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Alabama Supreme Court has recognized a “breach of the peace” to be “a disturbance of the public tranquility, by any act or conduct inciting to violence or tending to provoke or excite others to break the peace, or, as is sometimes said, it includes any violation of any law enacted to preserve peace and good order.” A creditor may not resort to constructive force, such as ‘threats or intimidation, or to ‘fraud, trickery, chicanery, and subterfuge.
Maden v. Deere Credit Servs. Inc.
598 So. 2d. 860 AL S Crt. 1992
The superior court concluded that by their course of dealing the parties had modified the contract to relieve Fairco of its obligation to pay sums due under the note.
Statebank had waived its right to seize the collateral or was estopped to assert this right until after the Christmas selling season without making a prior demand for payment and giving notice of default. In failing to provide prior notice of its intention to take possession of the store, Statebank had, the superior court found, violated its duty under the UCC to conduct itself in good faith in its dealings with Fairco.
We affirm the superior court’s conclusion that in the particular factual context of this case Statebank’s repossession and closure of Clowntown store were wrongful.
Alaska Statebank v. Fairco
674 P 2nd 288 AK Sup. 1983
A repossession agent was found negligent when a shooting occurred during an attempted repossession. An innocent bystander was accidentally injured when a neighbor of the debtor responded to what was believed to be an attempted car theft with a shotgun. When the neighbor attempted to hand the gun to the debtor, it accidentally discharged injuring a third party. The court ruled that while the repossession agency had a right to repossess the property, the agency is responsible for any tortous acts committed during the repossession.
Griffith v Valley of the Sun Recovery
613 P.2d 1283 AZ App. 1980
Taking a car from a driveway does not constitute a breach of the peace if the debtor does not object to the taking of the car and the repossessor does not provoke violence so as to breach the peace.
Williams v FMCC
674 F2d 717 AR US App. 1982
The right to immediate repossession by a secured party upon default must be effectuated through judicial action rather than self-help if force or threats of force are necessary to secure possession of the collateral without judicial intervention.
Hartford Financial Corp. v. Burns
96 Ca. App. 3rd 591 CA App 1979
The debtor went to the window and protested, telling the repossessors that they proceeded at their own peril. The debtor heard one repossessor ask the other repossessor for his six-shooter. One repossessor shoved the debtor to one side, and said ‘You son of a b…h, if you don’t keep your hands off this thing I will pump you full of cold lead. The court ruled that the mortgage did not authorize the mortgagee to commit a breach of the peace in obtaining control of the mortgaged property, even though the conditions of the mortgage had been broken, and a default had thereby been created. It simply gave the mortgagee a license to enter upon the premises where the property was situated, and to remove the property therefrom in a peaceable manner. In forcibly seizing and removing the property from the hotel, Kilpatrick was guilty of a trespass which renders him liable for whatever damage was occasioned by the wrongful act in question; even though it be conceded that at the time of the seizure he had a superior lien upon the mortgaged property.
Kilpatrick v Haley
66 F. 133 CO U.S. App. 1895
On May 13, 1991 Defendant’s repossession crew sought to repossess the Saab at plaintiff’s residence. When plaintiff refused to surrender the car, the crew immediately aborted its efforts. No evidence was presented indicating that the attempted repossession precipitated any violent or disruptive behavior. The repossession of May 17, 1991, is a closer question. Nevertheless, the Court is satisfied that defendant properly exercised its present right to possess the Saab. With the aid of the Dynamic towing system, defendant’s repossession crew removed and towed the Saab without either of the three crew members leaving the truck. The crewmembers successfully avoided a confrontation with the debtor and thus a breach of peace.
Clark v Auto Recovery Bureau
889 F. Supp. 543 CT US Dist. Crt 1994
Pursuant to UCC § 9-609, there are four elements which must be established in order for a self-help repossession to be proper: (1) the creditor must have a security interest in the property repossessed; (2) the debtor must be in default; (3) the creditor's actions must be in conformance with its contract with the debtor; and (4) the repossession must occur without a "breach of the peace". If any one of these elements is missing, then the creditor has committed a wrongful repossession, and is liable to the debtor for the damages incurred as a result of the wrongful repossession.
