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CISG CASE PRESENTATION

United States 28 March 2002 Federal District Court [Illinois] (Usinor Industeel v. Leeco Steel Products)
[Cite as: http://cisgw3.law.pace.edu/cases/020328u1.html]

Primary source(s) of information for case presentation: Case text

Case Table of Contents


Case identification

DATE OF DECISION: 20020328 (28 March 2002)

JURISDICTION: United States [federal court]

TRIBUNAL: U.S. District Court for the Northern District of Illinois, Eastern Division [federal court of 1st instance]

JUDGE(S): Lindberg

CASE NUMBER/DOCKET NUMBER: 02 C 0540

CASE NAME: Usinor Industeel v. Leeco Steel Products, Inc.

CASE HISTORY: Unavailable

SELLER'S COUNTRY: France (plaintiff)

BUYER'S COUNTRY: United States (defendant)

GOODS INVOLVED: Steel plate


Case abstract

UNITED STATES: Federal District Court for Northern District of Illinois, 27 March 2002
(Usinor Industeel v. Leeco Steel Products, Inc.)

Case law on UNCITRAL texts (CLOUT) abstract no. 613

Reproduced with permission of UNCITRAL

Abstract prepared by Peter Winship, National Correspondent

The issues before the court were (1) whether the seller was entitled to recover possession from the buyer of steel sold to the buyer but for which the buyer had not paid, and, if not, (2) whether the seller could avoid the contract under the Convention.

The seller, a French company with its place of business in France, sold steel plate to the buyer, an Illinois corporation with places of business in the United States. The parties' contract provided that the seller retained title to the steel until the buyer paid the purchase price. The buyer took delivery of the steel but did not make full payment. The seller sued the buyer to recover possession of the steel that had not been sold by the buyer. The legal proceedings revealed that the buyer had granted a security interest in the steel to a bank that took due steps to publicize its interest.

The court found that the Convention governed the rights and obligations of the seller and buyer according to CISG article 1 (1)(a). However, the court stated that the rights of third parties in the goods, whether arising before or after the sale, are excluded from the coverage of the Convention (CISG article 4 (b)). Given the third party bank's rights in the steel, the court concluded that the seller was not entitled to recover possession of the steel or to avoid the contract. (The court also applied domestic United States law to determine the legal effect of the retention of title clause and the relative priority of the interests of the seller and the bank.)

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Case Digest

English: Turner, 17 New York International Law Review (Winter 2004) 103-109


Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 4 ; 7 ; 81(2)

Classification of issues using UNCITRAL classification code numbers:

4B1 ; 4B2 [Scope of Convention (issues excluded): validity under domestic law (validity of retention of title clause); Effect of contract on property];

7B1 ; 7C231 [Interpretation of Convention (materials for interpretation): international case law ("courts should consider the decisions issued by foreign courts on the CISG") and scholarly studies; Gap-filling (gap-filling by domestic law): recourse to domestic law selected by Private International Law];

81C3 [Effect of avoidance on obligations (avoidance for non-payment: right to return of goods): right not available where third-party rights intervene and domestic law does not allow]

Descriptors: Scope of Convention ; Validity ; Retention of title ; Property in the goods ; Internationality ; Private international law, gaps in Convention ; Avoidance ; Restitution

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Editorial remarks

Excerpt from Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at 431-432

"The issue of gaps presents special problems for the interpreter. A true gap is an issue not contemplated by the drafters. This was the case in Usinor Industeel v. Leeco Steel Products, Inc. in which a U.S. District Court was confronted with a case of first impression. The case involved a French seller and an American buyer. The American buyer secured a loan and provided the American bank with a security interest in the goods. The issue was whether a claim of a third party could preclude CISG jurisdiction. The CISG provides for jurisdiction when two parties to a contract are from different signatory countries. It does not deal directly with the issue of whether that jurisdiction is affected when a third party with a security interest in the goods enters the litigation. The American court cited an Australian case on the validity of retention of title clauses. In doing so it correctly recognized that 'commentators on the CISG have noted that courts should consider the decisions issued by foreign courts on the CISG.' The case hinged upon the court's interpretation of Article 4(b) of the CISG which states that the CISG does not cover 'the effect which the contract may have on property in the goods sold.' The Buyer argued that Article 4(b) implies that security interests of third parties are covered under domestic law. The Seller argued that the Article 4(b) exclusion pertains only to property interests occurring prior to the sale. The court cited scholarly commentary in rejecting the Seller's argument. Thus, the Seller could not obtain avoidance of the contract and retake possession of the goods because the bank had a perfected security interest under domestic law." [citations omitted]

