Cascade Collections v. Corray

2025 UT App 9
THE UTAH C OURT OF APPEALS
C ASCADE C OLLECTIONS LLC,
Appellee,
v.
A LEX C ORRAY ,
Appellant.
Opinion
No. 20210896-CA
Filed January 24, 2025
Second District Court, Farmington Department
The Honorable David R. Hamilton
No. 199700598
Chad C. Rasmussen, Attorney for Appellee
Ronald Ady, Attorney for Appellant
JUDGE R YAN M. HARRIS authored this Opinion, in which
JUDGES DAVID N. M ORTENSEN and A MY J. O LIVER concurred.
HARRIS, Judge:
¶1 	After Alex Corray defaulted on his van payments, the
creditor repossessed the van and sold it at auction for an amount
less than what Corray owed. Later, Cascade Collections LLC
(Cascade), 	the 	creditor’s 	assignee, 	sued 	Corray 	to 	obtain 	a
deficiency judgment. After a trial, the court entered judgment
against Corray in the amount of $28,062.45, including principal,
interest, costs, a collection fee, and attorney fees.
¶2 	Corray now appeals, and he takes issue with the notice of
sale that the creditor claims to have sent him. Specifically, he
asserts that the creditor never sent the required notice and that,
even if it did, the notice was deficient because it did not include
any future date after which the creditor intended to dispose of the
van. And he asserts that because the creditor’s notice was

Cascade Collections v. Corray
20210896-CA 	2 	2025 UT App 9
materially 	deficient, 	Cascade 	is 	not 	permitted 	to 	obtain 	a
deficiency judgment against him.
¶3 	We affirm the trial court’s finding that the creditor sent the
notice, but we agree with Corray that the notice was statutorily
deficient. We also agree that, because the notice was deficient in
material ways, Cascade may not obtain a deficiency judgment
against Corray. For those reasons, we vacate the court’s judgment
and remand this matter to the trial court for further proceedings.
BACKGROUND
¶4 	On 	January 	12, 	2016, 	Corray 	purchased 	a 	2004 	Ford
Freestar van from an automobile dealer (Dealer). The agreed-
upon price of the van was $8,495, but after taxes and fees the out-
the-door price was $9,612.75. Corray put only $300 down on the
purchase, and he financed the rest of the transaction by borrowing
money from Dealer, who assessed Corray a “finance charge” of
$3,762.13. The sales contract listed the “total sales price” of the van
as $13,374.88.
¶5 	Under the financing arrangement, the van was to serve as
collateral for the loan that Dealer had extended to Corray, and
Corray was obligated to make payments of $143.68 every other
week for about forty-five months. The loan agreement gave
Dealer the right to repossess and sell the van if Corray defaulted
on his obligations, and it allowed Dealer to sue Corray “for any
additional amounts owed if the proceeds from a sale of the [van]
do not pay all of the amounts due.” As part of the transaction,
Dealer assigned its rights under the agreement—with Corray’s
consent—to Paramount Auto Funding LLC (Paramount).
¶6 	Between January 2016 and May 2018, Corray made more
than fifty payments on the loan, thus reducing the principal
balance from $9,612.75 to $3,943.01. On a handful of occasions,
when Corray had been late in making a payment, a representative

Cascade Collections v. Corray
20210896-CA 	3 	2025 UT App 9
of Paramount had called him to discuss the matter, and on those
occasions Corray “always made the payment by phone” during
the call, even though the representative sometimes offered to give
Corray “an additional two weeks” to make the payment.
¶7 	In late May or early June 2018, Corray missed a payment;
he claims that, at the time, he was “incapacitated by . . . a serious
illness” and was “so ill [his] phone was turned off.” On June 9, not
long after the missed payment, Paramount repossessed the van.
Corray was aware that Paramount had repossessed the van,
because he spoke with the repossession agent when the agent
came to take the van and the agent showed Corray “the repo order
on his phone.”
¶8 	After 	the 	repossession, 	Corray 	claims 	that 	he 	never
received any notice from Paramount indicating whether, or when
or how, it intended to sell or otherwise dispose of the van. As
discussed more fully below, Paramount certainly claims to have
sent such a notice. And Corray later testified that, in the days
following the repossession, he “tried to contact” Paramount’s
accounts and finance manager (Manager) on two occasions but
was unable to reach her. At any rate, other than—perhaps—
receiving 	the 	letter Paramount 	claims to 	have 	sent, 	Corray
apparently had no actual communication with Paramount after
the repossession.
¶9 	On August 30, 2018, the van was sold for $400 at a private
dealers-only auction conducted by a reputable and well-known
auto auction company. Of the $400 sale price, $150 was sent to
Paramount and applied to the outstanding principal balance.
Later, Paramount assigned its rights under the loan agreement to
Cascade.
¶10 	In February 2019, Cascade sued Corray for breach of
contract and unjust enrichment, seeking a deficiency judgment for
the unpaid principal amount plus interest, collection fees, costs,
and attorney fees. Corray filed a pro se answer in which he

Cascade Collections v. Corray
20210896-CA 	4 	2025 UT App 9
asserted several affirmative defenses, including the assertion that
Paramount never sent proper notice of the impending sale. But
Corray did not file any counterclaims or seek any affirmative
relief in the form of damages; specifically, his responsive pleading
did not contain any request for statutory damages.
¶11 	Later, 	after 	Corray 	retained 	counsel, 	the 	trial 	court
determined, as a matter of law on summary judgment, that
Corray had breached the loan agreement, but it reserved all
damages 	issues 	for 	trial. 	And 	the 	court 	denied 	Corray’s
competing summary judgment motion in which he had asserted
that Paramount had not sent him a notice of sale that included any
future sale date, concluding that questions of fact remained for
trial on those issues too.
¶12 	The court eventually held a one-day bench trial to consider
the remaining issues. Three witnesses testified, including Corray
and 	Manager. 	Although 	the 	transcript 	from 	her 	direct
examination is not in the record submitted to us, Manager
testified on cross-examination that she had “no independent
recollection” of mailing Corray a notice of intent to sell. She stated,
however, that she was sure such a notice was sent, though she was
not entirely sure of the exact date of mailing—her “contact log”
indicated that the notice was sent on June 14, 2018, but a
“certificate of mailing” with Corray’s name and address on it
indicated that the notice was sent on June 18.
¶13 	The record submitted to us also does not contain an exact
copy of the notice Manager testified she sent to Corray in June
2018. But the record does contain an unaddressed form notice that
Manager testified was—in substance and other than the missing
address—the same one she sent to Corray. That form notice
contains a space for the author to input two dates: the date of
repossession 	and 	the 	“sale 	date.” 	Manager 	testified 	in 	a
deposition that the “sale date” she entered into Corray’s notice
was January 12, 2016, the date that Corray purchased the van from

Cascade Collections v. Corray
20210896-CA 	5 	2025 UT App 9
Dealer. And this testimony was corroborated by one of the
founders of Paramount, who testified at trial that he agreed that
the date listed on the notice as the “sale date” was January 12,
2016, and that the notice sent to Corray did not include any post-
repossession date after which Paramount intended to sell or
otherwise dispose of the van. Given this evidence, all parties to
this appeal agree that the “sale date” listed on any notice sent to
Corray was January 12, 2016—the date Corray purchased the
van—and that the notice did not include any other sale date.
¶14 	In the body of its text, the notice informed Corray that his
van had been repossessed, and it stated that Paramount was
“interested in discussing with [Corray] how [Paramount] might
be able to fix this situation and get [Corray] back into [his] Vehicle
and back on track with [his] payments.” It invited Corray to
contact Paramount to discuss the situation, and it stated that if an
agreement could not be reached, then Paramount would “attempt
to mitigate the damages [Paramount was] suffering . . . by selling
the Vehicle at [a] private sale on or after the sale date listed
above.” Finally, the notice stated that Corray could “get the
Vehicle back at any time before [Paramount sold] it by paying
[Paramount] the full amount” owed.
¶15 	For his part, Corray testified that he never received any
notice from Paramount indicating that it intended to sell or
otherwise dispose of the van, but that if he had received such a
notice he would have “paid off” the van. He stated that he
understood the “payoff amount” to have been about $4,200 and
that he “had the funds to” make such a payment at that time. He
also testified that he was very interested in doing so because he
had made numerous repairs and improvements to the van and
had “spent a considerable amount of time and money and effort
making sure that [the van] was exactly what [he] wanted.”
¶16 	About a month after the trial, the court issued a written
ruling containing its findings of fact and conclusions of law. As

