Editor's notes.

- In the light of the similarity of the provisions, decisions under former Article 9 are included in the annotations for this Code section. For a table of comparable provisions, see the table at the beginning of the Article.

Section inapplicable to sales by court appointed receivers.

- Whenever sale of collateral is not by secured party, but by receiver appointed by court of equity, the former provisions were not applicable to the transaction. Sands v. Citizens & S. Nat'l Bank, 146 Ga. App. 853, 247 S.E.2d 544 (1978) (decided under former Code Section11-9-504).

Section inapplicable where debt extinguished as provided by instrument.

- Where the terms of the deed to secure debt allowed for early payment of the debt, by accepting grantor of deed's payoff, the plaintiff simply allowed the debt evidenced by the deed to secure debt to be extinguished in a manner contemplated by that instrument, and that act does not constitute a disposition or sale of the collateral within the meaning of the former provisions. Griffith v. First Fed. Sav. Bank, 208 Ga. App. 863, 432 S.E.2d 606 (1993) (decided under former Code Section11-9-504).

Section inapplicable where no evidence of sale.

- Where neither the affidavits nor any other matter or pleading presented by the defendants identified any specific, probative evidence of a sale by the secured party, the former provisions of this section did not apply. Congress Fin. Corp. v. Commercial Technology, Inc., 910 F. Supp. 637 (N.D. Ga. 1995) (decided under former Code Section 11-9-504).

Sale commercially reasonable.

- Trial court did not err in concluding that a credit union's sale of a car was done in a commercially reasonable manner under O.C.G.A. § 11-9-610(b) where: (1) the car had been vandalized, including the stripping of its interior; (2) the car was not drivable; (3) a Texas credit union attempted to sell the car to its membership for eight weeks without results; (4) the credit union then contacted more than three body shops seeking a bid on the car; and (5) only one shop responded, and that bid was accepted. Endsley v. Robins Fed. Credit Union, 267 Ga. App. 512, 600 S.E.2d 441 (2004).

Because a bank utilized professionals in the industry to assist in the sale of the debtor's equipment, and it did not rush to dispose of the equipment, but ultimately sold it to the person whom the debtor and its guarantor contended would most likely tender the highest bid for the equipment, the sale was conducted in a commercially reasonable manner under O.C.G.A. §§ 11-9-627(b) and11-9-610. AKA Mgmt. v. Branch Banking & Trust Co., 275 Ga. App. 615, 621 S.E.2d 576 (2005).

Assuming that the sale of collateral was a public sale within the meaning of O.C.G.A. § 11-1-201(31.1), the sale occurred in a commercially reasonable manner, under O.C.G.A. § 11-9-627, because the sale was consistent with the reasonable commercial practices of dealers in similar equipment. Moreover, the sale qualified as a valid private sale under O.C.G.A. § 11-9-613 and the creditor did not have to comply with the statute's public-sale provisions regarding time and advertising. Colonial Pac. Leasing Corp. v. N & N Partners, LLC, 981 F. Supp. 2d 1345 (N.D. Ga. Nov. 4, 2013).

Issue of fact as to commercial reasonableness of sale.

- Evidence from an owner of an equipment purchaser, who had 22 years of experience in the industry and who claimed that a finance company's sale of equipment upon repossession did not bring the equipment's full value, raised a genuine issue of fact as to commercial reasonableness; accordingly, a grant of summary judgment to the finance company on the company's claim for a deficiency judgment was error. Mason Logging Co. v. GE Capital Corp., 322 Ga. App. 708, 746 S.E.2d 180 (2013).

Value of collateral customarily sold in recognized market is readily ascertainable.

- For collateral to qualify as collateral of a type customarily sold in recognized market so as to authorize purchase by secured party at private sale, it must be such that its value at any given time is readily ascertainable, as in case of stocks and bonds or other negotiable instruments. Luxurest Furn. Mfg. Co. v. Furniture Whse. Sales, Inc., 132 Ga. App. 661, 209 S.E.2d 63 (1974), rev'd on other grounds sub nom. Gurwitch v. Luxurest Furn. Mfg. Co., 233 Ga. 934, 214 S.E.2d 373 (1975) (decided under former Code Section11-9-504).

Evidence of fair and reasonable value insufficient.

- Documents in evidence showing only the sale price of the car were insufficient to establish the car's fair and reasonable value. No witness testified as to the basis for the opinion or opined that the appraised value of the car was the car's fair and reasonable value in that market at the time of the repossession or the sale. Versey v. Citizens Trust Bank, 306 Ga. App. 479, 702 S.E.2d 479 (2010).

Knowledge of purchaser as prerequisite for setting aside sale.

- Allegations that sheriff misled the attorneys of plaintiff in fieria facias as to when foreclosure sale was to be held may be insufficient grounds to set sale aside, unless it appears that purchaser knew of or had some hand in the misleading. American Sec. Inv. Co. v. Popell, 114 Ga. App. 268, 150 S.E.2d 697 (1966) (decided under former Code Section11-9-504).