Robertson v Horton Brothers Recovery Inc.
2005 U.S. Dist. LEXIS 5256 DE US Dist. Crt. 2005
The creditor may not exert wrongful pressure upon the debtor to obtain repossession of the secured items. He has no right to use force and enjoys no immunity. He acts at his peril, and exposes himself to severe potential liability, including liability for punitive damages.
Sammons v. Broward Bank
599 So. 2d 1018 FL App. 1992
Under Georgia law, a secured party, through its agents, has a right to enter premises peacefully and at any time to obtain its property. The absence of the debtor's knowledge or consent does not constitute a breach of the peace unless abusive and insulting language which incites violence is used or some other violation of the public peace, order, or decorum occurs. Here, Jackie Johnson was not at home when Associates Recovery repossessed the vehicle, and Adlisa Johnson was sleeping. The Johnsons admit that they did not witness the repossession. Accordingly, there were no oral threats or abusive language used at the time of the repossession.
Johnson v First Union Nat'l Bank
567 S.E.2d 44 GA App. 2002
HRS § 443B-1 Definitions
As used in this chapter:
"Collection agency" means any person, whether located within or outside this State, who by oneself or through others offers to undertake or holds oneself out as being able to undertake or does undertake to collect for another person, claims or money due on accounts or other forms of indebtedness for a commission, fixed fee, or a portion of the sums so collected.
"Collection agency" includes:
(2) Any person who, in the conduct of the person's business for a fee, regularly repossesses any merchandise or chattels for another; …
HRS § 443B-15 Threats or coercion.
No collection agency shall collect or attempt to collect any money or other forms of indebtedness alleged to be due and owing by means of any threat, coercion, or attempt to coerce …,
Two Repossessors went to Debtors' residence to repossess Debtors' 1999 Pontiac Grand Am. They did not announce their presence. The front-wheel drive Grand Am was in Debtors' driveway, facing the garage door. The men pulled the vehicle into the street to attach its front-end to their tow truck. Since the vehicle was locked, the transmission was not disengaged before the vehicle was pulled into the street. The parking brake was on. The process left noticeable skid marks on Debtors' driveway. Once the Grand Am was on the street and ready to be towed, One of the Repossessors went to the door of the residence and knocked. His intent was to advise Debtors' that their car was being repossessed, to ask for a key, and to give Debtors the opportunity to remove personal possessions from the vehicle before it was taken. The Debtor spoke with the Repossessor at the door. He advised the Repossessor that he and his wife had filed bankruptcy and therefore he could not take the car. The Repossessor says he asked Mr. Andrus for copies of papers to prove Debtors filed bankruptcy. Instead of producing bankruptcy papers, the Debtor grabbed papers regarding the repossession from the Repossessor's hand and slammed the door. The Court found that a repossession conducted in the face of the Debtor’s advice that he and his wife had filed for bankruptcy relief was a willful violation of the automatic stay. The suggested defense that Debtors should be required to corroborate or verify their filing, was rejected. The course of conduct was not appropriate and couldnot be condoned. The "show me" approach reflects a reckless and callous disregard for the law. The Court awarded actual damages for improper towing, loss of use, and damage to the vehicle. In addition attorney fees and costs ($6,590.40) and punitive damages ($10,000.00) were awarded.
