HOME

TheInfoList



OR:

Repossession, colloquially repo, is a "
self-help Self-help or self-improvement is a self-guided improvement''APA Dictionary of Physicology'', 1st ed., Gary R. VandenBos, ed., Washington: American Psychological Association, 2007.—economically, intellectually, or emotionally—often with a subst ...
" type of action, mainly in the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
, in which the party having right of ownership of the property in question takes the property back from the party having right of possession without invoking court proceedings. The property may then be sold by either the
financial institution Financial institutions, sometimes called banking institutions, are business entities that provide services as intermediaries for different types of financial monetary transactions. Broadly speaking, there are three major types of financial inst ...
or third party sellers. The extent to which repossession is authorized, and how it may be executed, greatly varies in different jurisdictions (see below). When a lender cannot find the collateral, cannot peacefully obtain it through self-help repossession, or the jurisdiction does not allow self-help repossession, the alternative legal remedy to order the borrower to return the goods (prior to judgment) is
replevin Replevin () or claim and delivery (sometimes called revendication) is a legal remedy, which enables a person to recover personal property taken wrongfully or unlawfully, and to obtain compensation for resulting losses. Etymology The word "replevi ...
. The
security interest In finance, a security interest is a legal right granted by a debtor to a creditor over the debtor's property (usually referred to as the ''collateral'') which enables the creditor to have recourse to the property if the debtor defaults in makin ...
over the
collateral Collateral may refer to: Business and finance * Collateral (finance), a borrower's pledge of specific property to a lender, to secure repayment of a loan * Marketing collateral, in marketing and sales Arts, entertainment, and media * ''Collate ...
is often known as a
lien A lien ( or ) is a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation. The owner of the property, who grants the lien, is referred to as the ''lienee'' and the pers ...
. The lender/creditor is known as the lienholder.


General

The existence and handling of repossessions varies greatly between
jurisdictions Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. Jur ...
. In most jurisdictions outside of the U.S., self-help is limited to
real estate Real estate is property consisting of land and the buildings on it, along with its natural resources such as crops, minerals or water; immovable property of this nature; an interest vested in this (also) an item of real property, (more general ...
, and otherwise the right of possession can only be enforced by a court or other official agents.


United States

When a provision of law requires when repossession takes place, the lien holder has a ''non-delegatable'' obligation not to cause a ''Breach of the Peace'' (which is synonymous with
disturbing the peace Breach of the peace, or disturbing the peace, is a legal term used in constitutional law in English-speaking countries and in a public order sense in the several jurisdictions of the United Kingdom. It is a form of disorderly conduct. Public ord ...
) in performing the repossession or the repossession will be reversed, and the party ordering the repossession will be liable for damages (or the lienholder will be held responsible). This requirement not to breach the peace includes even if the breach is caused by the debtor objecting to or resisting the repossession. I
''MBank El Paso v. Sanchez'' (1992)
836 S.W.2d 151, where a repossession agent towed away a car even after the loanee locked herself in it, the court decided that this was an unlawful breach of the peace and declared the repossession invalid. The debtor was also awarded $1,200,000 in damages from the bank involved. Repossession also generally does not apply to real property. Real property is generally subject to a cause of action known as
foreclosure Foreclosure is a legal process in which a lender attempts to recover the balance of a loan from a borrower who has stopped making payments to the lender by forcing the sale of the asset used as the collateral for the loan. Formally, a mortg ...
.


