70A-9a-626 - Action in which deficiency or surplus is in issue.
70A-9a-626. Action in which deficiency or surplus is in issue.
(1) In an action arising from a transaction, other than a consumer transaction, in which theamount of a deficiency or surplus is in issue, the following rules apply:
(a) A secured party need not prove compliance with the provisions of this part relating tocollection, enforcement, disposition, or acceptance unless the debtor or a secondary obligor placesthe secured party's compliance in issue.
(b) If the secured party's compliance is placed in issue, the secured party has the burdenof establishing that the collection, enforcement, disposition, or acceptance was conducted inaccordance with this part.
(c) Except as otherwise provided in Section 70A-9a-628, if a secured party fails to provethat the collection, enforcement, disposition, or acceptance was conducted in accordance with theprovisions of this part relating to collection, enforcement, disposition, or acceptance, the liabilityof a debtor or a secondary obligor for a deficiency is limited to an amount by which the sum ofthe secured obligation, expenses, and attorney's fees exceeds the greater of:
(i) the proceeds of the collection, enforcement, disposition, or acceptance; or
(ii) the amount of proceeds that would have been realized had the noncomplying securedparty proceeded in accordance with the provisions of this part relating to collection, enforcement,disposition, or acceptance.
(d) For purposes of Subsection (1)(c)(ii), the amount of proceeds that would have beenrealized is equal to the sum of the secured obligation, expenses, and attorney's fees unless thesecured party proves that the amount is less than that sum.
(e) If a deficiency or surplus is calculated under Subsection 70A-9a-615(6), the debtor orobligor has the burden of establishing that the amount of proceeds of the disposition issignificantly below the range of prices that a complying disposition to a person other than thesecured party, a person related to the secured party, or a secondary obligor would have brought.
(2) The limitation of the rules in Subsection (1) to transactions other than consumertransactions is intended to leave to the court the determination of the proper rules in consumertransactions. The court may not infer from that limitation the nature of the proper rule inconsumer transactions and may continue to apply established approaches.
Enacted by Chapter 252, 2000 General Session