Moore v. Wells Fargo Construction

McCawith Energy, Inc. (McCawith) was a mining corporation. One of the principals of McCawith was Richard Moore (defendant). The CIT Group/Equipment Financing, Inc. (CIT), which later became Wells Fargo Construction (Wells Fargo) (plaintiff), entered into an agreement with McCawith to refinance an excavator, which was secured by the excavator itself. The principals of McCawith, including Moore, personally guaranteed the note and individually signed the security agreement. The personal guarantee included a waiver of any notification requirements for the disposition of the collateral and the requirement that any disposition be conducted in a commercially reasonable manner. McCawith defaulted on the note in 2003, and CIT repossessed the collateral. McCawith and all principals except for Moore filed for bankruptcy. CIT first sent notice of an attempted private sale of the collateral to McCawith and Moore in December 2003. In October 2005, CIT sent a second notice to McCawith and Moore, notifying them of a public sale of the collateral. The notice identified the excavator, the date and time of the auction, and listed a website where the auction would occur. The notice also listed the physical address of the company that operated the website. The excavator did not sell through the auction and was later sold at a private sale. The excavator was sold for less than the amount owed to CIT, and CIT sued Moore to collect on the deficiency. Wells Fargo was substituted for CIT, and it obtained a judgment from the trial court. Moore appealed to the Court of Appeals of Indiana.