Cascade Collections v. Corray
20210896-CA 	6 	2025 UT App 9
relevant here, the court found that Paramount had indeed sent
Corray a notice of sale letter; in particular, the court found that the
notice had been prepared on June 14 and sent on June 18, as
reflected in the mailing certificate. The court also found that
Paramount had sold the van in a commercially reasonable manner
by using a “well-known auto auctioneer in common usage
amongst lenders and automobile dealers as the most efficient and
effective marketplace.”
¶17 	With 	regard 	to 	the 	content 	of 	the 	notice, 	the 	court
acknowledged that—because Paramount had listed, as the “sale
date,” the past date on which Corray had purchased the van from
Dealer rather than the future date on which Paramount intended
to sell the repossessed van—there had been “an error as to the
date of sale,” but it nevertheless concluded that the notice
“satisfies the statutory requirements.” The court noted that the
statute does not require any “particular phrasing,” and it also
relied on the fact that a “reasonable time” had elapsed after
repossession “before the actual sale . . . took place.”
¶18 	With regard to damages, the court found that the base
damages amount was $3,746.49, but that Cascade was also
entitled to recover “interest at the rate of 19.99%,” “a collection fee
of 35%,” costs, and attorney fees. The court later quantified the
attorney fees award at $20,459, and it entered a total judgment
against Corray in the amount of $28,062.45, plus post-judgment
interest “at a rate of 19.990% per annum.”
ISSUES AND STANDARDS OF REVIEW
¶19 	Corray now appeals, and he asks us to consider three
issues. First, he challenges the trial court’s factual finding that
Paramount actually sent the notice. In this situation, “we review
the court’s findings of fact for clear error, granting due regard to
the opportunity of the trial court to judge the credibility of the
witnesses.” Kelly v. Timber Lakes Prop. Owners Ass’n, 2022 UT App

Cascade Collections v. Corray
20210896-CA 	7 	2025 UT App 9
23, ¶ 23, 507 P.3d 357 (quotation simplified). We will disturb the
court’s finding only if “the evidence is legally insufficient to
support the finding when viewing the evidence in a light most
favorable to the court below.” Kidd v. Kidd, 2014 UT App 26, ¶ 31,
321 P.3d 200 (quotation simplified).
¶20 	Second, Corray claims that, if a notice was sent, that notice
did not meet Utah’s statutory requirements because the date
listed on the notice was the past date on which Corray purchased
the van, not a future date on or after which Paramount would sell
it. And he asserts that, because of the materially deficient notice,
Cascade is barred from obtaining a deficiency judgment against
him. “This issue presents a question of statutory interpretation
and application of that interpretation to undisputed facts, and in
this context we review the trial court’s determination without
deference.” Lerman v. Lerman, 2024 UT App 155, ¶ 12, 560 P.3d 794;
see also In re J.E., 2023 UT App 3, ¶ 14, 524 P.3d 1009 (“This
question is one of statutory interpretation, and on such matters
we afford no deference to trial courts’ decisions.”).
¶21 	Finally, both parties claim attorney fees. “Whether attorney
fees are recoverable in an action is a question of law, which we
review for correctness.” Young H2ORE LLC v. J&M Transmission
LLC, 2024 UT App 10, ¶ 26, 543 P.3d 1264 (quotation simplified).
However, “when a contract dictates that fees should be awarded
to the prevailing party, the question of which party prevailed
depends, to a large measure, on the context of each case, and,
therefore, it is appropriate to leave this determination to the
sound discretion of the trial court.” Id. (quotation simplified).

Cascade Collections v. Corray
20210896-CA 	8 	2025 UT App 9
ANALYSIS
I. Whether the Notice Was Sent
¶22 	Corray first challenges the trial court’s factual finding that
Paramount sent him a notice indicating that it planned to sell the
van. We discern no clear error in the court’s finding.
¶23 	Under Utah’s version of the Uniform Commercial Code, a
“secured party” that repossesses collateral is entitled to “sell,
lease, license, or otherwise dispose of” that collateral. See Utah
Code § 70A-9a-610(1). Before it does so, however, that secured
party “shall send to” the debtor “a reasonable authenticated
notification of disposition.” Id. § 70A-9a-611(2), (3). In this case,
the parties take different positions as to whether any such
notification was sent: Corray claims that he never received any
such 	notification, 	but 	Paramount 	claims—supported 	by
Manager’s 	testimony, 	as 	well 	as 	her 	“contact 	log” 	and 	a
“certificate of mailing”—that it sent such a notice in June 2018,
more than two months before the van was sold at auction.
¶24 	The trial court, after a bench trial, made a factual finding
that a “notice of collateral sale . . . was actually sent” to Corray on
or about June 18, 2018, “as reflected on the certificate of mailing.”
Corray challenges this factual finding as insufficiently supported,
pointing out that Manager had no independent memory of
mailing the notice, and asserting that Manager was “a poor record
keeper” who offered “vacillating, uncertain testimony.” He also
directs our attention to his own testimony, in which he indicated
that he never received such a notice. Corray makes some good
points, and these items could potentially have supported a factual
finding in his favor about whether the notice was ever sent. But
these points are nowhere near enough to meet Corray’s burden of
demonstrating that the trial court committed clear error in making
its finding.

Cascade Collections v. Corray
20210896-CA 	9 	2025 UT App 9
¶25 	“A party challenging a trial court’s factual finding must do
more than merely reargue the evidence supporting his or her
position.” Kidd v. Kidd, 2014 UT App 26, ¶ 34, 321 P.3d 200
(quotation simplified). Instead, that party “must demonstrate that
the evidence is legally insufficient to support the finding when
viewing the evidence in a light most favorable to” the trial court,
and to show legal insufficiency the party must convince us that
“the finding is in conflict with the clear weight of the evidence.”
Id. 	(quotation 	simplified). 	“The 	pill 	that 	is 	hard 	for 	many
appellants to swallow is that if there is evidence supporting a
finding, 	absent 	a 	legal 	problem—a 	‘fatal 	flaw’—with 	that
evidence, the finding will stand, even though there is ample
record evidence that would have supported contrary findings.”
Kimball v. Kimball, 2009 UT App 233, ¶ 20 n.5, 217 P.3d 733. In this
case, there is plenty of evidence supporting the trial court’s
finding that Paramount did indeed mail Corray a notice of sale.
¶26 	For starters, there is Manager’s testimony. To be sure,
Corray assails this testimony as unreliable, but the trial court was
entitled 	to 	credit 	it, 	and 	we 	note 	that—although 	Manager
vacillated about when she sent the notice—Manager did not ever
vacillate about whether she sent it. Moreover, her testimony was
quite credibly corroborated by documentary evidence, including
most notably the certificate of mailing containing Corray’s name
and address. On this record, sufficient evidence exists to support
the trial court’s finding.
¶27 	Corray resists this conclusion by insisting that Paramount
was required to demonstrate “an established mailing custom”
indicating that the notice was sent. In support of his argument, he
cites McCoy v. Blue Cross & Blue Shield of Utah, 1999 UT App 199,
980 P.2d 694, aff’d, 2001 UT 31, 20 P.3d 901. But Corray’s reliance
on this case is misplaced. In that case, the issue was whether a
large insurance company had mailed to its insured—McCoy—a
copy of a notice of a change in policy terms. Id. ¶ 15. The company
had apparently “mailed over 30,000 letters” to its insureds