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=746&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (English): Text presented below; see also 209 F.Supp. 2d 880; 47 UCC Rep. Serv. 2d 887; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=746&step=FullText>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: Walt, 35 Uniform Commercial Code Law Journal (2002) 48-57 [commenting on property issues]; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 4 paras. 3, 18, 22b Art. 7 para. 14; Keith A. Rowley, "The Convention on the International Sale of Goods", in: Hunter ed., Modern Law of Contracts, Thomson/West (03/2007) § 23:8

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Case presentation

U.S. District Court, N.D. Illinois,
Eastern Division

Usinor Industeel, a foreign corporation Plaintiff,

v.

Leeco Steel Products, Inc., an Illinois corporation Defendant

No. 02 C 0540

March 28, 2002

MEMORANDUM OPINION AND ORDER

Lindberg, Senior District J.

Before the Court is Usinor Industeel's ("Usinor") Motion for Replevin. Usinor seeks to exercise its replevin right under 735 ILCS 5/19-101 et seq. to recover possession of the eighteen unpaid shipments of Creusabro 8000 steel (the "Steel Shipments"), valued in excess of one million dollars, that Usinor sold and delivered to Leeco Steel Products, Inc. ("Leeco").

[For purposes of this presentation, Plaintiff Usinor Industeel is hereafter referred to as [seller] rather than ("Usinor") and Defendant Leeco Steel Products, Inc. is referred to as [buyer] rather than ("Leeco").]

If [seller] is unable to replevin the steel, it seeks its right to avoid the contract under the Convention on Contracts for the International Sale of Goods (the "CISG"). For the reasons described below, the Court denies [seller]'s motion for replevin and its motion to avoid the contract under the CISG.

I. BACKGROUND

A. Facts

On January 25, the Court entered a restraining order without prejudice as to any of the parties' legal positions. On February 20, the Court granted LaSalle National Bank's ("LaSalle") unopposed right to intervene, and granted injunctive relief preserving the Steel Shipments until the Court could rule on [seller]'s replevin motion.

[Seller] is a corporation incorporated under the laws of France with its principal place of business in France. [Seller] and its parents and sister companies constitute a global leader in steel production, and produce, process and distribute stainless and flat carbon steels serving customers in the automotive, mining, construction, packaging and household appliance industries. One of [seller]'s specialty steels is a brand of steel plate, Creusabro 8000, which is an advanced homogeneous, lightweight, anti-abrasive steel plate for applications involving extreme wear and tear.

[Buyer] is a corporation incorporated under the laws of the State of Illinois with its principal place of business in Illinois. [Buyer] has operations in Chicago, St. Louis, Pittsburgh, Wisconsin, South Carolina and Tennessee. [Buyer] is an independent steel center, specializing, securing, processing and delivering sheet and plate grades of steel.

This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1332, in that this dispute is between a citizen of a foreign state and a citizen of the United States and the amount in controversy exceeds $75,000.

In early February 2000, [buyer] began placing orders with [seller] for the purchase and shipment of certain tonnage of Creusabro 8000. [Buyer] ordered the steel in order to participate in a proposed new project of Caterpillar relating to large mining vehicles. [Buyer] intended to sell the steel it had ordered from [seller] to either Caterpillar or Caterpillar suppliers. Caterpillar and its supplier facilities are located in, among other places, Wyoming, Mexico and Peru. Caterpillar and its suppliers intended to fabricate the steel into ultra light truck beds for use at mining facilities throughout the world.

Under Paragraph 7 of the sales agreement between [seller] and [buyer] for the Steel Shipments (the "Agreement") [seller] "remain[s] the owner of the goods up to the complete and total payment of all sums due." Also, pursuant to the terms of the Agreement, [buyer] was obligated to pay [seller] within 60 days following receipt of the steel. In addition, [buyer] agreed that any dispute regarding the Steel Shipments would be resolved in the French court system.