Charges imposable in event of default.

- Security agreement may impose various charges, not found in promissory note, in event of default. General Fin. Corp. v. Sprouse, 577 F.2d 989 (5th Cir. 1978) (decided under former Code Section 11-9-504).

Remedies are cumulative.

- The remedies available to creditor under the former provisions are cumulative and creditor is not required to be reduced to the position of unsecured creditor so long as the creditor acts in a commercially reasonable manner and does not, by the creditor's actions or omissions, further impair position of debtor. Henderson Few & Co. v. Rollins Communications, Inc., 148 Ga. App. 139, 250 S.E.2d 830 (1978) (decided under former Code Section11-9-504).

Creditor can elect either a public or private sale. First Nat'l Bank v. Rivercliff Hdwe., Inc., 161 Ga. App. 259, 287 S.E.2d 701 (1982) (decided under former Code Section11-9-504).

Defenses assertable.

- Surety or guarantor may assert all defenses, except personal defenses, available to principal. Vickers v. Chrysler Credit Corp., 158 Ga. App. 434, 280 S.E.2d 842 (1981) (decided under former Code Section11-9-504).

Absent waiver or estoppel there is no reason why guarantor may not assert "commercially reasonable" defense which would be available to guarantor's principal, the debtor, in an action by secured party against guarantor for deficiency judgment. Vickers v. Chrysler Credit Corp., 158 Ga. App. 434, 280 S.E.2d 842 (1981); Clay v. Presidential Fin. Corp., 175 Ga. App. 226, 332 S.E.2d 924 (1985), overruled on other grounds, Branan v. Equico Lessors, Inc., 256 Ga. 23, 342 S.E.2d 671 (1986) (decided under former Code Section11-9-504).

Buyer not complying with terms of sale.

- The security interest of the mortgagee of a mobile home retail installment sales contract was not discharged by a sale to the mobile home dealer by the mortgagee following default by the purchasers where the mortgagee and the dealer agreed that the title to the mobile home was to be transferred to the dealer only after it had paid mortgagee for the mobile home, the dealer did not complete payment for the mobile home, and there was no transfer of the certificate of title or ownership interest to the dealer, nor was there need prior to the resale of the mobile home for the mortgagee to secure a new certificate of title. Sunnyland Employees' Fed. Credit Union v. Fort Wayne Mtg. Co., 182 Ga. App. 5, 354 S.E.2d 645 (1987) (decided under former Code Section11-9-504).

Recovery on other notes between same parties.

- Where suit on three promissory notes was not for deficiency judgment on debt for which foreclosure was had, but was action to recover on separate, subsequent and different notes, made for different debts, which were separate transactions, plaintiff-creditor's failure to give proper notice of sale of personal property listed in security agreements and bills of sale executed to secure first five promissory notes not included in instant suit did not extinguish entire debt of defendant-debtor. Jerkins v. Savannah Valley Prod. Credit Ass'n, 157 Ga. App. 652, 278 S.E.2d 431 (1981) (decided under former Code Section11-9-504).

No default occurred where no request for payment was made.

- No default occurred where, although the evidence presented at trial showed that defendant had defaulted under the terms of the note with plaintiff at the time grantor of deed sought to pay off defendant's debt, there was no evidence presented that plaintiff requested or required that grantor of deed pay off the debt evidenced by the deed to secure debt. Griffith v. First Fed. Sav. Bank, 208 Ga. App. 863, 432 S.E.2d 606 (1993) (decided under former Code Section11-9-504).

Disposition of realty.

- When a creditor disposes of realty, strict compliance with the confirmation provisions of O.C.G.A. § 44-14-160 et seq. is not required in order for a deficiency to be recovered, and the cases calling for strict compliance with former subsection (3) of the former provisions as to a creditor's disposition of personalty and dealing more specifically with the notice requirements of former subsection (3) rather than with any requirement similar to confirmation of a real property foreclosure, do not effectively overrule it. Business Dev. Corp. v. Bickerstaff, 73 Bankr. 421 (Bankr. N.D. Ga. 1987) (decided under former Code Section11-9-504).

Leases.

- The commercially reasonable sale provision and the notice provision under O.C.G.A. § 10-1-36 were not applicable to a lease which was a "true lease" rather than a disguised secured transaction. Citizens & S. Nat'l Bank v. Thomas, 188 Ga. App. 312, 372 S.E.2d 687 (1988) (decided under former Code Section11-9-504).

Cited in Motors Acceptance Corp. v. Rozier, 278 Ga. 52, 597 S.E.2d 367 (2004).

Absolute bar rule.

- These code provisions do not require the imposition of an absolute-bar rule and the absolute-bar rule is contrary to the intent of O.C.G.A. § 11-1-106 which expressly prohibits penal damages. Emmons v. Burkett, 256 Ga. 855, 353 S.E.2d 908 (1987) (decided under former Code Section11-9-504).

Notification of intent to sell at private sale prerequisite to recovery.