In Re Andrus
2004 Bankr. LEXIS 1548 ID Bankr. Crt. 2004
When the collateral is located inside a fence or is otherwise enclosed, the secured creditor's privilege is considerably abridged. The creditor's privilege is most severely restricted when repossession can only be accomplished by the actual breaking or destruction of barriers designed to exclude trespassers. Case law implicitly acknowledges that the likelihood of a breach of the peace increases in proportion to the efforts of the debtor to prevent unauthorized intrusions and the creditor's conduct in defiance of those efforts. Chrysler (Secured Party) enjoyed a limited privilege to enter Koontz's (Debtor’s) property for the sole and exclusive purpose of effecting the repossession. So long as the entry was limited in purpose (repossession), and so long as no gates, barricades, doors, enclosures, buildings, or chains were breached or cut, no breach of the peace occurred by virtue of the entry onto his property.
Chrysler Credit Corp v Koontz
661 N.E. 2nd 117 IL App. 1996
The Secured Party may not in the process of repossession break into or enter into homes or other buildings or enclosed spaces, or commit any crime against the defaulting party, or disturb the peace, or otherwise commit any breach of the peace. The Secured Party may, in repossession without judicial process, take a chattel off a street, parking lot or unenclosed space. However, even in the attempted repossession of a chattel off a street, parking lot or unenclosed space, if the repossession is verbally or otherwise contested at the actual time of and in the immediate vicinity of the attempted repossession by the defaulting party or other person in control of the chattel, the Secured Party must desist and pursue his remedy in court.
Massengill v Indiana National Bank
550 N.E.2d 97 IN App.1990
We are unwilling to give to the contract a construction which would permit the lessor to batter down doors or break windows or engage in other acts of violence in the exercise even of an undoubted right to the possession of the chattel. We are not willing to adopt a rule that will permit the seller under a contract of this kind to take the law into his own hands by forcibly retaking possession of property sold, where any resistance is offered by the purchaser.
Girard v Anderson
257 NW 400 IA S Crt. 1935
A creditor must obtain possession of the collateral through the courts if entry to the Debtor's premises, whether residential or commercial, can only be obtained through force. The 1983 Kansas Comment to K.S.A. 84-9-503 (now 84-9-609) states: "Forced entry into the Debtor's premises would almost certainly be considered a breach of the peace."
Riley State Bank v. Spillman
750 P.2d 1024 KS S Crt 1988
This statute makes it clear that a creditor runs the risk of serious liability if he proceeds with a self-help repossession when there is a serious objection by the debtor. If the strong arm of the law is needed, then the creditor must secure judicial intervention when a police officer is carrying out or sanctioning the repossession.
The Bank paid Henderson $1,988.24 for the fair market value of the boat, $16000.00 minus the amount of the security interest $14,011.76, and $75,000 for punitive damages.
First & Farmers Bank v Henderson
763 SW 2d 137 KY App. 1988
In today’s dollars this settlement would have been $135,795.94.
Descending in force, (three very large and husky men), at night, upon plaintiff’s place of residence after ordinary business hours constituted circumstances which were calculated to install at least a minimum of fear in plaintiff’s mind. The actions of the defendant’s representatives were ill-advised, intemperate and illegal. Debtor was awarded $1500.00 with the court ruling “It is a close question as to whether this allowance should be substantially increased..”
Levy v Andress-Hanna Inc.
96 So. 2d 373 LA App. 1957
In today’s dollars this settlement would have been $11,038.61
On June 6, 1997, Debtor received a telephone call from a woman who identified herself as a lawyer for Chrysler. During this phone call, in order to effectuate delivery of a Federal Express parcel, Debtor gave this woman the exact directions to her home. Shortly thereafter, a representative for Chrysler reneged on an agreement arranged with the Debtor. Shortly thereafter, an employee of the Secured Party came on the telephone line and threatened to arrest the plaintiff. “Sometime later,” Debtor received a phone call from an employee of Secured Party who said they would have her arrested if she did not tell them where the truck was. “Later,” the debtor received a phone call from a person who identified herself as a “skip tracer” hired by the Secured Party. That person told the Debtor that “they were up the road and they were going to come . . .” Twenty minutes later, two men with walkie-talkies and a dog trespassed on Debtor’s property. The men “zoomed down the driveway, got out and started running around the end of the house, “using Debtor’s name. The men did not knock on the door and left. Debtor believes these men were sent by Secured Party because there had been many drive-bys in a previous period, she had been told that they were watching her “day and night,” the print-out from Secured Party confirmed “activity on that day,” and the men had dogs and walkie-talkies. If a fact finder were to believe that within 20 minutes of being told that representatives of Secured Party were to come to her home and further find that individuals did, in fact, come to her home within that period, there are genuine issues of material fact to be decided by the jury in regard to trespass.
