Wrongful Auto Repossession
Consumers who have or are about to have their car or truck repossessed often assume that there isn’t much they can do about it. However, it’s important to realize there are rules that must be followed when a creditor hires a repossession agent to take possession of a vehicle if a consumer defaults on the loan payments.
A wrongful repossession is what occurs when a consumer defaults on his or her vehicle loan and the creditor (the financial entity that issued the loan to the consumer) hires a repossession company/agent to take possession of the vehicle without complying with the legal requirements under the Fair Debt Collection Practices Act (FDCPA) and Minnesota state law.
The first thing you should do if your vehicle has been repossessed is contact Fields Law Firm and speak with a Minnesota Consumer Law Attorney about your legal rights.
Our attorneys are extremely knowledgeable and will provide you with competent legal advice regarding your rights under state and federal repossession laws, who to contact to find your vehicle, how to obtain your personal property from your vehicle, and how to proceed with a lawsuit against the lender and repossession company if the repossession was wrongful under the law.
How much will it cost me to hire a Consumer Law attorney to help me with the wrongful repossession of my vehicle?
There is no out-of-pocket cost to you when hiring a Consumer Law attorney at Fields Law Firm. We offer free initial consultations and our work is done on a contingency fee basis, which means that we advance all your case costs and you do not owe any money for attorney fees or costs until we win your case. Most importantly, the FDCPA requires violators to pay successful plaintiffs’ attorneys’ fees. Therefore, we only get paid if we win and when we win, we get paid by the party who violated the law.
What Are The Legal Requirements of Repossessions Under Minnesota Law?
Minnesota Statute §336.9-609 governs the rights of creditors, also referred to as secured parties, when they seek to take possession of a consumer’s vehicle in the event of default. When a consumer purchases a new or used vehicle on credit, the consumer must sign a document referred to as a Retail Installment Contract and Security Agreement.
While many states have similar laws governing the rights of consumer debtors who are in default under their Retail Installment Contract and Security Agreement, minor differences do exist from state to state. For example, some states have different written notice requirements regarding the consumer’s right to cure default. Despite the minor differences in the law that do exist, having a security interest generally means your lender can repossess the vehicle without notice if you default on the loan.
The Retail Installment Contract and Security Agreement includes a “Remedies” clause that states in fine print, among other things, that the creditor has the right, upon default, to exercise its self-help right to repossession. Self-help repossession refers to repossession efforts taken without resorting to judicial process or legal proceedings.
However, the Minnesota Statute defines and limits the creditor’s ability to exercise its right to self-help repossession under the Retail Installment Contract and Security Agreement. In the event of default, the statute states that the secured party, the party who issued the loan to the consumer to finance the vehicle, has two options to obtain the vehicle (“collateral”):
- Pursuant to judicial process (which requires obtaining an order of replevin from a judge requiring the consumer debtor to turn over the vehicle); or
- Without judicial process, if it proceeds without breach of the peace.
What Does This Minnesota Statute Mean for Minnesota Consumers?
Under Minn. Stat. § 336.9-609, repossession agents, also referred to as debt collectors, have the right to attempt to repossess your vehicle at anytime of the day or night without providing you with advance notice. However, two specific legal requirements must be met before repossession agents can go through with the repossession of your vehicle: (1) Cobb notice requirements must be met; and (2) the repossession must occur without a “breach of the peace.”
- Cobb Notice Requirement: If at any time your lender has accepted repeated late, partial, or irregular payments from you, your lender then has a legal duty to notify you that strict compliance with the contract terms will be required before it can lawfully repossess your vehicle. This notice, referred to as a Cobb notice, will typically be in the form of a letter informing you of your lenders’ intent to repossess your vehicle and terminate your contract unless payment is made in full. If your lender has accepted repeated late, partial, and irregular payments, but has failed to provide you with a Cobb notice prior to engaging in repossession activity, you are entitled to bring a claim for wrongful repossession under Minnesota law.
- Breach of the Peace: While many different actions or types of conduct can constitute a breach of the peace, it is generally defined as a violation of the public tranquility and order or breaking or disturbing the public peace by any riotous, forcible, threatening, or unlawful proceeding. Trespassing on private property while engaging in repossession activities can also constitute a breach of the peace.
What Constitutes a Breach of the Peace?
