Indiana Consumer Law Group/The Law Office of Robert E. Duff announces the recent filing of a lawsuit against several defendants, including Santander Consumer USA Inc., over a repossession that allegedly did not comply with Indiana law. Specifically, the repo agent is alleged to have breached the peace in repossessing the plaintiff’s vehicle.
Indiana law, like most states’, permits a lienholder to repossess a car when the owner defaults on the note. This is an extremely rare – virtually unseen in any other area of law – delegation of the state’s exclusive authority to resolve disputes. As such, and because it is so likely to be abused and lead to confrontations, violence and injuries, there are strict requirements on when and how a self-help repossession can be conducted. One of those requirements is that the repossession absolutely must be conducted without a “breach of the peace.” “Breach of the peace” has been defined by the courts as continued repossession despite resistance by the owner (or the owner’s agent) of ANY KIND. Simply telling the repo agent that they cannot take the vehicle is sufficient resistance to stop a repossession, provided that it occurs before the repo agent has taken possession of (i.e., hooked up to) the vehicle. Yes, you read that right, all you have to do (legally at least) to stop the repossession of your car is tell the repo agent that he can’t have it. In principal, it is as simple as that. In practice, you can imagine that sometimes doesn’t work. If it doesn’t, the repossession becomes a wrongful repossession.
It IS legal for a repo agent to go onto private property to repossess a car. Going onto private property undetected is not in and of itself a breach of the peace. But it is a breach of the peace if the vehicle is taken from inside a closed garage or locked fence, or if the repo agent has to drag another vehicle out of the way to get to it.
In this case, according to the Complaint, William and Desiree Mattingly were the repo agents working on behalf of their company, Slingers Transport LLC. Santander hired a forwarding company called PAR North America – a sort of repossession middleman who accepts the order to repossess from the lender and hires the company that actually performs the reposession. PAR North America hired Slingers Transport to perform the actual repossession. William and Desiree Mattingly drove to the plaintiff’s residence in a car – known in the industry as a scout vehicle – and found the target vehicle in the driveway. They then proceeded to block the repossession target in with their car to keep it there until the tow truck could get there. The plaintiff discovered what was going on told the Mattinglys that they could not take the truck and asked them to leave his property, both of which the Mattinglys refused to do. The plaintiff alleges that continuing the repossession at that point was a breach of the peace and violated the Fair Debt Collection Practices Act and several Indiana statutes. The Complaint asks for a return of the truck and the payment of statutory, actual and treble damages.
If you believe you are the victim of a breach of peace repossession, submit a contact form here and we’ll be happy to review your potential case at no charge.