775 F.Supp.2d 474 (2011)
Richard STATLER, D.C., individually and on behalf of all others similarly situated, Plaintiff,
v.
DELL, INC., a Delaware corporation, Defendant.
No. CV 10-3798.
United States District Court, E.D. New York.
March 30, 2011.
*478 Hagens Berman Sobol Shapiro LLP, By: David S. Nalven, Esq., Cambridge, MA, Hagens Berman Sobol Shapiro LLP, By: Steve W. Berman, Esq., Seattle, WA, Levetown & Jenkins, LLP, By: Michael P. Lewis, Esq., Washington, D.C., for Plaintiff.
Alston & Bird, LLP By Nelson A. Boxer, Esq., New York, NY, Alston & Bird, LLP, By: Jane Fugate Thorpe, Esq., Atlanta, GA, for Defendant.
WEXLER, District Judge.
This is an action commenced by Plaintiff Richard Statler ("Plaintiff"), against Dell, Inc. ("Dell") alleging several causes of action arising out of the alleged malfunction of five Dell computers purchased by Plaintiff in 2003. Plaintiffs amended complaint sets forth four causes of action, and seeks to represent a class of others similarly situated. Presently before the court is Defendant's motion, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the amended complaint.

BACKGROUND

I. Factual Background

The facts set forth below are drawn from the allegations of the amended complaint, as well as affidavits and documents properly before the court.

A. Plaintiff's Purchase and Experience with Dell Optiplex Computers

In late 2003, Plaintiff purchased five Dell Optiplex computers directly from Dell. The computers were purchased for use in Plaintiffs chiropractic business. Four of the five computers were placed in patient treatment areas, and one was used to handle server functions. Accompanying the computers was a five year limited warranty (the "Warranty").[1] The Warranty covers "defects in materials and workmanship," in "Dell-branded hardware products, including Dell-branded peripheral products." It further states that Dell's responsibility for covered defects "is limited to repair and replacement," and that Dell accepts no liability beyond the remedies provided for in the Warranty. With respect to the time period of the Warranty, it provides that "[t]he warranty period is not extended if we repair or replace a warranted product or parts."
The amended complaint details Plaintiffs personal experience with the computers. Without stating a particular date, Plaintiff states that "sometime" after purchase, each of the computers he purchased began to manifest "serious operational errors." The facts set forth in the amended complaint make clear that Plaintiff attributes the problems to faulty capacitors, a component part manufactured by an outside vendor. It is clear that the capacitors were present in the computers at the time of manufacture and delivery to Plaintiff.
Plaintiff states that he reported his problems to Dell customer service. Dell is alleged to have known, and covered up the fact that the problems experienced by Plaintiff were common to its Optiplex computers, and were traceable to defective capacitors. Although Dell repair technicians were sent to Plaintiffs office, the problems persisted. Dell is alleged to have replaced faulty motherboards with others that were also "populated with defective capacitors." Ultimately, the Optiplex computers are alleged to have either failed completely, or work only sporadically. Although the amended complaint makes reference to safety hazards alleged to be associated with defective leaking capacitors, Plaintiff nowhere alleges that he *479 or any of his patients or staff suffered any injury in connection with such alleged hazards.

B. Computer Defects and Plaintiff's Knowledge Thereof

Plaintiffs complaint details the capacitor defects that are alleged to have been known by Dell since sometime during 2005, but were, according to Plaintiff, covered up by the company. Plaintiff alleges that he discovered the defects only upon reading a June 2010 article published in the New York Times (the "Times Article"). The court makes no finding with respect to the veracity of the information set forth in the Times Article. However, because Plaintiff relies heavily on that article to support both the facts alleged in his complaint, and the argument that his claims are timely, it is appropriate to consider the contents thereof, and its date of publication, in connection with this motion to dismiss.
The Times Article discusses facts alleged to have been revealed in recently unsealed documents that were produced in connection with a 2007 lawsuit filed against Dell in the United States District Court for the District of North Carolina (the "2007 Lawsuit"). The 2007 Lawsuit was brought by Advanced Internet Technologies, Inc., a company that purchased over 2,000 Optiplex computers from Dell. While the complaint in the 2007 Lawsuit does not specifically reference capacitor problems, it alleges widespread failure associated with the computers, including problems with the "motherboard, power supply and CPU fan failures." The 2007 Lawsuit also alleges that Dell knew, before 2005, of failures with its Optiplex line of computers. While Dell is stated to have initially honored its warranty obligations, it is alleged that they were later breached. The 2007 Lawsuit set forth causes of action for breach of warranty as well as state law claims of fraud, deceptive business practices, and breach of contract.
Documents produced in the 2007 Lawsuit are stated to have been unsealed shortly before publication of the Times Article. These documents are neither before the court nor considered for the truth thereof, but considered only for the purpose of determining the statute of limitations issue that is central to this motion. The documents bear out and amplify the allegations of the complaint in the 2007 Lawsuit. Specifically, the unsealed documents reveal the failure of millions of computers sold by Dell between 2003 and 2005. The Times Article attributes those problems to "an industrywide encounter with bad capacitors produced by Asian PC computer suppliers." The Times Article refers to internal Dell documents indicating that Dell shipped at least 11.8 million computers from May of 2003 through July of 2005 that contained the faulty components. Dell is stated to have known of capacitor and related motherboard problems, but to have concealed those defects.
In addition to facts set forth in the Times Article, Plaintiffs complaint refers to a Fall 2002 article noting that "an unnamed Dell source" confirmed Dell's "awareness that bad capacitors ... had made their way into manufacturer supply chains." The amended complaint also makes reference to what is described as "an obscure" internet blog article dated August 30, 2005. That article is entitled "Dell Won't Recall Defective Motherboards," and makes reference to the Dell computers at issue here. It refers specifically to defective motherboards and defective capacitors.
In addition to the information referred to above, and, in further support of its motion, Dell has submitted the company's Form 10-Q for the quarterly period ended October 2, 2005 (the "2005 Form 10-Q"). *480 The 2005 Form 10-Q is a publicly available report required to be filed with the Securities and Exchange Commission. It notes that during the referenced quarterly period, Dell recognized "a product charge of $307 million for estimated warranty costs of servicing or replacing certain Optiplex systems that include a vendor part that failed to perform to Dell's specifications." (Dell Form 10-Q at 9 n.(a), annexed to the declaration of Christina Hull Eikhoff, submitted with Dell's motion to dismiss).

C. Allegations Regarding Statutes of Limitation

Plaintiff purchased his Optiplex computers in 2003, and did not commence this lawsuit until 2010. In anticipation of Dell's argument that Plaintiff's claims are time-barred, the amended complaint contains specific allegations as to why the complaint should be deemed timely. First, Plaintiff alleges that his claims did not accrue until the later of: (1) the last date on which repairs to his computers were made or attempted, and it became apparent that those repairs were unsuccessful or (2) the date upon which he "discovered his injuries." Plaintiff also states that his causes of action could not have accrued until he discovered, not only his "injuries" as referred to above, but also the precise defects that caused those injuries. Finally, Plaintiff argues that the applicable statutes of limitation should not be applied, in any event, on the grounds of fraudulent concealment and estoppel.

II. The Causes of Action and the Motion to Dismiss

Plaintiff's complaint sets forth four separate causes of action. Specifically, Plaintiff alleges: (1) violation of the Federal Magnuson Moss Warranty Act 15 USC § 2308(a)(c) ("MMWA"); (2) violation of Section 2-314 of the New York Uniform Commercial Code ("UCC § 2-314"); (3) violation of Section 349 of the New York General Business Law ("Section 349"), and (4) unjust enrichment.
Defendant's motion seeks dismissal of all causes of action. First, all claims are alleged to be time-barred. Additionally, Plaintiffs Section 349 claim is alleged to be subject to dismissal because that statute does not apply where, as here, the product at issue is purchased for use in a business. The MMWA claim is sought to be similarly subject to dismissal on the ground that the computers at issue are not "consumer products." To the extent that Plaintiffs claims are based upon safety hazards, they are argued to be subject to dismissal because Plaintiff fails to properly allege any such cause of action. Finally, the unjust enrichment cause of action is sought to be an inappropriately stated quasi-contractual cause of action that cannot be stated where, as here, there was a sale pursuant to a contract. After outlining relevant legal principles, the court will turn to the merits of the motion.

DISCUSSION

I. Standards on Motion to Dismiss

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court rejected the "oft-quoted" standard set forth in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that a complaint should not be dismissed, "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 45-46, 78 S.Ct. 99. The court discarded the "no set of facts" language in favor of the requirement that plaintiff plead enough facts "to state a claim for relief that is plausible on its face." Twombly, 127 S.Ct. at 1974, see also Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009).
*481 While heightened factual pleading is not the new order of the day, Twombly holds that a "formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Williams v. Berkshire Fin. Grp. Inc., 491 F.Supp.2d 320, 324 (E.D.N.Y.2007), quoting, Twombly, 127 S.Ct. at 1959. In the context of a motion to dismiss, this court must, as always, assume that all allegations set forth in the complaint are true and draw all inferences in favor of the non-moving party. Watts v. Services for the Underserved, 2007 WL 1651852 *2 (E.D.N.Y. June 6, 2007). The court must ensure, however, that the complaint sets forth "enough facts to state a claim to relief that is plausible on its face." Twombly, 127 S.Ct. at 1974. A pleading that does nothing more that recite facts and bare legal conclusions is insufficient to "unlock the doors of discovery ... and only a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal, 129 S.Ct. at 1950. While a Rule 12 motion is directed only to the sufficiency of the pleading, the court determining the motion may rightfully consider written documents attached to the complaint as well as documents incorporated thereto by reference and those of which plaintiff had knowledge and relied upon in commencing the action. See Brass v. Amer. Film Techn., Inc., 987 F.2d 142, 150 (2d Cir.1993); Watts, 2007 WL 1651852 *2.