Cascade Collections v. Corray
20210896-CA 	10 	2025 UT App 9
regarding the policy change, but because so many letters were
involved, no witness had any direct memory of mailing one to
McCoy. Id. ¶¶ 15–18. Nor was there any direct documentary
evidence so indicating. Id. Given the state of the record, the
company argued that its “established custom” gave rise to “an
inference” that McCoy had been sent a letter. Id. ¶¶ 19–20. On the
facts of that case, our supreme court rejected the argument that
the company had established a mailing “custom.” Id. ¶ 20. But the
court in that case was considering evidence of mailing custom
only because there was no direct evidence of mailing. That case
does not stand for the proposition that a company must establish
a mailing “custom” in order to prove that a letter was sent.
¶28 	Here, as already noted, there exists ample direct evidence
that Paramount mailed Corray a notice of sale. We therefore reject
Corray’s challenge to the court’s factual finding and thus take as
a fact—for purposes of the rest of our analysis—that Paramount
did send Corray a notice of sale on or about June 18, 2018.
II. The Contents of the Notice
¶29 	Corray’s next challenge concerns the contents of the notice.
He asserts that even if Paramount sent the notice, its contents do
not meet statutory requirements. And he maintains that the
consequence 	of 	Paramount’s 	failure 	to 	send 	a 	materially
compliant 	notice 	is 	that 	Cascade—Paramount’s 	assignee—is
prohibited from obtaining a deficiency judgment against him. We
agree with Corray on both counts.
A. 	Whether the Notice Was Statutorily Deficient
¶30 	Utah’s commercial code contains certain requirements that
govern the content of notices of disposition of collateral, and those
requirements 	vary 	depending 	on 	whether 	the 	collateral 	in
question constitutes “consumer goods.” See Utah Code §§ 70A-9a-
613, -614. “Consumer goods” are “goods that are used or bought
for use primarily for personal, family, or household purposes.” Id.

Cascade Collections v. Corray
20210896-CA 	11 	2025 UT App 9
§ 70A-9a-102(23). In this case, the parties agree that Corray’s van
falls within the definition of “consumer goods.” Therefore, the
requirements governing disposition of consumer-goods collateral
apply here.
¶31 	Those requirements are stricter than the requirements
governing disposition of other types of collateral. For non-
consumer-goods transactions, “the contents of a notification of
disposition” are deemed to be “sufficient if the notification”
includes—in some form—five things:
• 	a description of “the debtor and the secured
party”;
• 	a description of the collateral;
• 	a statement describing the “method of intended
disposition” of the collateral;
• 	a statement “that the debtor is entitled to an
accounting of the unpaid indebtedness” and
that 	contains 	“the 	charge, 	if 	any, 	for 	an
accounting”; and
• 	a statement setting forth “the time and place of
a public disposition or the time after which any
other disposition is to be made.”
Id. § 70A-9a-613(1), (3), (4) (emphasis added). While the inclusion
of these five items in a notice of disposition concerning a non-
consumer-goods transaction will ensure its compliance with
statutory 	requirements, 	it 	is 	theoretically 	possible—in 	non-
consumer-goods transactions—for a notice that fails to include
one or more of these items to nevertheless be deemed compliant.
See id. § 70A-9a-613(2) (“Whether the contents of a notification that
lacks any of the information specified in Subsection (1) are
nevertheless sufficient is a question of fact.”).

Cascade Collections v. Corray
20210896-CA 	12 	2025 UT App 9
¶32 	The situation is different in consumer-goods transactions.
Notices of disposition of collateral in those transactions “must
provide” all five of the items suggested for non-consumer-goods
transactions, including—most notably for present purposes—a
statement setting forth “the time after which” the creditor intends
to dispose of the collateral at a non-public sale. See id. §§ 70A-9a-
613(1)(e), -614(1)(a) (emphasis added).1 In addition, such notices
must also include information designed to facilitate exercise of the
consumer-goods debtor’s right of redemption, a right specifically
recognized in the commercial code that allows a debtor to regain
the 	repossessed 	property 	upon 	“tender” 	of 	“all 	obligations
secured 	by 	the 	collateral” 	plus 	“reasonable 	expenses 	and
attorney’s fees.” Id. § 70A-9a-623(1), (2). A debtor may exercise the
right of redemption “at any time before a secured party . . . has
disposed of collateral.” Id. § 70A-9a-623(3)(b). To help facilitate
exercise of this right, all notices of disposition in consumer-goods
transactions “must” include “a telephone number from which the
amount that must be paid to the secured party to redeem the
collateral . . . is available.” Id. § 70A-9a-614(1)(c). And for much
the same reason—here, to let consumer-goods debtors know how
much time they have to exercise the right of redemption—such
notices “must” include notice of “the time after which” the
collateral will be sold or otherwise disposed of. Id. §§ 70A-9a-
613(1)(e), -614(1)(a).
¶33 	In this case, Corray contends that the notice Paramount
sent him was statutorily deficient because it did not include any
1. The full language of the relevant statutory provision requires a
creditor to “state the time and place of a public disposition or the
time after which any other disposition is to be made.” Utah Code
§ 70A-9a-613(1)(e). Here, however, the parties appear to agree that
the van was sold at a private auto auction and not at a “public
disposition.” Thus, the statutory language that applies here
required Paramount to notify Corray of “the time after which any
other disposition” of the van was to occur. See id.

Cascade Collections v. Corray
20210896-CA 	13 	2025 UT App 9
statement of “the time after which any other disposition [was] to
be made” of the van. See id. Corray points out that the only date
included in the notice was January 12, 2016, the date on which
Corray purchased the van from Dealer. And he asserts that this
date—which 	elapsed 	some 	two-and-a-half 	years 	prior 	to
repossession—cannot qualify as a date or time “after which”
Paramount intended to dispose of the van. In particular, he
characterizes Paramount’s inclusion of the January 2016 date as
“egregiously misleading” and contends that, “even if [he] had
received that letter, he would not have known the time limits
within which he could redeem [the van] before sale.”
¶34 	In 	response, 	Cascade 	first 	asserts 	that 	it—at 	least
technically—complied with the statute’s requirements because
January 12, 2016 is a date “after which” it could—and did—
dispose of the van. Indeed, it points out that the date the van was
sold at auction (August 2018) came “after” the date it listed on the
notice (January 2016). We reject this argument, and we hold that
the inclusion of a pre-repossession date in the notice cannot satisfy
the statutory requirement to include a “time after which” the
creditor intends to dispose of repossessed collateral.
¶35 	“When we interpret statutes, our primary goal is to give
effect to the legislature’s intent in light of the purpose the statute
was meant to achieve.” State v. Byrum, 2002 UT 111, ¶ 7, 61 P.3d
1051 (quotation simplified). And in this situation, our supreme
court—construing similar language in the current commercial
code’s predecessor statute—has told us that “[t]he purpose of the
notice requirement is for the protection of the debtor,” because that
requirement allows the debtor “to bid at the sale, or arrange for
interested parties to bid, and to otherwise assure that the sale is
conducted in a commercially reasonable manner.” See FMA Fin.
Corp. v. Pro-Printers, 590 P.2d 803, 807 (Utah 1979) (emphasis
added). In this same vein, other courts have recognized that even
where, as here, the disposition is to occur at a non-public sale at
which the debtor cannot bid, the notice requirement still serves to

