Waiver and variance of rights and duties.
Except as otherwise provided in section 9-624, to the extent that they give rights to a debtor or obligor and impose duties on a secured party, the debtor or obligor may not waive or vary the rules stated in the following listed sections:
(1) section 9-207(b)(4)(C), which deals with use and operation of the collateral by the secured party;
(2) section 9-210, which deals with requests for an accounting and requests concerning a list of collateral and statement of account.
(3) section 9-607(c), which deals with collection and enforcement of collateral;
(4) sections 9-608(a) and 9-615(c) to the extent that they deal with application or payment of noncash proceeds of collection, enforcement, or disposition;
(5) sections 9-608(a) and 9-615(d) to the extent that they require accounting for or payment of surplus proceeds of collateral;
(6) section 9-609 to the extent that it imposes upon a secured party that takes possession of collateral without judicial process the duty to do so without breach of the peace;
(7) sections 9-610(b), 9-611, 9-613, and 9-614, which deal with disposition of collateral;
(8) section 9-615(f), which deals with calculation of a deficiency or surplus when a disposition is made to the secured party, a person related to the secured party, or a secondary obligor;
(9) section 9-616, which deals with explanation of the calculation of a surplus or deficiency;
(10) sections 9-620, 9-621, and 9-622, which deal with acceptance of collateral in satisfaction of obligation;
(11) section 9-623, which deals with redemption of collateral;
(12) section 9-624, which deals with permissible waivers; and
(13) sections 9-625 and 9-626, which deal with the secured party's liability for failure to comply with this article.
Source:Laws 1999, LB 550, § 177.
1. Source. Former section 9-501(3).
2. Waiver: In General. Section 1-102(3) addresses which provisions of the UCC are mandatory and which may be varied by agreement. With exceptions relating to good faith, diligence, reasonableness, and care, immediate parties, as between themselves, may vary its provisions by agreement. However, in the context of rights and duties after default, our legal system traditionally has looked with suspicion on agreements that limit the debtor's rights and free the secured party of its duties. As stated in former section 9-501, comment 4, "no mortgage clause has ever been allowed to clog the equity of redemption". The context of default offers great opportunity for overreaching. The suspicious attitudes of the courts have been grounded in common sense. This section, like former section 9-501(3), codifies this long-standing and deeply rooted attitude. The specified rights of the debtor and duties of the secured party may not be waived or varied except as stated. Provisions that are not specified in this section are subject to the general rules in section 1-102(3).
3. Nonwaivable Rights and Duties. This section revises former section 9-501(3) by restricting the ability to waive or modify additional specified rights and duties: (i) Duties under section 9-207(b)(4)(C), which deals with the use and operation of consumer goods; (ii) the right to a response to a request for an accounting, concerning a list of collateral, or concerning a statement of account (section 9-210); (iii) the duty to collect collateral in a commercially reasonable manner (section 9-607); (iv) the implicit duty to refrain from a breach of the peace in taking possession of collateral under section 9-609; (v) the duty to apply noncash proceeds of collection or disposition in a commercially reasonable manner (sections 9-608 and 9-615); (vi) the right to a special method of calculating a surplus or deficiency in certain dispositions to a secured party, a person related to secured party, or a secondary obligor (section 9-615); (vii) the duty to give an explanation of the calculation of a surplus or deficiency (section 9-616); (viii) the right to limitations on the effectiveness of certain waivers (section 9-624); and (ix) the right to hold a secured party liable for failure to comply with this article (sections 9-625 and 9-626). For clarity and consistency, this article uses the term "waive or vary" instead of "renounc(e) or modify( )" which appeared in former section 9-504(3).
This section provides generally that the specified rights and duties "may not be waived or varied". However, it does not restrict the ability of parties to agree to settle, compromise, or renounce claims for past conduct that may have constituted a violation or breach of those rights and duties, even if the settlement involves an express "waiver".
Section 9-610(c) limits the circumstances under which a secured party may purchase at its own private disposition. Transactions of this kind are equivalent to "strict foreclosures" and are governed by sections 9-620, 9-621, and 9-622. The provisions of these sections can be waived only to the extent provided in section 9-624(b). See section 9-602.
4. Waiver by Debtors and Obligors. The restrictions on waiver contained in this section apply to obligors as well as debtors. This resolves a question under former article 9 as to whether secondary obligors, assuming that they were "debtors" for purposes of former part 5, were permitted to waive, under the law of suretyship, rights and duties under that part.
5. Certain Post-Default Waivers. Section 9-624 permits post-default waivers in limited circumstances. These waivers must be made in agreements that are authenticated. Under section 1-201, an "'agreement' means the bargain of the parties in fact". In considering waivers under section 9-624 and analogous agreements in other contexts, courts should carefully scrutinize putative agreements that appear in records that also address many additional or unrelated matters.