II. Disposition of the Motion

A. Timeliness of MMWA and NYUCC Claims for Breach of Warranty

Claims brought pursuant to the MMWA and the NYUCC are governed by the four year statute of limitations set forth in section § 2-725 of the NYUCC. Murungi v. Mercedes Benz Credit Corp., 192 F.Supp.2d 71, 79 (W.D.N.Y.2000); see Woods v. Maytag Co., 2010 WL 4314313 *2 (E.D.N.Y.2010). That section provides that claims for breach of warranty must be commenced within four years of accrual. The statute specifically defines the date of accrual as:
when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.
NYUCC 2-725(2) (emphasis added). As the plain language of the statute makes clear, the statute of limitations begins to run "on tender of delivery," and knowledge of a defect has no effect whatever on the running of the statute. See Brady v. Lynes, 2008 WL 2276518 *11 (S.D.N.Y. 2008) (argument that breach occurs upon discovery is "contrary to black letter law"); Morgan v. Abco Dealers, Inc., 2007 WL 4358392 *6 (S.D.N.Y.2007); Orlando v. Novurania of America, Inc., 162 F.Supp.2d 220, 224 (S.D.N.Y.2001).
Plaintiff attempts to carve out the "repair or replace" remedy set forth in the Warranty to constitute a separate contractual obligation that could not have been breached until all attempts to repair or replace failed. In support of this analysis, Plaintiff relies on cases holding that repair obligations can place accrual of a cause of action beyond the date of delivery. Such cases, however, either: (1) involve specific contractual obligations that can be deemed to accrue after delivery, or (2) explicitly extend particular obligations beyond the UCC four year period of warranty. In such cases, courts find express warranties that explicitly extend to future performance. *482 Woods, 2010 WL 4314313 *3; Orlando, 162 F.Supp.2d at 224.
In Long Island Lighting Co. v. Imo Industries Inc., 6 F.3d 876 (2d Cir.1993), for example, relied upon by Plaintiffs, the Second Circuit held that a claim based upon an express to agreement to repair faulty generators did not accrue, as set forth in the warranty, until the generators were "in place"an event that did not occur until years after delivery. Id. at 890. Similarly in Shapiro v. Long Island Lighting Company, 71 A.D.2d 671, 418 N.Y.S.2d 948, 950 (2d Dep't 1979), the Appellate Division held that while a breach of warranty claim should be dismissed as untimely, it also held that an explicit agreement to replace a defective heater for a ten year period allowed that claim to be brought after expiration of the four year period of warranty.
The plain language of the Warranty here makes the cases referred to above inapposite. The "repair or replace," language of the Warranty is simply language that limits Plaintiff's remedy in the event of breachit does not create a warranty separate and apart from the product warranty. In such cases, the law is clear that attempts to repair a warrantied product, within the warranty period, do not toll the four year limitations period. Triangle Underwriters, Inc. v. Honeywell, Inc., 604 F.2d 737, 743 (2d Cir.1979) (noting that New York and other jurisdictions hold that attempts to remedy defects do not toll the U.C.C.'s four-year period of limitations); Woods, 2010 WL 4314313 *3; Momentive Performance Materials USA, Inc. v. AstroCosmos Metallurgical, Inc., 659 F.Supp.2d 332, 348-49 (N.D.N.Y.2009) (same). Indeed, the plain language of the Warranty states as much, providing that the warranty "is not extended if we repair or replace a warranted product or parts."
In light of the clear law recited above, as well as the plain language of the Warranty, the court holds that Plaintiff's warranty claims accrued at the time of delivery of the computers in 2003. That is the date when the Optiplex computers with allegedly defective capacitors were delivered, and Plaintiff's knowledge of such defects is of no moment. Since Plaintiff's warranty claims were not commenced until seven years after delivery, they are not timely.
The holding that the warranty claims are untimely requires the court to consider whether any equitable principle can be applied to save those claims. Plaintiff argues that his claims are saved by the equitable principles of fraudulent concealment and/or equitable estoppel.
The doctrine of equitable tolling applies where defendant's fraudulent conduct results in Plaintiff's lack of knowledge of a cause of action. Pearl v. City of Long Beach, 296 F.3d 76, 82 (2d Cir.2002). Equitable estoppel is a term that has been used to describe circumstances of fraudulent concealment of a cause of action, but also to describe circumstances where a plaintiff is aware of the existence of his cause of action, but the defendant's conduct caused him to delay in bringing his lawsuit. Pearl, 296 F.3d at 82; see Chmiel v. Potter, 2010 WL 5904384 *9 (W.D.N.Y. 2010); Torre v. Columbia University, 1998 WL 386438 *6 (S.D.N.Y.1998).
When these equitable doctrines apply, "the statute of limitations does not begin to run until `the plaintiff either acquires actual knowledge of the facts that comprise his cause of action or should have acquired such knowledge through the exercise of reasonable diligence after being apprised of sufficient facts to put him on notice.'" Cerbone v. International Ladies' Garment Workers' Union, 768 F.2d 45, 48 (2d Cir.1985). To take advantage of tolling, Plaintiff must be able to show that Defendant wrongfully concealed its actions, *483 such that plaintiff was unable, despite due diligence, to discover facts that would allow him to bring his claim in a timely manner or that defendant's actions induced plaintiff to refrain from commencing a timely action. See Statistical Phone Philly v. NYNEX Corp., 116 F.Supp.2d 468, 482 (S.D.N.Y.2000) (setting forth elements of federal doctrine of equitable tolling); Wolf v. Wagner Spray Tech Corp., 715 F.Supp. 504, 508 (S.D.N.Y.1989) (setting forth elements of fraudulent concealment tolling doctrine); Gleason v. Spota, 194 A.D.2d 764, 599 N.Y.S.2d 297, 298 (2d Dep't 1993) (estoppel doctrine applies "where a plaintiff was induced by fraud, misrepresentation, or deception to refrain from timely commencing an action").
When deciding whether to toll the running of the statute of limitations, the issue is not whether Plaintiff was in possession of all of the information necessary to prevail on his claims, but whether plaintiff had enough information to commence a lawsuit. Torre, 1998 WL 386438 *8. Ultimately, tolling can apply only when a plaintiff has acted with reasonable diligence and can show extraordinary circumstances that justify the requested toll. Chmiel, 2010 WL 5904384 *9.
While Plaintiff's amended complaint details ongoing problems with his Optiplex computers, it does not state, with any precision, when those problems began, or the dates of service by Dell. Additionally, the court is in no position, at this stage of the proceedings, to make factual findings with respect to Dell's conduct. Discovery will uncover facts regarding Dell's conduct, as well as those that may ultimately support the conclusion that Plaintiff possessed more than enough information to commence a timely lawsuit. Such a conclusion cannot be reached, however, only upon consideration of the pleadings and other documents before the court on this motion. Accordingly, the court will not rule, at this time, whether equitable principles can toll the running of the statute of limitations, or estop Defendant from asserting a statute of limitations defense. The court therefore denies the motion to dismiss the warranty claims at this time. Such claims may or may not be saved by equitable tolling; it is simply too early to tell.

B. General Business Law Section 349

i. Legal Principles

Section 349 makes unlawful "deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service" in the Sate of New York. N.Y. Gen. Bus. L. § 349(a). The statute provides for a private right of action that may be brought by "any person who has been injured by reason of any violation" of Section 349. N.Y. Gen. Bus. L. § 349(h). To state a claim pursuant to Section 349, a Plaintiff must show: (1) acts or practices that are "consumer oriented;" (2) that such acts or practices are deceptive or misleading in a material way and (3) that plaintiff has been injured by reason of those acts. International Design Concepts, LLC v. Saks Inc., 486 F.Supp.2d 229, 238-39 (S.D.N.Y.2007); see Gaidon v. Guardian Life Ins. Co. of America, 94 N.Y.2d 330, 704 N.Y.S.2d 177, 182-83, 725 N.E.2d 598 (1999); Shapiro v. Berkshire Life Ins. Co., 212 F.3d 121, 126 (2d Cir. 2000); DePasquale v. Allstate Ins. Co., 179 F.Supp.2d 51, 58-59 (E.D.N.Y.2002).
"Deceptive acts," within the meaning of Section 349, are acts that are "likely to mislead a reasonable consumer acting reasonably under the circumstances." Gristede's Foods, Inc. v. Unkechauge Nation, 532 F.Supp.2d 439, 450 (E.D.N.Y.2007) (citations omitted). The consumer oriented prong of the Section 349 claim requires a plaintiff to show that the practices complained of have a "broad *484 impact on consumers at large; `private contract disputes unique to the parties ... would not fall within the ambit of the statute.'" New York University v. Continental Ins. Co., 87 N.Y.2d 308, 639 N.Y.S.2d 283, 290, 662 N.E.2d 763 (1995), quoting, Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 623 N.Y.S.2d 529, 532, 647 N.E.2d 741 (1995); see also Shapiro, 212 F.3d at 126; International Design Concepts, 486 F.Supp.2d at 239. The "consumer oriented" requirement does not preclude businesses from acting as plaintiffs in lawsuits pursuant to Section 349. Section 349 does, however, exclude from the statute private disputes that arise only between businesses. See Dollar Phone Corp. v. Dun & Bradstreet Corp., 2010 WL 5313737 *3 (E.D.N.Y.2010); Spirit Locker, Inc. v. EVO Direct, LLC, 696 F.Supp.2d 296, 304 (E.D.N.Y.2010).
Actions brought pursuant to Section 349 must be commenced within three years of the date of accrual. Gaidon v. Guardian Life Ins. Co. of America, 96 N.Y.2d 201, 727 N.Y.S.2d 30, 35, 750 N.E.2d 1078 (2001); M & T Mortg. Corp. v. Miller, 2009 WL 3806691 *2 (E.D.N.Y. 2009). Accrual occurs when plaintiff is injured by the deceptive act or practice that violated the statute. Gaidon, 727 N.Y.S.2d at 35, 750 N.E.2d 1078; Brady, 2008 WL 2276518 *10. Such injury occurs when "when all of the factual circumstances necessary to establish a right of action have occurred, so that the plaintiff would be entitled to relief." Gaidon, 727 N.Y.S.2d at 35, 750 N.E.2d 1078. Accrual is not dependent upon any later date when discovery of the alleged deceptive practice is said to occur. M & T Mortg. Corp., 2009 WL 3806691 *2; In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, 2007 WL 1601491 *14 n. 121 (S.D.N.Y.2007); Wender v. Gilberg Agency, 276 A.D.2d 311, 716 N.Y.S.2d 40, 41-42 (1st Dep't 2000).

ii. Disposition of the Motion to Dismiss the Section 349 Claim

Defendant seeks dismissal of the Section 349 claim on the ground that the protection of the statute cannot be extended to those who, like Plaintiff, purchased goods for use in a business. The claim is also sought to be dismissed as time barred.
As to the first ground, the court rejects the argument that Plaintiff's status as a small business owner, standing alone, precludes him from satisfying the "consumer oriented," prong of a Section 349 cause of action. Plaintiff's amended complaint alleges widespread sale of Optiplex computers with capacitor defects, and a uniform pattern of deceptive conduct. This pleading is sufficient to survive a motion to dismiss.
With respect to the timeliness of the Section 349 claim, the court reiterates, as noted above, that accrual is not dependent upon discovery of either an injury or its specific cause. Instead, accrual occurs when Plaintiff first suffered injury. As to that issue, it is clear that the allegedly faulty capacitors were present in the computers purchased at the time of delivery in 2003. To the extent that Plaintiff's Section 349 claim is based upon the allegation that the deceptive practice was the shipping of computers with defective capacitors, that claim accrued in 2003 and, absent the development of facts that might support equitable tolling, is time-barred.
In addition to arguing that the shipment of defective computers violated Section 349, Plaintiff argues that Dell's post-sale handling of his warranty claim amounts to deceptive conduct upon which he bases his claim. The amended complaint is vague in its references as to when such allegedly deceptive conduct occurred. The court cannot say, at this stage of the proceedings, the date upon which Plaintiff *485 first suffered injury as a result of the alleged deceptive cover-up of the computer defect. The court therefore cannot dismiss the Section 349 based upon alleged deceptive post-delivery conduct, as untimely.

