Request By:
Mr. Charles J. Riedinger
Attorney at Law
Vanceburg, Kentucky 41179
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Elizabeth E. Blackford, Assistant Attorney General
You have written to ask several questions concerning the requirements and proper place of filing for financing statements. The first question concerns the proper place of filing for a financing statement covering a motor boat where the debtor's residence is in a different county or state from the place where he keeps or stores the boat.
Assuming that the motor boat is a consumer good, the proper place for filing the financing statement is with the county court clerk in the county in which the debtor resides, if the debtor resides in this state, regardless of the fact that the boat is stored in another county. KRS 355.9 401.
If the security interest attaches in this state, filing in the county wherein the debtor resides would also be sufficient, enven though the boat is kept in another state. KRS 355.9 401. However, you may wish to take the approach generally espoused by Code Commentators: when in doubt as to the place of filing, file in all places in which filing would be permissible. Thereunder, since such filing is permissible under the Code, you would file in the county of the state in which the boat is kept as well as in the county wherein the in-state debtor resides.
You also ask whether you may file a photocopy or carbon, with no original manual signature of the debtor thereon, of a financing statement, or whether an original signature of the debtor is essential. This is an area which is remarkable if only for the lack of agreement displayed among the various commentators. It is not settled by case law, and the opinions governing whether an original signature is required vary among the states according to what alternative of the Uniform Commercial Code has been adopted in the state. Thus, the abundance of caution rule would suggest that only financing statements or security agreements bearing the original signature of the debtor should be filed.
Despite the abundance of caution rule, this office is of the opinion that carbon copies, on which the signature has been made by the same indenture as the one affixing the signature to the original, may be filed.
This opinion is derived from two sources, the first of which is KRS 355.1-201(39) which defines "signed" as follows:
"'Signed' includes any symbol executed or adopted by a party with present intention to authenticate a writing." [Emphasis added.]
Since the signature on the carbon copy is made at the same time and by the same physical act as the signature on the original, the intent to authenticate the original financing statement, or security agreement, is also present as to the carbon itself. Therefore, the carbon is signed within the meaning of KRS 355.1-201 (39) and, consequently, within the meaning of KRS 355.9-402.
In the second place, properly authenticated (i.e., attested) carbons have been recognized as "originals" under the case law of this state. In
Liberty National Bank & Trust Co. v. Louisville Trust Co., 295 Ky. 825, 175 S.W.2d 524 (1943), the Court said:
". . . A carbon copy . . . i.e., a carbon impression made simultaneously with the original is a duplicate original and not a copy thereof. The carbon impression may be used, as well as the impression made by the type or pencil causing the indention; and when properly authenticated, . . . becomes an original for all purposes. p. 528 (emphasis added).
Because of the foregoing, this office is of the opinion that carbons may be filed even though they do not contain an original manual signature of the debtor.
This office has reached the opposite conclusion with regard to photocopies or reproductions, other than carbons, of financing statements; these must bear an original manual signature of the debtor before they may be filed.
The most compelling reason for this is KRS 355.1-201 (39). Pursuant to that subsection, any form of signature will suffice if it evidences a present intent to authenticate the writing. While there is a present intent to authenticate at the time carbon copies are made, there is no present intent and no physical act on the part of the signer to authenticate the writing at the time a photocopy is made. Thus, while there is little question of the accuracy of a photocopy, the vital elements of intent and act are absent.
This logic is carried out in KRS 355.9-402 which says that a copy of the security agreement will be sufficient as a financing statement if it contains the required information and is signed by both parties. Pursuant to KRS 355.9-203, the security agreement must be signed by the debtor. Thus, the copy (as opposed to a carbon-duplicate original) would bear the copy of the debtor's signature. Nonetheless, it must be signed again in order to qualify as a financing statement, for only by way of the later original signature will there be a manifestation of present intent to authenticate the document.
Furthermore, KRS 355.9-402 says that all references to the financing statement mean the "original" financing statement. While a carbon is considered a duplicate under our law, a photocopy is not. (Contrast CR 44, an attested copy of a document of record will prove the record exists.)
Finally, in the Final Report of the Review Committee for Article 9 of the Uniform Commercial Code, § 9-402(1), the Committee has proposed an amendment which would make a carbon (already acceptable in this state as a duplicate original) , photocopy or reproduction sufficient for filing as a financing statement if the security agreement so provides or if the original is filed elsewhere in the state. The very fact that the Committee has proposed this amendment indicates that photocopies or other reproductions which do not bear an original signature are not sufficient under the current law.
In summary, this office is of the opinion that filing in the place of residence of the debtor is sufficient in those cases where the security interest attached in this state, regardless of where the consumer good-collateral is kept, but that additional filing in the county in which the collateral is kept is permissible; that carbon copies of a financing statement may be filed, but photostatic or other reproductions of a financing statement may not be filed unless the photostatic copies bear an original manual signature of the debtor.