Page 66 - CARS Standard Program

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.