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NON-JUDICIAL REPOSSESSION

Self-help repossession is the act of retaking defaulted collateral without legal assistance.
Replevin, claim and delivery, detinue and revendication are terms used to define the
action of judicial process (legal assistance) in the recovery of defaulted collateral. For the
purposes of this program, we will use the term replevin when referring to legal
assistance through the courts.

In order to better understand any subject, it is necessary to know some of the history
behind that subject. With regards to self-help repossession as defined in the Uniform
Commercial Code, (UCC), Section 9-609, we have provided a comprehensive review of
®
this Section in the C.A.R.S. Program.

The U.S. Supreme Court and more than 30 Appe llate Courts have upheld the
constitutionality of self-help repossession as defined in UCC 9- 609. The Courts hold that
the act of self-help repossession is a purely private matter between the creditor and the debtor
and recognizes the common knowledge of credit buyers that repossession follows default.

In the case of Northside Motors of Florida, Inc. v. Brinkley, 282 So.2 nd (Fl. 1973), the
court’s ruling stated, in part: “The Supreme Court of the United States has since
emphasized and re-emphasized that state action will not be found in the purely private
conduct of an individual voluntarily engaged in without some form of active
assistance or cooperation on the part of the state.”

CRIMINAL LAW VS CIVIL LAW

Civil law defines the duties that exist between persons or between citizens and government,
excluding the duty not to commit crimes. The infringement by one person upon the legally
recognized rights of another is an area of civil law, i.e. repossessing the wrong collateral. In
a civil case, one party attempts to make the other party comply with a duty or pay damages.

Criminal law is considered a wrong committed against the public as a whole. In a
criminal case, the government, (usually in the form of a federal prosecutor or state attorney)
seeks to impose a penalty upon a person charged with a criminal act. There is no criminal
penalty in a civil case but civil penalties can result from criminal litigation.

There are two categories of criminal violations: felonies and misdemeanors.

Felonies are the more serious of the two violations and can be punishable by death or
imprisonment for more than one year in a state or federal prison.

Misdemeanors are less serious offenses and can be punishable by fines or imprisonment for
less than one year, usually in a county facility.