What are the remedies of the creditor when the debtor fails to comply with his obligation?

Creditor's remedies in cases of breach

In cases where the obligor breached his/her obligation, s/he shall be liable for damages.[1] If the obligation to give a specific thing is breach by the debtor, the creditor may either compel the debtor to make delivery (specific performance)[2] or rescind.[3] Moreover, if the debtor fails to comply with his obligation to do and give a generic thing, the creditor may: a) to have the obligation performed by himself, or by another unless personal considerations are involved, at the debtor’s expense; b) in case the obligation is done in contravention of the terms of the same or is poorly done, it may be ordered (by the court) that it be undone if it is still possible to undo what was done[4]; and c) to recover damages.

[1] Article 1170, Civil Code.

[2] Par. 1, Art. 1165, Civil Code.

[3] Article 1191, Civil Code.

[4] De Leon. (2014). Obligations and Contracts.

[5] Article 1170, Civil Code.

[6] 8 Manresa 58.

(a) [Judicial orders concerning noncompliance.]

If it is established that a secured party is not proceeding in accordance with this article, a court may order or restrain collection, enforcement, or disposition of collateral on appropriate terms and conditions.

(b) [Damages for noncompliance.]

Subject to subsections (c), (d), and (f), a person is liable for damages in the amount of any loss caused by a failure to comply with this article. Loss caused by a failure to comply may include loss resulting from the debtor's inability to obtain, or increased costs of, alternative financing.

(c) [Persons entitled to recover damages; statutory damages in consumer-goods transaction.]

Except as otherwise provided in Section 9-628:

(1) a person that, at the time of the failure, was a debtor, was an obligor, or held a security interest in or other lien on the collateral may recover damages under subsection (b) for its loss; and

(2) if the collateral is consumer goods, a person that was a debtor or a secondary obligor at the time a secured party failed to comply with this part may recover for that failure in any event an amount not less than the credit service charge plus 10 percent of the principal amount of the obligation or the time-price differential plus 10 percent of the cash price.

(d) [Recovery when deficiency eliminated or reduced.]

A debtor whose deficiency is eliminated under Section 9-626 may recover damages for the loss of any surplus. However, a debtor or secondary obligor whose deficiency is eliminated or reduced under Section 9-626 may not otherwise recover under subsection (b) for noncompliance with the provisions of this part relating to collection, enforcement, disposition, or acceptance.

(e) [Statutory damages: noncompliance with specified provisions.]

In addition to any damages recoverable under subsection (b), the debtor, consumer obligor, or person named as a debtor in a filed record, as applicable, may recover $500 in each case from a person that:

(1) fails to comply with Section 9-208;

(2) fails to comply with Section 9-209;

(3) files a record that the person is not entitled to file under Section 9-509(a);

(4) fails to cause the secured party of record to file or send a termination statement as required by Section 9-513(a) or (c);

(5) fails to comply with Section 9-616(b)(1) and whose failure is part of a pattern, or consistent with a practice, of noncompliance; or

(6) fails to comply with Section 9-616(b)(2).

(f) [Statutory damages: noncompliance with Section 9-210.]

A debtor or consumer obligor may recover damages under subsection (b) and, in addition, $500 in each case from a person that, without reasonable cause, fails to comply with a request under Section 9-210. A recipient of a request under Section 9-210 which never claimed an interest in the collateral or obligations that are the subject of a request under that section has a reasonable excuse for failure to comply with the request within the meaning of this subsection.

(g) [Limitation of security interest: noncompliance with Section 9-210.]

If a secured party fails to comply with a request regarding a list of collateral or a statement of account under Section 9-210, the secured party may claim a security interest only as shown in the list or statement included in the request as against a person that is reasonably misled by the failure.

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