Wrongful Repossession = Grand Theft Auto
Repossession gives the creditor an important right against default, but wrongful repo is just plain theft. They have to show a valid default in the first place. They have to give notice. And then -- not to overlook the obvious -- they must take the right car.
Fall behind in your car payments, and you might see a tow truck haul away your vehicle in broad daylight or hear them hooking it up under cover of night. Generally the repo man has no qualms about coming on Christmas, New Years, or in the midst of your daughter’s birthday party. It’s dirty and sometimes dangerous work. Sympathy is scarce. More often at the point of the taking, their attitude is “devil take the deadbeat,” or worse.
Suddenly you can’t get to work, or to the doctor, or to school. If you have been shuffling notices about your increasing debt, you might be prepared. But most people confronted with a repossession are left in a state of shock. Faced with this unpleasantness, or even a family crisis, it is important to remember that behind every tow truck driver in a t-shirt is a banker in a business suit. Not so long ago, people got loans from their local bank, where they knew their local banker. Today auto loans are assigned from the car dealer to a bank, which might have bundled and sold the loans at a discount to a collector handling accounts from out-of-state.
But bankers make mistakes. So do the digital databases on which they rely. In fact, it is remarkable how often they don’t do it right. We have seen cases in which there was no default in the first place, cases in which no proper notice was given, and cases in which the repo man took someone else’s car. If your name is Sam Smith, Jennifer Lee, or Jose Garcia, you might lose your car if Samuel, Jenny, or Joe didn’t pay. Instances of both mistaken identity and identity theft are seriously on the rise.
Not only is wrongful taking of the car itself a form of theft, or “conversion” as it is called in the civil context, but in some circumstances, the taker may be liable for loss of anything else that was in the car. We have had clients who had left everything from kid’s soccer uniforms in the trunk, to homework in the back seat, to the family Bible in the glove compartment. Some losses are merely inconvenient, but others are tragic.
The right of repossession is one of the few times that the law allows property to be taken without a court’s stamp of approval in the form of a warrant, order or judgment. It is called a “provisional remedy” in favor of the creditor in order to provide speedy relief, when someone doesn’t pay the bills they have promised to pay. Because it is so drastic a remedy, California has strong consumer protection laws in place.
