In Rhode Island, a \u201cbogus\u201d lien on your business\u2019s assets is always just a few clicks away.\u00a0 Indeed, without consent, warning, or any factual basis, any individual with internet access can allege a secured interest in any named collateral \u2013 including your business\u2019s real and personal property \u2013 simply by filing a Uniform Commercial Code (\u201cUCC\u201d) financing statement with the Rhode Island Secretary of State\u2019s Office that represents such an interest.\u00a0 During this automated process, the Secretary of State\u2019s Office has neither the opportunity nor the discretion to reject UCC filings under the suspicion of illegitimacy or fraud.<\/p>\n
The intent behind fraudulent filings varies.\u00a0 Perhaps the goal was to damage the named debtor\u2019s reputation through a publicly available filing.\u00a0 Perhaps the objective was simply to harass or inconvenience the named debtor.\u00a0 Regardless of the underlying motivation, a fraudulent filing can inflict real harm, including but not limited to complicating \u2013 or even preventing \u2013 your business from obtaining secured financing.<\/p>\n
To reduce the harmful impact of a bogus UCC financing statement, consider taking the following steps:<\/p>\n
Although you can\u2019t prevent the filing of a bogus financing statement, you can minimize its harmful effect through quick detection. The Rhode Island Secretary of State\u2019s Office conveniently hosts the UCC database on its website<\/a>, enabling businesses to inspect any filed UCC financing statement that names them as a debtor to a purported secured party.\u00a0 <\/strong>Alternatively, your business may consider retaining a corporate monitoring service dedicated to alerting you of any unauthorized filings in the UCC database.<\/p>\n Should an inspection of the UCC database reveal a bogus financing statement, the first step in mitigating reputational and commercial damage is to file a UCC-5 information statement with the Secretary of State\u2019s Office. \u00a0Article 9 of Rhode Island\u2019s adopted UCC[1]<\/a> provides that \u201c[a] person may file in the [Secretary of State\u2019s] filing office an information statement with respect to a record filed,\u201d provided that (i) they are a secured party of record with respect to the fraudulent statement; and (ii) they believe they did not authorize the filing of that statement.\u00a0 See <\/em>R.I. Gen. Laws \u00a7\u00a7 6A-9-509(d), 518(d).\u00a0 Although the information statement does not render the bogus financing statement unenforceable, its filing serves to immediately alert the public that the alleged security interest is not legitimate.<\/p>\n Under Article 9, any information statement must include (i) an indication that the document is, in fact, a UCC-5 information statement; (ii) the file number assigned to the bogus financing statement; and (iii) the basis for the belief that the financing statement was wrongfully filed.\u00a0 See <\/em>\u00a7 518(d).\u00a0 <\/strong><\/p>\n \u00a0<\/strong>In addition, if the fraudulent statement identifies real property as a type of collateral, the information statement must also include (i) an indication that the fraudulent statement names real property as a type of collateral; (ii) a description of named real property; and (iii) if applicable, an indication that the fraudulent statement was filed in the real property records, the name of the record owner (if it is not the named debtor), and the date and time (or book and page references) of the filing.\u00a0 See <\/em>\u00a7\u00a7 502(b), 518(d).<\/p>\n Filing a UCC-3 termination statement with the Secretary of State\u2019s Office will render the bogus filing ineffective.\u00a0 See <\/em>\u00a7 513(d).\u00a0 Significantly, a business that is fraudulently named a secured debtor in a UCC financing statement cannot<\/u> <\/em>immediately file a termination statement.\u00a0 Instead, that business must first send the offending filer an authenticated demand notifying them of their obligation to issue a termination statement.\u00a0 See <\/em>\u00a7 513(c).\u00a0 Article 9 enables the filer to either (1) send a termination statement to the business for filing; or (2) file it themselves with the Secretary of State\u2019s Office.\u00a0 See id.<\/em>\u00a0 In the (likely) event that the filer does neither within 20 days of receiving the authenticated demand, the business may then file a termination statement with the Secretary of State\u2019s Office.\u00a0 See id.