Chapter 6Default
Section § 9601
Section § 9602
This section outlines specific rules in various other sections that protect the rights of debtors or obligors and impose duties on secured parties. Debtors can't waive these protections unless otherwise noted. These include rules about using collateral, requesting account information, handling noncash proceeds, accounting for surplus, taking collateral without causing disruptions, and proper disposal of collateral. It also covers explanations of financial outcomes, collateral acceptance, redemption rights, and liabilities of secured parties for non-compliance.
Section § 9603
This law allows parties to agree on how to measure if a debtor or obligor is fulfilling their duties, as long as these agreed standards are reasonable. However, this flexibility does not apply when it comes to the obligation to avoid causing a disturbance or "breaching the peace" during repossession actions, as detailed in another section.
Section § 9604
This section outlines the options for a lender when a debt is secured by both personal property, like equipment or fixtures, and real property, like land or buildings. The lender can choose to initiate foreclosure processes on real property, personal property, or both, and it specifies how proceeds from these actions are applied to the debt. It addresses how certain laws governing real estate loans are applied or excluded to personal property and explains different scenarios for recovering debts, including protecting the borrower's rights. Lastly, it covers the implications of these actions on subsequent buyers and the priority of claims on sold properties.
Section § 9605
This law explains when a secured party, like a lender, has duties to other parties. Generally, they don't owe obligations to debtors, obligors, or other secured parties unless they know the person's details, like identity and contact info. However, if they control certain types of collateral and realize the necessary info isn't already provided by that collateral, they do have duties to the debtor or obligor.
Section § 9606
Section § 9607
This law talks about what a secured party can do if someone they loaned money to doesn't pay back the loan as agreed. After a default, the secured party has several rights: they can tell people who owe money or services linked to the loan to pay them directly, take any money they're entitled to, and enforce payment obligations. They can also use money in a deposit account they control to settle debts. If trying to enforce a mortgage, they can record certain documents publicly. They need to act in a fair manner when collecting owed money, and can charge reasonable expenses for doing so. However, this section doesn't say if others involved, like banks, need to follow these instructions.
Section § 9608
This law outlines what happens when a security interest or agricultural lien secures a debt. If the lender collects or enforces payment, any cash proceeds should first cover collection expenses, such as attorney fees. Next, they satisfy the original debt, and then any other debts with lower priority if requested. Noncash proceeds don't have to be disbursed unless it's unreasonably harmful not to. Lenders must refund any extra money to the borrower, who still owes any shortfall. However, if the deal involves selling accounts or similar items, the borrower doesn't get any surplus and isn't responsible for any shortfall, unless the agreement states otherwise.
Section § 9609
When a borrower defaults, the lender who holds a security interest can take possession of the borrower's property, known as collateral. Alternatively, the lender can make attached equipment unusable and sell it on the borrower's property. The lender can do this through the court or on their own without causing a disturbance. The borrower might also need to gather the collateral and deliver it to the lender at a convenient location. This action is based on prior agreements or after a default.
Section § 9610
This law talks about what a secured party can do with the collateral if the borrower defaults on their loan. Basically, they can sell, lease, or otherwise get rid of the collateral, but they have to do it in a way that makes business sense. They can do this at a public auction or a private sale, but they can only buy it themselves at a public sale or if it’s the kind of thing that’s usually sold in a recognized market. Also, when they sell or lease the collateral, certain guarantees like the right to own or use the property go along with it, unless they clearly say there aren't any, usually by writing it into the contract.
Section § 9611
This law talks about what a secured party must do when they are selling collateral that they have a legal claim over. "Notification date" is when they tell the borrower or waiver happens. Normally, they must send a signed notice to the borrower, any secondary guarantors, and others with claims on the collateral. If the collateral isn't a consumer good, they must also notify other relevant parties who might have an interest, based on certain criteria. Notice is not needed if the collateral is perishable, loses value quickly, or is sold on a recognized market. The secured party must also try to get information on other claims 20-30 days before the sale and notify those parties if they find any claims.
Section § 9612
This section explains how to determine if a notice is sent in a reasonable time. Generally, whether a notification is reasonable depends on the situation. However, for non-consumer business transactions, if the notice about selling someone's defaulted property is sent at least 10 days before the sale, it's considered sent on time.