[Seller] states that [buyer]'s early enthusiasm for the Caterpillar project resulted in extraordinary demands on [seller] to deliver substantial quantities of Creusabro 8000 steel plate. Therefore, beginning in December 2000 and continuing until April 20, 2001, [seller] produced and exported multiple shipments of the steel, valued at $1,188,817.30, from France to [buyer]'s designated locations in accordance with [buyer]'s delivery schedule.

At some time in the year 2000, Caterpillar notified its own suppliers, as well as [buyer] and [seller], that it was halting or considering halting, the fabrication of truck beds in the mining vehicle program. [Buyer] now has possession of Creusabro 8000 steel that [buyer] was unable to sell to Caterpillar, although [seller] asserts it has many alternate uses. [Buyer] took delivery of the Steel Shipments, and [seller] asserts on information and belief, has used portions of the Steel Shipments in its operations and/or sold portions to others. [Buyer] has made a partial payment on the total value of only one of the Steel Shipments for the portions that it has used in its operations or sold to others. [Buyer] has not made a complete and total payment for the Steel Shipments, and has not returned the Steel Shipments, after demand by [seller] to do so. Currently, [buyer] still owes [seller] at least $988,817.36 of the total value of the Steel Shipments. [Seller] asserts on information and belief that the value of the remaining steel from the Steel Shipment in the possession of [buyer] is worth substantially less than the amount of money that [buyer] owes [seller]. Instead of making complete and total payment for the Steel Shipments, [seller] asserts that [buyer] has instead sought to use its control over the improved steel to force [seller] to provide [buyer] a refund on the steel it had purchased, but not used.

[Buyer] purchased the Steel Shipment using a line of credit (the "Loan") from LaSalle Bank. [Seller] asserts that [buyer] is in default on the Loan and has been urged by LaSalle Bank to sell the Steel Shipments to pay off any remaining debt owed by [buyer] to that lender under the Loan. [Seller] asserts on information and belief that [buyer] may be facing insolvency through its default on the Loan and would not be able to pay any damages that [seller] might recover from [buyer] for breach of the sales agreement.

B. Parties' positions

[Seller] argues that the CISG preempts state law, specifically, the UCC, and that LaSalle's rights to the Steel Shipments stemming from Article 2 are preempted by CISG. Looking at Article 4(b) of the CISG, [Seller] argues that the State Department position is that the CISG would not preempt law governing property interests in the Steel Shipments arising prior to [seller]'s sale of the steel to [buyer]. [Seller] argues that LaSalle had no interest in the Steel before it was sold, and that LaSalle's interest entirely arises out of the existence of the sales contract between [buyer] and [seller], and that contract is governed by CISG. Therefore, [seller] argues, LaSalle's rights are also governed by the CISG.

[Buyer] argues that the UCC, not the CISG, governs the transaction, and that replevin is not a cause of action allowed to the seller under the UCC, only reclamation within 10 days, and that those 10 days have passed. [Buyer] asserts that [seller] has only a reservation of a security interest, per Section 2-401(a) of the UCC. [Buyer] states that [seller] never perfected a purchase money security interest in the steel sold to [buyer], and that therefore, its rights are subordinate to those of LaSalle, which has a perfected security interest. [Buyer] argues that the CISG does not govern because "it has no application to disputes concerning the goods themselves which are sold in international trade, but governs instead only the obligations of buyers and sellers." [Buyer] argues that since this case involves the rights of two secured parties, LaSalle as a perfected secured creditor and [seller] as an unperfected secured creditor, Article 9 of the UCC governs the relative rights of LaSalle and [seller] in the steel. [Buyer] states that [seller] has no right to replevin because, since it lacks a perfected security interest in the steel, it has no title or right to immediate possession of the steel, and moreover, the UCC does not list replevin as a remedy available to a seller.

Similarly, LaSalle argues that given that there is no evidence that [seller] perfected its security interest in the steel, LaSalle's demonstrated prior security interest remains superior. LaSalle argues that since [seller] has not demonstrated a probability of ultimately prevailing on the underlying claim of possession, it therefore is not entitled to relief under the Illinois Replevin Act.

