Page 73 - CARS Standard Program

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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