41-09-99. (9-602) Waiver and variance of rights and duties.
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Except as otherwise provided in section 41-09-119, to the extent that they give rights to a debtor or obligor and impose duties on a secured party, the debtor or obligor may not waive or vary the rules stated in the following listed sections:
1. Paragraph 3 of subdivision d of subsection 2 of section 41-09-17, which deals with use
and operation of the collateral by the secured party;
2. Section 41-09-20, which deals with requests for an accounting and requests
concerning a list of collateral and statement of account;
3. Section 41-09-22, which deals with perfection and priority of agricultural liens;
4. Subsection 3 of section 41-09-104, which deals with collection and enforcement of
collateral;
5. Subsection 1 of section 41-09-105 and subsection 3 of section 41-09-111 to the extent
that they deal with application or payment of noncash proceeds of collection,
enforcement, or disposition;
6. Subsection 1 of section 41-09-105 and subsection 4 of section 41-09-111 to the extent
that they require accounting for or payment of surplus proceeds of collateral;
7. Section 41-09-106 to the extent that it imposes upon a secured party that takes
possession of collateral without judicial process the duty to do so without breach of the
peace;
8. Subsection 2 of section 41-09-107, section 41-09-108, and section 41-09-110, which
deal with disposition of collateral;
9. Subsection 6 of section 41-09-111, which deals with calculation of a deficiency or
surplus when a disposition is made to the secured party, a person related to the
secured party, or a secondary obligor;
10. Sections 41-09-115 through 41-09-117, which deal with acceptance of collateral in
satisfaction of obligation;
11. Section 41-09-118, which deals with redemption of collateral;
12. Section 41-09-119, which deals with permissible waivers; and
13. Sections 41-09-120 and 41-09-121, which deal with the secured party's liability for
failure to comply with this chapter.
41-09-100. (9-603) Agreement on standards concerning rights and duties. 1. The parties may determine by agreement the standards measuring the fulfillment of
the rights of a debtor or obligor and the duties of a secured party under a rule stated in
section 41-09-99 if the standards are not manifestly unreasonable. 2. Subsection 1 does not apply to the duty under section 41-09-106 to refrain from
breaching the peace.
41-09-101. (9-604) Procedure if security agreement covers real property or fixtures. 1. If a security agreement covers both personal and real property, a secured party may
proceed:
a. Under this part as to the personal property without prejudicing any rights with
respect to the real property; or
b. As to both the personal property and the real property in accordance with the
rights with respect to the real property, in which case the other provisions of this
part do not apply. 2. Subject to subsection 3, if a security agreement covers goods that are or become
fixtures, a secured party may proceed:
a. Under this part; or
b. In accordance with the rights with respect to real property, in which case the other
provisions of this part do not apply. 3. Subject to the other provisions of this part, if a secured party holding a security interest
in fixtures has priority over all owners and encumbrancers of the real property, the
secured party, after default, may remove the collateral from the real property. 4. A secured party that removes collateral shall promptly reimburse any encumbrancer or
owner of the real property, other than the debtor, for the cost of repair of any physical
injury caused by the removal. The secured party need not reimburse the
encumbrancer or owner for any diminution in value of the real property caused by the
absence of the goods removed or by any necessity of replacing them. A person
entitled to reimbursement may refuse permission to remove until the secured party
gives adequate assurance for the performance of the obligation to reimburse.
41-09-102. (9-605) Unknown debtor or secondary obligor. 1. Except as provided in subsection 2, a secured party does not owe a duty based on its
status as secured party:
a. To a person that is a debtor or obligor, unless the secured party knows:
(1)That the person is a debtor or obligor;
(2)The identity of the person; and
(3)How to communicate with the person; or
b. To a secured party or lienholder that has filed a financing statement against a
person, unless the secured party knows:
(1)That the person is a debtor; and
(2)The identity of the person. 2. A secured party owes a duty based on its status as a secured party to a person if, at
the time the secured party obtains control of collateral that is a controllable account,
controllable electronic record, or controllable payment intangible or at the time the
security interest attaches to the collateral, whichever is later:
a. The person is a debtor or obligor; and
b. The secured party knows that the information in subdivision a of subsection 1
relating to the person is not provided by the collateral, a record attached to or
logically associated with the collateral, or the system in which the collateral is
recorded.