Disposition of collateral after default

(a) After default, a secured party may sell, lease, license or otherwise dispose of any or all of the collateral in its present condition or following any commercially reasonable preparation or processing. (b) Every aspect of a disposition of collateral, including the method, manner, time, place and other terms, must be commercially reasonable. If commercially reasonable, a secured party may dispose of collateral by public or private proceedings, by one or more contracts, as a unit or in parcels, and at any time and place and on any terms. (c) A secured party may purchase collateral: (1) at a public disposition; or (2) at a private disposition only if the collateral is of a kind that is customarily sold on a recognized market or the subject of widely distributed standard price quotations. (d) A contract for sale, lease, license or other disposition includes the warranties relating to title, possession, quiet enjoyment and the like which by operation of law accompany a voluntary disposition of property of the kind subject to the contract. (e) A secured party may disclaim or modify warranties under Subsection (d) of this section: (1) in a manner that would be effective to disclaim or modify the warranties in a voluntary disposition of property of the kind subject to the contract of disposition; or (2) by communicating to the purchaser a record evidencing the contract for disposition and including an express disclaimer or modification of the warranties. (f) A record is sufficient to disclaim warranties under Subsection (e) of this section if it indicates "There is no warranty relating to title, possession, quiet enjoyment or the like in this disposition" or uses words of similar import. History: 1978 Comp., § 55-9-610, enacted by Laws 2001, ch. 139, § 107. OFFICIAL COMMENTS UCC Official Comments © by ALI & the NCCUSL. Reproduced with permission of the PEB for the UCC. All rights reserved. 1. Source. Former section 9-504(1), (3). 2. Commercially Reasonable Dispositions. Subsection (a) follows former Section 9-504 [55-9-504 NMSA 1978] by permitting a secured party to dispose of collateral in a commercially reasonable manner following a default. Although subsection (b) permits both public and private dispositions, including public and private dispositions conducted over the Internet, "every aspect of a disposition . . . must be commercially reasonable." This section encourages private dispositions on the assumption that they frequently will result in higher realization on collateral for the benefit of all concerned. Subsection (a) does not restrict dispositions to sales; collateral may be sold, leased, licensed, or otherwise disposed. Section 9-627 [55-9-627 NMSA 1978] provides guidance for determining the circumstances under which a disposition is "commercially reasonable." 3. Time of Disposition. This article does not specify a period within which a secured party must dispose of collateral. This is consistent with this article's policy to encourage private dispositions through regular commercial channels. It may, for example, be prudent not to dispose of goods when the market has collapsed. Or, it might be more appropriate to sell a large inventory in parcels over a period of time instead of in bulk. Of course, under subsection (b) every aspect of a disposition of collateral must be commercially reasonable. This requirement explicitly includes the "method, manner, time, place, and other terms." For example, if a secured party does not proceed under section 9-620 and holds collateral for a long period of time without disposing of it, and if there is no good reason for not making a prompt disposition, the secured party may be determined not to have acted in a "commercially reasonable" manner. See also section 1-203 (general obligation of good faith). 4. Pre-Disposition Preparation and Processing. Former section 9-504(1) appeared to give the secured party the choice of disposing of collateral either "in its then condition or following any commercially reasonable preparation or processing." Some courts held that the "commercially reasonable" standard of former section 9-504(3) nevertheless could impose an affirmative duty on the secured party to process or prepare the collateral prior to disposition. Subsection (a) retains the substance of the quoted language. Although courts should not be quick to impose a duty of preparation or processing on the secured party, subsection (a) does not grant the secured party the right to dispose of the collateral "in its then condition" under all circumstances. A secured party may not dispose of collateral "in its then condition" when, taking into account the costs and probable benefits of preparation or processing and the fact that the secured party would be advancing the costs at its risk, it would be commercially unreasonable to dispose of the collateral in that condition. 