Section § 9613
This section outlines the rules for notifying someone about the sale of collateral, typically for a loan that hasn't been paid back. It does not apply to consumer goods transactions. The notice must identify both the borrower (debtor) and the lender (secured party), describe the asset being sold, explain how it will be sold, and state that the borrower can ask for a statement showing how much is still owed—and if there's a cost for that statement. It must also detail where and when the sale will happen if it's public, or when it might occur if it's private. Even if some information is missing, the notice might still be okay if it substantially covers the required details and isn't misleading. Finally, there's a sample notice template included, along with instructions on how to fill it out properly.
notification is sent]
secured party]
Section § 9614
This legal section talks about how lenders must notify consumers when they're planning to sell property, like a car or other personal items, if the borrower defaults on a loan agreement. The notification must include specific information, such as what the property is, any remaining debt, and how much it will take to get the property back. Although there's no special way phrasing required for this notice, a template is provided in the code, which includes options for a public sale (like an auction) or a private sale. If it's about a vehicle, the law also clarifies that the sale needs to be advertised to the public, allowing the borrower access to inspect the vehicle. The borrower can attend the sale and even bring buyers, and if their property sells for more than what they owe, they're entitled to the extra money unless it has to go elsewhere.
Section § 9615
This law outlines how money from selling assets (secured by a loan) should be distributed. First, it pays for any costs related to taking and selling the items, including legal fees. Next, it covers the loan tied to the asset. Then, any other debts related to the asset. If any money is left, and not needed to pay a consignor (someone who had ownership of the asset), it goes to the debtor. If there’s a shortfall, the debtor must cover it. In certain sales, the debtor gets no extra money, and the obligor owes nothing if there’s a shortfall. Rules also cover fair price valuation in sales to related parties or those with conflicts, ensuring that genuine market value is considered.
Section § 9616
This law outlines the obligations of a secured party in a consumer-goods transaction when handling a surplus (extra money) or a deficiency (debt remaining) after selling collateral (like a repossessed car). A secured party must provide an "explanation" to the debtor or consumer when there's a surplus or remaining debt. This explanation should clearly detail the calculations on how the surplus or deficiency was determined, and other relevant financial data. The debtor can request this explanation, and the secured party must respond within 14 days. If a debtor requests more than one explanation in six months, the secured party can charge up to $25 for additional responses over one. Small errors in the explanation don't invalidate it, as long as they're not significantly misleading.
Section § 9617
This law explains what happens when a secured party sells or disposes of a debtor's property, known as collateral, after the debtor fails to meet their obligations. When this happens, the buyer receives all the debtor's rights in the property and all previous claims or interests (like loans or liens) tied to it are wiped out. If the buyer acts honestly, they won't be affected by any issues the secured party might have with meeting legal requirements. However, if the buyer doesn't qualify for this protection, they inherit all existing claims or interests in the property along with the debtor's rights.
Section § 9618
If someone who is secondarily liable (a "secondary obligor") on a debt takes over the responsibilities of the party holding the security interest (the "secured party"), this can happen in a few ways. First, the secondary obligor might get the debt assigned to them. Second, they might receive the collateral securing the debt and agree to take on the secured party's rights and duties. Third, they might legally step into the secured party's shoes regarding the collateral, a process known as subrogation. Once this happens, it's important to note a couple of things: it's not considered selling off the collateral, and the original secured party no longer has obligations under this part of the law.
Section § 9619
This section explains what a 'transfer statement' is in the context of secured transactions. It's a document signed by a lender (secured party) stating that the borrower (debtor) has failed to meet their obligation. As a result, the lender has taken action to reclaim collateral and transferred the debtor's rights to someone else (transferee). This document must include names and addresses of all involved. When filed, it allows the transferee to officially take over the debtor's rights in the specified collateral, and the office responsible must update records accordingly. However, transferring title does not mean the collateral is being disposed of, nor does it relieve the lender of responsibilities.
