Page 63 - CARS Standard Program

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.