| | | may not recover a deficiency (the "absolute bar" rule). A few | | courts held that the debtor can offset against a claim to a | | deficiency all damages recoverable under former Section 9-507 | | resulting from the secured party's noncompliance (the "offset" | | rule). A plurality of courts considering the issue held that the | | noncomplying secured party is barred from recovering a deficiency | | unless it overcomes a rebuttable presumption that compliance with | | former Part 5 would have yielded an amount sufficient to satisfy | | the secured debt. In addition to the nonuniformity resulting | | from court decisions, some States enacted special rules governing | | the availability of deficiencies. |
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| | | 5. Burden of Proof When Section 9-615(f) [Maine cite section | | 9-1615, subsection (6)] Applies. In a non-consumer transaction, | | subsection (a)(5) [Maine cite subsection (1), paragraph (e)] | | imposes upon a debtor or obligor the burden of proving that the | | proceeds of a disposition are so low that, under Section 9-615(f) | | [Maine cite section 9-1615, subsection (6)], the actual proceeds | | should not serve as the basis upon which a deficiency or surplus | | is calculated. Were the burden placed on the secured party, then | | debtors might be encouraged to challenge the price received in | | every disposition to the secured party, a person related to the | | secured party, or a secondary obligor. |
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| | | 6. Delay in Applying This Section. There is an inevitable | | delay between the time a secured party engages in a noncomplying | | collection, enforcement, disposition, or acceptance and the time | | of a subsequent judicial determination that the secured party did | | not comply with Part 6. During the interim, the secured party, | | believing that the secured obligation is larger than it | | ultimately is determined to be, may continue to enforce its | | security interest in collateral. If some or all of the secured | | indebtedness ultimately is discharged under this section, a | | reasonable application of this section would impose liability on | | the secured party for the amount of any excess, unwarranted | | recoveries but would not make the enforcement efforts wrongful. |
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| | | §9-1627.__Determination of whether conduct was commercially |
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| | | (1)__The fact that a greater amount could have been obtained | | by a collection, enforcement, disposition or acceptance at a | | different time or in a different method from that selected by the | | secured party is not of itself sufficient to preclude the secured | | party from establishing that the collection, enforcement, | | disposition or acceptance was made in a commercially reasonable | | manner. |
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| | | (2)__A disposition of collateral is made in a commercially | | reasonable manner if the disposition is made: |
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