The conflict that the Court must face in its determination is one between maintaining the purpose of the CISG and the purpose of the UCC. As [seller] correctly argues, Article 7 of the CISG states

"[i]n the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade."

[Seller] argues that applying Article 2 of the UCC would increase the burden on parties to examine local sales law, which would not promote the purposes of the CISG. Application of the UCC, on the other hand, requires parties to bear the burden of inspecting the local law of wherever the goods involved in the contract might be shipped.

However, the effectiveness of the UCC also depends on courts' uniformity of application, of the ability of parties to be able to rely on the dependency of filed financing statements on record with the Secretary of State's Office.

II. ANALYSIS

To recover under replevin, [seller] must have the right to possession, or title, in the Steel Shipments. The issue of first impression facing the Court is whether the CISG applies to a transaction between a buyer and seller when a third party has an interest in the goods. The Court needs to determine whether or not when a third party is involved, if local law, the UCC, preempts the interest given to the seller by the CISG.

A. The CISG governs the transaction between buyer and seller

The CISG was ratified by the United States on December 11, 1986, and became effective on January 1, 1988. See 15 U.S.C.A.App. at 332 (1998). The CISG was adopted for the purpose of establishing "substantive provisions of law to govern the formation of international sales contracts and the rights and obligations of the buyer and the seller." U.S. Ratification of 1980 United Nations Convention on Contracts for the International Sale of Goods: Official English Text, 15 U.S.C.A.App. at 52 (1997). The CISG applies "to contracts of sale of goods between parties whose places of business are in different States ... when the States are Contracting States." 15 U.S.C.A.App. Art 1[(1)](a). Here the buyer and seller are parties who place of business are France and the U.S., both signatories to the CISG.

U.S. federal caselaw interpreting and applying the CISG is scant. See Claudia v. Olivieri Footwear Ltd., 1998 WL 164824 (S.D.N.Y.) *4. As one court put it, "[d]espite the CISG's broad scope, surprisingly few cases have applied the Convention in the United States." See MCC Marble Ceramic Center, Inc. v. Ceramica Nuova d'Agostino, S.p.A., 144 F.3d 1384, 1389 (11th Cir.1998). While there are few cases in the U.S. dealing with the CISG, it is clear that the CISG governs the transaction between [seller] and [buyer] such that if LaSalle were not a party to this controversy, the resolution would be clear: under the Supremacy Clause of the United States Constitution, the Convention, would displace any contrary state sales law such as the UCC. See Sunil R. Harjani, The Convention on Contracts for the International Sale of Goods in United States Courts, 23 Hou. J. of Int'l L. 49, 53 (2000).

B. The CISG pre-empts the UCC when there is only a seller and buyer

Many commentators have written that when the CISG applies, it pre-empts domestic sales law that otherwise would govern the contract, such as Article 2 of the UCC. See, e.g., Richard E. Speidel, The Revision of UCC Article 2, Sales in Light of the United Nations Convention on Contracts for the International Sale of Goods, 16 Nw. J. Int'l L. & Bus. 165, 166 (1995) (stating that "[i]n the United States, [the CISG] is a self-executing treaty with the preemptive force of federal law."). See also Michael A. Tessitore, The U.N. Convention on International Sales and the Seller's Ineffective Right of Reclamation Under the U.S. Bankruptcy Code, 35 Willamette L.Rev. 367 (1999). At the time of contracting, the parties have the opportunity to opt-out, and decide that the UCC, or other domestic law, applies. Here, the parties did not opt out of the CISG in the Agreement.

While even the issue of whether the CISG pre-empts the UCC in determining which law applies to a contract between seller and buyer is one of first impression in this district, the Northern District of California recently concluded that "the CISG preempts state laws that address the formation of a contract of sale and the rights and obligations of the seller and buyer arising from such a contract." Asante Technologies, Inc. v. PMC-Sierra, Inc., 164 F.Supp.2d 1142 (N.D.Cal.2001). Moreover, the CISG is a treaty, and thus federal law, and under the Supremacy Clause, it pre-empts any inconsistent provisions of state law. Illinois is bound by the Supremacy Clause to the treaties of the United States. U.S. Const. art. VI, cl. 2 ("This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.") Thus, under general Illinois law, the CISG is applicable to contracts where the contracting parties are from different countries that have adopted the CISG.

