Who Qualifies as a UCC Foreclosure Expert?
UCC foreclosure disputes are fundamentally different from traditional valuation or damages cases. The central question is not whether a different result could have been achieved, but whether the secured party’s process aligned with accepted commercial practices at the time of sale.
As a result, the most effective expert witnesses are those who possess:
- Direct experience conducting UCC foreclosure sales
- Repeated exposure to distressed and liquidation markets
- Practical knowledge of how foreclosure conditions affect buyer behavior
- Familiarity with industry norms governing marketing, exposure, and bidding
This type of expertise is developed through doing, not theorizing.
Why Experienced UCC Auctioneers With Expert Witness Backgrounds Are Best Suited
Determining whether a UCC foreclosure sale was conducted in a commercially reasonable manner frequently requires expert testimony. Because Article 9 of the Uniform Commercial Code intentionally avoids rigid procedural mandates, courts must evaluate foreclosure sales by reference to commercial custom and practice within the relevant marketplace.
This inquiry places heightened importance on the qualifications of the expert. Not all professionals involved in asset valuation or disposition are equipped to serve in this role.
In practice, auctioneers with extensive UCC foreclosure experience, particularly those who have previously served as expert witnesses, are often best suited to assist the court.
Why Auctioneers Are Natural UCC Foreclosure Experts
Professional auctioneers occupy a unique role in the UCC foreclosure ecosystem. They are responsible for translating a secured party’s enforcement rights into an actual market transaction, often under time pressure and in distressed conditions.
Auctioneers routinely:
- Design and conduct public and private UCC foreclosure auctions
- Advise secured creditors on commercially accepted sale methods
- Market collateral to appropriate buyer universes
- Establish bidding procedures consistent with industry norms
- Observe market response in real time
This experience places auctioneers at the center of the very practices courts are asked to evaluate.
The Critical Distinction: Experience Alone Is Not Enough
While many auctioneers have participated in asset sales, not all are qualified to serve as expert witnesses in UCC foreclosure litigation.
Courts distinguish between professionals who have merely conducted auctions and those who can articulate and defend commercial custom and practice under scrutiny.
The most qualified UCC foreclosure experts are auctioneers who possess:
- Substantial experience conducting UCC foreclosure sales across asset classes
- A history of serving as expert witnesses in foreclosure-related disputes
- Familiarity with courtroom standards, including the limits of expert testimony
- Ability to explain industry practices without offering legal conclusions
This combination of transactional and testimonial experience is critical.
Expert Witness Experience Enhances Credibility and Utility
Auctioneers who have previously served as expert witnesses understand that their role is to educate the trier of fact, not advocate for a party.
This experience allows them to:
- Frame opinions in factual, industry-based terms
- Avoid impermissible legal conclusions
- Respond effectively to cross-examination
- Ground testimony in documented commercial practices
- Distinguish between customary practices and outliers
Courts consistently favor experts who demonstrate discipline in staying within these boundaries.
Deep Exposure to Commercial Custom and Practice
Auctioneers with extensive UCC foreclosure experience are uniquely positioned to testify regarding:
- Typical marketing timelines for distressed collateral
- Accepted advertising channels within specific industries
- Common auction formats for different asset types
- Buyer access and inspection practices
- The relationship between urgency, exposure, and pricing
Because these experts have observed these factors across numerous transactions, their testimony reflects patterns, not isolated events.
Addressing Price-Based Challenges With Market Reality
Debtors frequently challenge foreclosure sales based on price alone. Auctioneers with foreclosure and expert experience are particularly effective in addressing these claims because they can explain:
- Why foreclosure pricing differs from retail or going-concern value
- How market depth limits bidder participation for specialized assets
- The impact of time constraints imposed by default
- The difference between theoretical value and realizable value
This testimony helps courts evaluate commercial reasonableness through the lens of process and exposure, as Article 9 intends.
Independence and Objectivity
Auctioneers who regularly serve as UCC foreclosure experts often demonstrate independence by:
- Working with multiple secured creditors and fiduciaries
- Providing opinions both before and after disputes arise
- Testifying in cases involving different asset types and industries
- Relying on experience and documented market behavior rather than advocacy
Courts consistently favor experts who demonstrate discipline in staying within these boundaries.
The Practical Standard Applied by Courts
When determining whether an expert is qualified in a UCC foreclosure case, courts ask a practical question:
Does this witness have extensive, real-world experience conducting UCC foreclosure sales and the ability to explain how those sales are customarily conducted in the relevant market?
Auctioneers with deep foreclosure experience and prior expert witness service are uniquely positioned to answer that question in the affirmative.
Conclusion
UCC foreclosure cases require expert testimony grounded in commercial reality, market practice, and transactional experience.
Auctioneers who have conducted numerous UCC foreclosure sales, and who have experience serving as expert witnesses, bring a level of practical insight and credibility that few other professionals can match.
When properly confined to factual testimony and industry custom, such experts play a vital role in assisting courts in determining whether a UCC foreclosure sale was conducted in a commercially reasonable manner.
Leadership
Oren Klein
Oren Klein is a restructuring and insolvency professional specializing in assignments concerning bankruptcy trustees, federal and state receiverships, special fiscal agents, special masters and assignments for the benefit of creditors.
Mr. Klein has served as a Partner with AuctionAdvisors for the past 12 years. He currently serves as Chairman of the Turnaround Management Association’s New Jersey Chapter.
He is a licensed auctioneer, a real estate broker in five states, and has served as Special Master and Court-Appointed Receiver in several state court actions.
Contact:
Oren Klein, 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 the disposition of assets throughout the United States.
Before entering the auction business, Mr. Olshin practiced corporate and transactional law for more than eight years, including at Skadden Arps Slate Meagher & Flom.
He holds a B.A. from Johns Hopkins University, a J.D. from Northwestern University Law School, and an MBA from INSEAD.
Contact:
Joshua Olshin, (212) 375-1222 ext. 705
jolshin@auctionadvisors.com
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