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Indiana Code Section 26-1-9.1-613 provides:
(1) The contents of a notification of disposition are sufficient if the notification:
(A) describes the debtor and the secured party;
(B) describes the collateral that is the subject of the intended disposition;
(C) states the method of intended disposition;
(D) states that the debtor is entitled to an accounting of the unpaid indebtedness and states the charge, if any, for an accounting; and
(E) states the time and place of a public disposition or the time after which any other disposition is to be made.
(2) Whether the contents of a notification that lacks any of the information specified in subdivision (1) are nevertheless sufficient is a question of fact.
(3) The contents of a notification providing substantially the information specified in subdivision (1) are sufficient, even if the notification includes:
(A) information not specified by that subdivision; or
(B) minor errors that are not seriously misleading.
(4) A particular phrasing of the notification is not required. . . .
McCawith Energy, Inc. ("McCawith") was a mining corporation that operated a mine in Parke County, Indiana. George McGuire, Gerald Carr, Donald Wile, and Moore were principals of McCawith, though Moore had a minority interest. On June 14, 2000, McCawith refinanced a 1998 Liebherr R984B excavator ("the Excavator") through CIT for $ 557,918.28. In return for the refinancing, Moore and the other principals executed and delivered to CIT a security agreement and a personal guaranty for the indebtedness. The security agreement provides, in relevant part: “Upon Debtor's default and at any time thereafter, Secured Party [CIT] shall have all the rights and remedies of a secured party under the Uniform Commercial Code and any other applicable laws, including the right to any deficiency remaining after disposition of the Collateral for which Debtor hereby agrees to remain fully liable.” Moore and the principals also executed a single personal guaranty ("the Guaranty") on the indebtedness. The Guaranty provides, in relevant part: "Each of us waives…the failure to notify any of us of the disposition of any property securing the obligations of [McCawith and] the commercial reasonableness of such disposition or the impairment, however caused, of the value of such property…" McCawith defaulted on the loan from CIT in 2003, and CIT took possession of the Excavator. McCawith then filed for bankruptcy, as did all of the principals of McCawith except Moore. CIT sent two notices of disposition to Moore and McCawith, notifying them that CIT planned to sell the Excavator, and that CIT will pursue a deficiency action for any deficiency after the sale. CIT was unable to sell the Excavator through the auction website. As a result, CIT again offered the equipment for sale privately. In January 2006, Bramer & Son of Louisville, Kentucky ("Bramer") offered to purchase the Excavator for $ 48,000. CIT counter-offered, and Bramer agreed to buy the Excavator for $ 54,000. After deducting $ 3434 for locating and making minimal repairs to the Excavator, CIT applied $50,566 to McCawith's indebtedness, leaving a balance of $ 251,696.39. In June 2006, CIT filed a deficiency action against Moore. On August 2, 2007, Wells Fargo was substituted as the plaintiff and real party in interest. A bench trial was held on March 31, 2008, and on July 3, the court entered its findings of fact and conclusions thereon in favor of Wells Fargo.
Did CIT provide proper notice of the sale of the Excavator?
Here, the lower court found that CIT issued the Second Notice to McCawith and Moore. That notice informed Moore that CIT intended to sell the Excavator through a public internet auction website on October 19, 2005. The court also found that CIT gave Moore notice of CIT's intention to resell the Excavator in mitigation of the McCawith debt and that CIT would hold Moore liable for any deficiency. Moore does not contest these findings. Nevertheless, he argues that he "did not receive proper notice about the location for the sale of the [E]xcavator[.]" Specifically, Moore contends that CIT did not inform him of the physical location for the proposed sale of the Excavator through the internet auction website. But, aside from stating simply that a physical location is required when the sale is to be conducted through an internet auction, Moore does not support his argument with cogent reasoning and, therefore, he has waived it. Nevertheless, again, the relevant statute provides that the notice shall state the "time and place of a public disposition." The Second Notice informed Moore that CIT intended to sell the Excavator in a public auction over the internet. The notice listed the date and web address for the auction and the physical address of the auction company. An internet auction has no physical location and is not a situs in the traditional sense. But the web address of the auction and the physical address of the auction company adequately apprised Moore where the auction would be held, allowing him to monitor or even participate in the auction. Thus, the Second Notice, containing the web address of the auction and the physical address of the auction company, satisfies the location requirement in Indiana Code Section 26-1-9.1-613(1)(E). As such, Moore's argument that the Second Notice was inadequate must fail.