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ELEMENTS OF CRIMES AGAINST PERSONS

Breach of the Peace – Disorderly Conduct
Although there is no clear definition of Breach of the Peace in the Uniform Commercial
Code (UCC) Section 9-609, it is obvious that the intent of the language is to deter
violence, or the potential for violence, in the process of self-help repossession. The
lawyers and judges who created the UCC intentionally did not include a precise definition
of Breach of the Peace, leaving it to state and federal courts to determine.

Where violence, force or physical confrontation occurs during the repossession, the courts
will generally find this to be a Breach of the Peace. In addition, charges such as assault
or assault and battery may be added. However, some state courts consider that violence,
or its threat, is not required for a Breach of the Peace to exist and that a verbal
objection is sufficient to stop the repossession.

In Davenport v. Chrysler Credit Corp., 818 S.W. 2d 23 (Tenn. App 1991) as well as
numerous other repossession case law, as a Recovery Agent, you must realize that in
the face of potential violence, physical confrontation, or a strong verbal objection either
by the debtor or a third party in possession of the collateral you have a clear duty to
RETREAT and adhere to the adage, “Another time, another place.”

In addressing the definition of Breach of the Peace an example of general statutory law
states, in part: whoever commits such acts as are of a nature to corrupt the public
morals, or outrage the sense of public decency, or affect the peace and quiet of
persons who may witness them, or engages in brawling or fighting, or engages in
such conduct as to constitute a Breach of the Peace or Disorderly Conduct. Under this
general definition, Breach of the Peace can be widely interpreted and the courts are
continuously expanding their interpretations.

Following is an example of how a simple Breach of the Peace violation might escalate
into a federal violation: The Recovery Agent is starting to hook up the vehicle he has
been assigned to repossess. The debtor runs out, starts yelling, raising hell and refusing to
allow the Recovery Agent to take “his” car. By this time the neighbors are out watching
this little scene take place (a neighborhood of potential witnesses just to make it
interesting). The Recovery Agent is working a “contingency” assignment, needs the
money to buy groceries to feed his family, drags the vehicle into the street, finishes
hooking it up to his tow truck and speeds away.

The Recovery Agent, his employer, the insurance carrier, and the creditor are sued, in
federal court, for Breach of the Peace and Wrongful Repossession under Section
1692f (6) (a) of the Fair Debt Collection Practices Act (FDCPA). Section 1692f (6)
(a) states that it is a violation of this Section if, “there is no present right to possession
of the property claimed as collateral through an enforceable security interest. When
the Recovery Agent Breached the Peace, he immediately lost the right to possession
of the collateral.