Colorado § 4-9-323 - Future advances.

§ 4-9-323. Future advances.

(a) Except as otherwise provided in subsection (c) of this section, for purposes of determining the priority of a perfected security interest under section 4-9-322 (a)(1), perfection of the security interest dates from the time an advance is made to the extent that the security interest secures an advance that:

(1) Is made while the security interest is perfected only:

(A) Under section 4-9-309 when it attaches; or

(B) Temporarily under section 4-9-312 (e), (f), or (g); and

(2) Is not made pursuant to a commitment entered into before or while the security interest is perfected by a method other than under section 4-9-309 or 4-9-312 (e), (f), or (g).

(b) Except as otherwise provided in subsection (c) of this section, a security interest is subordinate to the rights of a person that becomes a lien creditor while the security interest is perfected only to the extent that the security interest secures an advance made more than forty-five days after the person becomes a lien creditor unless the advance is made:

(1) Without knowledge of the lien; or

(2) Pursuant to a commitment entered into without knowledge of the lien.

(c) Subsections (a) and (b) of this section do not apply to a security interest held by a secured party that is a buyer of accounts, chattel paper, payment intangibles, or promissory notes or a consignor.

(d) Except as otherwise provided in subsection (e) of this section, a buyer of goods takes free of a security interest to the extent that it secures advances made after the earlier of:

(1) The time the secured party acquires knowledge of the buyer's purchase; or

(2) Forty-five days after the purchase.

(e) Subsection (d) of this section does not apply if the advance is made pursuant to a commitment entered into without knowledge of the buyer's purchase and before the expiration of the forty-five-day period.

(f) Except as otherwise provided in subsection (g) of this section, a lessee of goods takes the leasehold interest free of a security interest to the extent that it secures advances made after the earlier of:

(1) The time the secured party acquires knowledge of the lease; or

(2) Forty-five days after the lease contract becomes enforceable.

(g) Subsection (f) of this section does not apply if the advance is made pursuant to a commitment entered into without knowledge of the lease and before the expiration of the forty-five-day period.

Source: L. 2001: Entire article R&RE, p. 1359, § 1, effective July 1. L. 2002: IP(b) amended, p. 938, § 5, effective August 7. L. 2023: IP(d) and IP(f) amended, (SB 23-090), ch. 136, p. 555, § 63, effective August 7.

Editor's note: The provisions of this section are similar to provisions of several former sections as they existed prior to 2001. For a detailed comparison, see the comparative tables located in the back of the index.

ANNOTATION

Law reviews. For article, "Buyer-Secured Party Conflicts Under Section 9-307(1) of the Uniform Commercial Code", see 46 U. Colo. L. Rev. 333 (1974-75). For article, "The Rights of Landlords in Tenants' Personal Property", see 57 Den. L.J. 685 (1980). For article, "Secured Transactions — Part I: Attachment, Perfection and Priorities", see 11 Colo. Law. 2939 (1982). For article, "Agricultural Lending in a Troubled Economy", see 16 Colo. Law. 1773 (1987).

Annotator's note. Since § 4-9-323 is similar to §§ 4-9-301 and 4-9-307 as they existed prior to the 2001 repeal and reenactment of this article, relevant cases construing those provisions have been included in the annotations to this section.

Limits on purchasers taking free of security interest qualified by comment. Although this section limits the situations in which certain purchasers take free of security interests, the last paragraph under "Official Comment 2" to this section qualifies this limitation. Farmers Nat'l Bank v. Ceres Land Co., 32 Colo. App. 290, 512 P.2d 1174 (1973).

Subsection (4) was adopted to address issues relating to advances made under a perfected security interest and federal tax liens. ITT Diversified Credit Corp. v. Couch, 669 P.2d 1355 (Colo. 1983).

Applied Young v. Golden State Bank, 39 Colo. App. 45, 560 P.2d 855 (1977).