Kueter v Chrysler Financial Corp.
200 Me. Super. Lexis 187 ME Sup Crt. 2000
Two employees of the secured party located the debtor’s automobile parked in the Hillary’s driveway. The Hillary’s car was parked directly behind the debtor’s car, thus making it impossible to take the debtor’s car without first moving the Hillary’s car. The repossession agent moved the Hillary’s car out onto the street and took the debtor’s car which he later turned over to the secured party. The court found that there was evidence from which the jury could have found that entry was against the wishes or notice of the Hillarys and this was an illegal trespass and although it is clear from the statute that Associates had the right to enter the Hillary property to repossess the debtor’s automobile, the statute does not authorize a violation of the criminal law.
Associates Discount Corporation v. Hillary
278 A.2d 592 MD App. 1971
255: Section 13J Repossession of collateral under a consumer credit transaction; hearing; redemption; disposition; deficiency; insurance proceeds; determination of value
Subject to the provisions of this section a secured creditor under a consumer credit transaction may take possession of collateral. In taking possession the secured creditor under a consumer credit transaction may proceed without a prior hearing only if the default is material and consists of the debtor's failure to make one or more payments as required by the agreement or the occurrence of an event which substantially impairs the value of the collateral, and only if possession can be obtained without use of force, without a breach of peace and, unless the debtor consents to an entry, at the time of such entry, without entry upon property owned by, or rented to the debtor.
Larson purchased a Rolls Royce from Van Horn. Van Horn who was in the business of selling and leasing cars had given a lien on the Rolls to a bank in Florida. The bank in Florida had not perfected its security agreement. The bank in Florida authorized Schea to repossess the car from Larson. Schea enticed Larson to bring the Rolls to him by telling him falsely, that he could arrange a deal on another Rolls in which Larson had expressed an interest. Larson drove the Rolls to an auto dealership owned by Schea’s father. Schea called an employee and instructed him to take the Rolls next door and put it on the hoist to check for any damage to the undercarriage. Once the Rolls was on the hoist, Larson was informed that it had been repossessed. The Appeals Court affirmed the Trial Court’s finding that taking the Rolls from Larson’s possession and ownership was an act of intentional conversion. The tactics used by Schea to repossess the Rolls resulted in a punitive damage award of $10,500.00.
Larson v. Van Horn
313 N. W.2d 288 MI App. 1981
In today’s dollars this settlement would have been $25,536.00
Five factors are relevant in balancing the interests and deciding if the repossessor’s conduct was reasonable. The factors are: (1) where the repossession took place, (2) the debtor’s express or constructive consent, (3) the reactions of third parties, (4) the type of premises entered and, (5) the creditor’s use of deception. We find that these factors weigh against a breach of the peace in this case. First, the repossession took place in a public parking lot. As a repossession moves farther from the debtor’s residence, the argument for a breach of the peace becomes more tenuous. Although the debtor never gave her express consent, she was provided the opportunity to contact the Secured Party, the police, and the repossession company. After making these calls, with the repossessors waiting more than an hour, she no longer protested the repossession. We construe the Debtor’s actions as a constructive consent. Although third parties were present and watching from the offices, only one of them intervened and only to help the Debtor remove her personal belongings and to protest the repossession to the man in charge. These actions were not disruptive. Finally, the repossessors did not us trickery or deception in the repossession.
Clarin v Repossessors Inc.
