Page 74 - Microsoft Word - NEW 2017 Standard Program.docx

It is clearly stated in the creditor’s Hold Harmless Agreement and in the insurance
contract that they will not defend a Recovery Agent found guilty of a violation of law.
As is often said, discretion is the better part of valor. Sometimes it is necessary to initiate
surveillance and follow the collateral to another location in order to take possession. As a
Recovery Agent, the potential is there to expose not only yourself but also your client
and your insurance carrier to liability.

Criminal Mischief
Courts generally agree that a person is guilty of criminal mischief if he or she:

1. damages tangible property of another purposely, recklessly, or by
negligence, or other dangerous means; or,
2. purposely or recklessly tampers with tangible property of another so as to
endanger person or property

In 1998, a Florida-licensed Recovery Agent attempted to recover collateral from a “skip”
who had not paid on his contract for over a year. The Recovery Agent was confronted by
the debtor who called the police and had a trespass warning issued against the Recovery
Agent. Subsequently, another Recovery Agent from the same company approached the
collateral in the early morning hours. Upon finding that the collateral was blocked by
another vehicle, the Recovery Agent silently and successfully moved the blocking vehicle
and secured possession of the defaulted collateral without a Breach of the Peace. The
debtor, discovering that the collateral had been repossessed, filed a complaint with the
police department (State of Florida vs Bay Auto Recovery, Inc.). The police chief,
refusing to consider the legality of the situation, arrested the Recovery Agent on charges
of Trespass after Warning and Criminal Mischief because the debtor claimed the
Recovery Agent damaged the blocking vehicle when he moved it in order to take the
defaulted collateral. After many months and considerable attorney’s fees, all charges
were dismissed. The Criminal Mischief charge was dismissed because it was
determined that the Recovery Agent did not cause damage to the vehicle he moved. The
charge of Trespass after Warning was dismissed because such a charge, by law, must
be issued to the person or persons who are the subject of a trespass warning. Since
the Recovery Agent who actually performed the repossession was not the one who
received the Trespass Warning there was no violation.

Although simply moving a vehicle which is blocking the collateral may not meet the
elements of a violation of law, only in rare circumstances should such action be
considered, AND THEN ONLY WITH THE APPROVAL OF THE CREDITOR,
YOUR SUPERVISOR AND VIDEO DOCUMENTATION. By moving the vehicle
you are responsible for any damages or claims of damages to the vehicle being
moved. The most common allegations involve damages to the vehicle’s
transmission, frame and/or tires.

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