Russ Thompson Managing Partner Thompson Consumer Law Group
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Most consumers find repossession to be an unpleasant and terrifying process. The reason why is obvious: A stranger comes onto your property and takes one of the most expensive items you own. Moreover, given that repossession is essentially legally sanctioned theft, the repossession industry tends to attract hard-hearted “tough guys” that, like bounty hunters and debt collectors, tend to be possessed of a certain cavalier attitude. Add to this that repo men generally make several hundred dollars for a successful repossession, and the stage is set for real trouble.
The laws of most states permit repossession, without notice, and at any time as long as there is no breach of the peace. What exactly constitutes a “breach of the peace” varies from place to place, and depends on the specific facts and circumstances. But generally, a breach of the peace is understood as a loud and rowdy confrontation that disturbs the public or creates a genuine risk of violence.
In most places, a repo man’s actual violence or threat of violence will constitute a breach of the peace. In most places, a repo man’s breaking and entering (cutting the lock off of a gate/picking the lock on a garage) also constitutes a breach of the peace.
In many places, a consumer’s unequivocal protest of a repossession (“Stop you can’t take the car,” or “I protest this repossession and demand you stop immediately.”) requires the repo man to stop the repossession and forces the creditor to go to court to get an order to repossess the vehicle. If the repossession continues over the protest of the consumer, a breach of peace may be found and the consumer may be entitled to money damages. In many places, a repo man is not allowed to enlist the help of law enforcement officers to accomplish a repossession and the presence of a law enforcement officer at a repossession itself creates a breach of peace. In other places, a law enforcement officer must actively facilitate a repossession before the officer’s presence can create a breach of peace.
If a repo man breaches the peace to repossess a vehicle, the breach may subject the repo man and the creditor that hired him to liability and money damages to the consumer. Moreover, if a law enforcement officer facilitates a repossession, he may expose himself and the government body he works for to liability.
Many consumers keep items in their vehicles that have monetary or sentimental value. Generally, a creditor may not keep or sell any personal property found inside a repossessed vehicle. In some states, the creditor must tell you what personal items were found in your car and how you can retrieve them. The creditor may also be required to use reasonable care to prevent anyone else from removing your personal property from the car. Repo men are not supposed to keep the personal property found in repossessed vehicles, but it is common for them to steal these items or throw them away. If your creditor can’t account for items left in your vehicle, you may be entitled to compensation.
Anytime you are expecting a repossession or have been repossessed:
Your consumer rights can be violated at many places along the repossession continuum, prior to the repossession, during the repossession, and even after the repossession. Violations can occur by the repossession agent, a vehicle lender, plus any debt collector and anyone else that contacts you about your vehicle or vehicle loan. Should this situation ever arise, we will want to evaluate the information described below (don’t worry about what you don’t have, just send what you do)::
- A written description of the facts surrounding the repossession, including things like where the car was repossessed from, whether you were present during the repossession, whether there was a breach of the peace, whether you were actually behind on your payments, etc.;
- Copies of the original credit agreement, including all attachments and other documents given to you at the time you signed the credit agreement;
- If you took the loan out in the past 12 months, we would like to know if you were told you had to purchase any service or item to be approved for your loan, as well as get copies of any electronic funds transfer authorizations you may have executed at the time you signed the credit agreement.
- Any visual evidence, such as your written statement, third-party witness statements, or police reports;
- All written correspondence you received from or sent to the creditor, repo company or debt collector about the vehicle;
- Any phone records (or written phone logs) you have showing calls from anyone trying to collect the loan or repossess the vehicle;
- Pictures of your caller ID showing the debt collection calls you have received with regard to the vehicle;
- Any other relevant documents or information you may have.