198 F3d 661 MN US App. 2001
“The court finds that repossessor’s dress and actions could have put the plaintiffs in imminent apprehension of offensive contact. The evidence tends to show that the repossessor was dressed in a manner which was intended to intimidate the plaintiff’s into allowing the men to repossess the furniture without argument.” “The repossessors use of intimidation, threats and scare tactics, such as dressing up in SWAT clothes and carrying a gun, could reasonably be viewed as bad faith and conduct to which a reasonable person would object.”
Lingross v. Heilig-Meyers Furniture
1999 US Dist. LEXIS 398
Here, it was undisputed that this was an extra-judicial repossession. Corbett (a police officer) admitted that, within a short time of their arrival at the Browning residence, there was what he called a breach of the peace. He also acknowledged that there was loud talk, Mrs. Browning (the wife of the debtor) was out of control, he had to tell her to calm down several times, and he had to step between Mrs. Browning and White (the repossessor) to prevent a physical altercation. He even admitted telling White to get off the property as a result of Mrs. Browning’s demand, but he stayed on the propery until the repossession was complete.
Under these circumstances, we are constrained to hold that there was sufficient evidence from which the trial court could have concluded that Corbett’s involvement in this extra-judicial repossession was such that it amounted to state action.
Browning v White
940 S.W.2d 914 MO App.1997
The facts of the instant case clearly indicate that the respondents forcibly entered the Martins' (Debtor’s) property. Drummond (Repossessor) and the respondents' (Secured Party’s) representative entered the property without the Martins' (Debtors’) consent after cutting the locked chain on the gate with bolt cutters. This action in itself constitutes a breach of the peace. Self-help repossessions must be conducted in such a manner as to avoid forcible breakings and entries.
Martin v Dorn Equipment Co.
821 P.2d 1025 MT S Crt. 1991
One of the repossession agents testified “[s]he was draggin’ down in back of the - back - she - like a Bugs Bunny cartoon. She was trying to stop the truck and draggin’ on the back of it, holding these bunge [sic] straps.” The court ruled that there “was clearly a breach of the peace. Defendant and Holmes went to the farm at 11 p.m.; took the pickup, which was loaded with personal property; and fled despite Ables’s protest, which was known to Holmes. There was also controverted testimony that the front part of the pickup may have been parked in an outbuilding.”
Nebraska v Trackwell
458 NW 2d 181 NE S. Ct. 1990
The Bank’s self –help repossession without notice after a pre-established course of conduct in accepting late payments was held wrongful. Because, no care was taken to protect the personal property found in the vehicle after repossession: the electrical cord connecting the heater to an electrical socket in Huff's mobile home was ripped out; the camper was left unlocked in downtown Reno at 2 a.m. on a Saturday; the camper was left unlocked at the tow yard; the vehicle was not protected against freezing. The Bank’s and the Repossessor’s failure to protect Huff's personal property and the property of others in the camper at the time of the repossession resulted in the theft of valuable property and substantial freezing damage to the truck and camper, punitive damages were allowed.
Nevada National Bank v Huff
582 P.2d 364 (NV S Crt. 1978)
The court stated, “ We believe, therefore, that the introduction of law enforcement officers into the area of self-help repossession, regardless of their degree of participation or nonparticipation in the actual events, would constitute state action, thereby invalidating a repossession without proper notice and hearing.”
The court went further to say:
If a creditor is allowed to unofficially use the poser of the state to squelch potentional breaches of the peace, he can effectively evade or avoid the statute. The statue makes it clear that a creditor runs the risk of serious liability if he proceeds with a self-help repossession when there is a serious objection by the debtor. If the strong arm of the law is needed, then the creditor must secure judicial intervention when a police officer is carrying out or sanctioning the repossession.
