Okla. Stat. tit. 12A § 1-9-625
Okla. Stat. tit. 12A, § 1-9-625
Oklahoma Code Comment
Sections 9-625, 9-626, and 9-627 essentially cover the same ground as former section 9-507 but are more explicit. Revised section 9-625 sets out the basic remedies if it is established that a secured party is not proceeding in accordance with Article 9. The basic remedy is damages in the amount of any loss caused by the failure to comply. Oklahoma has long characterized a failure to comply as conversion of the debtor's property, thus measuring the loss by the loss of use value or, if there has been a disposition, by the value of the property. Mitchell v. Ford Motor Credit Co., 688 P.2d 42 (Okla. 1984); In re Buttram, 2 B.R. 92 (Bankr. 1979); Davidson v. First Bank and Trust Co., 609 P.2d 1259 (Okla. 1976); Beneficial Finance Co. v. Young, 612 P.2d 1357 (Okla. 1980). This remains good law under revised Article 9 and a possible predicate for punitive damages if they are warranted in conformity with 23 Okla. Stat. section 9.1 (compare Beneficial Finance Co. v. Young, 612 P.2d 1357 (Okla. 1980) with Davidson v. First Bank and Trust Co., 609 P.2d 1259 (Okla. 1976)), even though revised section 9-626, in other than a consumer transaction, adopts the rebuttable presumption rule that the collateral is worth the amount of the debt. See also (as related) section 9-615(f) . That is to say, if the collateral is worth more than the debt, the debtor can avail itself of the conversion measure (see, e.g., Consolidated Equipment Sales, Inc. v. First Bank and Trust Co., 627 P.2d 432 (Okla. 1981), but see also section 9-625(d)), and if it is worth less than the debt, the debtor may have the benefit of the rebuttable presumption. But there is no such presumption in section 9-626(b) for a consumer transaction. Oklahoma long ago repudiated the absolute bar rule, which had a brief life in Dynalectron Corp. v. Jack Richards Aircraft Co., 337 F. Supp. 659 (W.D. Okla. 1972). See Equico Lessors, Inc. v. Wetsel, 576 F. Supp. 13 (W.D. Okla. 1983); Beneficial Finance Co. v. Young, 612 P.2d 1357 (Okla. 1980). Revised Article 9 is consistent with these later cases. Thus in Oklahoma, the consumer debtor has a possible conversion recovery and the court could adopt a rebuttable presumption approach as well (if it thought that was needed, considering also the statutory damage rule for when the collateral is consumer goods retained in section 9- 625(c)(2) and the anti-deficiency rule for certain consumer credit transactions in 14A Okla. Stat. section 5-103 ) . Section 9-625(d) also makes it clear that a debtor or surety whose deficiency is eliminated or reduced under section 9- 626 may not otherwise recover, except for the loss of any surplus.
Section 9-625(e) and (f) collects, and expands, the statutory damage provisions for certain violations of Article 9. Section 9-625(c)(1) also reiterates, and expands, the parties who can claim relief from a secured party not in compliance; it clearly treats sureties as entitled and includes subordinate lien holders even if they are not Article 9 secured parties. See, under former Article 9, In re Reed, 102 B.R. 243 (Bankr. E. D. Okla. 1989); In re Buttram 2 B.R. 92 (Bankr. 1979) (trustee of debtor entitled to recover); Liberty National Bank and Trust Co. v. Acme Tool Division of Rucker Co., 540 F.2d 1375 (10th Cir. 1976) (subordinate secured party entitled to recover); cf. Frontier Federal Sav. & Loan v. Commercial Bank, 806 P.2d 1140 (Okla. App. 1990) (lien creditor not entitled); Cate v. Archon Oil Co., Inc. 695 P.2d 1352 (Okla. 1985) (general statement as to who was entitled to notice).