§ 11-9-207. Rights and Duties of Secured Party Having Possession or Control of Collateral

1. Duty of care when secured party in possession.    Except as otherwise provided in subsection (d) of this Code section, 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.
2. Expenses, risks, duties, and rights when secured party in possession.    Except as otherwise provided in subsection (d) of this Code section, if a secured party has possession of collateral:
   1. 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;
   2. The risk of accidental loss or damage is on the debtor to the extent of a deficiency in any effective insurance coverage;
   3. The secured party shall keep the collateral identifiable, but fungible collateral may be commingled; and
   4. The secured party may use or operate the collateral:
      1. For the purpose of preserving the collateral or its 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. Duties and rights when secured party in possession or control.    Except as otherwise provided in subsection (d) of this Code section, a secured party having possession of collateral or control of collateral under Code Section 11-7-106, 11-9-104, 11-9-105, 11-9-106, or 11-9-107:
   1. May hold as additional security any proceeds, except money or funds, received from the collateral;
   2. Shall apply money or funds received from the collateral to reduce the secured obligation, unless remitted to the debtor; and
   3. May create a security interest in the collateral.
4. Buyer of certain rights to payment.    If the secured party is a buyer of accounts, chattel paper, payment intangibles, or promissory notes or a consignor:
   1. Subsection (a) of this Code section 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
   2. Subsections (b) and (c) of this Code section do not apply.

History. Code 1981, § 11-9-207 , enacted by Ga. L. 2001, p. 362, § 1; Ga. L. 2010, p. 481, § 2-21/HB 451.

Editor’s notes.

Ga. L. 2010, p. 481, § 3-1/HB 451, not codified by the General Assembly, provides that: “This Act applies to a document of title that is issued or a bailment that arises on or after the effective date of this Act. This Act does not apply to a document of title that is issued or a bailment that arises before the effective date of this Act even if the document of title or bailment would be subject to this Act if the document of title had been issued or bailment had arisen on or after the effective date of this Act. This Act does not apply to a right of action that has accrued before the effective date of this Act.” This Act became effective May 27, 2010.

Ga. L. 2010, p. 481, § 3-2/HB 451, not codified by the General Assembly, provides that: “A document of title issued or a bailment that arises before the effective date of this Act and the rights, documents, and interests flowing from that document or bailment are governed by any statute or other rule amended or repealed by this Act as if such amendment or repeal had not occurred and may be terminated, completed, consummated, or enforced under that statute or other rule.” This Act became effective May 27, 2010.