Page 18 - CARS Standard Program

(4). A threat to take any legal action that cannot be taken or is not intended to be taken in
an attempt to repossess collateral.
(5). Telling the consumer that a refusal to give up the collateral is a crime.
(6). Threatening to communicate to a third-party that the consumer is delinquent on
payments or that the consumer refuses to give up the collateral.
(7). Presenting to the consumer any document claimed to be authorized by the Court to
repossess the defaulted collateral
Example of repossession case law: In Lingross v. Helig-Meyers Furniture the attire of the repossessors was important regarding false and or misleading representations. The Court stated, in part that, “The repossessors were dressed in a manner intended to intimidate the debtors into allowing the repossessors to repossess the furniture without argument.” The Court went on to say that the repossessors use of intimidation, threats and scare tactics, such as dressing up in SWAT clothing and carrying guns, could reasonable be viewed as bad faith and conduct which a reasonable person would object.
Virtually any alleged violation of these Sections where a Wrongful Repossession lawsuit has been filed in federal court the lawsuit would filed under Section 1692 f (6) (a) as a Breach of the Peace.
There are numerous other examples of established repossession case law, which, like the above examples are handed down through State Courts, State Supreme Courts, Federal Courts and Federal Appellate Courts.
NOTE: You will recall that the definition of “debt collector” is defined by the FTC as any person whose business’ principal purpose is the collection of debts, or who attempts to collect. Due to the continued “liberalization “of the FDCPA a recovery agent should be careful in instances where their client has requested they make “field calls” on a regular basis in an effort to collect money in lieu of repossession so that they do not fall under the definition of third-party debtor collectors. In order to avoid such definition, we suggest either of the following procedures when making field calls for the purpose of collecting money:
1. Ask the debtor to follow you to a Western Union office where the debtor can wire the funds directly to the creditor.
2. Open a bank trust account separate from your regular recovery agency business account so that such funds will not be “con-mingled” with your regular business account. In the event of litigation, you will be able to point out to the Court that this is not a regular practice of your recovery agency.
In considering the requirements of the FDCPA we strongly recommend that you also look at the various state consumer protection laws in the state(s) where you operate. The reason for our recommendation is that state laws (statutes) can be more restrictive, but not less restrictive than federal laws. So, there may be more restrictive consumer protection laws in the state(s) where you operate than in the federal FDCPA.
5