<\/em><\/p>\n Rhode Island lawmakers acknowledge that the provisions in Article 9 \u201ccannot provide a satisfactory or complete solution to the problems caused by the misuse of the public records,\u201d including but not limited to bogus filings.[2]<\/a>\u00a0 See <\/em>\u00a7 518 cmt. 3.\u00a0 These limitations are readily apparent: under Article 9, a fraudulent filing statement will remain in the UCC database for at least one year<\/u><\/em> following the filing of a pertinent termination statement.\u00a0 See <\/em>\u00a7 9-519(g).\u00a0 Businesses that are interested in removing a bogus financing statement sooner should consider discussing with legal counsel the possibility of obtaining injunctive relief from the courts.<\/p>\n When weighing their options as potential litigants, businesses should also consider the potential recovery of monetary damages.\u00a0 To be sure, \u201ca person is liable for damages in the amount of any loss caused by a failure to comply\u201d with Article 9.\u00a0 See <\/em>\u00a7 625(b).\u00a0 Moreover, Article 9 imposes statutory damages, including but not limited to a five hundred ($500) dollar penalty for each case in which an individual names a \u201cdebtor\u201d in a UCC filing without that purported debtor\u2019s permission.\u00a0 See <\/em>\u00a7 625(e)(3).\u00a0 The refusal to issue or file a termination statement upon receipt of an authenticated demand also warrants a five hundred ($500) dollar penalty.\u00a0 See <\/em>\u00a7 625(e)(4).<\/p>\n By diligently monitoring the UCC database and using the set of tools provided in Article 9, Rhode Island businesses can take control over the unpredictable and protect themselves against the unpreventable.<\/p>\n [1]<\/a> \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 R.I. Gen. Laws \u00a7 6A-9-101, et seq.<\/em><\/p>\n [2]<\/a> \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In contrast, at least 31 states have enacted legislation intended to reduce the possibility that their respective secretary of state offices even accept a bogus financing statement.\u00a0 See <\/em>Paul Hodenfield, Fraudulent UCC Filing Remedies by State: 2019 Edition<\/em> (available at: https:\/\/blog.cscglobal.com\/wp-content\/uploads\/2020\/01\/Fraudulent_UCC_Filing_Remedies_by_State_12312019.pdf<\/a>).\u00a0 For example, in Arizona, \u201c[t]he secretary of state may . . . refuse a filing based on a reasonable belief that the service is being requested for an unlawful, illegitimate, false or fraudulent purpose or is being requested or submitted in bad faith or for the purpose of defrauding a person or entity.\u201d\u00a0 Id.<\/em> at 5 (citing Ariz. Rev. Stat. \u00a7 14-121(B)).<\/p>\n","protected":false},"excerpt":{"rendered":" In Rhode Island, a \u201cbogus\u201d lien on your business\u2019s assets is always just a few clicks away.\u00a0 Indeed, without consent, warning, or any factual basis, any individual with internet access can allege a secured interest in any named collateral \u2013 including your…<\/p>\n","protected":false},"author":7,"featured_media":376,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[2,23,187],"tags":[5,24],"class_list":["post-603","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-business-law","category-securities","category-ucc-filings","tag-rhode-island-business-law","tag-securities-law"],"acf":[],"_links":{"self":[{"href":"https:\/\/www.apslaw.com\/its-your-business\/wp-json\/wp\/v2\/posts\/603","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.apslaw.com\/its-your-business\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.apslaw.com\/its-your-business\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.apslaw.com\/its-your-business\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/www.apslaw.com\/its-your-business\/wp-json\/wp\/v2\/comments?post=603"}],"version-history":[{"count":0,"href":"https:\/\/www.apslaw.com\/its-your-business\/wp-json\/wp\/v2\/posts\/603\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.apslaw.com\/its-your-business\/wp-json\/wp\/v2\/media\/376"}],"wp:attachment":[{"href":"https:\/\/www.apslaw.com\/its-your-business\/wp-json\/wp\/v2\/media?parent=603"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.apslaw.com\/its-your-business\/wp-json\/wp\/v2\/categories?post=603"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.apslaw.com\/its-your-business\/wp-json\/wp\/v2\/tags?post=603"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n
File a UCC-5 Information Statement.<\/h2>\n<\/li>\n<\/ol>\n
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File a UCC-3 Termination Statement.<\/h2>\n<\/li>\n<\/ol>\n
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Seek Relief from the Courts.<\/h2>\n<\/li>\n<\/ol>\n