In re MacLeod
118 B.R. 1 NH Bankr 1990
There does not appear to be any reported decisions on this point in New Jersey, but other jurisdictions have examined whether a breach of the peace occurred in various factual circumstances. (secured creditor who cut chain that locked gate to debtor’s business premises committed breach of peace); (no breach of peace where secured creditor repossessed automobile in absence of debtor at 3 a.m. with duplicate key from dealer from parking area of debtor’s employer); (breach of peace where garage doors are closed); (unauthorized entry into Gulf Oil station was breach of the peace); (repossession of auto from debtor’s driveway during early morning hours did not breach peace); (creditor who broke debtor’s mobile home door lock to repossess mobile home breached the peace). Applying the settled principles discussed above, it is apparent that summary judgment was inappropriate for the adjudication of plaintiff’s wrongful repossession claim. There were genuine issues of material fact that could only have been resolved by a plenary hearing.
Slowinski v Valley National Bank
624 A.2d 85 NJ Super 1993
The defendants argue that, if we adopt a per se rule that a wrongful self-help repossession occurs any time law enforcement personnel accompany a repossessor and confront the defaulting party, repossessions cannot occur on military installations. The defendants request that this Court consider the effect such a rule might have on the potential availability of credit to military personnel. However, even if base policy remains unchanged, repossessions following judicial process will not be precluded, only self-help repossessions.
Waisner v Jones
755 P.2d 598 NM S Crt. 1988
At about 8:30pm two repossession agents located the debtor’s vehicle in the driveway of their residence. The debtor’s wife saw headlights in the driveway and told her husband that someone was in the car and grabbed an unloaded shotgun and ran outside. One of the repossession agents was in the car, and the debtor’s wife pointed the shotgun at him and told him to get out. The repossession agent exited the car and attempted to grab the gun. The debtor came out of the house and also began struggling with the repossession agent, at which point the second repossession agent joined in the fight. The debtor managed to disengage and return to the house, where he called the police, after which he went back outside with two knives in his hands. A standoff occurred until police arrived.
The court ruled that there was no question but that a breach of peace occurred in the course of the attempted repossession of the vehicle.
Mauro v General Motors Acceptance Corp.
626 NY S2d 374 NY S Crt. 1995
There was no breach of the peace, as a matter of law. The repossessor went onto debtors driveway in the early morning hours, thus decreasing the possiblity of confrontaion. The repossessor did not enter into plaintiff’s home or any enclosed area. Consent to repossession was expressly given in the contract. There was no confrontation. And there was no evidence, that the lien holder or the repossessor employed a type of deception when repossessing the automobile.
Giles v. First Virginia Credit Services Inc.
560 SE2d 557 NC App. 2002
Repossessing property under section 41-09-49, N.D.C.C., if attempted under inappropriate circumstances, may subject the secured party to liability for wrongful conversion and detention of the property. In light of the evidence of the Secured Party’s agreement to defer repossession, the jury could have inferred that the Secured Party directed repossession of the property “under inappropriate circumstances.”
Zimprich v North Dakota Harvestore Systems
461 NW2d 425 ND S Crt. 1990
Ohio’s highest court held that a breach of the peace was committed when the creditor’s agents physically confronted the debtor and disregarded his request to stop even though there was no actual physical conflict.
Morris v. First National Bank of Ravenna
254 NE 2d 683 OH Sup. Ct. 1970
The repossession agent found the gate to Williamson Auto locked with a chain which he cut with bolt cutters. He then entered the lot, pushed the Chevette out and towed it to Norman. In cutting the lock off a gate of an auto-mechanic’s shop belonging to Williamson, who had no relationship to the security agreement between Fowler and the debtor, the repossession agent certainly showed complete disregard for the rights of Williamson in securing his place of business. As we have held, Secured Party’s duty not to breach the peace when repossessing vehicles is nondelegable, and so Secured Party is vicariously liable even for punitive damages for repossession agent’s actions.
Williamson Auto v. Fowler Toyota Inc.