However, the text of the CISG and analysis by commentators suggest that the CISG applies only to buyer and seller, not to third parties. Therefore, application of the CISG here requires a court to resolve an issue for first impression. To wit, the court must determine whether the CISG governs a controversy if a third party has a security interest in the goods.

i. Article 4 of the CISG

The key provision of the CISG which is at issue here is Article 4, which states that the CISG:

"governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract. In particular, except as otherwise expressly provided in this Convention, it is not concerned with: (a) the validity of the contract or of any of its provisions or of any usage; (b) the effect which the contract may have on the property in the goods sold."

[Buyer]'s argument is that section (b) of Article 4 excludes the application of the CISG to the case at hand. [Seller]'s position is that Article 4(b) means that those property interests placed outside CISG's scope are property interests arising prior to sale, and that here, LaSalle does not have property interests in the Steel Shipments prior to the sale.

The State Department states of Article 4(b) that

"[w]hether the sale to the buyer cuts off outstanding property interests of third persons is not dealt with by the Convention. This specific provision illustrates the general rule of Article 4 that the Convention is concerned only with the 'rights and obligations of the seller and the buyer' arising from the sales contract."

[Seller] asserts that the State Department is referring only to property interests that exist at the time of sale. However, other commentators support a different reading, simply that the CISG does not govern the rights of third persons who are not parties to the contract. See Richard Speidel, The Revision of UCC Article 2, Sales in Light of the United Nations Convention on Contracts for the International Sale of Goods, 16 Nw. J. Int'l L. & Bus. 165, 173 (1995),

"[u]nless 'otherwise expressly provided,' CISG is not concerned with the 'effect which the contract may have on the property in the goods sold' or the rights of third persons who are not parties to the contract. In essence, CISG is limited to two-party commercial contracts for sale and assumes that all sellers and buyers have relatively equal bargaining capacity."

See also Caroline Delisle Klepper, The Convention for the International Sale of Goods: A Practical Guide for the State of Maryland and its Trade Community, 15 Md. J. Int'l L. & Trade 235, 239 (1991) ("the Convention will not govern issues of contract validity or property title to goods sold. As a result, a transaction between a United States seller and a foreign buyer which falls within one of these exceptions will, if the choice of law rules so direct, be governed by the U.C.C.")

Similarly, John Honnold writes in Uniform Law for International Sales 444 (3d ed. 1999) that

"[t]he seller's right under the Convention to recover the goods is subject to practical limitations. This remedy is of special importance when the buyer is insolvent; in this setting the rights of creditors are likely to intervene by levy of execution or by the designation of a receiver or trustee in bankruptcy. The Convention will not override the rights of creditors, purchasers and other third persons granted by domestic law; under Article 4, the Convention 'governs only ... the rights ... of the seller and the buyer ...'."

As Honnold goes on to state,

"One question remains: Does applicable domestic law invalidate (art. [4(a)]) a contractual provision allowing reclamation of the goods on non-payment? Such a rule of invalidity is conceivable but seems unlikely. (He cites to UCC 9-503 and UCC 1- 201(37)). However, as we have seen, the Convention's rules are limited (art. 4) to the rights 'of the seller and the buyer' and yield to the rights of third persons such as creditors and purchasers." See id. at 444.1.

The "conceivable" but "unlikely" that Honnold notes is what occurred in the transaction at hand. The remedy of avoidance under the CISG is not available to [seller] if LaSalle has a right to the Steel Shipments under domestic law. The remedy of replevin is not available if [seller] does not have title to the Steel Shipments under domestic law. Therefore, the question the Court next needs to determine is whether domestic law grants LaSalle such a right, a right to the Steel Shipments that supersedes that of [seller]'s. Looking to domestic law to determine the effect of [seller]'s retention of title clause in light of a third party claim is also consistent with the Australian court case, Roder Zelt-un Hollenkonstruktionen GmbH v. Rosedown Park Party Ltd., (No. S6 3076 of 1993; FED No. 1049/95; BC 9501975) (Federal Court, South Australian District, April 28, 1995) in which the court held that it needed to look to domestic law to determine the validity of the retention of title provision. While this case is far in distance from the present jurisdiction, commentators on the CISG have noted that courts should consider the decisions issued by foreign courts on the CISG.

ii. Domestic Law

First, the Court needs to determine which domestic law applies, that of France or Illinois. Under French law, the seller of goods has an absolute right to contract for title until payment, and therefore the retention of title clause in the Agreement would be determinative. However, under the UCC, [seller] would only have a reservation of a security interest.