5. Disposition by Junior Secured Party. Disposition rights under subsection (a) are not limited to first-priority security interests. Rather, any secured party as to whom there has been a default enjoys the right to dispose of collateral under this subsection. The exercise of this right by a secured party whose security interest is subordinate to that of another secured party does not of itself constitute a conversion or otherwise give rise to liability in favor of the holder of the senior security interest. Section 9-615 addresses application of the proceeds of a disposition by a junior secured party. Under section 9-615(a), a junior secured party owes no obligation to apply the proceeds of disposition to the satisfaction of obligations secured by a senior security interest. Section 9-615(g) builds on this general rule by protecting certain juniors from claims of a senior concerning cash proceeds of the disposition. Even if a senior were to have a nonarticle 9 claim to proceeds of a junior's disposition, section 9-615(g) would protect a junior that acts in good faith and without knowledge that its actions violate the rights of a senior party. Because the disposition by a junior would not cut off a senior's security interest or other lien (see section 9-617), in many (probably most) cases the junior's receipt of the cash proceeds would not violate the rights of the senior. The holder of a senior security interest is entitled, by virtue of its priority, to take possession of collateral from the junior secured party and conduct its own disposition, provided that the senior enjoys the right to take possession of the collateral from the debtor. See section 9-609. The holder of a junior security interest normally must notify the senior secured party of an impending disposition. See section 9-611. Regardless of whether the senior receives a notification from the junior, the junior's disposition does not of itself discharge the senior's security interest. See section 9-617. Unless the senior secured party has authorized the disposition free and clear of its security interest, the senior's security interest ordinarily will survive the disposition by the junior and continue under section 9-315(a)(1). If the senior enjoys the right to repossess the collateral from the debtor, the senior likewise may recover the collateral from the transferee. When a secured party's collateral is encumbered by another security interest or other lien, one of the claimants may seek to invoke the equitable doctrine of marshaling. As explained by the Supreme Court, that doctrine "rests upon the principle that a creditor having two funds to satisfy his debt, may not by his application of them to his demand, defeat another creditor, who may resort to only one of the funds." Meyer v. United States, 375 U.S. 233, 236 (1963), quoting Sowell v. Federal Reserve Bank, 268 U.S. 449, 456-57 (1925). The purpose of the doctrine is "to prevent the arbitrary action of a senior lienor from destroying the rights of a junior lienor or a creditor having less security." Id. at 237. Because it is an equitable doctrine, marshaling "is applied only when it can be equitably fashioned as to all of the parties" having an interest in the property. Id. This article leaves courts free to determine whether marshaling is appropriate in any given case. See section 1-103. 6. Security Interests of Equal Rank. Sometimes two security interests enjoy the same priority. This situation may arise by contract, e.g., pursuant to "equal and ratable" provisions in indentures, or by operation of law. See section 9-328(6). This article treats a security interest having equal priority like a senior security interest in many respects. Assume, for example, that SP-X and SP-Y enjoy equal priority, SP-W is senior to them, and SP-Z is junior. If SP-X disposes of the collateral under this section, then (i) SP-W's and SP-Y's security interests survive the disposition but SP-Z's does not, see section 9- 617, and (ii) neither SP-W nor SP-Y is entitled to receive a distribution of proceeds, but SP-Z is. See section 9-615(a)(3). When one considers the ability to obtain possession of the collateral, a secured party with equal priority is unlike a senior secured party. As the senior secured party, SP-W should enjoy the right to possession as against SP-X. See section 9-609, comment 5. If SP-W takes possession and disposes of the collateral under this section, it is entitled to apply the proceeds to satisfy its secured claim. SP-Y, however, should not have such a right to take possession from SP-X; otherwise, once SP-Y took possession from SP-X, SP-X would have the right to get possession from SP-Y, which would be obligated to redeliver possession to SP-X, and so on. Resolution of this problem is left to the parties and, if necessary, the courts. 