REQUESTED BY: Jack Romans, Chairman, Nebraska Public Service Commission. Are statutory fertilizer liens required by section9-401 of the Uniform Commercial Code to be filed with the Public Service Commission as well as with the county clerk of that county in which the land on which the crops are to be grown is located?
No.
Since 1977, section 9-401 of the Uniform Commercial Code, has provided that in order to perfect a security interest, or crop lien, in unharvested crops, said lien must be filed in the office of the county clerk in the county where the land on which the crops to be grown is located, and a duplicate copy of the lien is to be filed with the Public Service Commission.
However, it is to be noted that Article 9 of the Uniform Commercial Code was never intended to bring every kind of security interest situation within its scope. In fact, section 9-102 provides that the article does not apply to statutory liens except as provided in section 9-310. That section provides that relative to the question of priority of simultaneous security interests, the interest created by a statutory lien will take priority over that created by operation of Article 9 unless the statute creating the former expressly provides otherwise. Thus, while section 9-310 sheds some light on the priority question, it does not bear on the question at hand which is one of proper filing.
The fertilizer liens which are the subject of this inquiry are statutory liens. They are provided for in section52-1101, R.R.S. 1943. Section 52-1102, is quite specific in setting out the requirements of properly filing fertilizer liens and provides:
"Any lien under section 52-1101 shall be perfected by filing a notice of lien with the county clerk of the county where the land is located upon which the crops are growing or are to be planted. . . ."
Since Article 9 of the Uniform Commercial Code does not apply to such a statutory lien except in regard to the question of priority of simultaneous security interest, it is our opinion that fertilizer liens need not be filed with the Public Service Commission, but only with the county clerk as required by section 52-1102.