Page 88 - CARS Standard Program

Field Operations Procedures and Scenarios
Wrongful Repossession; Definition: a repossession which results in, or where allegations are made that there were “bodily injury,” “property damage,” “advertising injury,” or Breach of the Peace arising out of any error or omission, malpractice, or violation of a personal nature, which was committed or alleged to have been committed by the Recovery Agent, or on behalf of the Recovery Agent.
Wrongful Repossession may occur, but not be limited to, in any of the following;
1. The recovered collateral was not the collateral described in the Security Agreement, or the Recovery Assignment. Always identify the collateral by its Vehicle Identification Number (VIN) before taking possession. Do not rely on any other method of identification.
2. The recovery occurred during a Breach of the Peace or other violation of federal or state law affecting the self-help recovery process (FDCPA, GLBA, SCRA, TPPA, or Crimes Against Persons or Property).
3. Recovery of the collateral was accomplished after the client, in writing, closed the assignment or placed the assignment on “hold” status.
4. After recovery of the collateral, debtor produces proof of bankruptcy that was filed prior to recovery of the collateral. Courts generally will not rule this as wrongful if the creditor or the Recovery Agent was not notified of such bankruptcy filing prior to the recovery.
5. Impersonating a law enforcement officer by dress, the display of a badge, verbally, etc.
6. The presence of a law enforcement officer during the recovery of the collateral unless the law enforcement officer has in his/her possession a court order (Replevin, etc.) for the described collateral.
A Wrongful Repossession can result in a lawsuit in state court, or federal court under Section 1692f(6)(a)(b)(c) of the FDCPA. Such litigation can be brought against the Recovery Agent, the Recovery Agency owner, the creditor and the insurance carrier.
Involuntary Recovery Assignments
Involuntary repossession assignments are also known as “self-help” repossessions where the Recovery Agent is directed to recover the collateral without judicial process (Replevin, etc.). In recovering defaulted collateral under an involuntary repossession assignment, the Recovery Agent must recover the collateral without committing a Breach of the Peace or violating other federal and/or state laws that affect the self-help repossession process.