956 P.2d 858 OK S Crt 1998
If the buyer objects and protests and obstructs the seller it becomes the duty of the latter to desist. If the mortgagor or conditional buyer resists and places his body in a position which obstructs the mortgagee or vendor so that in order to take the chattel he must nescessarily apply force, however slight, to the person then he must desist and resort to legal process. He must not, in attempting to take possession, even commit an assault, thus putting the mortgagor in apprehension of hostile unpermitted physical contact, though no such contact occurs.
Westerman v Oregon Automobile Credit Corporation
122 P.2d 435 OR S Crt. 1942
The two men who took the car from plaintiff’s garage testified that they used no force to effect an entrance to the garage and did not “break or damage any portion of the door: and that the “door was open about three feet.”
The court characterized the conduct of the defendant and its agent as “outrageous and high handed.”
The jury returned a verdict for plaintiff for the agreed value of the automobile, $800.00, and detention damages of $59.73, and further awarded punitive damages to the extent of $2500.00, which was reduced to $1000 on appeal.
Voltz v. General Motors Acceptance Corporation
2 A.2d 697; Sup. Ct. PA 1938
In today’s dollars this settlement would have been $25,861.42
The secured party, a bank, authorized a car to be repossessed when the 9th payment was not made 8 days after the due date although the contract allowed the debtor 15 days after the due date for the debtor to make the payment. The court noted that this would not be a default therefore the repossession would be wrongful. The bank also argued that they still had the right to repossess the car because the 6th payment was made more than 15 days past its due date even though they accepted the 6th, 7th and 8th payment prior to repossessing the car. The court ruled that a contract that would allow a repossession without notice at any time after a late payment even though later payments were made would be unconscionable and against public policy.
Fountaine v Industrial National Bank
298 A2d 521 RI S Crt. 1973
The debtor returned to her mobile home to find men attempting to repossess it. They had disconnected the sewer, water, power and phone. The debtor told the men to leave and that they could not take the home. The men called their supervisor, who arrived on the scene shortly thereafter. The repossessor’s supervisor entered the mobile home, and the debtor told him that he could not repossess the mobile home. The debtor also told the supervisor that she wanted to talk with her attorney and since she could not use the phone in the home, she decided to travel a short distance to the attorney’s office. She left her son in the mobile home with instructions not to allow the men to take the home. The repossessors proceeded with the repossession. After the home was hooked up to the truck, the supervisor entered the mobile home and told the debtor’s son to leave the home or they would move it with him in it. There was a willful violation of the South Carolina Unfair Trade Practices Act (SCUPTA). That finding was based upon a “disregard for the law of proper repossession,” “the clear act of misleading Ms. Daniel,” and “forcing the son from the mobile home as it was being towed away.” If there is a willful violation of the SCUTPA, the court is required to award treble damages, attorneys’ fees and costs.
Butler v. Vanderbilt Mortgage & Finance
137 BR 887 SC Bankr 1992
Before leaving for work the next morning, Mr. Davenport parked the automobile in their enclosed garage and chained its rear end to a post using a logging chain and two padlocks. He also closed the canvas flaps covering the entrance to the garage and secured the flaps with cinder blocks. The Court ruled “despite the absence of violence or physcial confrontation, entering the closed garage and cutting the lock amounted to a breach of the peace.
Davenport v. Chrysler Credit Corporation
818 SW 2d 23 TN App. 1991
There would have been danger in an attempt to repossess the automobile on the earlier occasion when Cole confronted the repossession agents and denied them the right to take the automobile until such time as they had the authority by an order of the court. To have insisted upon repossessing the automobile at that time would present the probability that such could not have been effected peaceably. However, the only effect of the agents’ departure and cessation of attempted repossession was to relegate them to either the process of court or to a posture of watchful waiting until such a time when a peaceful repossession might be effected.
