Page 72 - CARS Standard Program

ELEMENTS OF PROPERTY CRIMES
Trespass
In the self-help repossession process, it is sometimes necessary or expedient to enter upon the private property of the debtor or a third party to recover the collateral. Trespass is generally defined as an unlawful interference with one’s property or rights, or any UNAUTHORIZED intrusion or invasion of private premises or land of another (Antikiewicz v. Motorists Mut. Ins. Co., 91 Mich. App. 339, 283 NW. 2d 749, 753). The present prevailing position of the courts finds liability only in the case of INTENTIONAL intrusion, or negligence, or some “abnormally dangerous activity on the part of the defendant.”
A “trespasser” is defined as one who intentionally, and WITHOUT CONSENT or PRIVILEGE enters upon the property of another or, one who enters upon the property of another WITHOUT ANY RIGHT, LAWFUL AUTHORITY, OR EXPRESS OR IMPLIED INVITATION, PERMISSION, OR LICENSE.
In the section on Security Agreements, Additional Terms and Agreements (Contracts - Section 5), we find that the debtor has given permission to the creditor or creditor’s agent, in the event of default, to “enter upon any premises where said property may be and remove the same without process of law.” Although the debtor, by signing the security agreement, has given this express permission, we must, at all times, be aware of the potential for a Breach of the Peace or Wrongful Repossession by violating other federal or state laws that impact the self-help repossession process regardless of where the collateral might be. An example of such violation would be entering a closed garage attached to the residence or other, separate closed structure. As to entering an open garage that is attached to the residence we recommend you consult with your attorney or local State Attorney. Another example would be forcibly (removing a lock, etc.) opening a closed gate to a fenced area.
Trespass After Warning
Even more applicable to the recovery process is “Trespass after Warning.” You have entered upon the debtor’s property and before you have removed the collateral the debtor appears and protests the repossession and calls the police. A police officer arrives and upon request of the debtor gives you a written order prohibiting you from returning to the debtor’s property.
Trespass after warning pertains to a Recovery Agent who has been ordered from the property by the police and the debtor. Unless directed by law or the courts, this order does not prohibit another Recovery Agent from the same Recovery Agency to enter the debtor’s property for the purpose of repossession.
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