2018 Louisiana Laws
Revised Statutes
TITLE 45 - Public Utilities and Carriers
RS 45:1256 - Security interests
§1256. Security interests
A. The Uniform Commercial Code--Secured Transactions shall not apply to investment recovery property or any right, title, or interest of a utility or assignee, whether before or after the issuance of the financing order, except to the extent specified in R.S. 45:1257(A). In addition, such right, title, or interest pertaining to a financing order, including, but not limited to the associated investment recovery property including any revenues, collections, claims, rights to payment, payments, money, or proceeds of or arising from investment recovery charges pursuant to such order, shall not be deemed proceeds of any right or interest other than of the financing order and the investment recovery property arising from the financing order. All revenues and collections resulting from investment recovery property shall constitute proceeds only of the investment recovery property arising from the financing order.
B. Except to the extent provided in this Part with respect to filings of financing statements or control of deposit accounts or investment property as original collateral, the creation, attachment, granting, perfection, and priority of security interests in investment recovery property to secure investment recovery bonds shall be governed solely by this Part and not by the Uniform Commercial Code--Secured Transactions.
C.(1) A security interest in investment recovery property shall be valid and enforceable against the electric utility and its successor or an assignee and third parties and attaches to investment recovery property only after all of the following conditions are met:
(a) The issuance of a financing order.
(b) The execution and delivery of a security agreement with a financing party in connection with the issuance of investment recovery bonds.
(c) The receipt of value for the investment recovery bonds.
(2) A security interest attaches to investment recovery property when all of the conditions of Paragraph (1) of this Subsection have been met, unless the security agreement expressly postpones the time of attachment.
D. A security interest in investment recovery property shall be perfected only if it has attached and a financing statement indicating the investment recovery property collateral covered has been filed. A financing statement shall be filed to perfect all security interests and liens in investment recovery property. A security interest in investment recovery property shall be perfected when it has attached and when the applicable financing statement has been filed. The interest of a secured party shall not be perfected unless a financing statement sufficient pursuant to this Part and otherwise in accordance with the Uniform Commercial Code--Secured Transactions is filed, and after perfection, the secured party's interest continues in the investment recovery property and all proceeds of such investment recovery property, whether or not billed, accrued, or collected, and whether or not deposited into a deposit account and however evidenced. A security interest in proceeds of investment recovery property shall be a perfected security interest if the security interest in the investment recovery property was perfected pursuant to this Part. Financing statements required to be filed pursuant to this Section shall be filed, indexed, maintained, and continued in the same manner and in the same system of records maintained for the filing of financing statements pursuant to the Uniform Commercial Code--Secured Transactions. The filing of such a financing statement shall be the only method of perfecting a lien or security interest on investment recovery property. The financing statement shall be filed as if the debtor named therein were located in this state.
E. The priority of the conflicting security interests of secured parties in the same interest or rights in any investment recovery property shall be determined as follows:
(1) Conflicting perfected security interests of secured parties rank according to priority in time of perfection.
(2) A perfected security interest of a secured party shall have priority over a conflicting unperfected security interest of a secured party.
(3) A perfected security interest of a secured party shall have priority over a person who becomes a lien creditor after the perfection of such secured party's security interest.
F. A perfected security interest in investment recovery property and all proceeds of such investment recovery property, whether or not billed, accrued, or collected, and whether or not deposited into a deposit account and however evidenced, shall have priority over a conflicting lien or privilege of any nature in the same collateral property, except a security interest shall be subordinate to the rights of a person that becomes a lien creditor before the perfection of such security interest. A security interest in investment recovery property which qualifies for priority over a conflicting security interest, lien, or privilege also has priority over the conflicting security interest, lien, or privilege in proceeds of the investment recovery property. The relative priority of a perfected security interest of a secured party shall not be adversely affected by any security interest, lien, or privilege in a deposit account of the electric utility that is a collector as described in R.S. 45:1253(C)(9) and into which the revenues are deposited. The priority of a security interest perfected pursuant to this Section shall not be defeated or impaired by any later modification of the financing order or investment recovery property or by the commingling of funds arising from investment recovery property with other funds. Any other security interest that may apply to those funds shall be terminated as to all funds transferred to a segregated account for the benefit of an assignee or a financing party or to an assignee or financing party directly. The perfection by control, the effect of perfection by control, and the priority of a security interest granted by the issuer of and securing investment recovery bonds held by a secured party having control of a segregated deposit account or securities account as original collateral into which revenues, collections, or proceeds of investment recovery property are deposited or credited shall be governed by the Uniform Commercial Code--Secured Transactions, including the choice of law rules in Part III thereof.
G. If a default occurs under the terms of the investment recovery bonds, the secured party may foreclose on or otherwise enforce the security interest in any investment recovery property as if it was a secured party under the Uniform Commercial Code--Secured Transactions. A secured party holding a security interest in investment recovery property shall be entitled to exercise all of the same rights and remedies as are available to a secured party pursuant to the Uniform Commercial Code--Secured Transactions, to the same extent as if those rights and remedies were set forth in this Part. A court of competent jurisdiction may order that amounts arising from investment recovery property be transferred to a separate account of the secured party for the financing parties' benefit, to which their security interest shall apply. On application by or on behalf of a secured party to the district court of the domicile of the commission, the court shall order the sequestration and payment to the financing parties of revenues arising from the investment recovery property.
H. A security interest created under this Part may provide for a security interest in after-acquired collateral. A security interest granted pursuant to this Part shall not be invalid or fraudulent against creditors solely because the grantor or the electric utility as collector or servicer has the right or ability to commingle the collateral or proceeds, or collect, compromise, enforce, and otherwise deal with collateral.
I. Any action arising under the provisions of this Part to enforce a security interest in any investment recovery property, or which otherwise asserts an interest in, or a right in, to, or against any investment recovery property, wherever located or deemed located, or any security interest governed by this Part, shall be brought in the district court of the domicile of the commission. The suits shall be governed by the provisions of the Code of Civil Procedure and other law applicable to executory proceedings, including provisional remedies, but only to the extent such laws are consistent with the language and purposes of this Part. Nothing in this Subsection shall be construed to deny to the Public Service Commission any jurisdiction conferred upon it by law or the Constitution of Louisiana or to the council of the city of New Orleans any jurisdiction conferred upon it by its home rule charter or the Constitution of Louisiana.
Acts 2010, No. 988, §2, eff. July 6, 2010.
