
USCA1 Opinion

	




          January 23, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 94-1746                          VAN DORN RETAIL MANAGEMENT, INC.,                                 Plaintiff, Appellee,                                          v.                   JIM'S OXFORD SHOP, INC. AND LOUIS GEORGOPOULOS,                               Defendants, Appellants.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                 [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]                                                 ___________________                                                                                      ____________________                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             Paul  McEachern, with whom Shaines  & McEachern was  on brief for             _______________            ____________________        appellants.             Richard  V. Wiebusch, with whom  W. Scott O'Connell  and Hale and             ____________________             __________________      ________        Dorr were on brief for appellee.        ____                                                                                      ____________________                                                                                      ____________________                    Per Curiam.  Appellants,  a commercial borrower and its                    Per Curiam.                    __________          guarantor, assert two basic  challenges to the adverse deficiency          judgment  awarded to  appellee,  the secured  party, following  a          court-ordered,  post-default  sale  of   non-consumer  collateral          securing  the borrower's  indebtedness  to appellee.   Appellants          insist that no deficiency  is recoverable because a court-ordered          "Going  Out  of Business  Sale"  is inconsistent  with  a secured          party's  disposition  of  collateral  under  U.C.C.    9-504  and          appellee failed to conduct the  sale in a commercially reasonable          manner.  See id.   9-504(3).                   ___ ___                    The  first claim is  emphatically precluded  by Uniform          Commercial  Code    9-501,  which  expressly  provides  that  the          secured  party, upon default by the debtor, shall have the rights          and  remedies  provided in  U.C.C.     9-501  through 9-507,  see                                                                        ___          U.C.C.   9-501(1),  including the  right to enforce  its security          interest as stated in the security agreement, id.   9-501(2), and                                                        ___          to  invoke judicial procedure in aid  of a sale authorized by the          security agreement, see  id.   9-207(4).  As  the security agree-                              ___  ___          ment  between appellee  and the  borrower expressly  authorized a          "Going  Out of  Business  Sale," and  the  district court  merely          required  appellants to permit the sale  to proceed as authorized          under  the security agreement (as  well as U.C.C.   9-504), there          was no inconsistency between the rights and remedies available to          appellee under  the security agreement  and those afforded  it by          U.C.C.    9-504, let alone  a waiver  of its  right to  recover a          deficiency.   Furthermore, since  a careful review  of the entire                                          2          record on appeal fully supports the district court's finding that          the sale was in all respects commercially reasonable, appellants'          second claim fails as well.                    Accordingly, the district  court judgment is  summarily                    _______________________________________________________          affirmed pursuant to Local Rule 27.1.  Costs to appellee.          ____________________________________   _________________                                                     3
