Colorado § 4-9-625 - Remedies for secured party's failure to comply with article.

§ 4-9-625. Remedies for secured party's failure to comply with article.

(a) If it is established that a secured party is not proceeding in accordance with this article, a court may order or restrain collection, enforcement, or disposition of collateral on appropriate terms and conditions.

(b) Subject to subsections (c), (d), and (f) of this section, a person is liable for damages in the amount of any loss caused by a failure to comply with this article. Loss caused by a failure to comply may include loss resulting from the debtor's inability to obtain, or increased costs of, alternative financing.

(c) Except as otherwise provided in section 4-9-628:

(1) A person that, at the time of the failure, was a debtor, was an obligor, or held a security interest in or other lien on the collateral may recover damages under subsection (b) of this section for its loss; and

(2) If the collateral is consumer goods, a person that was a debtor or secondary obligor at the time a secured party failed to comply with this part 6 may recover for that failure in any event an amount not less than the credit service charge plus ten percent of the principal amount of the obligation or the time-price differential plus ten percent of the cash price.

(d) A debtor whose deficiency is eliminated under section 4-9-626 may recover damages for the loss of any surplus. However, a debtor or secondary obligor whose deficiency is eliminated or reduced under section 4-9-626 may not otherwise recover under subsection (b) of this section for noncompliance with the provisions of this part 6 relating to collection, enforcement, disposition, or acceptance.

(e) In addition to any damages recoverable under subsection (b) of this section, the debtor, consumer obligor, or person named as a debtor in a filed record, as applicable, may recover five hundred dollars in each case from a person that:

(1) Fails to comply with section 4-9-208;

(2) Fails to comply with section 4-9-209;

(3) Files a record that the person is not entitled to file under section 4-9-509 (a);

(4) Fails to cause the secured party of record to file or send a termination statement as required by section 4-9-513 (a) or (c);

(5) Fails to comply with section 4-9-616 (b)(1) and whose failure is part of a pattern, or consistent with a practice, of noncompliance; or

(6) Fails to comply with section 4-9-616 (b)(2).

(f) A debtor or consumer obligor may recover damages under subsection (b) of this section and, in addition, five hundred dollars in each case from a person that, without reasonable cause, fails to comply with a request under section 4-9-210. A recipient of a request under section 4-9-210 which never claimed an interest in the collateral or obligations that are the subject of a request under that section has a reasonable excuse for failure to comply with the request within the meaning of this subsection (f).

(g) If a secured party fails to comply with a request regarding a list of collateral or a statement of account under section 4-9-210, the secured party may claim a security interest only as shown in the list or statement included in the request as against a person that is reasonably misled by the failure.

(h) If a person in the course of taking possession of collateral by self-help breaches the peace as defined in paragraph (1), (2), or (3) of subsection (h) of section 4-9-601 or uses uniformed law enforcement officers without the benefit of judicial process, that person shall be liable to the debtor for one thousand dollars as a penalty.

(i) The prevailing party in any legal action, other than a class action, under this section may also recover reasonable attorney's fees and reasonable legal expenses; except that as to consumer transactions, such attorney's fees for any party shall not exceed fifteen percent of the unpaid debt or such additional fee as may be directed by the court.

(j) The number "five hundred dollars" as provided in subsections (e) and (f) of this section shall be increased on July 1, 2004, and on July 1 of each third succeeding year in accordance with any aggregate increase in the United States department of labor bureau of labor statistics consumer price index for all urban consumers for the Denver-Boulder consolidated metropolitan statistical area for the preceding three calendar years as reflected in the final consumer price index for the Denver-Boulder consolidated metropolitan statistical area for the calendar year immediately preceding the calendar year in which the adjustment is to be made; except that:

(1) Such dollar amount shall not be increased if such final consumer price index does not reflect an aggregate increase in the consumer price index for the preceding three calendar years and shall be decreased if such final consumer price index reflects an aggregate decrease in the consumer price index for the preceding three calendar years.

(2) The dollar amount as adjusted pursuant to this subsection (j) shall be rounded to the nearest ten dollars.

Source: L. 2001: Entire article R&RE, p. 1417, § 1, effective July 1. L. 2002: (j)(1) amended, p. 939, § 8, effective August 7.

Editor's note: (1) This section is similar to former § 4-9-507 as it existed prior to 2001.

(2) Colorado legislative change: Colorado did not adopt the phrase "with a request under section 4-9-210" after the word "comply" in the second sentence of subsection (b), added the phrase "list or" in subsection (g), and added subsections (h) through (j).

ANNOTATION

I. General Consideration.

II. Secured Party's Liability.

III. Market Value.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Commercial Law", see 55 Den. L.J. 425 (1978). For article, "Commercial Law", see 57 Den. L.J. 165 (1980).

Annotator's note. Since § 4-9-625 is similar to § 4-9-507 as it existed prior to the 2001 repeal and reenactment of this article, relevant cases construing that provision have been included in the annotations to this section.

Consequential damages are not recoverable under former § 4-9-507 (1); therefore, plaintiff is not entitled to damages for alleged lost profits. Proactive Techs., Inc. v. Denver Place Assocs. Ltd. P'ship, 141 P.3d 959 (Colo. App. 2006).

Applied in Young v. Golden State Bank, 39 Colo. App. 45, 560 P.2d 855 (1977); Am. Heritage Bank & Trust Co. v. O. & E., Inc., 40 Colo. App. 306, 576 P.2d 566 (1978); Young v. Golden State Bank, 41 Colo. App. 480, 589 P.2d 1381 (1978); Western Nat'l Bank v. VFW Post 8103, 660 P.2d 919 (Colo. App. 1983); Padilla v. Ghuman, 183 P.3d 653 (Colo. App. 2007).

II. SECURED PARTY'S LIABILITY.

Law reviews. For comment, "Remedies for Failure to Notify Debtor of Disposition of Repossessed Collateral Under the U.C.C.", see 44 U. Colo. L. Rev. 221 (1972).

This section establishes the right of a debtor to recover from the secured party any loss sustained where a secured party fails to give notice of sale to the debtor as required by § 4-9-504(3). Cmty. Mgt. Ass'n of Colo. Springs, Inc. v. Tousley, 32 Colo. App. 33, 505 P.2d 1314 (1973).

If the collateral is consumer goods, the minimum recovery by the debtors would be the time price differential plus ten percent of the cash price. Cmty. Mgt. Ass'n of Colo. Springs, Inc. v. Tousley, 32 Colo. App. 33, 505 P.2d 1314 (1973).

Subsection (1) penalty appropriate for violation of § 5-5-112. An appropriate penalty for the violation of § 5-5-112 is the penalty imposed by subsection (1). D.E.B. Adjustment Co. v. Cawthorne, 623 P.2d 82 (Colo. App. 1981).

III. MARKET VALUE.

Evidence of market value. Where sale is conducted in accordance with the requirements of the code, the amount received at the sale of collateral is evidence of the market value, but where sale is not conducted in compliance with the law, the amount received is not evidence of the market value of the collateral, and the secured party has the burden of proving the market value by other evidence. Cmty. Mgt. Ass'n of Colo. Springs, Inc. v. Tousley, 32 Colo. App. 33, 505 P.2d 1314 (1973).

A sale price which is less than the fair market value or the appraised value is not dispositive of commercial unreasonableness. Nor does a sale price that is less than what the debtor expected necessarily constitute commercial unreasonableness. Flexisystems, Inc. v. Am. Standards Testing Bureau, Inc., 847 P.2d 207 (Colo. App. 1992).