C. Claims Based Upon Safety Issues

In addition to claiming economic losses stemming from the allegedly malfunctioning computers, Plaintiff claims that the computers were unsafe. Specifically, he argues that the defective capacitors could leak, and that such leaks could result in personal injury. Both the amended complaint and the papers submitted by Plaintiff in opposition to the motion to dismiss make clear that the claimed safety issues were never manifest in Plaintiff's computers, and he never suffered any injury as a result of any leaking capacitor. Under these circumstances, Plaintiff's claim to recover for possible safety hazards that have not occurred in the seven years since purchase of his computers, is not plausible. Plaintiff fails to plead any damage, and therefore fails to state a claim arising from any alleged safety issue. Accordingly, any such claim is dismissed. Frank v. DaimlerChrysler Corp., 292 A.D.2d 118, 741 N.Y.S.2d 9, 17 (2d Dep't 2002) (affirming dismissal of product liability claims where plaintiff failed to suffer or allege actual injury); Hubbard v. General Motors Corp., 1996 WL 274018 *3 (S.D.N.Y.1996) (purchaser of allegedly defective product has no claim where the alleged defect has not manifested itself in purchaser's product); Yost v. General Motors Corp., 651 F.Supp. 656, 657 (D.N.J. 1986) (allegation that a leak was "likely" to occur and "may" create a safety hazard insufficient to avoid dismissal for failure to allege damages).

D. Claim for Unjust Enrichment

Under New York law, "a claim for unjust enrichment requires a plaintiff to establish (1) that the defendant benefitted; (2) at the plaintiff's expense; and (3) that equity and good conscience require restitution." Beth Israel Medical Center v. Horizon Blue Cross and Blue Shield of New Jersey, 448 F.3d 573, 586 (2d Cir.2006); see also Briarpatch Ltd., L.P v. Phoenix Pictures, Inc. 373 F.3d 296, 306 (2d Cir. 2004); Allstate Ins. Co. v. Rozenberg, 590 F.Supp.2d 384, 395 (E.D.N.Y.2008); Clark v. Daby, 300 A.D.2d 732, 751 N.Y.S.2d 622, 623 (3d Dep't 2002).
A claim of unjust enrichment is in the nature of a "quasi-contract," i.e., it is "an obligation the law creates in the absence of any agreement." Diesel Props S.r.l. v. Greystone Business Credit II LLC, 631 F.3d 42, 54 (2d Cir.2011); see also; Beth Israel Medical Center v. Horizon Blue Cross and Blue Shield of New Jersey, Inc., 448 F.3d 573, 586-87 (2d Cir. 2006). Where a valid contract governs the subject matter in a lawsuit, a plaintiff may not recover in quasi-contract, and it is appropriate to dismiss a claim for unjust enrichment. See, e.g., Diesel, 631 F.3d at 54 (affirming district court's dismissal of unjust enrichment claim).
The sale of the computers to Plaintiff was pursuant to a contract that contained specific warranty obligations, alleged, as set forth above, to have been breached by Dell. Dell's post-sale conduct, however characterized, took place in the context of its obligations pursuant to the contract of sale. Plaintiff attempts to distance the unjust enrichment claim from the contract of sale by arguing that the duty to warn of safety dangers is not a matter of contract. As discussed above, however, Plaintiff's safety claim does not survive this motion, and cannot therefore be relied upon to save the unjust enrichment claim. In short, where the claims arise out of a sale pursuant to a contract, Plaintiff does not state a claim for unjust *486 enrichment. The claim is therefore dismissed.

CONCLUSION
Defendant's motion to dismiss is granted to the extent that the court dismisses the claim for unjust enrichment and any claim based upon the allegation of a safety hazard. The parties shall continue with discovery limited to the issues that remain. The Clerk of the Court is directed to terminate the motion to dismiss.
SO ORDERED.
NOTES
[1]  Plaintiff argues that the warranty period was five years, while Defendant argues that the period was four years. For the purposes of this motion, the court accepts Plaintiff's characterization of the warranty period.


160 F.2d 388 (1947)
SEMI-STEEL CASTING CO. OF ST. LOUIS
v.
NATIONAL LABOR RELATIONS BOARD.
WEBER et al.
v.
SAME.
Nos. 13343, 13344.
Circuit Court of Appeals, Eighth Circuit.
March 13, 1947.
Rehearing Denied April 21, 1947.
*389 Joseph T. Davis, of St. Louis, Mo., for petitioner Semi-Steel Casting Co. of St. Louis.
John W. Giesecke, of St. Louis, Mo. (Ackert, Giesecke & Waugh, of St. Louis, Mo., on the brief), for petitioners Benjamin Weber, James Ellis and Simon Birk.
Charles K. Hackler, Regional Atty., of Clayton, Mo. (Gerhard P. Van Arkel, Gen. Counsel, Morris P. Glushien, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Ida Klaus and Robert E. Mullin, Attys., all of Washington, D. C., N.L.R.B., on the brief), for respondent.
Before THOMAS, JOHNSEN, and RIDDICK, Circuit Judges.
RIDDICK, Circuit Judge.
October 30, 1943, the Semi-Steel Casting Company of St. Louis and the International Molders and Foundry Workers Union of North America, Local No. 59, A. F. L., executed an agreement for a consent election for the certification of a representative of an appropriate bargaining unit among the employees of the company. The agreement was duly approved by the Regional Director of the National Labor Relations Board, and an election pursuant to its terms was held on November 4, 1943.
In the election agreement the company and the union agreed upon the employees constituting the unit appropriate for the purposes of collective bargaining and the time and place of the election, provided that the election should be by secret ballot, that it should be conducted under the supervision of the Regional Director of the Board in accordance with the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., and the rules and regulations and customary procedures and policies of the Board, and that the decision of the Regional Director should be conclusive on any question raised by either party to the election and not covered by the agreement. The company was required to furnish to the Regional Director a list of eligible voters constituting the unit. The company and the union were each granted the right to station an equal number of observers at the polling place to assist in the conduct of the election, to challenge the eligibility of voters, and to verify the result. Objections to the conduct of the election and the determination of the result were to be filed by either party within five days after the closing of the polls. The Regional Director was required to investigate any objections filed, and upon completion of his investigation to issue his finding of the result of the election.
At the conclusion of the balloting the agent of the Regional Director in charge of the election and the authorized observers of the union and the company, present at the balloting, certified that the accounting and tabulating of ballots were fairly and accurately done and the secrecy of the balloting maintained; that the number of eligible voters was 129, the number of ballots cast 119, of which two were void; that of the 117 valid ballots cast and counted, 59 were for the union and 58 against it. The same parties also executed a certification on "conduct of the election" in which they affirmed that the balloting was fairly conducted, that all eligible voters were given the opportunity to cast their ballots in secret, and that the ballot box was protected in the interest of a fair and secret vote.
*390 The ballot used in the election was furnished by the Board and was the standard form used in all Board elections. It was a single sheet of paper divided by horizontal lines into three sections. The top section contained in large type the heading:

United States of America, National Labor Relations Board, Official Ballot,
under which in typewriting was written: "To determine the representative, if any, for the purposes of collective bargaining for certain employees of Semi-Steel Casting Company, St. Louis, Missouri." The middle section contained the following directions to the voters:
"1. Mark an X in one square only.
"2. Fold your ballot to conceal the X and personally put it in the ballot box.
"3. If you spoil your ballot, return it to the Board's Agent and obtain a new one."
Across the top of the bottom section of the ballot was printed in large type: "Mark an `X' in the square of your choice." This was followed by the question: "Do you desire to be represented by International Molders and Foundry Workers Union of North America, Local No. 59, AFL?" Immediately below this question were two blank squares. At the top of one the word "Yes" was printed and above the other the word "No." At the bottom of the ballot in large capital letters was the admonition: "This as a secret ballot and must not be signed." Of the two ballots which were rejected and not counted, one had an X marked in both the Yes and No squares. The other had no mark in either square, but the voter, George Flemings, had signed his name opposite the word No appearing over the No square on the ballot.
Objections challenging the ruling of the agent of the Regional Director in charge of the election on the validity of the rejected ballots were presented to the Regional Director by the company, were examined by the Director and denied on November 9, 1943, and the union was certified as the duly elected bargaining representative of the employees.
The company declined to recognize the union as the bargaining representative of its employees. Upon complaint of the union, proceedings were held before a trial examiner of the Board and before the Board, with the result that on March 14, 1946, the Board adopted the finding of the trial examiner that the company had engaged and was engaging in unfair labor practices within the meaning of section 8(5) and (1) of the Act by refusing to bargain collectively with the union which the Board found had been designated in the consent election as the representative of the company's employees. The Board's order requires the company to cease and desist from its unfair labor practices, to bargain with the union upon request, and to post appropriate notices. Employees of the company opposed to the union were denied the right to intervene in these proceedings. In No. 13,343 we are asked by the company and in No. 13,344 by the employees whose petition to intervene was denied to review and set aside the order of the Board. The Board in its answer asks that its order be enforced.
The company does not deny that it refused to bargain with the union following the Board's certification of the union as the representative of the employees for the purpose of collective bargaining. It seeks to justify its refusal on the grounds, (1) that the Regional Director's report of the election shows that the union was not the choice of a majority of the employees voting in the election, and (2) that the union does not now represent a majority of the employees of the designated unit.
In support of its petition the company contends: (1) that for the purpose of calculating the majority of votes in the election the Board was required to include all ballots cast whether valid or invalid, since in either case all ballots were cast by eligible voters participating in the election; and (2) that the ballot of George Flemings shows on its face that the voter intended to and did in fact cast his ballot against the union. If either of these contentions is accepted, the union did not receive a majority vote in the election. If both rejected ballots are counted, the total number *391 of votes in the election was 119; if only one, the total is 118. In either case the number of ballots constituting a majority of those cast is 60, whereas only 59 were in favor of the union. If the ballot marked with an X in both the "Yes" and "No" squares is not counted and the ballot cast by George Flemings is counted as a vote against the union, the result is that the votes for and against the union were equal in number, in each case 59, and the union was not the choice of a majority.
On the issue raised concerning the rejected ballots, the terms of the consent election agreement may not be ignored. The agreement is in the form customarily used by the Board. Its purpose is to guard against disputes concerning the conduct of elections, to provide for the prompt and final settlement of such controversies as may arise between the parties, and thus to minimize delay in the administration of the Act. Important in the effective use of the election agreement for the purposes stated are the provisions that the election shall be held in accordance with the National Labor Relations Act and with the policies, rules, and regulations of the Board, and that the decision of the Regional Director concerning questions not covered by the agreement shall be conclusive on the parties. On review the Board accepts the Regional Director's decision on all questions pertaining to the election, unless shown to be arbitrary or capricious or not in conformity with the policies of the Board and the requirements of the Act. No reason appears why the company should not be bound by the provisions of the election agreement to which it is a party. "To hold otherwise would permit an employer deliberately to ignore binding commitments embodied in a consent agreement; would open the door to subterfuges for hampering and delaying a final determination of a bargaining representative; and would tend to defeat, rather than to effectuate, the policies of the Act." Matter of Capitol Greyhound Lines, 49 N.L.R.B. 156, 159, enforced Sixth Circuit, 140 F.2d 754, 758, certiorari denied 322 U.S. 763, 64 S.Ct. 1285, 88 L.Ed. 1590. In this case the Board concluded that the company was bound by its agreement to accept the decision of the Regional Director on the issue raised with respect to the rejected ballots. It also concluded that the ruling of the Regional Director was in conformity with the policy of the Board adopted in the administration of the Act. Unless it can be said that the rules and regulations of the Board are contrary to the Act, its decision must stand.
The Board asserts that in determining the result of an election held for the selection of a bargaining representative it has uniformly followed the practice of calculating election results on the basis of the number of valid votes cast, citing Matter of Sorg Paper Co., 9 N.L.R.B. 136, 137; Matter of American Tobacco Co., Inc., 10 N.L.R.B. 1171, 1172. It followed its established policy in this case. We are unable to say that the Board's practice in this respect is not within the discretion vested in the Board by the Act. Whether the result of an election of a bargaining representative should be determined on the basis of the valid ballots or on the basis of all ballots cast at the election by eligible voters is, in the absence of a contrary provision in the Act, a question appropriate for decision by the Board whose special duty it is to administer the Act. The question is one of statutory interpretation on which the decision of the Board is to be accorded great weight. N.L.R.B. v. Hofmann, 3 Cir., 147 F.2d 679, 681, 682, 157 A.L.R. 1149; N.L.R.B. v. Hearst Publications, Inc., 322 U.S. 111, 131, 132, 64 S.Ct. 851, 88 L.Ed. 1170; Medo Photo Supply Corp. v. N.L.R.B., 321 U.S. 678, 681, 64 S.Ct. 830, 88 L.Ed. 1007. It is also a question of Federal and not of local law. N.L.R.B. v. Hearst Publications, Inc., supra, 322 U.S. 111, pages 123, 124, 64 S.Ct. 851, 88 L.Ed. 1170. In determining the question of employee representation the Board under section 9(c) of the Act "may take a secret ballot of employees, or utilize any other suitable method". Since the section of the Act authorizing an election is silent as to procedure, the manner in which an election is to be conducted and the rules and regulations for the conduct of the election and necessary to assure finality in the result of the election are within the competence of the Board to *392 provide, subject to the principles of majority rule and secrecy of the ballot which the Act enjoins. Southern Steamship Co. v. N.L.R.B., 316 U.S. 31, 37, 62 S.Ct. 886, 86 L.Ed. 1246; N.L.R.B. v. Waterman Steamship Corp., 309 U.S. 206, 226, 60 S.Ct. 493, 84 L.Ed. 704; N.L.R.B. v. Falk Corp., 308 U.S. 453, 458, 60 S.Ct. 307, 84 L.Ed. 396. "The principle of majority rule, however, does not foreclose practical adjustments designed to protect the election machinery from the ever-present dangers of abuse and fraud. * * * It is true that it is an unfair labor practice for an employer to refuse to bargain with a union only if that union was chosen by a majority of the voting employees. But the determination of whether a majority in fact voted for the union must be made in accordance with such formal rules of procedure as the Board may find necessary to adopt in the sound exercise of its discretion." N.L.R.B. v. A. J. Tower Co., 67 S.Ct. 324, 328.
It is apparent, as the Board asserts, that if the choice of a voter cannot be definitely and certainly ascertained from his ballot he has in fact expressed no actual choice in the election, his ballot cannot be reasonably classified as either an affirmative or a negative vote, and for these reasons the voter has contributed nothing to the result of the election. The Board's practice in determining the result of an election on the basis of the number of valid votes cast cannot be said to prejudice the rights of either party to the election. On the other hand, it seems reasonably designed to secure certainty and finality in elections and to determine the identity of the bargaining representative upon the free choice of the employees actually and clearly expressed at the polls. It is not unreasonable to say that the employee whose vote was marked both for and against the union did not in fact participate in the election. So far as can be ascertained from his ballot, he attended the polls merely to express his indifference to the result. His action contributed no more and no less to the determination of the choice of the majority of the employees than did the action of those eligible employees who did not vote. Concerning Flemings' ballot, it is sufficient to say that his signature upon the ballot violated the express rules for secrecy under which the election was conducted and which were assented to by the company in the election agreement. Whether Flemings intended to vote for or against the union, it is impossible to say from an inspection of his ballot. To permit him to testify as to his intention in marking the ballot as he did would, as the Board asserts, effectively destroy the secrecy of the ballot which the Board's policy is designed to protect and which the Act commands. The reception of such evidence would also expose the employee to the hazard of union or employer coercion and thus imperil his freedom of choice of a bargaining representative. "To permit the counting of ballots which, regardless of specific instructions appearing thereon, nevertheless are signed or contain markings clearly identifying the voter, clearly would open the door to the exertion of influence such as to prevent the exercise of the voter's free choice." Matter of Burlington Mills, 56 N.L.R.B. 365, 368.
The company argues that the order to bargain collectively with the union should not be enforced by this court because of the probable loss of the union's majority status as the result of an asserted turnover in personnel during the time which elapsed between the date of the election and the date of the Board's order. The election was held November 4, 1943, and the Board's order requiring the company to bargain with the union which it determined had received the majority vote at the election came down March 14, 1946. The evidence adduced by the company did not establish the fact, but only the probability of the loss of the union's majority status. But the union's loss of majority status, during the course of the proceedings before the Board on the charge of unfair labor practices against the company, if established, does not invalidate the order of the Board. The Board found that "any loss in the Union's majority status is attributable to the respondent's unlawful refusal to bargain." That the company did refuse to bargain with the union is admitted, and we hold that its refusal on the *393 facts in this case was unlawful. It was therefore guilty of the unfair labor practice with which it was charged at the institution of these proceedings. In National Licorice Co. v. N.L.R.B., 309 U.S. 350, 362, 60 S.Ct. 569, 84 L.Ed. 799, the court said that the fact that a majority of employees had freely rejected their union designation did not militate against a finding by the Board that the union represented the employees when the employer refused to bargain. In Franks Bros. Co. v. N.L.R.B., 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020, it is held that the Board has power to order an employer to bargain with a union which has lost its majority status after petitioner wrongfully refused to bargain with it. "It is for the Board not the courts to determine how the effect of prior unfair labor practices may be expunged." International Association of Machinists v. N.L.R.B., 311 U.S. 72, 82, 61 S.Ct. 83, 89, 85 L.Ed. 50; Medo Photo Supply Corp. v. N.L.R.B., supra, 321 U.S. p. 687, 64 S.Ct. 830, 88 L.Ed. 1007.
Since this was an unfair labor practice proceeding against the company under section 10 of the Act, it is clear that the Board committed no error in refusing to permit employees opposed to the union to intervene. Section 10(b) provides the manner in which issue shall be joined in such proceedings. The Board is required to serve upon the person charged with engaging in an unfair labor practice a complaint stating the charges in that respect. The person charged is permitted to answer the complaint and to give testimony at the hearing of which the Board is required to give him notice of the time and place. "In the discretion of the member, agent or agency conducting the hearing or the Board, any other person may be allowed to intervene in the said proceeding and to present testimony." The courts have uniformly held that in a proceeding under this section of the Act against an employer on the charge of unfair labor practices the employees are not necessary parties. Thus in N.L.R.B. v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 271, 58 S.Ct. 571, 576, 82 L.Ed. 831, 115 A.L.R. 307, the Board in an unfair labor practice proceeding ordered the employer to discontinue recognition of an association of its employees as the bargaining agent for its employees. It was contended that the association was a necessary party to the proceeding on the ground that its interests were involved. The court said: "As the order did not run against the Association it is not entitled to notice and hearing. Its presence was not necessary in order to enable the Board to determine whether respondents had violated the statute or to make an appropriate order against them." The order of the Board in this case is directed only against the company. The Board's power is effectively exercised upon no one else. The employees were not necessary parties to the proceeding, and there was no abuse of the Board's discretion in refusing to make them parties. National Licorice Co. v. N.L.R.B., supra, pages 362, 366 of 309 U.S., 60 S.Ct. 569, 84 L.Ed. 799; Oughton v. N.L.R.B., 3 Cir., 118 F.2d 486, 495, 496. Insofar as intervention was sought by the employees for the purpose of making the same defense as that made by the company, they were not only not necessary parties, but their presence could only serve to hinder and delay the prompt decision of the controversy. They make no showing that they could have adduced evidence other than that offered by the company. There is no merit in the claim that they were entitled as of right to have an observer at the election as a special representative of those employees who were opposed to the union. Whether either the company or the union or the employees opposed to the union are represented at the polls by observers is a matter exclusively within the discretion of the Board. None of the intervening employees requested representation by observers before the election. They had the same notice of the election as other employees and the same opportunity to vote. Nothing in the petition for leave to intervene or in the answer tendered with it tends to show that the Board's agents failed in their duty to conduct a fair election, or that the complaining employees were prejudiced by lack of representation, or that the election did not result in the choice of a bargaining *394 representative by the majority of those employees in the union who availed themselves of the privilege of attending the election and casting their ballots.
In Nos. 13,343 and 13,344 the petitions for review and reversal of the Board's order are denied. The petition of the Board for enforcement of its order is granted.


