Page 94 - CARS Standard Program

The Recovery Agent should never use disablement, such as letting the air out of the tires. In such circumstances, where the collateral may still be driven, the debtor may be confronted with an emergency (rushing pregnant wife to hospital, etc.) and, not noticing the flat tires, become involved in an accident. In such event the Recovery Agent could be charged with Culpable, Criminal Negligence. Upon disablement, the Recovery Agent, unless the assignment directs otherwise, should make contact with the debtor at an appropriate hour and demand to take possession of the collateral as directed in Example 2 above. Restoring collateral to its original condition following disablement is usually the sole responsibility of the Recovery Agent.
Scenario 5
The Recovery Agent has located the collateral but cannot secure possession and suspects the debtor will refuse to give up the collateral if confronted. The Recovery Agent requests the assistance of a police officer to assist in the repossession. Courts will generally find a Breach of the Peace when a Recovery Agent is accompanied by law enforcement during repossession. Courts refer to such acts as being committed under “color of law,” which means the Recovery Agent is being aided by the state in a private matter. The Recovery Agent must never enlist the assistance of law enforcement in the recovery of defaulted collateral.
Other unlawful acts by the Recovery Agent in an attempt to recover collateral include, but are not limited to:
1. Impersonating a law enforcement officer, or officer of the state or federal government, or using similar deceptive actions.
2. Threatening the debtor with physical harm, legal action, arrest, etc.
3. Using fake legal forms (subpoenas, replevin, attachment, etc.)
Note: In every situation where the Recovery Agent has used illegal means in his attempt to recover collateral, the added charge of Wrongful Repossession may apply and the Recovery Agent is subject to prosecution and immediate termination of employment. Such illegal actions also subject the Recovery Agency owner, creditor and insurance carrier to litigation.
THE ABOVE SCENARIOS ARE REFERRED TO IN THE FINAL EXAM