§ 8.6A-107. Liability for noncompliance
(1) Except as provided in subsection (3), and subject to the limitation in subsection (4):
(a) A buyer who fails to comply with the requirements of § 8.6A-104(1) (e) with respect to a creditor is liable to the creditor for damages in the amount of the claim, reduced by any amount that the creditor would not have realized if the buyer had complied; and
(b) A buyer who fails to comply with the requirements of any other subsection of § 8.6A-104 with respect to a claimant is liable to the claimant for damages in the amount of the claim, reduced by any amount that the claimant would not have realized if the buyer had complied.
(2) In an action under subsection (1), the creditor has the burden of establishing the validity and amount of the claim, and the buyer has the burden of establishing the amount that the creditor would not have realized if the buyer had complied.
(3) A buyer who:
(a) Made a good faith and commercially reasonable effort to comply with the requirements of § 8.6A-104(1) or to exclude the sale from the application of this title under § 8.6A-103(3); or
(b) On or after the date of the bulk sale agreement, but before the date of the bulk sale, held a good faith and commercially reasonable belief that this title does not apply to the particular sale is not liable to creditors for failure to comply with the requirements of § 8.6A-104. The buyer has the burden of establishing the good faith and commercial reasonableness of the effort or belief.
(4) In a single bulk sale the cumulative liability of the buyer for failure to comply with the requirements of § 8.6A-104(1) may not exceed an amount equal to:
(a) If the assets consist only of inventory and equipment, twice the net contract price, less the amount of any part of the net contract price paid to or applied for the benefit of the seller or a creditor; or
(b) If the assets include property other than inventory and equipment, twice the net value of the inventory and equipment less the amount of the portion of any part of the net contract price paid to or applied for the benefit of the seller or a creditor which is allocable to the inventory and equipment.
(5) For the purposes of subsection (4) (b), the "net value" of an asset is the value of the asset less (i) the amount of any proceeds of the sale of an asset, to the extent the proceeds are applied in partial or total satisfaction of a debt secured by the asset and (ii) the amount of any debt to the extent it is secured by a security interest or lien that is enforceable against the asset before and after it has been sold to a buyer. If a debt is secured by an asset and other property of the seller, the amount of the debt secured by a security interest or lien that is enforceable against the asset is determined by multiplying the debt by a fraction, the numerator of which is the value of the asset on the date of the bulk sale and the denominator of which is the value of all property securing the debt on the date of the bulk sale. The portion of a part of the net contract price paid to or applied for the benefit of the seller or a creditor that is "allocable to the inventory and equipment" is the portion that bears the same ratio to that part of the net contract price as the net value of the inventory and equipment bears to the net value of all of the assets.
(6) A payment made by the buyer to a person to whom the buyer is, or believes he is, liable under subsection (1) reduces pro tanto the buyer's cumulative liability under subsection (4).
(7) No action may be brought under subsection (1) (b) by or on behalf of a claimant whose claim is unliquidated or contingent.
(8) A buyer's failure to comply with the requirements of § 8.6A-104(1) does not (i) impair the buyer's rights in or title to the assets, (ii) render the sale ineffective, void, or voidable, (iii) entitle a creditor to more than a single satisfaction of his claim, or (iv) create liability other than as provided in this title.
(9) Payment of the buyer's liability under subsection (1) discharges pro tanto the seller's debt to the creditor.
(10) Unless otherwise agreed, a buyer has an immediate right of reimbursement from the seller for any amount paid to a creditor in partial or total satisfaction of the buyer's liability under subsection (1).
(11) If the seller is an organization, a person who is in direct or indirect control of the seller, and who knowingly, intentionally, and without legal justification fails, or causes the seller to fail, to distribute the net contract price in accordance with the schedule of distribution is liable to any creditor to whom the seller undertook to make payment under the schedule for damages caused by the failure.
(1997, c. 121.)
Sections: Previous 8.6A-101 8.6A-102 8.6A-103 8.6A-104 8.6A-105 8.6A-106 8.6A-107 8.6A-108 8.6A-109 8.6A-110 NextLast modified: April 3, 2009