* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 3 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

BPM INTERNATIONAL, LTD.,

Plaintiff-Appellee,

v. ROBERT A. ALEXANDER, JR., an individual,

Defendant-Appellant. No. 96-5121 (D.C. No. 87-C-833-B) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK, BARRETT, and MURPHY, Circuit Judges

.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 The order appealed from denied both Alexander’s mot ion under

Fed. R. Civ. P. 60(b) for relief from judgment, and his motion to quash collection efforts. Alexander’s notice of appeal specified, h owever, that he appealed only from the denial of his Rule 60(b) motion. We there fore do not consider issues relating to the collection proceedings. In his amended notice of appeal, Alexander named Sand Resources, Inc., as an appellant. It is clear from the record, however , that Sand was not a party in the district court, and has no standing to appeal. We therefore consider the issues presented only as they impact Alexander. -2- Appellant Robert A. Alexander, Jr. appeals from the district court’s denial of his Fed. R. Civ. P. 60(b) motion for relief from judgment. 1 We affirm. In 1988, Alexander consented to the entry of a $2,0 00,000 judgment against him and in favor of appellee BPM International, Ltd . (BPM). In April 1991, Robert Sutton, president of BPM, contacted Cecile A lexander, president of Sand Resources, Inc. (Sand), seeking a loan of $2500. S utton and Cecile Alexander agreed that BPM’s judgment against Robert Alexanderwould be pledged to secure a $2500 loan from Sand. On April 5, 1991, Cecile Alexander sent a fax to Sutton, which indicated that an attached Assignment and Release would be “h eld as collateral for the loan to Patricia B. Sutton for fifteen days.” Appellant ’s App. at 227. The Assignment and Release read as follows: Assignment and Release to Sand Resources, Inc. of J udgment Case #87-C-833-B, BPM International, LTD., vs. Robert A. Alexander, Jr.,-3-

to be held as collateral for loan made to Patricia B. Sutton, April 5, 1991 in the amount of Two Thousand Five Hundred Dollars ($2500.00). Id. at 224. Robert Sutton signed the Assignment and Release on behalf of BPM, and Sand sent the $2500 to Patricia Sutton. No promiss ory note for the $2500 loan was ever signed. Fifteen days passed, and the $250 0 loan was not repaid. Sand did not present the $2500 obligation for payment to Patricia Sutton, and did not notify BPM or Patricia Sutton that it was electing to enforce the $2500 debt by resorting to the judgment. In November 1994, BPM filed an application for an o rder requiring Alexander to appear and disclose assets in connecti on with BPM’s ongoing collection proceedings on the two million dollar ju dgment. Alexander replied by filing a motion for relief from judgment under Rule s 60(b)(5) and (b)(6), contending that since Patricia Sutton did not pay t he $2500 debt, the judgment had been assigned to Sand, was released, and BPM co uld not enforce it. The district court found that Oklahoma’s version of the Uniform Commercial Code (UCC), which applied by analogy, re quired Sand to take steps to transform the collateral assignment into an abso lute assignment of the judgment. As Sand had taken no such steps, BPM sti ll owned the judgment, subject to Sand’s security interest in it, and Alex ander was not relieved from his obligation.-4-

We review a district court’s decision to deny a Rul e 60(b) motion for abuse of discretion. See Stubblefield v. Windsor Capital Group , 74 F.3d 990, 994 (10th Cir. 1996). Where, as here, the district cou rt based its decision not on discretionary factors but on factual findings and c onclusions of law, we review its factual findings for clear error, and its conclusio ns of law de novo. See Lyons v. Jefferson Bank & Trust , 994 F.2d 716, 727 (10th Cir. 1993). The district court found, first, that there was no evidence that Sand had presented the $2500 obligation for payment. Oklaho ma’s version of the UCC requires presentment of an obligation to the payor. See Okla. Stat. tit. 12A, § 3-501. Alexander argues that the UCC’s presentme nt requirement is inapplicable here because the $2500 obligation is n ot represented by a negotiable instrument. The Commentary to Okla. Stat. tit. 12A , § 3-104, however, provides that a court may apply the requirements of UCC Arti cle 3 by analogy even to transactions which do not involve negotiable instru ments. See Okla. Stat. tit. 12A, § 3-104 cmt. 2 (1991). It is proper to do so in this case; the $2500 obligation here could easily have been made negotia ble. We conclude that since Sand did not present the $2500 obligation for payme nt as required, Patricia Sutton’s failure to pay did not make the assignmentof judgment absolute. The district court also recognized that Article 9 o f the UCC, governing disposition of collateral on default, refutes Alexa nder’s assertion that the-5-

assignment has become absolute. Article 9 does notapply to rights represented by judgments, see Okla. Stat. tit. 12A, § 9-104(g), but like Article 3, it may be applied by analogy to the disposition problem here, see American Bank & Trust Co. v. Jardine Ins. Servs. Texas (In re Barton Indu s., Inc.) , 104 F.3d 1241, 1246 (10th Cir. 1997). Article 9 provides that a secured party who propose s to retain collateral in satisfaction of an obligation must provide written notice of this intent to the debtor. See Okla. Stat. tit. 12A, § 9-505(2). The debtor is e ntitled to object, and to insist on a commercially reasonable sale of the collateral. See id. Even if, in spite of the lack of presentment here, Patricia Sutton were deemed to have defaulted on the $2500 obligation, no notice was supplied, and no sale was held. Therefore, the collateral assignment has not yet be come absolute, and BPM still owns the judgment, subject to Sand’s security inter est. Alexander also takes issue with the district court’ s alternate finding that BPM served as a surety for the $2500 loan, and was therefore entitled to separate notice of default. The finding that BPM pledged th e judgment as surety for Patricia Sutton’s obligation is not clearly erroneo us. All of the written documents refer to a loan to Patricia Sutton, not to BPM. Un der Oklahoma law, “[a] surety is one who, at the request of another, and for the purpose of securing to him a benefit, becomes responsible for the performance bythe latter of some act in-6-

favor of a third person, or hypothecates property a s security therefor.” Okla. Stat. tit. 15, § 371. In light of our holdin g in this case, it is unnecessary for us to determine whether BPM, as surety, was ent itled to separate notice of default, since presentation was not made, nor was the collateral properly disposed of, and the assignment of judgment did notbecome absolute. For the foregoing reasons, Alexander’s motion for r elief from judgment was properly denied. The judgment of the United St ates District Court for the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge