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socrateaser
socrateaser, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 33564
Experience:  Retired (mostly)
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Breach of Peace Repossession/ Conversion Lawsuit Potential?

Customer Question

California-I recently had a vehicle repossessed. I was working out payment arrangements with the dealer as I was behind due to being off work from an injury but had returned and wanted to catch up. Long story short, regardless The repo man came twice, first time I refused to let him take the vehicle as I thought it was in error, I demanded he leave my property, get his truck out of my driveway, he refused, blocked my car in and then came back on my property on foot. I was sitting in the drivers seat with the door open, he would not let me close my car door (it was raining) I advised him he was in breach of peace, he stated, "tough $hi%" and threatened to call the police. I forcibly closed my door while moving him out of the way. He then called the police and tried to make an assault complaint, they took a report and he left. He came back again a week later, on foot I yelled at him from the porch to get off my property and leave. I opened my front door yelling at him to leave, started walking toward him and the vehicle as he was walking towards it, no tow truck in sight, he ignored me, jumped in the truck had a dealer key and drove off...I wanted to get in front, but he was hauling and I am not going to get killed getting in the way. I now want to send a demand letter for the return of the vehicle, sue for conversion, damages, breach of peace, which I have his police report to support that a breach occurred...any thoughts?  What relevant California and Federal codes should be referenced in the demand letter?  Also, knowing that will get blown off, I wan to file on my own in Superior Court in the county I live  in, links to pleadings examples or what I should request from the court beside damages, punitive, FDCPA violations and a request for an injunction to stop the sale of the vehicle? Thank you in advance for your time.

Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  socrateaser replied 1 year ago.
Hello,

In HENDERSON v. SECURITY NAT. BANK (1977) 72 Cal.App.3d 764 (1977) , the 1st District Court of Appeals explained the law concerning vehicle repossession:

  • (5a) Viewed in the light most favorable to Henderson, the evidence discloses that his car was obtained by the repossessor by means of an unlawful entry, i.e., the breaking of the lock on his garage door. (The employee who actually did the repossessing could not be found and was unavailable as a witness.)
  • Although there appears to be a paucity of authority on the subject in this state, we are of the opinion that where one is otherwise entitled to take possession of property, its repossession by such means constitutes a conversion. The leading case in support of our conclusion is Manhattan Credit Co. v. Brewer, 232 Ark. 976, 978 [341 S.W.2d 765, 766, 99 A.L.R.2d 354, 356], where, as here, the party charged with such a conversion had a right to repossess a hypothecated vehicle. Upholding a finding of conversion the court said: "The applicable rule (briefly stated) as set forth in many of our decisions, appears to be that there is a conversion if force or threats of force are used to [secure] possession of the automobile." To the same effect see A.B. Lewis Company v. Robinson, (Tex.Civ.App.) 339 S.W.2d 731, 735; Thrasher v. First National Bank of Miami (Fla.) 288 So.2d 288, 289; Victor v. Fairchild Motor Corporation, (La.) 8 So.2d 566, 567-568; Douglas Motor Co. v. Watson, 68 Ga. 335 [22 S.E.2d. 766, 767]; and Thompson v. Ford Motor Credit Company,324 F.Supp. 108, 115, where the court said, "`if the mortgagee finds that he cannot get possession without committing a breach of the peace, he must stay his hand, and resort to the law, for the preservation of the public peace is of more importance to society than the right of the owner of a chattel to get possession of it.'"

 

The above-quoted case law demonstrates that proof of the application of fear or force in the repossession of a motor vehicle operates as a conversion and makes the repossessor liable for the value of the vehicle to the repossessed owner. There is also case law that permits liability to be imputed to the lender, even though the repo company is an independent contractor. See, e.g., Loughan v. Harger-Haldeman (1960) 184 Cal.App.2d 495.

 

So, the answer to your question depends on whether or not you can prove that the second episode, which resulted in the repossession of the vehicle, was accomplished by force or fear of physical injury. If yes, then you have a case. Otherwise, not.

 

Note: I do not ordinarily present "black and white" answers to customers, because there are almost always shades of gray in any legal action. However, the manner in which you describe the events leading to the repossession, suggest that this really does come down to exactly what you can prove occurred during the second repossession -- and whether or not that proof shows that your efforts to prevent the repossession were thwarted by affirmative acts by the repo agent to cause you to be in reasonable fear of serious physical injury.

 

Please let me know if my answer is helpful. Thanks in advance.

socrateaser, Lawyer
Satisfied Customers: 33564
Experience: Retired (mostly)
socrateaser and 3 other Consumer Protection Law Specialists are ready to help you
Expert:  socrateaser replied 1 year ago.
Hello again,

I see that you rated my service as "OK." Experience tells me that customers who rate at this level are generally not entirely satisfied with the service received. If you require further clarification or assistance with this question, please let me know and I will try to help.

Note: Please do not reply to this memo, unless you actually have a follow-up question. Otherwise, the system will force me to respond, even if you are simply saying, "no thanks."

Best wishes.

Customer: replied 1 year ago.
I am familiar with the scope of the cases you referenced which is why I rated it as ok. I was hoping that the initial breach of peace would have some bearing or consequences that could be relevant regardless if the agent was successful in securing the vehicle. In retrospect, I should have continued to "allow" the breach of peace on the first event and been " forced" into allowing the repossession to take place...out of fear or force of course. So as a repossession was not successful on event number one I would have to articulate, my word against the agent that a breach occurred which led to the vehicle being repossessed and the original, well documented in police reports, breach of peace is irrelevant? Or can the original be used to substantiate the second?
Expert:  socrateaser replied 1 year ago.
Hello again,

I have reviewed about 30 other appellate cases for any legal doctrine that would permit you to use the first attempted repossession as grounds for a conversion and/or trespass action connected to the second repossession. I simply find nothing in this regard.

The attempted repo can be construed as a trespass to land, because your loan agreement consents to that trespass, only as long as it takes place peacefully. But, your damages for the first trespass is limited, because the repossession did not take place. You would have to convince a jury that the invasion of your real property rights, by itself, should be compensated. Asking a jury to impute damages, without any actual physical damage to property or the taking of the vehicle, is a dicey move, because the typical jury wants to "see" some real damage.

BotXXXXX XXXXXne, if you intend to sue for conversion, you must show force and fear in connection with the actual repossession of the vehicle. The fact that the repo agent had attempted repossession previously by means of fear or force could be said to have contributed to your reluctance to try to stop the repo -- but, the argument doesn't have the same sort of emotional power that would have been associated with the first attempt, had it actually succeeded.

No need to respond -- I'm just following up, so that you know that I reviewed your question and actually tried to find some other case law that could be useful.

Hope this helps.

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