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All securitization transactions involve an assignment of receivables. This raises important personal property security considerations, because under the Personal Property Security Act (the “PPSA”) that exists in each province and territory of Canada other than the Province of Québec (which is addressed below), an assignment of receivables by one party to another is deemed to create a security interest that must be perfected, in order to be effective against third parties.
An assignee will typically perfect the security interest resulting from an assignment of receivables by registering a financing statement in the PPSA registry in the province or territory where the assignor of the receivables is “located” for purposes of the PPSA. Unfortunately, the PPSAs across the different provinces and territories of Canada do not include uniform rules about where an assignor of receivables is located, which often necessitates registrations in multiple jurisdictions.
In addition to perfecting the security interest associated with an assignment, a secured party is also required to perfect a conventional security interest in personal property, such as a security interest under a general security agreement. Depending on the form of personal property that is subject to a security interest, there may be other methods of perfection available beyond registration, including perfection by possession or control.
Significantly, in certain provinces of Canada including the Province of Ontario, it is now possible to perfect a security interest in electronic chattel paper by way of control, which has helped to facilitate securitization of receivables in the auto and equipment finance spaces.
The Civil Code of Québec Considerations
The Civil Code of Québec (the “CCQ”) governs the assignment of “claims” (i.e., receivables) and the granting of “hypothecs” (i.e., security interests) in personal property in the Province of Québec. Similar to the PPSA jurisdictions, the CCQ provides that an absolute assignment of claims must be “set-up” or “rendered opposable” (i.e., perfected) in order to be effective against third parties.
In Québec, it is possible to render an absolute assignment of claims effective against third parties by means of a registration in the Register of Personal and Movable Real Rights (the “RPMRR”), if the assignment constitutes a “universality of claims, present or future”. The CCQ does not provide a definition for the concept of a “universality of claims”, and accordingly, there is some uncertainty as to the meaning of this phrase. The general market view is that an assignment of all the receivables originated by an originator, or an assignment of all of the receivables originated by an originator between two specified dates (in some cases, excluding a specified list of receivables), would constitute a universality of claims.
If the description of the receivables being sold under a particular absolute assignment does not constitute a universality of claims, then the assignment of such receivables may be made effective both against the obligors, as well as any third parties, by the assignor providing a notice of the assignment to the obligors that meets certain requirements set forth in the CCQ.
受让人通常会在应收款转让人所在省或地区的 PPSA 登记处登记一份 “融资声明”来完善因应收款转让而产生的担保权益。 不幸的是，加拿大不同省和地区的PPAS没有关于应收款人所在地的统一规则，造成受让人通常需要在多个司法管辖区进行登记注册。
《魁北克民法典》（“CCQ” ）规定魁北克省的个人财产中 “债权”（即应收款）的转让和“抵押权”（即担保权益）的授予。 与 PPSA 管辖区类似，CCQ 规定债权的绝对转让必须是“设置”或“可反对的”（即完善的），才能对第三方有效。
如果对转让出售的应收款的描述不构成"所有债权"，则此类应收款的转让可通过转让人发出符合 CCQ 规定的通知而对债务人和任何第三方均有效。
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