Ford Motor Credit v. Cole
502 SW 2d 853 TX App. 1973
There was also insufficient evidence to support a finding that a breach of the peace was likely to occur. The repossession occurred when neither the Heppners nor their agents were present, and neither the Heppners nor their agents contested the actual repossession as it took place. Heppner’s telephoned displeasure alone cannot be enough to create a likelihood of a breach of the peace.
Cottam v Heppner
777 P.2d 468 UT S Crt. 1989
On trial the plaintiff (Debtor) gave evidence, tending to prove, that he purchased at the Tyson warehouse, in Montpelier, a stove, and gave his promissory note therefore, payable in six months; the sale was made by the defendant Hubbard, who was clerk for the agent, as was also the defendant Ayres; that on the same day, and soon after the sale, the defendants learned, that the plaintiff was irresponsible as to property, and started in pursuit of him, and overtook him about two miles from Montpelier and took the stove from him by force; but it did not appear, how much force was used, or its character; but it did appear, that, in the attempt to dispossess the plaintiff of the stove, he (Debtor) drew his knife, and that he was then forcibly held by one of the defendants (Repossessors), while the other took possession of the stove; and the testimony tended to prove, that the resistance of the plaintiff (Debtor) was such, that the defendants used violence and applied force to his person with great rudeness and outrage. In the present case the defendants (Repossessors) had clearly a right to retake the property, thus fraudulently obtained from them, if it could be done without unnecessary violence to the person, or without breach of the peace. Whoever is guilty of a breach of the peace, or of doing unnecessary violence to the person of another, although it may be in the assertion of an unquestioned and undoubted right, is liable to be prosecuted therefore.
Hodgeden v Hubbard
18 Vt. 504 VT S Crt. 1846
“Most courts have held the peace has been breached within the meaning of UCC 9:503 if there has been violence, the threat of violence, or if the creditor has broken and entered the debtor’s residence or other building.”
Wallace v. Chrysler Credit Corp.
743 F. Supp 1228 VA Dist. Crt
“Breach of the peace does not necessarily require a physical confrontation.”
“We are unwilling to hold that making noise is an act likely to break the peace”
“it is reasonable to allow the repossession to occur in the early morning hours. At that hour, a confrontation with the debtor is likely avoided, and the debtor is not subjected to the humiliation of having his or her automobile repossessed from a public place.”
Radge v Peoples Bank
767 P.2d 949 WA App. 1989
While the debtor was at work repossessors broke the lock on her mobile home to release a household pet and removed her mobile home and all her possessions from its cinder block foundation (destroyed in the process) and carried it back to old Virginia. Cook v. Lilly upheld the constitutionality of West Virginia’s self-help repossession law in 1974. We agree with those courts that have recognized break-ins and unauthorized entries of debtor’s dwellings to be breaches of the peace that deprive creditors or repossessors of self-help default remedies.
GECC v Timbrook
291 SE2d 383 WV App.1982
In April of 2006 the Wisconsin Consumer Act was modified to allow for the self-help repossession of motor vehicles. (425.206) The new law is restricted to motor vehicles which are defined in the Wisconsin statutes as “any motor-driven vehicle required to be registered under ch. 341 except mopeds.”
Before self-help repossession can be used the new law requires a notice be sent to the Debtor- (425.205 (g)) The notice should be sent by certified mail allowing the Debtor 15 days before repossession. During the 15 days the Debtor is allowed to send the Secured Party a returned written notice demanding that the Secured party proceed in court by notifiying the secured party in writing.
Before attempting self-help repossession the repossessor must notify law enforcement.
There can be no breach of the peace during the self-help repossession.
We are sensitive to the usefulness of self-help remedies for secured parties, and recognize that W.S. 34-21-962 (now 9-609) authorizes secured parties to proceed by action if self-help will not result in a breach of the peace. However, we must balance this concern with our recognition of society’s interest in tranquility, and the right of those not involved with the security agreement to be free from unwanted invasions of their land, which trespass law generally protects against.
Salisbury Livestock v Colorado Central CU
793 P.2d 470 WY S Crt. 1990