About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

Memorandum: Liability of Error 1 (August 25, 2015)

handle is hein.nccusl/nccpubtsta3953 and id is 1 raw text is: GONZAGA SCHOOL OF LAW MEMORANDUM To: Drafting Committee for Amendments to the Model Tribal Secured Transactions Act From: Stephen L. Sepinuck Date: August 25, 2015 Re: Liability for Error Section 9-626 of the MTSTA, like the same numbered provision of the UCC, codifies the rebuttable-presumption rule with respect to an action by a secured party for a deficiency in a non-consumer transaction if the secured party has failed to comply with the rules of Part 6 with respect to enforcement. It also, like the UCC, has no rule on what happens if the transaction is a consumer transaction. The silence in the UCC on this issue in connection with a consumer transaction resulted from the last-minute collapse of negotiations regarding a variety of consumer issues. In each jurisdiction, courts are instructed to fill in the gap as a matter of common law, inferring nothing from the silence. In at least two states, courts have applied the absolute-bar rule, denying a secured party who fails to comply with Part 6 the right to recover any deficiency. See Coxall v. Clover Commercial Corp., 781 N.Y.S.2d 567 (Kings Cty. Civ. Ct. 2004); In re Downing, 286 B.R. 900 (Bankr. W.D. Mo. 2002). In contrast, at least one state has resolved the issue legislatively, by enacting a non-uniform version of section 9-626. See Wash. Rev. Code § 62A.9A-626 (making the rebuttable-presumption rule applicable to both consumer and non-consumer transactions). Some Native Tribes and Nations might not have a common-law tradition or might, for other reasons, prefer to adopt a rule proactively, rather than wait for the issue to arise. Accordingly, the Drafting Committee might wish to consider amending the MTSTA to provide a rule for consumer transactions. What follows is one possible approach. It applies the absolute-bar rule to consumer transactions.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most