Cascade Collections v. Corray
20210896-CA 	14 	2025 UT App 9
protect the debtor, because “it gives the debtor the opportunity to
exercise 	his 	redemption 	rights.” 	See 	Boender 	v. 	Chicago 	N.
Clubhouse Ass’n, Inc., 608 N.E.2d 207, 213 (Ill. App. Ct. 1992)
(quotation simplified); accord Wilmington Trust Co. v. Conner, 415
A.2d 773, 776 (Del. 1980); Honor State Bank v. Timber Wolf Constr.
Co., 391 N.W.2d 442, 445 (Mich. Ct. App. 1986); see also Atlas Thrift
Co. v. Horan, 104 Cal. Rptr. 315, 320 (Ct. App. 1972) (stating that
the statutory notice requirement “is essential because without
notice the debtor has been denied his right of redemption given
him by” the same statutory scheme); Hartford-Carlisle Sav. Bank v.
Shivers, 566 N.W.2d 877, 882 (Iowa 1997) (listing “to insure . . . [an]
opportunity to redeem” as one of the “important purposes” of the
statutory notice requirement); Ford Motor Credit Co. v. Welch, 2004
VT 94, ¶ 17, 861 A.2d 1126 (stating that the debtor “was entitled
to timely notice of the date and time of sale, so that he would have
known when his redemption rights would expire”).
¶36 	These purposes can be readily gleaned from the Utah
statute’s text. When we interpret statutes, our starting point is, of
course, the language the legislature chose. See Dahl v. Dahl, 2015
UT 79, ¶ 159, 459 P.3d 276 (“Our starting point is . . . the plain
language of the statute.”); see also Marion Energy, Inc. v. KFJ Ranch
P’ship, 2011 UT 50, ¶ 14, 267 P.3d 863 (“The best evidence of the
legislature’s intent is the plain language of the statute itself.”
(quotation simplified)). “But we do not interpret statutory text in
isolation.” McKitrick v. Gibson, 2021 UT 48, ¶ 19, 496 P.3d 147.
“Instead, we determine the meaning of the text given the relevant
context of the statute (including, particularly, the structure and
language of the statutory scheme).” Id. (quotation simplified); see
also Summit Operating, LLC v. Utah State Tax Comm’n, 2012 UT 91,
¶ 11, 293 P.3d 369 (“Our statutory interpretation requires that
each part or section be construed in connection with every other
part or section so as to produce a harmonious whole.” (quotation
simplified)).

Cascade Collections v. Corray
20210896-CA 	15 	2025 UT App 9
¶37 	In 	this 	case, 	the 	words 	“time 	after 	which” 	must 	be
interpreted in light of and in harmony with the surrounding and
interconnected subsections. See Utah Code § 70A-9a-613(1)(e). In
particular, one of the other items required to be placed in a notice
of disposition of collateral in a consumer-goods transaction is
information about “the amount that must be paid to the secured
party to redeem the collateral.” Id. § 70A-9a-614(1)(c). And as
already noted, a debtor’s right of redemption is an important part
of the statutory scheme, and it is the subject of its own commercial
code section located just a few sections after the notice provisions.
See id. § 70A-9a-623. In context, the whole point of requiring
creditors to give a date “after which” collateral will be sold at a
private sale—one at which debtors cannot appear and bid—is to
let the debtors know how much time remains before possible
disposition so that they can effectively take steps to exercise their
right of redemption or otherwise protect their interests.
¶38 	For these reasons, our best reading of the relevant statutory
provision—the 	language 	requiring 	creditors 	to 	give 	debtors
notice of the date “after which” a private disposition of collateral
will occur—is that it contemplates that the debtor will be given
notice of some future date, after the repossession, after which the
creditor intends to sell or otherwise dispose of the collateral. After
all, it is chronologically impossible for a creditor to sell or
otherwise 	dispose 	of 	collateral 	before 	repossession. 	This
interpretation is consistent with the statutory text because it
harmonizes all of the relevant sections, including the sections
discussing and emphasizing a debtor’s right of redemption. This
interpretation is also consistent with the sample notice form
included in the statute, which uses the future tense (“will sell”)
and clearly speaks of a sale date that will occur at some point in
the future. See id. § 70A-9a-614(3) (describing a “sufficient” notice
form, including language stating that the creditor “will sell
[describe collateral] at private sale sometime after [date]”). And
this interpretation even comports with Paramount’s own form
letter, which used the future tense (“will”) several times in

Cascade Collections v. Corray
20210896-CA 	16 	2025 UT App 9
reference to its upcoming plans to dispose of Corray’s van. In
short, a creditor cannot satisfy the requirement mandating notice
of a “time after which” repossessed collateral will be sold by
giving a date that predates the repossession itself. From this
conclusion, it follows that Paramount’s notice—which gave only
the January 2016 purchase date—was insufficient.
¶39 	The trial court offered two other reasons—neither of which
we consider persuasive—for concluding that Paramount’s notice
“satisfies the statutory requirements.” The court acknowledged
that the notice contained “an error as to the date of sale,” a
presumed reference to Paramount’s inclusion of the January 2016
date as the “sale date.” But it nonetheless saw no problem with
the notice, for two reasons. First, the court noted that the statute
provides that “[a] particular phrasing of the notification is not
required.” Id. § 70A-9a-614(2). But while this provision may allow
for some variation and creativity in the manner in which the
statutorily required items are phrased, it does not allow any of the
required items to be left out altogether. As discussed already, the
problem here isn’t one of “phrasing.” The variability-in-phrasing
provision might, for instance, allow a creditor to say something
like “we will dispose of the property in four weeks’ time,” instead
of giving a date, by month and year, after which disposition might
occur. But it can’t excuse a failure to offer any future date after
which disposition will occur. And as we have already determined,
offering a date that predates repossession by some two-and-a-half
years is not sufficient. A statutory provision allowing variability
in phrasing cannot rescue Paramount here.
¶40 	Second, 	the 	court 	noted 	that, 	despite 	the 	“error,”
Paramount didn’t sell the van until August 30, more than two
months after it sent the notice. The court then observed that no
harm had befallen Corray “because reasonable time was provided
before the actual sale that took place.” But questions of prejudice
and materiality, we think, should be reserved for the next section,
when we consider what the consequences ought to be for any

Cascade Collections v. Corray
20210896-CA 	17 	2025 UT App 9
statutory violation; such inquiries do not directly inform the
question of whether the statutory requirements were violated in
the first place. Indeed, the comments included with the relevant
statute state, in no uncertain terms, that “[a] notification that lacks
any of the information set forth in paragraph (1)” of section 614
“is insufficient as a matter of law.” See id. § 70A-9a-614, U.C.C.
cmt. 	2. 	And 	this result 	makes sense, 	given 	the 	mandatory
language of the statute’s command: any notice “must” include the
“time after which” the creditor intends to dispose of the collateral.
Id. § 70A-9a-614(1); see also Utah County v. Butler, 2008 UT 12, ¶ 28
n.44, 179 P.3d 775 (noting that the word “‘must’ . . . render[s] a
mandatory 	meaning 	clear” 	(quotation 	simplified)); 	Glenn 	v.
Ferrell, 304 P.2d 380, 382 (Utah 1956) (“The word ‘must’ is
mandatory unless some compelling reason indicating a contrary
intent appears.”). A notice that does not include this required
information is, as a matter of law, statutorily deficient.
¶41 	Thus, we conclude that Paramount’s notice failed to meet
the mandatory requirements of Utah’s statute, which requires that
Paramount tell Corray “the time after which” it intended to sell or
otherwise dispose of the van. Utah Code §§ 70A-9a-613(1)(e),
-614(1)(a).2
2. Cascade also asserts that any deficiencies in the notice it sent
Corray 	are 	irrelevant 	because 	the 	trial 	court 	found 	that 	it
ultimately sold the van in a “commercially reasonable” manner
by using a reputable auto auctioneer. Indeed, Cascade goes so far
as to assert that commercial reasonability in the ultimate sale is a
“safe harbor” that can serve to cure any defects in the notice. In
this context, Cascade’s argument is without merit. “Commercial
reasonableness and notice are distinct requirements,” and “even
if the debtor concedes that a commercially reasonable sale was
held, a creditor must prove it gave notice to the debtor in its own
right.” Boulevard Bank v. Malott, 397 S.W.3d 458, 467 (Mo. Ct. App.
(continued…)

