Affirms SJ on complaint to recover deficiency owed under personal guaranty

Monday, March 30, 2009 by Bose McKinney Evans

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Richard Moore appeals from the trial court’s judgment in favor of Wells Fargo Construction (“Wells Fargo”), formerly known as The CIT Group/Equipment Financing, Inc. (“CIT”), on its complaint to recover a deficiency owed under a personal guaranty. Moore raises two issues for review:

1. Whether the evidence is sufficient to support the trial court’s finding that Wells Fargo conducted the sale of a repossessed excavator in a commercially reasonable fashion.

2. Whether Wells Fargo provided adequate notice to Moore of the sale of the excavator.

Conclusion (slip op. at 15): Affirmed.

Key Analysis (slip op. at 11, 14-15): We agree with Moore that I.C. 26-1-9.1-610 requires sales such as the instant one to be commercially reasonable. But the plain language of the Guaranty shows that Moore intended to waive any claim regarding the commercial reasonableness of a sale of the Excavator. Thus, under the Guaranty, Moore has waived that claim . . . We conclude that the Second Notice, containing the web address of the auction and the physical address of the auction company, satisfies the location requirement in I.C. 26-1-9.1-613(1)(E). As such, Moore’s argument that the Second Notice was inadequate must fail.

About Bose McKinney & Evans LLP

Bose McKinney & Evans LLP is a business law firm, headquartered in Indianapolis, Indiana, serving both publicly held and privately held businesses, governmental entities and high-growth industries. Our clients include Fortune 100 companies, international manufacturers, national and regional financial institutions, agribusinesses, sports teams, university-incubated start-ups, media, utilities, cities and schools, to name a few. We strive to build strong relationships with our clients as key business advisors, to exceed expectations in the quality of our work, to be knowledgeable about our clients’ businesses and sectors, to be responsive to service needs and to continually seek to improve the delivery of client services. Our ultimate focus is on our clients.
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