Florida Repo Men Must Retreat When Debtor Objects to Repossession

Posted on June 13, 2012 by Dana Manner

In a State of Florida, when a repo man is confronted by a physical objection of the car’s owner, that the repo man must “retreat” and go away, contrary to what you may have seen on some recently popular “repo” reality TV shows. A “self-help” repossession (i.e. a repo done without a court ordered Writ of Replevin) cannot turn into a free-for-all and the repo man can just do anything he wants, regardless of the objections that he may encounter from the car’s owner.

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Nearly two decades ago, in a State of Florida Division of Administrative Hearings case,  DIVISION OF LICENSING v. TRACERS, CASE NO. 93-0011 a Final Order was issued on August 27, 1993 by John M. Russi, Director of the Division of Licensing finding that a repo man that failed to retreat when confronted with an objection by the car’s owner, was breaking the law by breaching the peace.

In a repossession, a breach of the peace occurs upon the debtor’s physical objection to the repossession, even if it occurs on a public street. Marine Midland Bank-Central v. Cote, 351 So.2d 750 (Fla. 1st DCA, 1977).

TRUTH IS STRANGER THAN “TruTV” FICTION - The story surrounding the repossession, reads like a reality TV show script, including a Taser wielding repo men, a chain-swinging car owner, and lots of trash talk (e.g. “you can take the damn car, but I want my shit” meaning that the owner wanted her possessions from inside the car before the repo man tried to take it away.)

Mr. David B. Gordy, of Tracers, a Florida repossession agency located in  Jacksonville, Florida was found to have breached the peace during the repossession of a car. On the afternoon of August 20, 1992, in Duval County, Florida, Gordy and Jessica Clark repossessed a 1989 Hyundai Excel from Lisa Clouse based on an Order to Repossess from Sport Acceptance Corporation.

Read the TRACERS case here, but be advised that you must read to the end of the document and find the FINAL ORDER portion, to understand the final outcome of the case.

The State of Florida found that “Respondent [Repo Man] committed a breach of the peace while repossessing the vehicle of Lisa Clouse and is therefore in violation of Section 493.6118(1)(f), Florida Statutes, misconduct in the performance of regulated activities. Regardless of how unreasonable the debtor’s actions may have been, Respondent’s failure to retreat in the face of physical objection is misconduct in the performance of regulated activities.”

So… the law in Florida is that when a lender/creditor, or his repo agent, breaches the peace in a self-help repossession, it becomes a wrongful repossession, and the creditor can be liable to the borrower for damages under Article 9 of the Uniform Commercial Code.

There is also an interesting article on this topic at BankersOnline.com which can be found by following a link to the article entitled “Breach of the Peace – Are Punitive Damages Possible” which examines the case of  Williamson v. Fowler Toyota, Inc., 956 P.2d 859 (Okla. 1998)

An excerpt from BankersOnline.com article is shown below:

“Lenders know that once a loan goes into default, a secured creditor can recover the collateral from a debtor either by judicial foreclosure or self-help repossession. The Uniform Commercial Code (UCC) allows a creditor to utilize the remedy of repossession so long as it can be accomplished without a breach of the peace.”

“The definition of the breach of the peace is left to the courts and the definition has evolved over time and is not the same in all jurisdictions. Importantly, some courts have held that if the breach of the peace is of such an extreme nature that involves wanton and reckless disregard of the property rights of another, the creditor maybe liable for punitive damages.”