7. Public vs. Private Dispositions. This Part maintains two distinctions between "public" and other dispositions: (i) the secured party may buy at the former, but normally not at the latter (Section 9-610(c) [55-9-610(c) NMSA 1978]), and (ii) the debtor is entitled to notification of "the time and place of a public disposition" and notification of "the time after which" a private disposition or other intended disposition is to be made (Section 9-613(1)(E) [55-9-613(1)(E) NMSA 1978]). It does not retain the distinction under former Section 9-504(4) [55-9-504(4) NMSA 1978], under which transferees in a noncomplying public disposition could lose protection more easily than transferees in other noncomplying dispositions. Instead, Section 9-617(b) [55-9-617(b) NMSA 1978] adopts a unitary standard. Although the term is not defined, as used in this Article, a "public disposition" is one at which the price is determined after the public has had a meaningful opportunity for competitive bidding. "Meaningful opportunity" is meant to imply that some form of advertisement or public notice must precede the sale (or other disposition) and that the public must have access to the sale (disposition). A secured party’s purchase of collateral at its own private disposition is equivalent to a "strict foreclosure" and is governed by Sections 9-620, 9-621, and 9-622 [55-9-620, 55- 9-621, and 55-9-622 NMSA 1978]. The provisions of these sections can be waived only to the extent provided in Section 9-624(b) [55-9-624(b) NMSA 1978]. See Section 9-602 [55-9-602 NMSA 1978]. 8. Investment Property. Dispositions of investment property may be regulated by the federal securities laws. Although a "public" disposition of securities under this article may implicate the registration requirements of the Securities Act of 1933, it need not do so. A disposition that qualifies for a "private placement" exemption under the Securities Act of 1933 nevertheless may constitute a "public" disposition within the meaning of this section. Moreover, the "commercially reasonable" requirements of subsection (b) need not prevent a secured party from conducting a foreclosure sale without the issuer's compliance with federal registration requirements. 9. "Recognized Market." A "recognized market," as used in subsection (c)(2), Section 9-611(d), and Section 9-627(b)(1) and (2), is one in which the items sold are fungible and which generally produces market prices that are not lower than those that would be expected to result from, as applicable, (i) commercially reasonable dispositions to persons other than the secured party, (ii) commercially reasonable dispositions made with otherwise required notifications to the debtor or other affected persons, or (iii) dispositions otherwise made in a commercially reasonable manner. (As used here, "fungible" items are those that are considered interchangeable in the relevant market and not only items that are strictly "identical" to the other items.) The intended goals of the recognized market exceptions are to ensure that neither the debtor nor other affected parties would be disadvantaged by the special treatment given to recognized markets and to facilitate the efficiencies and cost savings that the special treatment may provide. The purpose of including in subsection (c)(2) collateral that is "the subject of widely distributed standard price quotations" and the criteria for determining whether price quotations meet this standard in subsection (c)(2) are the same as for a recognized market, although the availability of such standard price quotations may be based on, but distributed independently of, a "market" in which acquisitions and dispositions are made. Although a recognized market need not be subject to direct or indirect (e.g., self-regulatory) regulation or supervision, the existence of regulatory requirements or guidelines that are designed to arrive at prices consistent with those contemplated by subsection (c)(2) may provide useful guidance for applying the regulated market standard. Traditionally, it has been understood that a market in which prices are individually negotiated is not a recognized market, even if the items are the subject of widely disseminated price guides (such as the Kelly Blue Book for automobiles) or are disposed of through specialized auctions (such as those conducted for dealers in livestock and automobiles). However, this does not suggest that, for example, dispositions at prices reflected in such guides or of livestock or automobiles at such auctions could not be commercially reasonable. The New York Stock Exchange, NASDAQ, the Chicago Mercantile Exchange, and ICE Futures U.S., Inc. are examples of recognized markets. Such exchanges match buy and sell orders submitted by or on behalf of buyers and sellers that are not typically known to each other and do not involve individual negotiations. Other parties, such as inter- dealer brokers in the on-the-run U.S. Treasury market and broker-dealers in the equities market, often operate similar trading facilities that would likewise not involve known buyers or sellers or individual negotiations and may constitute recognized markets. These markets provide for robust trading with active bidding on fungible assets. There is no reason to believe that prices obtained on these markets would be less favorable to debtors, other obligors, and other interested persons than if collateral were disposed of in an off-market public or private disposition. Trading environments generally referred to as "over-the-counter" or "OTC" markets, however, typically have involved prospective buyers and sellers that can know each other and have direct communication in order to make trades. Unlike typical exchanges, OTC markets normally do involve