No. In states that have adopted the Uniform Commercial Code (UCC), courts will probably hold that the possessory stableman’s lien is superior, even if the bank’s UCC Financing Statement was filed before the stableman took possession.
When Does the Conflicting Lien Situation Arise? If someone borrows money to buy a horse or horses, the bank will often require the borrower to sign a security agreement pledging the horse(s) as collateral on the note. When the borrower stops making payments on the loan, the bank normally will repossess the horses and sell them to foreclose on the note. In some instances, when a borrower stops paying the bank, they also stop paying the boarding facility that is taking care of their horses. The nonpayment of board gives the boarding facility a statutory stableman’s lien on the horse(s) as long as the boarding facility maintains possession. Let’s assume the bank’s lien was first in time–i.e. the bank lent the purchase money to the owner and filed a UCC Financing Statement before the boarding facility took possession of the horses. The question becomes, who is entitled to the first lien on the horses…the bank or the stableman? Also, is the bank entitled to come onto the boarding facility’s property and repossess the horses?
Under Section 9.333 of the UCC, the Possessory Lien Has Priority. Section 9.333 and its Official Comment under the Texas version of the UCC states that "the possessory lien has priority over a security interest unless the possessory lien is created by a statute that expressly provides otherwise…the possessory lien takes priority, even if the statute has been construed judicially to make the possessory lien subordinate." This means the bank’s lien, even if prior filed, is subordinate to the stableman’s lien.
WARNING–Courts May Follow Old Cases. Even though the UCC is clear on this, a trial court in one of my cases found that the stableman’s lien was subordinate to a bank’s security interest. The court cited Blackford v. Ryan, 61 S.W. 161 (Tex. Civ. App. 1901)(holding that a bank’s pre-existing security interest is superior to an agister’s lien when a horse was placed in a stable without the bank’s knowledge). This case, as well as several other pre-1930 Texas cases with similar holdings, interpreted the common law agister’s lien and not the statutory lien under Section 70.003 of the then non-existent Property Code. These cases were also decided before Texas adopted the UCC. But the cases are still presented in Texas Jurisprudence and other legal treatises as being current law. There are many cases that have found the possessory lien to be superior when it comes to garagemen keeping automobiles under Section 70.003, but no Texas cases involving stablemen. Despite the current lack of appellate review on the issue, I think most courts will defer to the UCC and the car cases and hold that the stableman’s lien is superior.