Under the "most significant contacts rule" of the Restatement (Second) which [seller] asks the Court to apply, and the UCC choice of law provision which [buyer] argues should be the governing test, the Court finds the same result: Illinois law applies. The "most significant contacts rule" states there are five relevant factors to consider: 1) place of contracting; 2) place of negotiating; 3) place of performance; 4) location of subject matter of the contract; 5) domicile, residence, place of incorporation and business of the parties. See e.g. Central States, Southeast and Southwest Areas Pension Fund, et al. v. Tank Transport. Inc., 1991 WL 191342 at *2. Comment e to Section 188 of the Restatement (Second) on Conflicts states that the place of negotiation is of little importance when the parties do not meet but conduct negotiations via mail or telephone (and in this case facsimile). Comment e also states that when the contract deals with a specific physical thing, the location of the thing is significant:

"The state where the thing or the risk is located will have a natural interest in transactions affecting it ... Indeed, when the thing or the risk is the principal subject of the contract, it can often be assumed that the parties, to the extent that they thought about the matter at all, would expect that the local law of the state where the thing or risk was located would be applied to determine many of the issues arising under the contract."

Here, the goods are located in Illinois. Therefore, the most significant contacts are in Illinois.

Application of the UCC choice of law provision leads to the same result. Section 1-105 of the UCC states

"when a transaction bears a reasonable relation to this state and also to another state or nation the parties may agree that the law either of this state or of such other state or nation shall govern their rights and duties. Failing an agreement this Act applies to transactions bearing an appropriate relation to this state."

To define the meaning of "appropriate relation", commentary 3 to this Section states,

"Where a transaction has significant contacts with a state which has enacted the Act and also with other jurisdictions, the question what relation is 'appropriate' is left to judicial decision. In deciding that question, the court is not strictly bound by precedents established in other contexts."

In Gordon v. Clifford Metal Sales Co. Inc., 602 A.2d 535 (1992), the trial court held that the law of the state of the situs of the steel at the time of insolvency of the debtor is controlling. Here, the steel is located in Illinois, and so the transaction has the most appropriate relation to Illinois.

Therefore, the Court finds that the UCC governs the determination of whether LaSalle has title in the Steel Shipments, or, to phrase it in a different way, application of the UCC determines the validity of the retention of title provision in the contract.

C. Applying the UCC

i. [Seller]'s title in the Steel Shipments

Under UCC Section 2-401(a), [Seller] has a reservation of a security interest only. Title retention contracts are construed as creating only security interests under the U.C.C. (See UCC Section 2-401(a),"Any retention or reservation by the seller of the title in goods shipped or delivered to the buyer is limited in effect to a reservation of a security interest. Subject to these provisions and to the provisions of the Article on Secured Transactions, title to goods passes from the seller to the buyer in any manner and on any conditions explicitly agreed on by the parties.") Therefore, under domestic law, [seller]'s retention of title in the contract did not effectively retain title in [seller]. Rather, transfer of title was effected upon delivery to [buyer]. See UCC 2-401(2) ("[U]nless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest ...") [1]

ii. Perfection of [seller]'s interest

A seller who retains a security interest by reservation of title under section 2-401(1) must file a financing statement if the interest is to continue to be perfected. See J. White and R. Summers, Uniform Commercial Code, 30-11. [Seller] never filed a financing statement, so it never perfected its security interest.

iii. LaSalle's security interest

Once title passed to [buyer], [buyer] possessed sufficient "rights in the collateral" to give LaSalle a security interest under U.C.C. 9-203. This security interest was not perfected, however, until the filing of the second financing statement on November 15, 2001.

