Secured Transactions (Breach of the Peace)

Question 1

• trespasses on the debtor’s property to get to the collateral?

Answer 1

no

Question 2

takes car from driveway

Answer 2

no

Question 3

hot wires car to drive it away

Answer 3

no

Question 4

breaks into locked garage

Answer 4

yes

Question 5

Frequent features present when a court has found a breach of the peace have included:

Answer 5

(i) disturbance of the public tranquility; (ii) creating public tumult; (iii) confrontation; (iv) shouting and making noise; (v) assault; (vi) profane and abusive language; and (vii) criminal disorderly conduct.

Question 6

• Is it a breach of the peace if the repo person carries a weapon?

Answer 6

yes

Question 7

• Is a breach of the peace if the repo person dresses as a law-enforcement officer?

Answer 7

Yes

Question 8

• Is the decision whether a breach of the peace occurred always a decision for a jury?

Answer 8

No

Question 9

Was a creditor entitled to repossess the collateral if the default was because the debtor missed payments, and the debtor’s payments were in the mail at the time of the repo?

Answer 9

yes

Question 10

policy

Answer 10

A repossession that breaches the peace is actionable because “preserving the public peace is more important to society than allowing a creditor to repossess.” (Casebook p. 69 bottom, citing a South Carolina case)

Question 11

After the repo person has possession of the collateral and is on a public street (or in another public space), would a subsequent confrontation between the repo person and the debtor make the repossession “wrongful” under Article 9 of the UCC?

Answer 11

NO

Question 12

Hicklin v. Onyx Acceptance Corp.