Section § 9620
This section explains under what conditions a lender (secured party) can take an item (collateral) to satisfy a debt, either fully or partially. The borrower (debtor) must agree to this, and others with an interest can't object within certain timeframes. If the item is a consumer good, the borrower shouldn't have it when they agree. Collaterals must be disposed of properly if these conditions aren't satisfied, especially if a significant payment portion (60%) has already been made. In consumer transactions, collateral can't be used to partially satisfy a debt.
Section § 9621
This law section explains what a secured party must do if it wants to take ownership of collateral in place of full or partial payment of a debt. The secured party has to notify certain people involved. First, they need to inform anyone who has previously claimed an interest in the collateral. Then, they must notify other secured parties or lienholders who had a registered interest 10 days before the debtor agreed to the arrangement. If they want only partial satisfaction, they must also notify any secondary guarantors involved.
Section § 9622
If a lender agrees to take property (collateral) as payment for a debt, it does a few things: It clears part or all of the debt as agreed with the borrower, gives the lender rights to the property, and eliminates any other claims or liens on that property. Even if the lender doesn't follow all the rules perfectly, those other claims still get wiped out.
Section § 9623
If you owe money and have given something as security, like collateral, you can get it back by following certain steps. To redeem, you need to pay off the total debt and cover some related costs. However, you need to do this before the lender collects, sells, or keeps the item as payment.
Section § 9624
This law explains that if someone who owes money or guarantees a debt (a debtor or secondary obligor) wants to give up certain rights related to collateral (property used to secure the debt), they can only do so after they have defaulted, meaning they failed to meet their debt obligations. Specifically, they can sign away their right to be notified about what happens to the collateral, and in most cases, they can also waive the right to demand the collateral be sold or take back the collateral, but this doesn’t apply to personal-use goods.
Section § 9625
This section addresses what happens if a person fails to follow certain rules when dealing with collateral (assets used as security for a loan). If a secured party, like a lender, does not follow the rules, a court can step in to halt their actions. People affected by a rule violation can claim damages for any financial loss they suffer, including extra costs from not being able to get another loan. Debtors may get additional compensation of $500 for specific failures to comply with certain sections, such as not filing necessary statements or failing to respond to requests about the collateral. If a secured party does not comply with requests for collateral details, they can only claim interest in what's shown in a misled person's requested list.
Section § 9626
This section outlines the rules for handling disputes over financial shortfalls or excesses from sales or actions involving collateral used to secure a loan. For non-consumer cases, a lender doesn't need to show they followed required procedures unless questioned by the borrower. If questioned, the lender must prove they followed the rules. If they fail to prove this, the borrower might owe less money. In consumer transactions, the lender must always show they followed the rules. For a borrower to owe money after selling collateral, certain conditions must be met, such as being notified about the sale and the sale being fair. If found not owing, the borrower isn't responsible for any shortfall. Lenders must also fairly handle any leftover money from collateral sales.
Section § 9627
This law explains how a secured party's actions to collect, enforce, dispose of, or accept collateral are considered commercially reasonable. It states that even if more money could have been made by doing things differently, that alone doesn't mean the chosen method was unreasonable. The process is deemed commercially reasonable if it follows typical market practices, matches current market prices, conforms to industry standards, or has been approved by legal or creditor groups. Approval isn't required, and lack of it doesn't necessarily make the process unreasonable.
Section § 9628
This law talks about when a secured party (someone who has a claim against property as security for a debt) isn't responsible for not following rules related to that claim. Basically, if the secured party doesn't know who you are, can't identify you, or doesn't know how to reach you, they aren't held responsible for certain errors related to that claim. Even if they make mistakes, the debtor (the person who owes money) still has to pay what they owe. However, if the secured party knows who you are and how to contact you, then they may be liable. Additionally, if a secured party thinks a transaction isn't for consumer goods based on how it was represented by the debtor, the secured party is generally not liable for any mistakes as long as they reasonably believed those representations. There are exceptions where a secured party might still be liable, especially if they have full control over certain kinds of electronic collateral and know specific information wasn't provided by the collateral.
Section § 9629
This law says that if a person owing money (the debtor) gives up or changes any of their rights regarding consumer goods, it won't count or be enforced unless they're getting something in return. Specifically, the person or company they're paying money to (the secured party) must agree not to try to collect any remaining debt if the goods don’t cover what the debtor owes.