (see the states that do below).
Under the FSA, if the state has a CNS system, then the secured party can file an Effective Financing Statement (“EFS”) with the Secretary of State to notify buyers of the claimed security interest. The buyer of the farm goods must make certain the secured party receives proceeds from the purchase if the proper statutory actions have been followed and the seller appears on a published list or within the CNS system through an EFS filing. So remember, CNS is the “system” and EFS is the “filing”… these are often misunderstood.
An EFS must have the following requirements:
- Name and address of the creditor
- Name and address of the seller
- Social security number (or Tax ID number) of the seller
- Description of the farm products subject to the security interest. This should include the amount, location of the farm products and the crop year
Note: if payment obligations are imposed on the buyer by the secured party in order for waiver or release of the security interest then that should be included as well. Also, if the EFS record is handwritten, and not filed electronically, it must include the debtor’s signature. It is the responsibility of each secured party to maintain the debtor’s signature in their records for any electronically filed EFS. Each debtor and secured party are required to sign the EFS form. There is a signature box on the form to indicate that the debtor and secured party’s signature is on file with the records of that secured party.
Every state having a CNS system has its own EFS forms. Pay close attention to each form as additional confusion arises when many of these forms are even made to look similar to UCC forms. Some even name the form after a similar UCC record like “UCC-1F”. As always we suggest trusting an experienced and vetted due diligence company to file.
FSA compliance and agricultural liens vary from state to state and you must be aware of multiple state laws in order to comply with each. Secured parties should create internal policies and procedures to protect their interests.
We at Capitol Lien still suggest filing a UCC to perfect security interest and cover the farm products since an EFS is intended to keep a buyer from taking security interest, but not a UCC filing substitute.
We deal with ag lenders from coast to coast and are used to upholding their best interest with these types of filings. Entrust our experts to get it done right the first time.