Legal Question in Business Law in California

I purchased a business with a promissory note that was secured with Collateral of the business and assets. When we defaulted the owner declined to take back the business and rather sold the assets, and has now sued us in small claims court. Can they sue beyond the collateral?


Asked on 2/26/11, 6:01 am

2 Answers from Attorneys

Unless the promissory note provides otherwise, the security does not limit damages.

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Answered on 2/26/11, 10:16 am
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

The sellers can sue -- and get a judgment -- for whatever sum gives them the "benefit of the bargain," which is the usual measure of damages for breach of contract. In this case, this would probably be the payoff amount due on the note, principal plus interest. Of course, you are entitled to credit for whatever they got from repossessing the collateral and disposing of it in some "commercially reasonable manner." What's reasonable is quite situation-specific, unless there is also a security agreement or some other contract document with a clause discussing valuation and disposal of the collateral. Even in small claims, the sellers can sue for up to $7,500 of heretofore unrecovered damages on either nonpayment of the note or breach of the contract of sale.

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Answered on 2/26/11, 5:14 pm


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