349 F.Supp.2d 229 (2004)
Claribel FRAGUADA RODRIGUEZ, Plaintiff
v.
PLAZA LAS AMERICAS, et al., Defendants
No. CIV. 03-2108JP.
United States District Court, D. Puerto Rico.
November 24, 2004.
*230 Clarisa Solá Gómez, Esq., Luis E. Pabón Roca, Esq., Faccio & Pabón Roca, San Juan, PR, for Plaintiff.
Raphael Peña Ramón, Esq., De Corral & De Mier, San Juan, PR, for Defendant.

OPINION AND ORDER
PIERAS, District Judge.

I. INTRODUCTION
The Court has before it Defendants' "Motion For Summary Judgment" (docket No. 29), Defendants' "Memorandum of Law in Support of Motion for Summary Judgment" (docket No. 30), Defendants' "Statement of Uncontested Facts" (docket No. 31), Plaintiff's "Opposition to Defendants' Motion for Summary Judgment and Memorandum of Law In Support" (docket No. 33), which includes Plaintiff's "Answer to Statement of Uncontested Facts," and finally Defendants' "Reply to Plaintiff's Opposition to Motion for Summary Judgment" (docket No. 34). Defendants argue that Plaintiff, who has sued them in this diversity action for the injuries she sustained when she fell in the Plaza Las Américas parking lot, is not the real "party in interest" in this case. Defendants argue that because the Complaint was filed while Plaintiff was still married to her husband (and remains married to him to this day), the true party in interest in this case is the conjugal partnership formed between Plaintiff and her husband, Mr. Luis López, who is, domiciled in Puerto Rico. As Defendants themselves put it in their Summary Judgment motion,
"since one member of the conjugal partnership, Mr. López, is domiciled in Puerto Rico and being the conjugal partnership the party with real interest over the alleged economic losses, Mrs. Fraguada has failed to comply with the requirements asserting diversity of citizenship jurisdiction: that there is complete diversity within the parties."
The Court agrees in part with Defendants. For the foregoing reasons, the Court hereby GRANTS IN PART AND DENIES IN PART Defendants' "Motion for Summary Judgment."

II. LEGAL STANDARD
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate where, after drawing all reasonable inferences in favor of the nonmoving party, there is no genuine issue of material fact for trial. See Pagano v. Frank, 983 F.2d 343, 347 (1st Cir.1993). A fact is material if it might affect the outcome of the case. Mack v. Great Atl. and Pac. Tea Co., Inc., 871 F.2d 179, 181 (1st Cir.1989). An issue is "genuine" if sufficient evidence exists to permit a reasonable trier of fact to resolve the issue in the non-moving party's favor. See Boston *231 Athletic Ass'n v. Sullivan, 867 F.2d 22, 24 (1st Cir.1989).
The party filing a motion for summary judgment bears the initial burden of proof to show "an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-moving party to show affirmatively, through the filing of supporting affidavits or otherwise, that a genuine issue exists for trial. See Goldman v. First National Bank of Boston, 985 F.2d 1113, 1116 (1st Cir.1993). In discharging this burden, the non-moving party may not rest upon mere allegations or denials of the pleadings. See Fed. R.Civ.P. 56(e). On issues where the non-moving party bears the ultimate burden of proof, it must present definite, competent evidence to rebut the evidence put forth by the moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-257, 106 S.Ct. 2505, 2514-2515, 91 L.Ed.2d 202 (1986). Indeed, summary judgment may be appropriate "... where elusive concepts such as motive or intent are at issue ... if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation." Woods v. Friction Materials, Inc., 30 F.3d 255, 259 (1st Cir.1994).

III. FINDINGS OF FACT
After thoroughly evaluating the facts presented by the parties and the record as a whole, the Court makes the following findings of fact.
1. On October 14, 2002, two days after the accident, Plaintiff's sister, Ms. Marilyn Fraguada, informed Plaza Las Américas that, on October 12, 2002, at about 5:30 p.m., Plaintiff fell on the ground on the first floor of the South parking lot of Plaza Las Américas, near the entrance of the Cabaña Las Lilas restaurant.
2. Plaza Las Américas has the custody, control and maintenance of the South parking lot.
3. MAPFRE, Grupo PRAICO, is an insurance carrier that has issued a liability policy on behalf of Plaza Las Américas.
4. The responsibility of MAPFRE, Grupo PRAICO, is subject to the clauses, limits, conditions and exclusions stated in the policy issued to Plaza Las Américas.
5. On October 10, 2003, Mrs. Claribel Fraguada Rodríguez ("Mrs.Fraguada") filed her original complaint with this Honorable Court.
6. As part of the allegations contained in the complaint, Mrs. Fraguada alleges that she has expended $50,000 in her medical treatment.
7. In addition, Mrs. Fraguada requests indemnification for an alleged loss of income.
8. On or around September 22, 1986, Mrs. Fraguada married Mr. Luis López ("Mr.López").
9. The appearing parties conclude that Mrs. Fraguada and Mr. López are married under the conjugal partnership regimen since the Plaintiff, up to this date, has not produced a pre-nuptial agreement in order to prove that she is not married under a conjugal partnership.
10. Up to this date, the appearing parties have not received any evidence to know whether Mrs. Fraguada and Mr. López have commenced the divorce proceedings.
11. As of November 16, 2004, Plaintiff Claribel Fraguada and Mr. Luis López remain legally married.

*232 12. Mrs. Fraguada and Mr. López have constituted a conjugal partnership.
13. Up to April 20, 2004, when the appearing parties took the deposition of the Plaintiff, Mrs. Fraguada and Mr. López were still married and they had not filed for divorce.
14. Mr. López lives at # 317 Aguamarina, Parque de Isla Verde, Carolina, Puerto Rico, jointly with the matrimony's two children.
15. Mrs. Fraguada currently lives in Millburn, New Jersey.
16. Mr. López is not willing to let the children move to New Jersey with Mrs. Fraguada.
17. Mrs. Fraguada and Mr. López bought the house located at # 317 Aguamarina, Parque de Isla Verde, Carolina, Puerto Rico.
18. The # 317 Aguamarina house has a mortgage loan with Popular Bank.
19. The mortgage loan is under Mrs. Fraguada's and Mr. López' name.
20. Mrs. Fraguada used to contribute to the monthly payment of the mortgage loan.
21. The # 317 Aguamarina house pays around $60.00, monthly, as maintenance fee.
22. Mrs. Fraguada used to pay the school of one of her children.
23. Mrs. Fraguada used to contribute to the ordinary expenses.
24. During their marriage, Mrs. Fraguada and Mr. López bought a car, which is under Mrs. Fraguada's name but is used by Mr. López.
25. Mrs. Fraguada contributes to the support of the children with $500 monthly.
26. The monies for the contribution to the children support come from a bank account that Mrs. Fraguada keeps in Old San Juan, Puerto Rico.
27. In Puerto Rico, Mrs. Fraguada uses a health care plan provided by her spouse, Mr. López.

