4-9-333. Priority of certain liens arising by operation of law.

Statute text

(a) In this section, "possessory lien" means an interest, other than a security interest or an agricultural lien:

(1) Which secures payment or performance of an obligation for services or materials furnished with respect to goods by a person in the ordinary course of the person's business;

(2) Which is created by statute or rule of law in favor of the person; and

(3) Whose effectiveness depends on the person's possession of the goods.

(b) A possessory lien on goods has priority over a security interest in the goods if the lien is created by a statute that expressly so provides.

History

Source: L. 2001: Entire article R&RE, p. 1366, 1, effective July 1.

Annotations

Editor's note: (1) This section is similar to former 4-9-310 as it existed prior to 2001.

(2) Colorado legislative change: Colorado substituted the word "if" for "unless" and substituted the phrase "so provides" for "provides otherwise" in subsection (b).

Annotations

 

OFFICIAL COMMENT

1. Source. Former Section 9-310.

2. "Possessory Liens." This section governs the relative priority of security interests arising under this Article and "possessory liens," i.e., common-law and statutory liens whose effectiveness depends on the lienor's possession of goods with respect to which the lienor provided services or furnished materials in the ordinary course of its business. As under former Section 9-310, the possessory lien has priority over a security interest unless the possessory lien is created by a statute that expressly provides otherwise. If the statute creating the possessory lien is silent as to its priority relative to a security interest, this section provides a rule of interpretation that the possessory lien takes priority, even if the statute has been construed judicially to make the possessory lien subordinate.

Annotations

 

ANNOTATION

Annotations

Law reviews. For article, "Oil and Gas Financing Under the Uniform Commercial Code as Enacted in Colorado", see 43 Den. L.J. 129 (1966). For article, "Secured Transactions -- Part 1: Attachment, Perfection and Priorities", see 11 Colo. Law. 2939 (1982).

Annotator's note. Since 4-9-333 is similar to 4-9-310 as it existed prior to the 2001 repeal and reenactment of this article, relevant cases construing that provision have been included in the annotations to this section.

The Colorado general assembly changed this section from the section promulgated by the national conference of commissioners on uniform state laws, so that the Colorado statute expressly provides that the repairman's lien "does not take priority over a perfected security interest unless a statute expressly provides otherwise", which maintains prior law by giving the repairman an inferior priority status. First Sec. Bank v. Crouse, 374 F.2d 17 (10th Cir. 1967), rev'g 252 F. Supp. 230 (D. Colo. 1966).

Attorney's lien, as a statutory first lien, has priority over a bank's previously perfected security interest. N. Valley Bank v. McGloin, Davenport, 251 P.3d 1250 (Colo. App. 2010).

A court cannot, through ancillary proceedings, place a judgment creditor in a better or more favorable position than he would be in if levy were made upon the property. Hilst v. Bennett, 175 Colo. 78, 485 P.2d 880 (1971).

A court cannot require posting a bond. In ancillary proceedings in aid of execution on a judgment there is no jurisdiction in the courts to require a creditor to post a bond to secure payment of the judgment. Hilst v. Bennett, 175 Colo. 78, 485 P.2d 880 (1971).