Cascade Collections v. Corray
20210896-CA 	18 	2025 UT App 9
B. 	Consequences of the Statutory Violation
¶42 	Next, having determined that Paramount’s notice violated
Utah 	statutory 	requirements, 	we 	must 	consider 	what 	the
consequences are for that violation. As discussed below, the
answer is not readily found in the relevant statutes, nor is it
immediately apparent from Utah caselaw. Corray asserts that
Paramount’s substandard notice operates as an absolute bar to
recovery of any deficiency judgment against him. Paramount, for
its part, advocates for a no-harm-no-foul approach, and it asks us
to consider whether Corray was actually harmed by the problems
with 	the 	notice 	and 	to 	limit 	the 	consequences 	accordingly.
Ultimately, 	we 	agree 	with 	Corray 	that 	the 	problems 	with
Paramount’s notice—which we determine were material—bar
Cascade from obtaining a deficiency judgment.
1. 	Legal Background
¶43 	We begin our analysis by setting forth some necessary legal
background. In 1998, the Uniform Commercial Code (UCC)
underwent a “substantial revision” that was eventually “adopted
in 	all 	states.” 	Uniform 	Commercial 	Code, 	Unif. 	L. 	Comm’n,
2013) (quotation simplified); see also Ruden v. Citizens Bank & Trust
Co. of Md., 638 A.2d 1225, 1234 (Md. Ct. App. 1994) (“[T]he mere
fact that the sale is commercially reasonable in other regards does
not adequately atone for the failure to give notice.”). This is
especially true where the sale occurred at a private auction at
which the debtor was not allowed to appear and bid; in such
situations, the chief purpose of the notice requirement is to
facilitate the exercise of the debtor’s right of redemption. A
creditor cannot paper over its failure to provide proper notice
simply by pointing to a sale that was conducted in by-the-book
fashion. Thus, we reject Cascade’s claim that, at least in this
context, any notice deficiencies were cured by a later sale that the
trial court deemed commercially reasonable.

Cascade Collections v. Corray
20210896-CA 	19 	2025 UT App 9
https://www.uniformlaws.org/acts/ucc 	[https://perma.cc/5CD4-
JUMF]. Utah adopted the revised UCC in 2000. See Uniform Com.
Code – Art. 9 – Secured Transactions, ch. 252, 2000 Utah Laws
866–943.
¶44 	Prior to the revision, the Utah statutory section discussing
notice stated as follows:
Unless collateral is perishable or threatens to decline
speedily in value or is of a type customarily sold on
a recognized market, reasonable notification of the
time and place of any public sale or reasonable
notification of the time after which any private sale
or other intended disposition is to be made shall be
sent by the secured party to the debtor.
Cottam v. Heppner, 777 P.2d 468, 471 (Utah 1989) (quoting Utah
Code § 70A-9-504(3) (1980)). Thus, similar to the current statute,
the pre-revision statute—using mandatory language (“shall”)—
required creditors to give debtors notification of “the time after
which” 	any 	non-public disposition 	was to 	be 	made 	of 	the
repossessed collateral.
¶45 	The pre-revision statutory scheme gave little guidance as
to what the consequences ought to be for a creditor who failed to
“comply 	fully 	with” 	statutory 	requirements 	governing 	the
“dispos[al] of collateral,” and therefore the issue had been left to
courts to assess. See id. at 474 n.4. In 1989, our supreme court
canvassed the relevant caselaw, and it noted “three divergent
lines of thought” that had at times been employed by courts, both
inside and outside Utah, in determining the consequences to be
imposed on a non-compliant creditor. Id.
¶46 	The 	first 	approach 	is 	known 	as 	the 	“absolute 	bar”
approach. Id. Under this approach, “any failure of a creditor to
conform with either the notice or the commercial reasonableness
requirements . . . absolutely bars the creditor from obtaining a

Cascade Collections v. Corray
20210896-CA 	20 	2025 UT App 9
deficiency judgment.” Id. Courts adopting this approach have
noted 	the 	mandatory 	nature 	of 	notice 	and 	commercial
reasonability requirements, and they have emphasized the fact
that the statutory scheme places the secured party “in such a high
degree of control of the relationship” between creditor and
debtor, and that it places only “a small burden” on the creditor to
achieve statutory compliance. See Wilmington Trust Co. v. Conner,
415 A.2d 773, 780 (Del. 1980). And they emphasize that this
approach “has the advantage of certainty in a situation in which
the lender enjoys a position of domination and control and the
consumer-debtor is in a subordinate position in need of the
protection the ‘absolute bar’ rule affords.” Id. at 781.
¶47 	Under 	the 	second 	approach, 	known 	as 	the 	“setoff”
approach, a secured creditor may obtain a deficiency judgment
despite noncompliance with statutory requirements, “subject
only to a reduction or set-off for damages suffered by the debtor”
as a result of the creditor’s noncompliance. See Ruden v. Citizens
Bank & Trust Co. of Md., 638 A.2d 1225, 1230 (Md. Ct. App. 1994);
see also Cottam, 777 P.2d at 474 n.4 (stating that, under the “setoff
approach, a creditor’s failure to comply with the notice or
commercial reasonableness requirements . . . does not result in
any impairment of its ability to obtain a deficiency judgment;
however, 	that 	judgment 	may 	be 	reduced 	by 	any 	offsetting
damages the counterclaiming debtor is able to prove resulted
from 	the 	creditor’s 	failure 	to 	comply 	with 	the 	section's
requirements”). 	This 	remedy—both 	under 	the 	pre-revision
statute and under the current one—is provided for by statute. See
Utah Code § 70A-9a-625(2) (stating that “a person is liable for
damage in the amount of any loss caused by a failure to comply
with this chapter”); see also FMA Fin. Corp. v. Pro-Printers, 590 P.2d
803, 807 (Utah 1979) (stating that, under the pre-revision UCC, a
debtor had “a right to recover from the secured party any loss
caused by a failure to comply with the provisions of this part”
(quoting Utah Code § 70A-9-507(1)). But our supreme court has

Cascade Collections v. Corray
20210896-CA 	21 	2025 UT App 9
held that the statutory setoff remedy is not intended to be “the
debtor’s exclusive remedy.” FMA Fin. Corp., 590 P.2d at 807.
¶48 	Courts and commentators have noted downsides to these
first 	two 	approaches. 	The 	absolute 	bar 	approach 	“would
absolutely bar a creditor from any deficiency judgment, no matter
how relatively minor the impact of the noncompliance and no
matter how unduly harsh the total bar to a deficiency might be.”
See Ruden, 638 A.2d at 1230. Some courts have therefore seen the
absolute bar rule as excessively punitive toward creditors and
“repugnant to the spirit of the UCC.” Id. at 1232 (quotation
simplified). On the other hand, under the setoff approach, “the
creditor [will] not automatically suffer any sanction at all for his
noncompliance.” Id. at 1230. And the setoff rule places the burden
of 	demonstrating 	damage—including, 	in 	many 	cases,
“establish[ing] the fair market value of the collateral” and then
“proving that the fair market value was higher than what the
collateral actually sold for at the repossession sale”—entirely on
the shoulders of the debtor, who is often ill-positioned to make
any such showing. Id. at 1230–31 (quotation simplified).
¶49 	Largely 	in 	light 	of 	these 	criticisms, 	a 	third 	“middle
position” emerged in the 1970s and 1980s, one that “softened the
harsh bipolarity of the earlier choice” between the two established
approaches. Id. at 1231. Under that approach—known as the
“rebuttable 	presumption” 	approach—a 	creditor’s 	statutory
noncompliance “raises a rebuttable presumption that the value of
the collateral is equal to the outstanding debt.” See Cottam, 777
P.2d at 474 n.4; see also Ruden, 638 A.2d at 1231 (describing the
“presumption that the actual value of the collateral at the time of
the wrongful sale is equal to the balance due to the secured party”
(quotation simplified)). The burden of rebutting this presumption
falls to the secured party, and not to the debtor, an innovation that
is thought to provide a “deterrent to an improper sale on the part
of the creditor,” and thought to adequately “protect[] the debtor’s
interest, without arbitrarily penalizing the creditor.” Ruden, 638