Unfortunately, Minnesota’s wrongful repossession statute does not provide a definition of “breach of the peace.” While trying to define “breach of the peace” is a contentious issue that is frequently litigated in courts throughout the country, it has been defined to include the following conduct:
- Use of violence or force;
- Threats of violence or force;
- Acts that are likely to provoke or excite the debtor into using force or violence;
- Verbal confrontation with the debtor;
- Breaking or damaging locks, chains, fences, doors, or other property to attempt to gain access to the vehicle;
- Disturbing neighbors or other third parties;
- Using law enforcement to assist in—rather than just stand-by—the repossession; and
- Trespassing into the debtor’s home or secured garage.
After Defaulting, Do I Have The Right to Prevent A Repossession Agent From Repossessing My Vehicle?
Yes. Consumer debtors have the legal right to raise an oral objection to an attempted repossession. If you tell the repossession agent or agents to get off of your property and that they do not have your permission to repossess your vehicle, you have effectively revoked the creditor’s right to self-help repossession. Consequently, at this time, the repossession agent or agents must back down, leave your property, and wait to attempt repossession at another time and/or place.
Can My Vehicle Be Taken From A Public Street or From My Driveway?
Yes. Repossession agents have the legal right to repossess a consumer’s vehicle from any public street or driveway if the consumer has defaulted on their Retail Installment Contract and Security Agreement. However, there is one important exception to this general rule: if the consumer debtor objects to the repossession attempt and tells the repossession agent that he or she does not have the right to take their vehicle, thereby revoking the repossession agent’s right to self-help repossession, the repossession agent must back down and attempt the repossession at another time or obtain a replevin order from a judge.
If the repossession agent repossesses your vehicle in the face of your objection and revocation of his or her self-help repossession right, you may have a claim for wrongful repossession under Minnesota law and should immediately contact a Consumer Law attorney at Fields Law Firm.
Can My Vehicle Be Taken From My Garage?
No. Your garage is your private property and repossession of your vehicle from your garage is likely to be considered trespassing and a breach of the peace under Minnesota law. If your vehicle has been repossessed from a private, secured, and locked garage, including both above ground and underground garages, you should immediately contact a Consumer Law attorney at Fields Law Firm.
If The Repossession Agent Has A Repossession Order Does That Give Them The Legal Right To Take My Vehicle In The Face Of Protest?
No. A Repossession Order is not a legal document and therefore does not provide a repossession agent with a legal right to repossess your vehicle. To legally repossess your vehicle, the creditor must provide you with a legally sufficient Cobb notice prior to engaging in repossession activities and the repossession must be completed without breaching the peace.
Consumer debtor’s always have a right to object to the repossession, thereby revoking the creditor’s right to self-help repossession. When you object and tell the repossession agent or agents that they do not have the right to take your vehicle, they must honor your request and abort the repossession mission.
However, the repossession agents do have the right to attempt repossession at another time and/or place, as long as they do so lawfully. The only document that gives a repossession agent an unqualified legal right to repossess your vehicle is a Replevin Order signed by a judge. Repossession agents almost never obtain a Replevin Order prior to engaging in repossession activities.
What Should I Do If I Catch The Repossession Agents In The Act of Repossession On My Private Property?
First, you should approach the repossession agents while remaining cool, calm, and collected. If a confrontation ensues, so be it, but you do not want to be the aggressor. Second, you should verbally object to the attempted repossession while demanding that the repossession agents get off your property.
Once you tell the repossession agents to get off your property and that they do not have your permission to repossess your vehicle, you have effectively revoked the creditor’s right to self-help repossession. Consequently, at this time, the repossession agents must back down, leave your property, and wait to attempt repossession at another time and/or place.
If the repossession agents have already begun connecting your vehicle to their town truck and/or refuse to leave without the vehicle despite your demands to have them leave your personal property, it is crucial that you do the following:
- Contact the local police to file a report;
- Get the name of the repossession company (it is usually visible on either side of the tow truck);
- Get the name(s) of the repossession agent(s) on site;
- Get the license plate number of the tow truck;
- Gather witness names and statements; and
- Take photographs and videos of the repossession and be sure to specifically photograph any damaged property.
Do I Have The Right To Recover My Personal Property From The Vehicle After It Has Been Repossessed?
Yes. After a vehicle has been repossessed, the lender will send you a letter providing information about your vehicle and detailing the steps you will need to take to retrieve it. Often referred to as a Notice of Repossession and Sale, this letter will inform you of where your vehicle is being held, who to contact to retrieve your personal items from the vehicle, and the amount you will have to pay if you’re interested in getting your vehicle back.
You will likely be unable to retrieve any attached fixtures, such as stereos, speakers, or custom wheels/rims on the vehicle, but you will be able to retrieve any loose personal items within the vehicle. You typically have up to 30 days to retrieve your personal property from the vehicle before it is sold at auction.