- Compliance with requirement of notification of debtor of intention to sell collateral at private sale is condition precedent to recovery of any deficiency between sale price of collateral and amount of unpaid balance. Edmondson v. Air Serv. Co., 123 Ga. App. 263, 180 S.E.2d 589 (1971) (decided under former Code Section11-9-504).

Where a debtor filed a petition for bankruptcy and a creditor filed a complaint for relief from the automatic stay, which was granted, and then the creditor repossessed the debtor's car, in which it held a security interest, and sold the car but did not give prior notification of the sale to the debtor in compliance with former subsection (3) of these provisions, the creditor was not entitled to collect any deficiency. Fidelity Nat'l Bank v. Winslow, 39 Bankr. 869 (Bankr. N.D. Ga. 1984) (decided under former Code Section 11-9-504).

No "deficiency" where items cannot be repossessed.

- Where the evidence showed the sum sought represented the amount advanced to defendants on those inventory items which could not be repossessed because they had been sold "out of trust," and where these items were not, and could not have been, repossessed by plaintiff, no "deficiency" was deemed to be sought and the former provisions were not applicable. Dixon v. Borg-Warner Acceptance Corp., 186 Ga. App. 843, 368 S.E.2d 800 (1988) (decided under former Code Section11-9-504).

Sale must allow debtor to exercise redemption right.

- Act of secured party, in selling collateral without strict compliance with notice of sale provisions of this former section precludes purchaser or owner from exercising right of redemption under former § 11-9-506, and for that reason secured party cannot recover for deficiency owed by purchaser. Braswell v. American Nat'l Bank, 117 Ga. App. 699, 161 S.E.2d 420 (1968) (decided under former Code Section11-9-504).

Deficiency admitted by failure to respond to requests to admissions.

- In a finance corporation's suit to recover a deficiency balance on an installment sales contract for a log loader, the trial court properly granted the corporation summary judgment upon concluding that no genuine issues of material fact existed based on the defending trucking company and the company's president failing to answer the requests for admissions that were served simultaneously with the complaint. By failing to respond and never challenging the trial court's denial of the motion to withdraw the admissions filed by the trucking company and the company's president, the following allegations were deemed admitted: that true and correct copies of the relevant documents, including the demand for payment were received; that the president executed the installment sales contract and the guaranty; that the president failed to make payments thereunder; that the principal balance due under the contract and guaranty was $34,442.44 as of a certain date; and that the money was owed to the finance corporation. JJM Trucking, Inc. v. Caterpillar Fin. Servs. Corp., 295 Ga. App. 560, 672 S.E.2d 529 (2009).

Am. Jur. 2d.

- 68A Am. Jur. 2d, Secured Transactions, §§ 556-572, 606, 624 et seq., 642-680, 685-703.

C.J.S.

- 72 C.J.S., Pledges, §§ 49, 50.

U.L.A.

- Uniform Commercial Code (U.L.A.) § 9-610.

ALR.

- Seller's rights in respect of the property, or its proceeds, upon dishonor of draft or check for purchase price, on a cash sale, 31 A.L.R. 578; 54 A.L.R. 526.

Rights and remedies as between parties to conditional sale after seller has repossessed himself of the property, 99 A.L.R. 1288.

Right of creditor or mortgagee to redeem from his own sale, 108 A.L.R. 993.

Purchase by pledgee of subject of pledge, 37 A.L.R.2d 1381.

Rights and duties of parties to conditional sales contract as to resale of repossessed property, 49 A.L.R.2d 15.

Uniform Commercial Code: Burden of proof as to commercially reasonable disposition of collateral, 59 A.L.R.3d 369.

Uniform Commercial Code: failure of secured creditor to give required notice of disposition of collateral as bar to deficiency judgment, 59 A.L.R.3d 401.

Construction of term "debtor" as used in UCC § 9-504(3), requiring secured party to give notice to debtor of sale of collateral securing obligation, 5 A.L.R.4th 1291.

What is "commercially reasonable" disposition of collateral required by UCC § 9-504(3), 7 A.L.R.4th 308.

Loss or modification of right to notification of sale of repossessed collateral under Uniform Commercial Code § 9-504, 9 A.L.R.4th 552.

Failure of secured party to make "commercially reasonable" disposition of collateral under UCC § 9-504(3) as bar to deficiency judgment, 10 A.L.R.4th 413.

Sufficiency of secured party's notification of sale or other intended disposition of collateral under UCC § 9-504(3), 11 A.L.R.4th 241.

Nature of collateral which secured party may sell or otherwise dispose of without giving notice to defaulting debtor under UCC § 9-504(3), 11 A.L.R.4th 1060.

Secured transactions: what is "public" or "private" sale under UCC § 9-504(3), 60 A.L.R.4th 1012.

UCC: value of trade-in taken on sale of collateral for purposes of computing surplus or deficiency, 72 A.L.R.4th 1128.

Causes of action governed by limitations period in UCC § 2-725, 49 A.L.R.5th 1.