IV. CONCLUSIONS OF LAW
In Puerto Rico, marriage creates a new entity named the conjugal partnership. See Article 1296 of the Puerto Rico Civil Code, 31 L.P.R.A. § 3622. Under Article 1301(2) of the Civil Code, 31 L.P.R.A. § 3641(2), the wages and salaries received by either spouse during the marriage are considered property of the conjugal partnership. Franco v. Mayaguez Building, Inc., 108 D.P.R. 192, 195 (1978). Thus, claims for damages such as loss of income, which substitute salary derived from work, belong to the conjugal partnership. Ortiz Diaz y Otros v. R & R Motors Sales, 131 D.P.R. 829, 1996 WL 1089979 (1992); Rosario Nevérez v. Torres Gaztambide, 633 F.Supp. 287 (D.Puerto Rico 1986). The conjugal partnership has a distinct legal personality, and is regarded as a separate and distinct entity from the partners who constitute it and has a capacity to sue and be sued. It cannot, however, represent itself. The conjugal partnership is represented by the husband or the wife. Cosme v. 419 Ponce De León, Inc., 1996 WL 406835 *2 (D.Puerto Rico 1996) (Gierbolini, J.); Reyes Castillo y Otros v. Cantera Ramos, Inc., 139 D.P.R. 925; Paredes Figueroa v. International Air Serv's of Puerto Rico, Inc., 662 F.Supp. 1202 (D.Puerto Rico 1987) (Acosta, J.). Moreover, claims to recover the expenses incurred by the spouses, which are chargeable to the conjugal partnership as part of its obligation to support the marriage and the family, also belong to the partnership and may only be claimed by it. Cosme at *2.
*233 Plaintiff Fraguada was still married to Luis López when she filed the Complaint on October 10, 2003, and they are still married; therefore, the conjugal partnership between them was still intact as of the date of the filing of the Complaint, and remains so to this day. Defendants argue that based on that fact, the real party in interest in this case is the conjugal partnership, not Mrs. Fraguada. The Court agrees, but not entirely. Under Puerto Rico law, it has long been established that money damages awarded to a spouse as indemnization for torts committed upon their person are individual, not community, property. See Robles Ostolaza v. Universidad de Puerto Rico, 96 D.P.R. 583, 601 (1968). Therefore, the Court FINDS that the real party in interest in as to those claims for personal pain and suffering is Mrs. Fraguada, not the conjugal partnership still formed between her husband and herself, which is not a party to this suit.
However, as stated above, Mrs. Fraguada was married to Luis López at the time of the filing of the complaint, and remains married to him. Based on that fact, the Court concludes that any damage award pertaining to lost wages or medical expenses would pertain to the conjugal partnership composed by Plaintiff Fraguada and Mr. López, making the conjugal partnership the real party in interest in those claims. See Pujol v. Shearson/American Exp., Inc., 829 F.2d 1201, 1208 (1st Cir. 1987) ("Recovery by one spouse on a claim concerning community property binds the conjugal partnership and the recovery automatically becomes community property."), citing Paredes Figueroa, 662 F.Supp. at 1204 ("Under Puerto Rico law there is no need to include a conjugal partnership as a party plaintiff, as opposed to a party defendant, since whatever joint benefits are gained through the suit would automatically accrue to the partnership.").
The Court's jurisdiction depends upon state of things at the time the action was brought, and all challenges to subject matter jurisdiction premised upon diversity of citizenship are measured against the state of facts that existed at the time of filing, whether challenge be brought shortly after filing, after trial, or even for the first time on appeal. See Grupo Dataflux v. Atlas Global Group, L.P. 541 U.S. 567, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004); see also 28 U.S.C. § 1332. A conjugal partnership, like unincorporated associations and partnerships, is not in its own right a citizen of the state that created it within the meaning of the federal diversity statute. Carden v. Arkoma Assocs., 494 U.S. 185, at 195-96, 110 S.Ct. 1015, 108 L.Ed.2d 157; Taber Partners I v. Merit Builders, Inc., 987 F.2d 57, 58 (1st Cir.1993), cert. denied; Desarrollos Metropolitanos, Inc. v. Taber Partners I, 510 U.S. 823, 114 S.Ct. 82, 126 L.Ed.2d 50 (1993). On the contrary, to determine the partnership's citizenship for purposes of diversity jurisdiction, the court must look at the citizenship of the spouses-partners, for the partnership's citizenship will be deemed to be that of the husband and wife. See Fernámdndez-Cerra v. Commercial Insurance Co. of Newark, 344 F.Supp. 314, 319 (D.Puerto Rico 1972). Since at least one member of the conjugal partnership, Mr. López, was domiciled in Puerto Rico at the time of the filing of the complaint, and being the conjugal partnership the party with real interest over the alleged economic losses, the Court hereby FINDS that in those claims regarding lost wages and medical expenses, Plaintiff Fraguada has failed to comply with the requirements asserting diversity of citizenship jurisdiction: that there be complete diversity between the parties. See Fernández-Cerra, 344 F.Supp. at 319 ("As stated before, the citizenship of the partnership is deemed to be that of the spouses-partners *234 under United Steelworkers of America v. R.H. Bouligny, Inc., 382 U.S. 145, 86 S.Ct. 272, 15 L.Ed.2d 217 (1965), so that in the present case there is at least one citizen of Puerto Rico on both sides of the controversy and, therefore, the complaint herein must be ... dismissed for lack of jurisdiction."); see also Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) (stating that the citizenship of each plaintiff must be diverse from that of each defendant). Since the real party in interest in the claims for lost wages and medical expenses is the conjugal partnership, the Court FINDS that there is a lack of complete diversity as to these claims, and hereby DISMISSES them.
Since Mrs. Fraguada is currently domiciled in Millburn, New Jersey, the Court FINDS that the diversity requirements for subject matter jurisdiction under 28 U.S.C. § 1332 have been met in the claims for which she is the real party in interest, namely, her claims for pain and suffering and mental anguish. However, Mrs. Fraguada is claiming damages for lost income and medical expenses, damages which would belong not solely to her, but to the conjugal partnership. See supra Ortiz Diaz y Otros v. R & R Motors Sales; see also supra Rosario Nevárez v. Torres Gaztambide. Therefore, the Court hereby GRANTS IN PART AND DINES IN PART Defendants' Motion for Summary Judgment.

V. CONCLUSION
In light of the aforementioned analysis, the Court hereby GRANTS IN PART AND DENIES IN PART Defendants' "Motion for Summary Judgment" (docket No. 29). Plaintiffs claims for lost wages and medical expenses, because they would belong to the conjugal partnership, which does not have complete diversity, are hereby DISMISSED WITH PREJUDICE.
Plaintiffs possible recovery is limited to her claims for pain and suffering and mental anguish.
IT IS SO ORDERED AND ADJUDGED.


731 F.2d 1150
UNITED STATES of America, Plaintiff-Appellee,v.Thomas W. McPHEE, Defendant-Appellant.
No. 83-2072.
United States Court of Appeals,Fifth Circuit.
April 30, 1984.

Ramon Garcia, Edinburg, Tex., Hugh M. Davis, Jr., Detroit, Mich., for defendant-appellant.
James R. Gough, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before CLARK, Chief Judge, RUBIN and POLITZ, Circuit Judges.
POLITZ, Circuit Judge:

1
Thomas W. McPhee was convicted of making a false statement to a federal agency in violation of 18 U.S.C. Sec. 1001.  The prosecutor made prejudicial statements to the jury during closing argument, thus denying McPhee a fair trial.  The conviction is reversed.

Facts

2
Raymond Kyral pled guilty in November 1979 to a charge of making and subscribing false income tax returns, in violation of 26 U.S.C. Sec. 7206(1).  The court imposed a one-year suspended sentence and placed him on supervised probation for 18 months.  As a special condition of his probation, the court required that Kyral file 1977 and 1978 tax returns with the Internal Revenue Service within 90 days.

3
McPhee, a Special Agent with the Internal Revenue Service in Harlingen, Texas, was instructed by his supervisor to audit Kyral's returns upon their receipt.  After meeting with Kyral's accountants, McPhee telephoned Antonio Flores, Kyral's probation officer, and informed him that Kyral was cooperating with the IRS and his accountants needed a 90-day extension to complete the returns.  Flores relayed this information to the court and recommended that Kyral be granted the requested extension.  After Flores obtained two additional time extensions for Kyral based upon McPhee's progress reports and recommendations, the court set December 15, 1980 as the final deadline for the submission of Kyral's 1977 and 1978 returns.

4
On December 11, 1980, Kyral's accountants delivered the delinquent tax returns to McPhee.  The returns were not signed.  McPhee accepted the returns notwithstanding the provisions of 26 U.S.C. Sec. 6061 and 26 C.F.R. Sec. 1.6061(a) (1983), which provide in essence that, with few exceptions, unsigned tax returns are invalid.

5
McPhee telephoned Flores later on December 11, 1980 and represented that Kyral had submitted his 1977 and 1978 tax returns as required by the special condition of probation.  McPhee confirmed this information in a letter to Flores dated December 22, 1980, which stated:

6
This memo confirms our telephone conversation pertaining to Ray Kyral.  Mr. Kyral has submitted to our agency his delinquent 1977 and 1978 Federal Income Tax returns in accordance with the terms of his probation.  He has also filed his 1979 1040.  Mr. Kyral has been very cooperative in disposing of this matter....

7
Relying on McPhee's statements, Flores wrote his superiors suggesting that Kyral's probation be converted from supervised to unsupervised.  The probation office recommended termination of supervised probation.  The court accepted the recommendation and modified Kyral's sentence.

8
McPhee was indicted for making a false statement regarding a material fact of probation.  In response to defendant's Motion for a Bill of Particulars, the government stated that the false statement involved was McPhee's report to Flores that Kyral had filed valid 1977 and 1978 tax returns as required by the court.

Analysis

9
McPhee assigned six errors.  We find only one meritorious, impermissible prosecutorial comment.  The prosecutor insinuated a scheme of bribery or pay-offs as motivating McPhee's official reports to Kyral's probation officer.  During closing argument the prosecutor posed rhetorical questions to the jury:

10
Why was Mr. McPhee going to give Kyral a break of a quarter of a million dollars in taxes?    We can only guess ...

11
Also, McPhee did not require Kyral to sign any tax returns.  Why did he give Mr. Kyral the benefit of escaping the penalties of perjury?    We can only guess.

12
Why was he being so kind to Mr. Kyral:  doper;  air smuggler?    We can only guess...

13
How many breaks has he given to Kyral, and why?    Those are things that we can only speculate about.

14
The prosecutor capped his prejudicial appeal to the jury, over McPhee's objection which the court overruled, by stating:

15
And all this business about work sheets and all of that, that doesn't matter.  Mr. McPhee had a job to do and he didn't do the job.  But he went the step further and he lied to the Probation Office.  And that's why we are here charging him with making false statements.  We are not just making charges against Mr. McPhee for making false statements.  We are not saying, "Listen, this is a little, old thing."    We are charging him and we want you to find him guilty because of a bunch of other reasons.  For giving a taxpayer a break of a quarter million dollars.

16
(emphasis added).

17
As the Supreme Court observed nearly a half century ago, the prosecutor "may prosecute with earnestness and vigor--indeed, he should do so.  But while he may strike hard blows, he is not at liberty to strike foul ones."    Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed.2d 1314 (1935).  To determine whether the prosecutor violated this rule, the reviewing court "must weigh the degree to which the alleged improper argument may have affected the substantial rights of the defendants."    United States v. Rhoden, 453 F.2d 598, 600 (5th Cir.1972).  Pertinent factors include:  (1) the magnitude of the prejudicial effect of the statements, (2) the efficacy of any cautionary instructions, and (3) the strength of the evidence of defendant's guilt.  Id.

18
Weighing the statements made by McPhee's prosecutor against this backdrop, we conclude that the closing argument was a proscribed foul blow.  First, the prosecutor's statements severely prejudiced McPhee's right to be tried only for the crime charged in the indictment.  The prosecutor's seriatim questions blatantly implied the existence of serious extrinsic offenses.  If that were not enough, the prosecutor expressly asked the jury to find McPhee guilty not merely for making false statements, but rather, "we want you to find him guilty because of a bunch of other reasons."

19
Second, the court gave no cautionary instruction at the time of the improper argument.  The later reference in the jury charge that McPhee was "not on trial for any act or conduct or offense not charged in the indictment" was grossly inadequate under the circumstances.

20
The final factor relates to the extent of the evidence.  The jury deliberated over a two-day period and one hour before returning the guilty verdict it reported to the court that it was unable to reach a decision.  The jury's apparent difficulty is understandable.  Although sufficient to support a conviction, the evidence cannot candidly be categorized as overwhelming.

21
In United States v. Labarbera, 581 F.2d 107 (5th Cir.1978), we held that a defendant was deprived of a fair trial when the prosecutor indicated to the jury that he knew the defendant was involved in other criminal conduct.  In Dunn v. United States, 307 F.2d 883 (5th Cir.1962), a prosecution for tax evasion, we found improper and prejudicial the prosecutor's insinuation that the unreported income resulted from kickbacks which the prosecutor suggested was a commonplace practice for politicians like the defendant.  The instant case fits within the Labarbera-Dunn mold.

22
In reversing we echo the exhortation by the Supreme Court in Berger, 295 U.S. at 88, 55 S.Ct. at 633:

23
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all;  and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.  As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer ...  It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

24
REVERSED and REMANDED.


715 N.W.2d 881 (2006)
475 Mich. 885
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Eric R. BAKER, Defendant-Appellant.
Docket No. 130421. COA No. 257440.
Supreme Court of Michigan.
June 26, 2006.
On order of the Court, the application for leave to appeal the December 8, 2005 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.


