Page 67 - Microsoft Word - NEW 2017 Standard Program.docx

It is clearly in the best interests of the Recovery Agent, the Recovery Agency owner and
the creditor to determine the weight of case law in the Recovery Agent’s area of operation
in order to be better educated as to what may or may not be allowed with regard to
Breach of the Peace.

Assault
An “assault” is an intentional, unlawful threat by WORD or ACT to do violence to
the person of another, coupled with an apparent ability to do so, and in doing so
creates a well-founded fear in such other person that such violence is imminent.
Simply put, physical contact is not necessary to establish a charge of assault.

A threat to do bodily harm to another, made by a person apparently capable of carrying
out such threat, and convincingly enough that to the other person such a threat is real is
sufficient. It is apparent then, that the Recovery Agent should refrain from any
communication that could be perceived as a threat during a repossession. Careless
statements that might be taken by the debtor as a threat could lead to litigation, especially
if the debtor’s brother-in-law just happens to be a lawyer. In our litigious society, there are
those who look for, and delight in, situations where there is the slightest suggestion of
impropriety.

Aggravated Assault
A more serious violation than assault, aggravated assault is generally defined as an
assault:
1. with a deadly weapon but without the intent to kill; or,
2. with the intent to commit a felony
Many states have differing definitions as to what constitutes a deadly weapon. However,
they all agree that guns and knives qualify. A Recovery Agent who carries a deadly
weapon on his person while in the act of repossession is begging for trouble. As you will
read in several other sections of this manual, when the Recovery Agent senses the potential
for trouble or physical confrontation, or in the face of a Breach of the Peace, it is the
PRIMARY DUTY of the Recovery Agent to RETREAT. The Recovery Agent is far
more likely to adhere to this rule if he is not carrying a weapon. The most powerful and
appropriate weapon of a Recovery Agent in a potential confrontation is his
COMMUNICATION skills. We will include more about those skills later in the program.

Battery
Courts generally will hold that a person commits battery if he or she: Actually
and intentionally touches or strikes another person against the will of the other
person; or intentionally causes bodily harm to an individual. In almost every situation
where there is a physical confrontation between the debtor and the Recovery Agent,
especially while on the debtor’s property, the Recovery Agent will usually always be the
one charged with a violation. Again, it is the duty of the Recovery Agent to RETREAT
when the probability of such a confrontation becomes apparent.