Expert testimony plays a critical role in UCC foreclosure litigation, but only when properly confined to its intended purpose. Courts consistently emphasize that experts help the trier of fact understand evidence and industry practices. They do not interpret the law or provide legal conclusions. PDF Brochure – Expert Witness i…
This distinction is foundational. Determining legal conclusions belongs exclusively to the court or jury, while an expert’s responsibility is to provide factual context based on real-world commercial practice. PDF Brochure – Expert Witness i…
Understanding the Attorney’s Risk: The Commercial Reasonableness Standard
Whether a UCC foreclosure auction is commercially reasonable is often the central issue in disputes involving secured creditor enforcement actions. Article 9 of the Uniform Commercial Code intentionally avoids rigid rules for conducting foreclosure sales. Instead, it relies on a flexible, fact-driven standard evaluated in light of customary practices in the relevant marketplace. PDF Brochure – Expert Witness i…
Because of this flexibility, courts frequently depend on expert testimony to determine whether a particular foreclosure auction complied with accepted commercial norms. PDF Brochure – Expert Witness i…
Experts Explain “What Is Done,” Not “What the Law Is”
In UCC foreclosure auctions, an expert witness may properly testify about:
- How foreclosure auctions are typically conducted within a specific industry
- Common marketing methods used before a sale
- Standard timelines between notice and auction
- Accepted bidding procedures
- Whether private sales, public auctions, or hybrid processes are customary
- How exposure, venue, and buyer access influence pricing
However, experts may not:
- Conclude that a sale was or was not commercially reasonable
- State whether the secured party complied with the UCC
- Determine whether debtor rights were preserved or impaired
- Decide whether statutory duties were fulfilled
These determinations belong solely to the court or jury. PDF Brochure – Expert Witness i…
Why Expert Testimony Is Essential in UCC Foreclosure Auctions
Unlike judicial foreclosures or sheriff’s sales, UCC foreclosure auctions are largely non-judicial and occur across many industries, including:
- Real estate interests
- Heavy equipment and construction assets
- Manufacturing machinery
- Transportation fleets
- Inventory and raw materials
- Intellectual property and intangible assets
- Business going-concern sales
Each market operates under its own norms. A foreclosure sale considered reasonable for one asset class may be unreasonable for another. Judges and juries are not presumed to understand these specialized markets, making expert testimony the primary way commercial custom and practice are introduced into the record. PDF Brochure – Expert Witness i…
Without expert testimony, courts are often left with hindsight-based valuations, emotional fairness arguments, or simplistic price comparisons disconnected from real market conditions. Experts bridge this gap by grounding analysis in how markets actually function. PDF Brochure – Expert Witness i…
Commercial Reasonableness Is Inherently Factual
The UCC deliberately avoids bright-line definitions of commercial reasonableness. Instead, it provides guiding principles that recognize commercial practices evolve and vary by industry. PDF Brochure – Expert Witness i…
Key implications include:
- Commercial reasonableness is not determined solely by price
- A low sale price alone does not prove unreasonableness
- Procedural defects may render a sale unreasonable even if the price appears strong
Expert testimony helps courts evaluate process rather than outcome, which aligns with the intent of Article 9. An expert does not declare a sale commercially reasonable. Instead, the expert explains how similar collateral is typically marketed, exposed, and sold in the relevant industry, and compares those norms to the case at hand. PDF Brochure – Expert Witness i…
Custom and Practice as the Benchmark
Courts commonly assess commercial reasonableness by determining whether the secured party’s actions align with recognized commercial practices among dealers, lenders, auctioneers, and asset disposition professionals. PDF Brochure – Expert Witness i…
Expert witnesses address factual questions such as:
- Was the marketing period consistent with industry norms?
- Were the advertising channels appropriate for the buyer audience?
- Was the auction format typical for this class of assets?
- Did the sale location or platform match customary buyer behavior?
- Were inspection opportunities consistent with market expectations?
These are experience-based factual inquiries, not legal interpretations. PDF Brochure – Expert Witness i…
Leadership
Oren Klein
Oren Klein is a restructuring and insolvency professional specializing in assignments involving bankruptcy trustees, receiverships, special fiscal agents, special masters, and assignments for the benefit of creditors. He has served as a partner at AuctionAdvisors for over a decade and previously held a partner role at Integrated Property Group, LLC.
He currently chairs the Turnaround Management Association’s New Jersey Chapter and has served on the global Chapter Resource and Response Committee. Klein holds a bachelor’s degree from Rutgers University, is a graduate of the World Champion College of Auctioneering, is a licensed auctioneer and real estate broker in five states, and has served as a court-appointed receiver and special master. PDF Brochure – Expert Witness i…
Contact:
973-753-1313 ext. 703
oklein@auctionadvisors.com
Joshua Olshin
Joshua Olshin is a partner at AuctionAdvisors with extensive experience advising corporations, financial institutions, municipalities, and individuals on asset disposition throughout the United States. Prior to joining the auction industry, he practiced as a corporate and transactional attorney for more than eight years, including roles at Skadden Arps and Friedman Kaplan.
He holds degrees from Johns Hopkins University, Northwestern University School of Law, and INSEAD, and is affiliated with several national industry organizations. PDF Brochure – Expert Witness i…
Contact:
(212) 375-1222 ext. 705
jolshin@auctionadvisors.com