Cascade Collections v. Corray
20210896-CA 	22 	2025 UT App 9
A.2d at 1232. Under this approach, if the creditor can prove what
the “actual market value” of the collateral is, and can show that
the indebtedness exceeds that value, then the creditor is “entitled
to a deficiency [judgment] measured by the amount by which the
indebtedness exceeds the proven market value.” See Cottam, 777
P.2d at 474 n.4.
¶50 	In 	1989, 	our 	supreme 	court 	examined 	relevant 	Utah
caselaw and observed that it had “never surveyed the available
options and made a reasoned choice from among the [three]
alternatives.” Id. Indeed, it noted that “at various times [it]
appear[ed] to have taken each of the three approaches.” Id.
Accordingly, as of 1989 and under the previous statutory regime,
our 	supreme 	court 	concluded 	that 	any 	question 	about
consequences 	for 	noncompliance 	with 	these 	statutory
requirements was “a question that remains open in Utah.” Id.
¶51 	Some thirteen years later, however, one federal appellate
court applying Utah law analyzed applicable Utah caselaw, and
it discerned a distinction between, on the one hand, our supreme
court’s treatment of statutory violations of the notice requirements
and, 	on 	the 	other 	hand, 	the 	court’s 	treatment 	of 	statutory
violations 	of 	other 	more 	general 	commercial 	reasonability
requirements. See In re Kelaidis, 276 B.R. 266, 275–76 (B.A.P. 10th
Cir. 2002). After examining relevant cases, the Kelaidis court
concluded that the Utah Supreme Court had always applied the
absolute bar approach and “barred a deficiency [judgment] when
the 	creditor’s 	disposition 	of 	collateral 	was 	commercially
unreasonable.” Id. at 275. The court therefore expressed its doubts
that—as described in the Cottam footnote—there was any open
question at all in commercial-unreasonability cases. See id. (“[W]e
are not certain that the dicta in Cottam meant that the Utah
Supreme Court had left open the possibility that a creditor could
obtain 	a 	deficiency 	judgment 	after 	making 	a 	commercially
unreasonable disposition.”). And the court determined to put
more stock in the Utah Supreme Court’s actual holdings—barring

Cascade Collections v. Corray
20210896-CA 	23 	2025 UT App 9
a deficiency judgment in all commercial-unreasonability cases—
than in the court’s “dicta in a footnote.” Id. at 276. Thus, as the
Kelaidis court saw it, Utah applies an absolute bar in commercial-
unreasonability cases, even if the question remained open as to
which approach Utah would take in defective-notice cases. Id.
¶52 	We have independently examined the cases cited and
referred to in Kelaidis, and in our view the Kelaidis court correctly
read and categorized Utah Supreme Court pre-revision caselaw.
Despite 	the 	emerging 	discussion 	about 	the 	“rebuttable
presumption” approach, the pre-revision Utah Supreme Court
did indeed bar recovery of a deficiency judgment whenever the
disposition 	of 	the 	collateral 	was 	deemed 	commercially
unreasonable. See Haggis Mgmt., Inc. v. Turtle Mgmt., Inc., 745 P.2d
442, 444 (Utah 1985); Pioneer Dodge Center, Inc. v. Glaubensklee, 649
P.2d 28, 31 (Utah 1982); FMA Fin. Corp., 590 P.2d at 808.
¶53 	But based on our review of Kelaidis and the cases cited
therein, we take the Cottam footnote at its word that the answer in
defective-notice cases is less clear-cut. On occasion, the Utah
Supreme 	Court 	applied 	an 	absolute 	bar 	in 	cases 	involving
defective notice. See Haggis Mgmt., 745 P.2d at 444; FMA Fin. Corp.,
590 P.2d at 808. But in those cases, the court intertwined the notice
issues with the commercial reasonability issues, and it is frankly
difficult to tell whether the absolute bar was applied due to notice
problems, 	commercial 	reasonability 	problems, 	or 	some
combination of the two. In other cases, by contrast, the court
allowed a deficiency judgment despite at least some defect in the
notice. See, e.g., Scharf v. BMG Corp., 700 P.2d 1068, 1072 (Utah
1985); Utah Bank & Trust v. Quinn, 622 P.2d 793, 796–97 (Utah
1980). But these cases did not involve consumer goods. Thus, our
review of the caselaw—as concerns defective-notice cases—leaves
us in the same place as Cottam and Kelaidis: pre-revision Utah
caselaw has not definitively answered the question regarding the
consequences that should be imposed upon a creditor who
provides statutorily deficient collateral-disposition notice to a

Cascade Collections v. Corray
20210896-CA 	24 	2025 UT App 9
consumer-goods debtor. See Cottam, 777 P.2d at 474 n.4 (stating
that the relevant question “remains open in Utah”); see also
Kelaidis, 276 B.R. at 276 (stating that the Cottam court “might have
meant only that it had left open the question of the consequence
of notice errors” as opposed to commercial reasonability errors).
¶54 	Against this pre-revision legal backdrop, our legislature in
2000 adopted the revised version of the UCC. That new version
contains a provision promisingly entitled “Remedies for secured
party’s failure to comply with chapter.” See Utah Code § 70A-9a-
625. 	But 	despite 	the 	title, 	that 	provision 	gives 	little 	actual
guidance, 	stating 	only 	that 	“a 	court 	may order or restrain
collection, enforcement, or disposition of collateral on appropriate
terms and conditions.” Id. § 70A-9a-625(1). The next section
expressly adopts the “rebuttable presumption” approach, but
only in non-consumer-goods cases. See id. § 70A-9a-626(1). With
regard to consumer-goods cases, the statute has this to say:
The limitation of the rules in Subsection (1) to
transactions other than consumer transactions is
intended to leave to the court the determination of
the proper rules in consumer transactions. The court
may not infer from that limitation the nature of the
proper 	rule 	in 	consumer 	transactions 	and 	may
continue to apply established approaches.
Id. § 70A-9a-626(2) (emphasis added). This structure apparently
reflected a “compromise reached in the drafting process”—
during 	which 	“consumer 	advocates 	[had] 	argued 	that 	the
absolute bar rule should be adopted in consumer transactions”—
that served to “limit the statutory application of the rebuttable
presumption rule to non-consumer transactions.” See Marion W.
Benfield Jr., Consumer Provisions in Revised Article 9, 74 Chi.-Kent
L. Rev. 1255, 1266 (1999). The statute left courts “free to apply any
of the three existing [approaches], or perhaps a judicially created