Through the Credit Agreement and Security Agreement ("Credit Agreement") entered into on February 4, 1997 by and between LaSalle and [buyer], LaSalle extended secured loans to [buyer]. The financing statement dated February 11, 1997 (the "First Financing Statement") shows that LaSalle holds a security interest in [buyer]'s collateral which it defines as:

"[a]ll inventory in all of its forms, including, but not limited to, (i) all goods held for sale or lease or to be furnished under contracts of service or so leased or furnished, (ii) all raw materials, work in process, finished goods, supplies and materials used or consumed in the processing, packing, shipping, advertising, selling, leasing, furnishing or production of such inventory or otherwise used or consumed in the Company's business, (iii) goods in which [buyer] has an interest in mass or a joint or other interest or right of any kind, whether in the possession of the Company or of a bailee or other Person for sale, storage, transit, processing, use or otherwise, and (iv) goods which are returned to or repossessed or shipped in transit by the Company and all additions and accessions thereto and replacements thereof."

The Steel Shipments are "goods held for sale or lease" under (i) but were not yet held by [buyer] at that time, (and they were not "to be furnished under contracts of service"). The Credit Agreement and the First Financing Statement do not have a clause providing for a security interest in after-acquired property. The financing statement dated November 15, 2001 continued the effectiveness of the First Financing Statement, thereby including within the definition of inventory the Steel Shipments that were at that time in the possession of [buyer].

At the date of the sale of the Steel Shipments to [buyer], LaSalle did not have a perfected security interest in the Steel Shipments; its perfected interest arose only on November 15, 2001, after the sale of the Steel Shipments, once it was in the possession of [buyer], and LaSalle filed the continuing financing statement. [Seller]'s Complaint was filed on January 23, 2002, after LaSalle's security interest was perfected.

iv. Result under the UCC

[Seller] does not have title in the Steel Shipments, only a reservation of a security interest. Therefore, the remedy of replevin is unavailable to [seller]. See Hannaman v. Davis, 20 Ill.App.2d 111, 115 (2d Dist.1959) (" 'Replevin' is a possessory action and the plaintiff must recover, if at all, on the strength of his own title or his right to immediate possession.")

[Seller] has a security interest in the Steel Shipments, but it is not perfected. A perfected security interest prevails over the retained interest of an unpaid seller who did not perfect a security interest. Therefore, LaSalle's perfected security interest prevails over the retained interest of [seller] in the Steel.

ORDERED:

[Seller]'s motion for replevin is denied. [Seller]'s motion to avoid the sales agreement between [seller] and [buyer] under the CISG is denied.


FOOTNOTES

1. [Seller] states that it would not be able to conduct an evaluation of determining the applicable law to security interests in the hundreds of jurisdictions to which it ships and sells steel because the cost would be unreasonable. However, the Court notes that [seller] missed its chance to reclaim the Steel Shipments under the law in several ways, and that their cost is not prohibitive. First, [seller] waited until LaSalle had a chance to file the continuing financing statement and perfect its security interest in the Steel Shipments before filing the Complaint. Second, [seller] also missed its chance to seek reclamation of the goods under the UCC 2-702, which allows the seller 10 days from the buyer's receipt of the goods to reclaim the goods if the seller discovers the buyer is insolvent. (The Court notes that the parties have not provided the Court with enough information to determine if UCC 2-702(2) applies, (and do not even brief this issue): "if misrepresentation of solvency has been made to the particular seller in writing within 3 months before delivery the 10 day limitation does not apply." [Buyer] in its Response states that it is a "good faith purchaser," per UCC 2-702(3), in which case UCC 2-702(2) does not apply; however, the issue is not clear-cut; see the Seventh Circuit decision in In re Reliable Drug Stores, Inc, 70 F.3d 948, 949 (7th Cir.1995) ("Several courts have held, or assumed, that a security interest beats a reclamation claim, on the ground that the security interest equates to the rights of a good faith purchaser under UCC 1-201(32) and (33) ... Legal scholars are not so sure ...") Third, [seller] never filed a financing statement, which would have given it a perfected security interest with priority in the Steel.

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Pace Law School Institute of International Commercial Law - Last updated October 30, 2008
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