The Honorable Fletcher Long, Jr. Prosecuting Attorney First Judicial District P.O. Box 989 Forrest City, AR 72336
Dear Mr. Long:
This is in response to Deputy Prosecuting Attorney Don Trimble's request for an opinion on the following questions:
1. Must a Uniform Commercial Code Form 1 (UCC-1) and a real estate mortgage be filed simultaneously to perfect a fixture filing on real estate?
2. If the answer to the above question is "yes," when the UCC-1 financing statement is five (5) years old or older and is not continued, may a clerk remove the financing statement from the court records?
I assume that the first question is asked with regard to a real estate mortgage which is filed in the real estate records and which, pursuant to A.C.A. § 4-9-402(6) (Supp. 1997) (part of the "Uniform Commercial Code-Secured Transactions"),1 is effective as a fixture filing, i.e., it operates as a financing statement with respect to fixtures to the real estate.
The answer to your question in this regard is "no." No other filing is required for such a "fixture filing." The recording of the real estate mortgage, if it complies with the requirements of a financing statement (see § 4-9-402(6), supra at n. 1), shall constitute the filing of a financing statement as to the fixtures. See Official Commentary to A.C.A. § 4-9-402. A response to your second question is therefore unnecessary.
With regard to the duration of real estate mortgages which operate as financing statements, reference should be made to A.C.A. § 4-9-403(6) (Supp. 1997) wherein it provides:
A real estate mortgage which is effective as a fixture filing under § 4-9-402(6) remains effective as a fixture filing until the mortgage is released or satisfied of record or its effectiveness otherwise terminates as to the real estate.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.
Sincerely,
WINSTON BRYANT Attorney General
WB:EAW/cyh
1 Section 4-9-402(6) states in relevant part:
A mortgage is effective as a financing statement filed as a fixture filing from the date of its recording if:
(a) The goods are described in the mortgage by item or type; and
(b) The goods are or are to become fixtures related to the real estate described in the mortgage; and
(c) The mortgage complies with the requirements for a financing statement in this section other than a recital that it is to be filed in the real estate records; and
(d) The mortgage is duly recorded.