568 P.2d 1007 (1977)
KOBUK ENGINEERING & CONTRACTING SERVICES, INC., an Alaska Corporation, and R.W. Robinson, Appellants,
v.
SUPERIOR TANK & CONSTRUCTION CO-ALASKA, INC., an Alaska Corporation, Appellee.
No. 2983.
Supreme Court of Alaska.
September 9, 1977.
*1009 Edward L. Garnett, Kenai, for appellants.
Albert Maffei, Anchorage, for appellee.
Before BOOCHEVER, Chief Justice, RABINOWITZ, CONNOR and BURKE, Justices, and DIMOND, Justice Pro Tem.

OPINION
DIMOND, Justice Pro Tem.
In July 1973, Kobuk Engineering and Contracting Services, Inc. (Kobuk) purchased from Superior Tank and Construction Co-Alaska, Inc. (Superior) certain equipment located at Standard Oil's Beluga River gas field facility and at Mobil Oil's Granite Point tank farm. The equipment consisted of four trailers, two snowmobiles, three trucks, a motor grader, a tractor and a welder.[1]
The total purchase price was $55,300.00. Kobuk made a down payment of $6,000.00 and executed a promissory note for the balance of $49,300.00. Payments of principal and interest at eight per cent were to be made in the amount of $1,000.00 a month. The parties executed a security agreement and financing statement in conformity with art. 9 of the Uniform Commercial Code (UCC), which has been adopted in Alaska (AS 45.05.002-794).
Kobuk encountered financial difficulties and failed to make the $1,000.00 payments for the months of June and July 1974. In accordance with the provisions of the UCC § 9-504(3) [AS 45.05.788(c)], Superior mailed to Kobuk on August 26, 1974, a Notice of Public Sale of Collateral After Default. On that date, copies of the notice were delivered to the clerks of the district and superior courts in Anchorage for posting on their respective bulletin boards and to the General Services Administration for posting on the bulletin board in the United States Post Office in the federal building in Anchorage. The notice provided that the equipment that Kobuk had purchased from Superior would be sold at public sale to the highest bidder for cash on September 6, 1974 at 1:15 p.m., at the main door of the Boney Memorial Court Building in Anchorage.
*1010 At the scheduled time and place, Superior's counsel sold the equipment for $10,000.00 to Superior. Superior was the only bidder, and its counsel and owners were the only persons present. Immediately after the sale, Superior entered into negotiations with oil companies to lease or sell the property, resulting in a lease until October 19, 1974, when the property was sold for $25,000.00 cash.
Superior then commenced an action against Kobuk to recover a deficiency judgment in the amount of $35,059.46, which was equal to the unpaid balance of the note, less the $10,000.00 bid by Superior at the sale. The trial judge filed his memorandum decision on May 6, 1976, holding that Superior was entitled to a deficiency judgment. Judgment was entered accordingly on June 2, 1976, providing that Superior was entitled to recover from Kobuk the sum of $35,059.46. Kobuk then brought this appeal. Kobuk's principal contention is that the sale of the equipment was not held in a "commercially reasonable" manner as required by the UCC,[2] and therefore, the deficiency judgment against it should be set aside.
Section 9.504(3)[3] of the UCC requires a secured party who disposes of collateral after default to conduct the disposition in a manner which is commercially reasonable as to every aspect of the disposition, including the method, manner, time, place and terms. However, the price that is obtained at such a sale is not dispositive. The Code in § 9.507 provides that "[t]he fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner."[4] A sale is commercially reasonable, within the meaning of the UCC, if
the secured party either sells the collateral in the usual manner in a recognized market for it, if he sells at the price current in that market at the time of his sale, or if he has otherwise sold in conformity with reasonable commercial practices among dealers in the type of property sold... .[5]
The $10,000.00 price Superior paid for the equipment appears to be considerably less than one might expect when one considers that the purchase price Kobuk agreed to pay was $55,300.00 and that the equipment had been used by Kobuk for only about 14 months prior to the foreclosure sale. But as the Code states, a seemingly low price does not in itself establish that the amount bid at the sale by Superior was not commercially reasonable. Other facts must be considered.
First of all, the notice of sale listed the property to be sold, but did not state where it could be located and seen by prospective buyers. Furthermore, the notice was published only by delivering copies to the clerks of the state courts and to the General Services Administration for posting.[6] It was not published in any newspapers of general circulation in the area where the equipment was situated or sold. Thus, considering the limited scope of the notice given, it appears likely that the number of those who would be interested in this type of equipment who would have seen the notice of the sale must have been relatively few, as compared to the number who would have seen the notice had it been more widely distributed by publication in one or more newspapers.
*1011 The limited scope of the notice of sale is of particular importance in cases such as this where the secured party purchases the collateral at the sale. AS 45.05.788(c), [UCC § 9-504(3)] provides that unless the collateral is "of a type which is the subject of widely distributed standard price quotations," the secured party may only buy at a "public sale." Although such notice as was given in this case went out to the general public, this sale in the courthouse, reminiscent of the sheriff's sales which prompted these provisions in the Uniform Commercial Code, did not comport with the spirit of the Code's default and disposition provisions.[7] Where by failing to give such notice as would guarantee competitive bidding the secured party insures an opportunity for self-dealing, we will scrutinize the sale closely.
Superior did not establish that it had solicited bids from those who would have been most likely to be interested in the property, such as dealers, contractors or oil companies. Although not required to do so, such action by Superior might well have established some of the criteria for a commercially reasonable sale, i.e., that the sale was "in the usual manner in a recognized market" for the equipment sold and was "at the price current in that market at the time of [the] sale."[8] In addition, although no appraisals of the equipment by dealers in that type of equipment or others familiar with the value of the equipment were required, had they been obtained, Superior might have established another criterion  that the sale was "in conformity with reasonable commercial practices among dealers in the type of property sold."[9]
These matters assume importance in determining the main question on this appeal because of what happened after sale of the equipment to Superior for $10,000.00, which was made on September 6, 1974. From that date until October 19, 1974, Superior leased the equipment to Mobil Oil Company at a rate somewhere between $100.00 and $500.00 a day. Then, on October 19, 1974, approximately six weeks after Superior had purchased the property at the foreclosure sale, it sold the equipment to Mobil for $25,000.00. This was $15,000.00 more than Superior had paid for the equipment at the sale on September 6th. What all this amounts to is that Superior had been paid approximately $16,000.00 in cash by Kobuk, $25,000.00 in cash from Mobil's purchase of the equipment, and some uncertain sum for rental, which may have been in the neighborhood of $10,000.00 or more,[10] for a total of approximately $51,000.00. In addition, Superior secured a deficiency judgment against Kobuk for over $35,000.00. It is of interest to note again that the total purchase price for the equipment when it was sold to Kobuk by Superior 14 months prior to the foreclosure sale was $55,300.00
The Uniform Commercial Code provisions dealing with secured transactions aim to protect both the creditor and the debtor. Each party has certain duties. The secured creditor  in this case, Superior  had the duty to conduct the sale of the collateral in a "commercially reasonable"[11] manner. Ordinarily, the creditor establishes that this duty has been fulfilled by showing that the collateral was sold for its fair market value.[12]
It might be argued that the price for which the collateral sells is evidence of its fair market value. But in this case, Superior *1012 was the only bidder at the sale and "sold" the property to itself for $10,000.00, which was credited against the balance due on the note that had been executed by Kobuk. The price at which a creditor "buys in" the collateral that secures a debt is not a reliable indicator of the fair market value of the collateral because the transaction is self-serving.[13] It is obvious that this is true here because six weeks after purchasing the property for a $10,000.00 credit against Kobuk's debt, Superior sold the property for $15,000.00 more than it had paid for it.
The ultimate question here is whether the sale of the equipment by Superior to itself for $10,000.00 was commercially reasonable. The burden of proving the commercial reasonableness of the sale was on Superior,[14] and not on Kobuk. This is particularly true where, as here, the creditor purchased the property for itself at a sale where, because of the limited notice given, there was the opportunity for self-dealing. There is authority holding that a secured party makes out a case for deficiency judgment by proving the debt and security agreement and that a credit of a stated amount has been allowed as a result of the sale of the collateral and that the burden of proof then shifts to the debtor to show why the creditor should not recover the deficiency. See Vic Hansen & Sons, Inc. v. Crowley, 203 N.W.2d 728, 732 (Wis. 1973). But we choose to follow those jurisdictions which hold that the secured party must establish that every aspect of the sale was commercially reasonable.[15] We believe that this rule more accurately recognizes the tenor and intent of the UCC. This seems to us to be the better rule because the secured party has a duty under the Code to proceed in good faith (UCC § 1.203, AS 45.05.024) and in a commercially reasonable manner. It would seem to follow that he who has a duty should also have the burden of proving fulfillment of that duty. Therefore, upon the trial of this case, it was essential for Superior to establish that every aspect of the sale was commercially reasonable, including the adequacy of the price for which Superior bought the property at the foreclosure sale. Vic Hansen & Sons, Inc., supra.
We believe that Superior did not meet the burden of establishing a commercially reasonable sale. In bidding on the property for itself, it did not establish either (1) that the collateral was sold "in the usual manner in a recognized market for it," or (2) that it sold "at the price current in that market at the time of ... sale." AS 45.05.794(b). Finally, it can hardly be said that Superior proved that it had "otherwise sold in conformity with reasonable commercial practices among dealers in the type of property sold." AS 45.05.794(b).
We have mentioned that under the UCC, the fact that a better price could have been obtained by a sale at a different time or by a different method from that selected by the secured party is not in itself sufficient to establish that the sale was not made in a commercially reasonable manner. UCC § 9.507(2). But a substantial discrepancy in price, when viewed in light of the aggregate of circumstances surrounding the sale, is certainly relevant to a determination of whether the sale was commercially reasonable.[16] And where there is such a discrepancy, we will closely scrutinize the sale.[17] Here, for the sum of $10,000.00, *1013 Superior bought the property that had been sold 14 months earlier for $55,300.00. The method of notice made it unlikely that other bidders would appear to bid at the time and place of sale. Superior did nothing to establish the fair market value of the collateral. Superior could have, for example, attempted to get in touch with potential bidders among users or dealers in heavy equipment, vehicles or trailers. It could have contacted other contractors or oil companies. Apparently, it did not take this action. Within six weeks after Superior had purchased the property for a $10,000.00 credit against Kobuk's debt, Superior sold the collateral for two and one-half times what it had paid for it at the foreclosure sale.
After considering all of the circumstances of the sale of the collateral by Superior to itself for $10,000.00, and the immediate leasing of the property to Mobil, followed closely by a resale for $25,000.00, we are convinced that the initial sale by Superior to itself was not commercially reasonable, and that the trial court was clearly mistaken in holding to the contrary. The sale conducted by Superior, as detailed in the notice of sale, was not in accord with reasonable commercial practices.
The next question deals with the effect of a sale of collateral which is not conducted in a commercially reasonable manner. Some authorities hold that the creditor is not entitled to any deficiency judgment against the debtor. For example, Anderson in his treatise on the Uniform Commercial Code states: "The creditor is not entitled to a deficiency judgment unless the sale of the collateral was conducted in a manner which was commercially reasonable."[18] Apparently, this is the view of the majority of the courts which have passed on the question.[19]
However, we consider this apparent majority view to be repugnant to the spirit of the UCC. We agree with the Supreme Court of New Mexico, which has stated:
The complete denial of the deficiency smacks of the punitive and is directly contrary to Article Nine's underlying theme of commercial reasonableness.
`If the secured party has reimbursed the debtor for any losses incurred by improper sale, he has approximated the commercially reasonable sale. Thus, he should be allowed to receive the money which would have been due if the sale had been commercially reasonable.'[20]
We hold that the commercially unreasonable sale made by Superior acts to decrease the amount of the deficiency judgment which Superior is entitled to recover from Kobuk. The fair and reasonable value of the collateral at the time of repossession should be offset against the balance due on the security agreement.[21] Where the collateral has been sold in a sale that does not comply with the provisions of the UCC, there is a rebuttable presumption that the fair and reasonable value of the collateral is at least equal to the amount of the outstanding debt.[22] In order to overcome that presumption, the secured party has the burden of either (1) obtaining a fair and reasonable appraisal at or near the time of *1014 repossession, or (2) producing convincing evidence of the value of the collateral.[23] In order to meet the latter burden, the secured creditor is required to bring forward proof of the condition of the collateral and the usual price of items of like condition. The case must be remanded for a determination of these issues.
Kobuk's final point on appeal is that the trial court erred by making no finding that Superior had extended the time for payment under the promissory note and security agreement. There was a conflict of testimony on this point. As Kobuk admits in its reply brief:
There was a conflict in the testimony by Mr. Robinson (of Kobuk) that Mr. Jackson (of Superior) had extended the time for payments due on the note.
In its memorandum decision, the only relevant statement made by the trial court regarding the note was that "[t]here is no dispute that Kobuk was in default on the note." Since this was not a clear finding that time for payments on the note had or had not been extended, we remanded the case to the trial court for a specific finding on this question. The trial court responded by making the following finding:
I find ... [t]he appellee Superior Tank and Construction Co.  Alaska, Inc. did not grant Kobuk Engineering and Contracting Services, Inc. an extension of time for payments under the promissory note and security agreement.
We have reviewed the testimony on this matter and are not firmly convinced that the trial court was clearly mistaken in making such a finding. Therefore, we hold that the finding that payment on Kobuk's note had not been extended by Superior is not clearly erroneous.[24]
The judgment is reversed and the case remanded for further proceedings not inconsistent with the views expressed in this opinion.
REVERSED AND REMANDED.
NOTES
[1]  The equipment located at the Beluga River gas field facility consisted of one 12 by 55 foot house trailer, one 8 by 30 foot camp trailer and two snowmobiles. The equipment located at the Granite Point tank farm consisted of one Dodge truck with a heavy duty winch, one GMC truck with a dump bed, one Ford 3/4-ton pickup truck, one Caterpillar motor grader, one Construction King tractor, backhoe and loader, one 10 by 55 foot trailer, one 10 by 50 foot trailer completely skirted with 16 by 52 foot building trailers attached, and one Lincoln welder with cutting torch.
[2]  The trial judge held the sale to be commercially reasonable.
[3]  The corresponding Alaska provision is AS 45.05.788(c).
[4]  The corresponding Alaska provision is AS 45.05.794(b).
[5]  AS 45.05.794(b). The Code provision is UCC § 9.507.
[6]  The notices presumably were posted, although the only evidence in the record is the affidavit of a person who delivered the notices to the clerks of the state courts and to the General Services Administration for posting. There were no affidavits from either of the offices to which the notices were delivered indicating that the notices were in fact posted and remained posted for any period of time.
[7]  See J. White & R. Summers, Uniform Commercial Code § 26-11, at 981, 992-94 (1972).
[8]  AS 45.05.794(b). The Code provision is UCC § 9.507.
[9]  Id. We recognize that the isolated location of the equipment may have made an appraisal unduly expensive.
[10]  The rental was for a period of approximately 43 days. At the rate of from $100.00 to $500.00 a day, the total rental paid would be somewhere between $4,300.00 and $21,500.00.
[11]  Vic Hansen & Sons, Inc. v. Crowley, 57 Wis.2d 106, 203 N.W.2d 728, 731 (1973); Foster v. Knutson, 85 Wash.2d 538, 527 P.2d 1108, 1115 (1974); Dynalectron Corp. v. Jack Richards Aircraft Co., 337 F. Supp. 659, 663 (W.D. Okl. 1972).
[12]  Vic Hansen, supra, n. 11 at 731.
[13]  Id at 733.
[14]  Id. at 732-33; Dynalectron Corp. v. Jack Richards Aircraft Co., 337 F. Supp. 659, 662 (W.D.Okl. 1972); Franklin State Bank v. Parker, 136 N.J. Super. 476, 346 A.2d 632, 635 (1975); Clark Leasing Corp. v. White Sands Forest Products, Inc., 87 N.M. 451, 535 P.2d 1077, 1080 (1975).
[15]  This holding was foreshadowed in Weaver v. O'Meara Motor Co., 452 P.2d 87 (Alaska 1969), in which we held that when the secured party had failed to comply with the notice provisions of AS 45.05.788(c), the burden of proving adequate price and commercial reasonableness was on the secured party. See also n. 14, supra.
[16]  Mercantile Financial Corp. v. Miller, 292 F. Supp. 797, 801 (E.D.Pa. 1968).
[17]  See in re Zsa Zsa Ltd., 352 F. Supp. 665, 671 (S.D.N.Y. 1972), aff'd. 475 F.2d 1393 (2d Cir.1973); Mercantile Financial Corp. v. Miller, 292 F. Supp. 797, 801 (E.D.Pa. 1968); Central Budget Corp. v. Garrett, 48 A.D.2d 825, 368 N.Y.S.2d 268, 270 (1975). Cf. Sierra Financial Corp. v. Brooks-Farrer Co., 15 Cal. App.3d 698, 93 Cal. Rptr. 422 (1971).
[18]  4 Anderson, Uniform Commercial Code § 9.504:28 at 623 (1971).
[19]  See Clark Leasing Corp. v. White Sands Forest Products, Inc., 87 N.M. 451, 535 P.2d 1077, 1081 (1975).
[20]  Id. at 1081-82, quoting Minetz, "May a `Wrongdoer' Recover a Deficiency Judgment, or is Section 9-507(1) a Debtor's Exclusive Remedy?", 6 UCC L.J. 344, 363 (1974). See also A to Z Rental, Inc. v. Wilson, 413 F.2d 899, 909 (10th Cir.1969); Cornett v. White Motor Corp., 190 Neb. 496, 209 N.W.2d 341, 344 (1973).
[21]  See, e.g., Roanoke Industrial Loan and Thrift Corp. v. Bishop, 482 F.2d 381, 385 (4th Cir.1973); Harris v. Bower, 266 Md. 579, 295 A.2d 870, 876 (1972). See generally, Cornett v. White Motor Corp., 190 Neb. 496, 209 N.W.2d 341, 344 (1973).
[22]  See, e.g., Universal C.I.T. Credit Co. v. Rone, 248 Ark. 665, 453 S.W.2d 37, 39-40 (1970); Conti Causeway Ford v. Jarossy, 114 N.J. Super. 382, 276 A.2d 402, 404-05 (1971).
[23]  This court, operating under a similar rule in Weaver v. O'Meara Motor Co., 452 P.2d 87, 91-92 (Alaska 1969), held that an appraisal of the collateral combined with a good faith effort to sell the collateral at the best possible price was sufficient to overcome that presumption.