Cascade Collections v. Corray
20210896-CA 	25 	2025 UT App 9
variation, to failures of a creditor to comply with the [statutory]
foreclosure rules in a consumer transaction.” Id. at 1267.
¶55 	As 	noted, 	Utah 	appears 	to 	have 	had 	a 	pre-revision
“established approach[]” with regard to cases in which the
creditor was found to have disposed of the repossessed property
in a commercially unreasonable manner: it applied an absolute
bar to recovery of any deficiency judgment. See Kelaidis, 276 B.R.
at 276; see also Haggis Mgmt., 745 P.2d at 444; Pioneer Dodge, 649
P.2d at 31; FMA Fin. Corp., 590 P.2d at 808. But Utah does not
appear to have had any pre-revision “established approach[]”
with regard to cases in which the creditor’s only statutory failure
related to the notice it provided the debtor. See Cottam, 777 P.2d at
474 n.4; see also Kelaidis, 276 B.R. at 275–76. And we are aware of
no post-revision Utah appellate court case discussing the issue.
2. 	Our Choice of Approach: Absolute Bar, Tempered by a
Materiality Requirement
¶56 	Thus, we are called upon, in this case, to engage with this
open question, and to decide which approach to apply in this
situation, in which Paramount provided Corray with a statutorily
deficient notice of its intent to dispose of repossessed consumer-
goods 	collateral 	but 	in 	which 	Paramount 	apparently 	later
disposed of that collateral in a commercially reasonable manner.
Based upon the text of the current statute—which authorizes us
to apply “established approaches” from pre-revision caselaw—
and our understanding of pre-revision Utah cases, as well as our
assessment of the policies served by the various approaches in
deficient-notice cases, we conclude that the absolute bar approach
should be applied in such cases, at least where (as here) the
deficiency in the notice is material.
¶57 	We first reject the setoff approach. As noted, the current
statute allows a debtor to recover from a creditor—usually in the
form of a setoff against any deficiency judgment—any “loss
caused by [the creditor’s] failure to comply” with statutory notice

Cascade Collections v. Corray
20210896-CA 	26 	2025 UT App 9
requirements. See Utah Code § 70A-9a-625(2). Courts applying the
setoff approach must necessarily conclude that this statutory
remedy 	is 	intended 	to 	be 	a 	debtor’s 	exclusive 	remedy. 	See
Wilmington Trust Co. v. Conner, 415 A.2d 773, 778–79 (Del. 1980)
(analyzing whether the statutory remedy should “be construed as
the exclusive remedy” and therefore whether to follow the setoff
approach); accord Atlas Thrift Co. v. Horan, 104 Cal. Rptr. 315, 318,
321 (Ct. App. 1972); see also Hartford-Carlisle Sav. Bank v. Shivers,
566 N.W.2d 877, 880 (Iowa 1997) (stating that, in deciding whether
to follow the setoff approach, “[t]he question is whether [the
statutory remedy] is the exclusive remedy”). But our supreme
court has already answered this question, and it has concluded
that the statutory damages remedy is not “the debtor’s exclusive
remedy.” FMA Fin. Corp. v. Pro-Printers, 590 P.2d 803, 807 (Utah
1979). Thus, the setoff approach is not appropriate.
¶58 	We 	must 	therefore 	decide 	between 	the 	absolute 	bar
approach and the rebuttable presumption approach. And we
acknowledge that, in recent decades, the rebuttable presumption
approach has apparently gradually become the majority position
nationwide. See Cottam, 777 P.2d at 474 n.4 (describing the
rebuttable presumption approach as “the emerging majority”); see
also Marion W. Benfield Jr., Consumer Provisions in Revised Article
9, 74 Chi.-Kent L. Rev. 1255, 1265–66 (1999) (stating that “[m]ost
courts have applied a ‘rebuttable presumption’ rule”). But the
statutory language invites us to apply “established approaches,”
see Utah Code § 70A-9a-626(2), and we are in any event bound by
vertical stare decisis to follow the rules and approaches applied
by our supreme court, see Ortega v. Ridgewood Estates, 2016 UT
App 131, ¶ 30, 379 P.3d 18 (stating that the court of appeals is
“bound by vertical stare decisis to ‘follow strictly’ the decisions
rendered by the Utah Supreme Court”). And as noted, our
supreme court has uniformly applied the absolute bar approach
in commercial-unreasonability cases. See Kelaidis, 276 B.R. at 276;
see also Haggis Mgmt., 745 P.2d at 444; Pioneer Dodge, 649 P.2d at
31; FMA Fin. Corp., 590 P.2d at 808. The question presented here

Cascade Collections v. Corray
20210896-CA 	27 	2025 UT App 9
is, therefore, whether that same approach should be followed in
deficient-notice 	cases, 	or 	whether 	a 	rebuttable 	presumption
approach should be applied in deficient-notice cases even if not in
commercial-unreasonability cases.
¶59 	As far as we are aware, most states apply the same
approach to both types of cases. See, e.g., Ruden v. Citizens Bank
& Trust Co. of Md., 638 A.2d 1225, 1229 (Md. Ct. App. 1994) (noting
that most courts that follow the absolute bar approach “do so
regardless of whether the noncompliance was the failure to give
notice or the failure to conduct the sale in a commercially
reasonable manner”). Thus, if we were to simply apply the same
approach in deficient-notice cases that our supreme court has
uniformly 	applied 	in 	commercial-unreasonability 	cases, 	we
would apply the absolute bar approach.
¶60 	A 	few 	states 	make 	a 	distinction—in 	terms 	of 	which
approach 	they 	apply—between 	deficient-notice 	cases 	and
commercial-unreasonability cases. See Ruden, 638 A.2d at 1233–38;
Holt v. Peoples Bank of Mt. Wash., 814 S.W.2d 568, 570–71 (Ky. 1991).
But these states deem notice violations to be more egregious—or,
at 	least, 	less 	easily 	compensable 	with 	damages—than
commercial-reasonability violations, and therefore these states
apply the absolute bar approach to notice violations, even while
applying the rebuttable presumption approach to commercial-
reasonability violations. See Ruden, 638 A.2d at 1233–38; Holt, 814
S.W.2d at 570–71. It is worth pausing to examine these courts’
stated reasons for making such a distinction.
¶61 	First 	and 	foremost, 	these 	courts 	emphasize 	that 	a
deficiency in the notice provided to the debtor will often result in
“preclusion of the debtor’s right of redemption.” See Ruden, 638
A.2d at 1234; see id. at 1235 (stating that “the debtor without notice
of the same can be effectively prevented from exercising his right
to redemption” (quotation simplified)). Second, and relatedly,
these courts also note that a debtor has other options, aside from

Cascade Collections v. Corray
20210896-CA 	28 	2025 UT App 9
redemption, that might be rendered illusory if the debtor receives
inadequate notice. See Holt, 814 S.W.2d at 571 (“The greatest
protection available to debtors from unscrupulous conduct by
secured parties who have repossessed collateral is notice of
disposition of the collateral.”). In this vein, the Ruden court stated:
Furthermore even if the debtor is not in a position to
redeem, if he has notice, he may still be able to
refinance 	and 	must 	therefore 	be 	capable 	of
arranging 	for 	potential 	creditors 	to 	inspect 	the
collateral. Alternatively, a debtor with notice may
be able to procure interested buyers to drive up the
level of competitive bidding. At the very least,
notice provides the opportunity to attend the sale to
insure that it is commercially reasonable. To permit
recovery of a deficiency judgment absent notice
would effectively nullify these important debtor’s
rights and permit a continuation of the evil which
the Commercial Code sought to correct.
638 A.2d at 1235 (quotation simplified); see also Holt, 814 S.W.2d at
571 (“A secured party who fails to give the notice required . . .
denies the debtor an opportunity to assert defenses, contest the
amount claimed or pay the indebtedness prior to the sale of the
collateral.”).
¶62 	Moreover, these courts—along with others applying the
absolute bar approach more generally—have emphasized that,
while a debtor is often subject to demonstrable prejudice when
given inadequate notice, the statutory notice requirements placed
upon the creditor are relatively easy to comply with. See Ruden,
638 A.2d at 1235 (contrasting the “heavy prejudice to a debtor
denied notice against the ease with which the creditor may satisfy
the notice requirement”); see also, e.g., Conner, 415 A.2d at 780
(stating that “[t]he burdens placed on the creditor” with regard to

