(specially concurring).
I specially concur to address whether the claimed accord was supported by consideration in the form of a promise by the debtor to relinquish contract and UCC (Article 9) rights to any surplus value in the security. On the issue addressed by the majority, distinguishing the surrender of possession (e.g., Clark) from surrender of title as in the accord claimed here, I find the distinction illusory without addressing whether, in either event, there was a promise to relinquish rights to any surplus value or to forego claim to other rights under the contract or Article 9.
I recognize that the majority addresses the issue of surplus value in its discussion of Biava’s affidavit. However, the majority analysis also contains the suggestion that transfer of “ownership” in itself necessarily entails waiver of all legal and equitable rights in the collateral. I am not convinced that, unless so contemplated by the parties, transfer of title alone operates to do anything more than transfer of possession, i.e., to facilitate exercise of the creditor’s preexisting right to obtain payment of the debt from the collateral upon default by the debtor. Cf NMSA 1978, § 55-9-202 (Repl.Pamp.1987) (provisions of Article 9 with regard to rights, obligations, and remedies apply whether title is in the secured party or the debtor).
In Clark, when the debtor relinquished possession of the equipment, there was held to be no new consideration to support an accord absent evidence that the debtor agreed to relinquish contract and Article 9 rights to any surplus after resale. Although Biava claims such a relinquishment, the crux of the bank’s argument on appeal is that Biava's response to the motion for summary judgment failed to set forth facts showing that the value of the collateral was greater than or equal to the indebtedness. That is, the bank argues Biava has not shown that relinquishment of rights to any surplus had a peppercorn of value. It does not appear, however, that the bank raised this issue below, and it is not incumbent on the respondent to show facts in support of any material element of his case not relied upon by movant as warranting summary disposition. See Fidelity National Bank v. Tommy L. Goff, Inc., 92 N.M. 106, 583 P.2d 470 (1978) (moving party carries the burden to show no genuine issue of material fact as to affirmative defenses in the pleadings of party responding to motion for summary judgment).
To shift to Biava the burden to demonstrate the existence of surplus value, it was incumbent upon the bank to make a prima facie showing that there existed no genuine issue of material fact as to whether the promise of relinquishment was contemplated by the parties to constitute consideration of value at the time the accord was struck. Proof of value in that which is agreed to be forfeit is not necessary to establish a promise to forbear as consideration for an accord. In general, all that is required is a promise to forbear, made by one party and accepted by the other. Gonzales v. Gauna, 28 N.M. 55, 206 P. 511 (1922). See also Mel Dar Corp. v. Commissioner of Internal Revenue, 309 F.2d 525 (9th Cir.1962) (forbearance based on belief in existence of value is consideration even though value ultimately might not be upheld). Only if the parties contemplated the promise to be valueless would it fail to constitute consideration upon acceptance.