In this case, it should be noted, as bearing on the value of the collateral, that Superior not only purchased the collateral for a $10,000.00 offset on Kobuk's debt, but in addition, sold the collateral to Mobil for $25,000.00 and, prior to the sale, leased it to Mobil between September 6 and October 19, 1974 at a rate of between $100 and $500 a day.
[24]  Alaska Foods, Inc. v. American Mfr.'s Mut. Ins. Co., 482 P.2d 842, 848 (Alaska 1971).


948 F.2d 1286
Estate of Johnson (Michael A.)
NO. 90-4954
United States Court of Appeals,Fifth Circuit.
NOV 15, 1991

1
Appeal From:  U.S.T.C.

2
REVERSED.


HERMAN DAVID PALMIERI AND SHARON F. PALMIERI, HIS WIFE, Petitioners
v.
GRANT LIBERTY DEVELOPMENT GROUP ASSOCIATES, A PENNSYLVANIA GENERAL PARTNERSHIP, FOREST CITY GRANT LIBERTY ASSOCIATES, A PENNSYLVANIA LIMITED PARTNERSHIP, WJB GRANT LIBERTY ASSOCIATES, BHKR GRANT LIBERTY ASSOCIATES, A PENNSYLVANIA LIMITED PARTNERSHIP, LIBERTY CENTER VENTURE, A JOINT VENTURE, GRANT LIBERTY DEVELOPMENT GROUP ASSOCIATES, A PENNSYLVANIA GENERAL PARTNERSHIP AND METROPOLITAN LIFE INSURANCE COMPANY, A NEW YORK CORPORATION, OR ITS NOMINEE, AND AMERICAN BUILDING MAINTENANCE COMPANY, T/D/B/A AMERICAN BUILDING MAINTENANCE T/D/B/A ABM JANITORIAL SERVICES, Respondents
No. 115 WAL 2011.
Supreme Court of Pennsylvania, Western District.
September 14, 2011.

ORDER
PER CURIAM.
AND NOW, this 14th day of September 2011, the Petition for Allowance of Appeal is DENIED.