North Dakota Code 41-09-17 – (9-207) Rights and duties of secured party having possession or control of collateral
1. Except as otherwise provided in subsection 4, a secured party shall use reasonable care in the custody and preservation of collateral in the secured party’s possession. In the case of chattel paper or an instrument, reasonable care includes taking necessary steps to preserve rights against prior parties unless otherwise agreed.
Terms Used In North Dakota Code 41-09-17
- Debtor: means a natural person whose name was provided in a financing statement record as an individual debtor or one of the types of persons listed in section 41-09-76. See North Dakota Code 41-10-01
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- paper: means any flexible material upon which it is usual to write. See North Dakota Code 1-01-27
- Recourse: An arrangement in which a bank retains, in form or in substance, any credit risk directly or indirectly associated with an asset it has sold (in accordance with generally accepted accounting principles) that exceeds a pro rata share of the bank's claim on the asset. If a bank has no claim on an asset it has sold, then the retention of any credit risk is recourse. Source: FDIC
2. Except as otherwise provided in subsection 4, if a secured party has possession of collateral:
a. Reasonable expenses, including the cost of insurance and payment of taxes or other charges, incurred in the custody, preservation, use, or operation of the collateral are chargeable to the debtor and are secured by the collateral; b. The risk of accidental loss or damage is on the debtor to the extent of a deficiency in any effective insurance coverage; c. The secured party shall keep the collateral identifiable, but fungible collateral may be commingled; and
d. The secured party may use or operate the collateral:
(1) For the purpose of preserving the collateral or the collateral’s value; (2) As permitted by an order of a court having competent jurisdiction; or
(3) Except in the case of consumer goods, in the manner and to the extent agreed by the debtor.
3. Except as otherwise provided in subsection 4, a secured party having possession of collateral or control of collateral under section 41-07-06, 41-09-04, 41-09-05, 41-09-5.1, 41-09-06, 41-09-07, or 41-09-07.1:
a. May hold as additional security any proceeds, except money or funds, received from the collateral; b. Shall apply money or funds received from the collateral to reduce the secured obligation, unless remitted to the debtor; and
c. May create a security interest in the collateral.
4. If the secured party is a buyer of accounts, chattel paper, payment intangibles, or promissory notes or a consignor:
a. Subsection 1 does not apply unless the secured party is entitled under an agreement:
(1) To charge back uncollected collateral; or
(2) Otherwise to full or limited recourse against the debtor or a secondary obligor based on the nonpayment or other default of an account debtor or other obligor on the collateral; and
b. Subsections 2 and 3 do not apply.