the individual negotiation of a price. See Carl S. Bjerre, Investment Securities, 71 Bus. Law. 1311, 1316-17 (2016) (contrasting exchanges and typical OTC markets for equity securities and explaining that OTC markets have tended to feature thinner markets with less liquidity and more variability of pricing). In considering the recognized market exceptions, it is important to appreciate that recognized markets and other systems that produce equivalent "widely distributed standard price quotations" are not limited to traditional exchanges, such as those mentioned above. In particular, the exchange-OTC dichotomy no longer offers such a reliable, bright-line test for determining status as a recognized market or as a source of widely distributed standard price quotations. To be sure, some OTC markets do not qualify for the exceptions. However, recent years have witnessed a variety of new trading platforms, the use of new technologies, and new sources of providing and consuming information. There now exist markets, in particular for debt securities (including United States Treasury securities), that might be classified as OTC markets under the traditional taxonomy, but which qualify for the exceptions as recognized markets or as sources of data for widely distributed standard price quotations. Market participants rely on prices provided by these markets to the same extent and for the same purposes (including in connection with default and enforcement of security interests) as they rely on prices generated by traditional securities and commodities exchanges. These prices are widely available from business publications and online sources as well as from private subscription-based service providers. It can safely be assumed that these financial markets and the data that they provide to the public will continue to evolve. The touchstone for determining whether a market structure is a recognized market or one that produces equivalent price quotations is a functional one. It is not based on the "type" of market (e.g., "exchange," "OTC," or other classification). It is based on whether the market or distribution of price quotations provides reliable and trusted data on prices consistent with the purposes of subsection (c)(2) and the corresponding provisions of Sections 9-611 and 9-627. 10. Relevance of Price. While not itself sufficient to establish a violation of this part, a low price suggests that a court should scrutinize carefully all aspects of a disposition to ensure that each aspect was commercially reasonable. Note also that even if the disposition is commercially reasonable, section 9-615(f) provides a special method for calculating a deficiency or surplus if (i) the transferee in the disposition is the secured party, a person related to the secured party, or a secondary obligor, and (ii) the amount of proceeds of the disposition is significantly below the range of proceeds that a complying disposition to a person other than the secured party, a person related to the secured party, or a secondary obligor would have brought. 11. Warranties. Subsection (d) affords the transferee in a disposition under this section the benefit of any title, possession, quiet enjoyment, and similar warranties that would have accompanied the disposition by operation of nonarticle 9 law had the disposition been conducted under other circumstances. For example, the article 2 warranty of title would apply to a sale of goods, the analogous warranties of article 2A would apply to a lease of goods, and any common law warranties of title would apply to dispositions of other types of collateral. See, e.g., Restatement (2d), Contracts section 333 (warranties of assignor). Subsection (e) explicitly provides that these warranties can be disclaimed either under other applicable law or by communicating a record containing an express disclaimer. The record need not be written, but an oral communication would not be sufficient. See section 9-102 (definition of "record"). Subsection (f) provides a sample of wording that will effectively exclude the warranties in a disposition under this section, whether or not the exclusion would be effective under nonarticle 9 law. The warranties incorporated by subsection (d) are those relating to "title, possession, quiet enjoyment, and the like." Depending on the circumstances, a disposition under this section also may give rise to other statutory or implied warranties, e.g., warranties of quality or fitness for purpose. Law other than this article determines whether such other warranties apply to a disposition under this section. Other law also determines issues relating to disclaimer of such warranties. For example, a foreclosure sale of a car by a car dealer could give rise to an implied warranty of merchantability (section 2-314) unless effectively disclaimed or modified (section 2-316). This section's approach to these warranties conflicts with the former comment to section 2-312. This article rejects the baseline assumption that commercially reasonable dispositions under this section are out of the ordinary commercial course or peculiar. The comment to section 2-312 has been revised accordingly.