Cascade Collections v. Corray
20210896-CA 	29 	2025 UT App 9
giving proper notice “are minimal, while the results of his
noncompliance may be very onerous to the debtor”).
¶63 	For these reasons, the few states that make a distinction
between 	notice 	violations 	and 	commercial-reasonability
violations have weighed notice violations more heavily. See
Ruden, 638 A.2d at 1234 (noting a “growing awareness of the
qualitative difference between 1) the failure to give the debtor any
notice of the sale and 2) other instances of operating in a
commercially unreasonable fashion”). In the view of these courts,
“[n]otice to the debtor that the collateral is about to be disposed
of is so fundamental that no remedy less severe than forfeiture of
the deficiency amount would be adequate.” Holt, 814 S.W.2d at
570; accord Ruden, 638 A.2d at 1234. If the ultimate sale is
commercially unreasonable, a court can readily determine what a
reasonable sale would have looked like and remedy the situation
with damages or some sort of setoff. See Ruden, 638 A.2d at 1236
(stating that “a debtor may still, of course, be damaged” by a
commercially unreasonable sale, but noting that such damage
“may 	be 	quantified 	in 	monetary 	terms”). 	In 	that 	situation,
“[e]quity does not logically require . . . that the debtor be relieved
of total responsibility for any deficiency.” Id. But where the
violation 	in 	question 	is 	a 	material 	deficiency 	in 	the 	notice
provided to the debtor, these courts have determined that the
appropriate remedy is an absolute bar on the creditor’s ability to
obtain a deficiency judgment. Id.; Holt, 814 S.W.2d at 571.
¶64 	We generally agree with the reasoning of these courts: that
if a distinction is to be drawn between deficient-notice cases and
commercial-unreasonability 	cases, 	that 	distinction 	should 	be
drawn in favor of applying the absolute bar approach in notice
cases and 	in 	favor 	of 	applying 	the 	rebuttable 	presumption
approach in commercial-unreasonability cases, and not the other
way around. Thus, regardless of whether we simply apply the
absolute bar approach because that’s the approach the Utah
Supreme 	Court 	has 	historically 	taken 	in 	commercial-

Cascade Collections v. Corray
20210896-CA 	30 	2025 UT App 9
unreasonability 	cases, 	or 	whether 	we 	attempt 	to 	draw 	a
distinction between the two types of cases, we end up in the same
place: any material deficiency in the notice provided by a creditor
to a debtor regarding disposition of collateral will preclude the
creditor from obtaining a deficiency judgment against the debtor.
¶65 	But we caution that the notice deficiency must be material
in order for the absolute bar to apply. Some other states that have
historically 	applied 	the 	absolute 	bar 	rule 	have 	created 	an
exception for “a de minimus violation of” the statutory notice
requirements. See, e.g., Hartford-Carlisle Sav. Bank v. Shivers, 566
N.W.2d 877, 883 (Iowa 1997). Such a safety valve serves to
dampen one of the main criticisms of the absolute bar approach,
namely, that it “absolutely bar[s] a creditor from any deficiency
judgment, no matter how relatively minor the impact of the
noncompliance” on the debtor. See Ruden, 638 A.2d at 1230. And
the Utah Supreme Court has effectively employed this sort of
safety valve in the past, once concluding that a notice proclaiming
that the collateral would be sold at 11:00 a.m. was adequate, even
though the sale actually ended up taking place one hour earlier,
at 10:00 a.m. See Pioneer Dodge Center, Inc. v. Glaubensklee, 649 P.2d
28, 29 (Utah 1982). Especially in light of the harshness of the
absolute bar remedy, we hold that it should not be applied in
cases where the deficiency in the notice is minor and thus has no
demonstrable effect on a debtor’s ability to protect its rights.
¶66 	Here, however, the deficiency in the notice Paramount sent
to Corray was material as a matter of law. As described already,
the 	notice 	contained 	no 	future 	post-repossession 	sale 	or
disposition date after which Paramount intended to dispose of the
collateral; instead, as the listed “sale date” the notice recited
January 12, 2016, a date two-and-a-half years in the past and on
which Corray had originally purchased the van from Dealer. The
governing statute requires the creditor to provide the debtor with
the future date and time of disposition. See Utah Code §§ 70A-9a-
613(1)(e), -614(1) (stating that the notice “must” include “the time

Cascade Collections v. Corray
20210896-CA 	31 	2025 UT App 9
after which” a private sale will occur). A notice that does not
include this information “is insufficient as a matter of law.” See id.
§ 70A-9a-614, U.C.C. cmt. 2. And such a notice materially impairs
a debtor’s ability to exercise his or her right of redemption,
regardless of whether the ultimate sale is public or private, as well
as 	the 	debtor’s 	ability 	to 	investigate 	and 	possibly 	procure
refinancing. We have no trouble concluding that entirely omitting
the date of any future post-repossession disposition is a statutory
violation that cannot be described as de minimis, and is a violation
that is material as a matter of law.
¶67 	Accordingly, 	for 	all 	of 	these 	reasons, 	Cascade—as
Paramount’s successor-in-interest—is barred from obtaining a
deficiency judgment against Corray, due to Paramount’s material
violation 	of 	the 	statutory 	requirements 	governing 	notice 	of
disposition of collateral.3
III. Attorney Fees
¶68 	Finally, both Cascade and Corray request an award of
attorney fees incurred on appeal. The operative contract—the one
Corray signed with Dealer—provides that “Buyer” shall be
3. Corray also asserts that the trial court erred by not awarding
him what he refers to as “statutory damages,” that is, damages to
compensate him for any “loss caused by [Paramount’s] failure to
comply with” the statutory notice requirements. But at oral
argument before this court, Corray acknowledged that any claim
for “statutory damages” was intended to be in the nature of offset
and not in the nature of an affirmative claim for relief; indeed, no
such 	affirmative 	claim 	was 	pleaded 	in 	Corray’s 	answer 	to
Cascade’s complaint. Because we conclude that Cascade is not
entitled to recover any judgment against Corray, there is nothing
against which Corray could offset any “statutory damages,” and
therefore Corray’s offset claim is moot. We therefore do not
discuss it further.

Cascade Collections v. Corray
20210896-CA 	32 	2025 UT App 9
“liable for all costs, attorney fees, and collection fees . . . incurred
by Lender in enforcing” the contract. And as Corray correctly
points out, Utah’s reciprocal attorney fees statute transforms the
contract’s originally one-sided attorney fees provision into one
that would allow Corray to recover fees if he “prevails.” See Utah
Code § 78B-5-826.
¶69 	The 	question 	of 	which 	party 	has “prevailed” 	in 	this
litigation overall is one that we review deferentially and one that,
therefore, should be decided by the trial court in the first instance.
See Young H2ORE LLC v. J&M Transmission LLC, 2024 UT App 10,
¶ 26, 543 P.3d 1264 (“When a contract dictates that fees should be
awarded to the prevailing party, the question of which party
prevailed depends, to a large measure, on the context of each case,
and, therefore, it is appropriate to leave this determination to the
sound discretion of the trial court.” (quotation simplified)). To be
sure, Corray prevailed on the main issue presented in this appeal,
but he did not prevail on all issues. And we do not possess the
same understanding as the trial court does of the entire “context”
of the trial court proceedings. See id. (quotation simplified).
Accordingly, we remand this matter to the trial court so that it can
determine, in the first instance, which party qualifies as the
prevailing party in this litigation overall, and so that the court can
award reasonable attorney fees to that party.
CONCLUSION
¶70 	Corray has not demonstrated clear error in the trial court’s
finding that Paramount sent Corray a notice of disposition of
collateral. However, that notice was materially deficient under
current statutory requirements, because it did not contain any
post-repossession 	date 	after 	which 	Paramount 	intended 	to
dispose of the collateral. And we conclude that, as a consequence
of the material deficiency of Paramount’s notice, Cascade—
Paramount’s successor-in-interest—may not obtain a deficiency
judgment against Corray. On that basis, we vacate the trial court’s

Cascade Collections v. Corray
20210896-CA 	33 	2025 UT App 9
judgment, and we remand this case for further proceedings
consistent with this opinion, including proceedings regarding the
parties’ dueling claims for attorney fees.