Procedure of a repossession

In the United States, repossessions are carried out pursuant to state laws that permit a creditor with a
security interest In finance, a security interest is a legal right granted by a debtor to a creditor over the debtor's property (usually referred to as the ''collateral'') which enables the creditor to have recourse to the property if the debtor defaults in makin ...
in goods to take possession of those goods if the debtor defaults under the contract that created the security interest. In particular, all 50 U.S. states and the District of Columbia have enacted (with minor variations) Article 9 of the
Uniform Commercial Code The Uniform Commercial Code (UCC), first published in 1952, is one of a number of Uniform Acts that have been established as law with the goal of harmonizing the laws of sales and other commercial transactions across the United States through UC ...
, which generally permits security interest holders to repossess goods if a debtor is in default and the repossession can be conducted without a
breach of the peace Breach of the peace, or disturbing the peace, is a legal term used in constitutional law in English-speaking countries and in a public order sense in the several jurisdictions of the United Kingdom. It is a form of disorderly conduct. Public ord ...
. Being "in default" means that the debtor has failed to fulfill his or her obligations under the contract. The most common forms of default resulting in repossession are failing to make required payments and failing to maintain adequate insurance coverage. Many U.S. states have enacted additional laws that apply specifically to the repossession of purchased and leased automobiles, and which are intended to afford additional consumer protections. Typical requirements include mandating that auto lenders provide consumers with opportunities to either "reinstate" or "redeem" their purchase or lease contracts after their vehicles have been repossessed. A "reinstatement" entails a consumer paying all of his or her past due amounts plus the creditor's repossession expenses, and then reacquiring the automobile as if the repossession had not occurred. A "redemption" entails the consumer paying off the entire contract balance and then being given ownership of the vehicle free and clear of any contract obligations. If these instances do not occur and the vehicle becomes repossessed, the lien holder is required to notify the debtor of their intent to sell the property. This is usually in the form of a letter that states that if the amount owed is not paid within ten business days, the entity officially takes ownership and may sell the property. Some consumers believe that they are legally entitled to a "grace period" that prevents creditors from repossessing goods until the payments are a certain number of days overdue. In reality, grace periods are non-compulsory business practices that have been adopted by most consumer lenders through a term in the lending contract. There is nothing legally preventing a creditor with a security interest from repossessing the goods if a payment is late - even if it is only one day overdue - unless the lender has agreed otherwise as a binding term of contract. Various objects can be repossessed, including
boats A boat is a watercraft of a large range of types and sizes, but generally smaller than a ship, which is distinguished by its larger size, shape, cargo or passenger capacity, or its ability to carry boats. Small boats are typically found on inl ...
and
aircraft An aircraft is a vehicle that is able to fly by gaining support from the air. It counters the force of gravity by using either static lift or by using the dynamic lift of an airfoil, or in a few cases the downward thrust from jet engines ...
, but most repossession agencies focus on
car A car or automobile is a motor vehicle with wheels. Most definitions of ''cars'' say that they run primarily on roads, seat one to eight people, have four wheels, and mainly transport people instead of goods. The year 1886 is regarded as ...
repossession. The repo agent normally uses a
tow truck A tow truck (also called a wrecker, a breakdown truck, recovery vehicle or a breakdown lorry) is a truck used to move disabled, improperly parked, impounded, or otherwise indisposed motor vehicles. This may involve recovering a vehicle damaged ...
or
pickup truck A pickup truck or pickup is a light-duty truck that has an enclosed cabin, and a back end made up of a cargo bed that is enclosed by three low walls with no roof (this cargo bed back end sometimes consists of a tailgate and removable covering) ...
with a special towing attachment called a boom. They also may obtain the key from the car owner. The agent must be careful however, because they cannot cause physical harm to the vehicle. Usually, the vehicle owner must be notified of a repossession. The repossession agent will find the car and check its information such as the
Vehicle Identification Number A vehicle identification number (VIN) (also called a chassis number or frame number) is a unique code, including a serial number, used by the automotive industry to identify individual motor vehicles, towed vehicles, motorcycles, scooters ...
(VIN) to make sure they have the right vehicle. If there is a match, they will attempt to hook up the car to the tow truck and tow it away or pick the lock and drive it away. However doing so does not absolve the repossession agent's requirement to be covered under an active insurance policy for the vehicle under the applicable criminal traffic laws. Thus, an agent who elects to do this may be subject to arrest for the violation of criminal traffic laws which apply to insurance requirements. The repo agents also cannot legally cross locked and enclosed storage spaces such as gates and garages. Repossession does not necessarily satisfy the loan. If the repossessor sells the asset for an appropriate amount, and if that amount is less than the amount of the loan, and if the repossessor sues the debtor for the balance (plus reasonable fees if applicable) in a timely manner, the debtor may be liable to pay the balance (sometimes called the "deficiency"). In this case the creditor will be liable for
contributory negligence In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negl ...
if the creditor auctions the property for less than applicable
fair market value The fair market value of property is the price at which it would change hands between a willing and informed buyer and seller. The term is used throughout the Internal Revenue Code, as well as in bankruptcy laws, in many state laws, and by sever ...
. This is because such a failure directly contributes to any remaining deficiency. To avoid this liability, financial institutions will document a source (such as Kelley Blue Book or NADA) to price the collateral for sale. They will also document the condition of the vehicle to justify the sales price of it. Whether a debtor is actually liable for a balance depends on jurisdiction and on the details of the loan contract. In the case of a nonrecourse debt, for example, the debtor is not personally liable for a deficiency.


United Kingdom

Repossession is possible with
Real estate Real estate is property consisting of land and the buildings on it, along with its natural resources such as crops, minerals or water; immovable property of this nature; an interest vested in this (also) an item of real property, (more general ...
, commercial and domestic properties.


England and Wales

These numbers and text relate to home mortgage repossessions in England. :''Number of repossessions in England'' Source: Council of Mortgage Lenders and The
Ministry of Justice A Ministry of Justice is a common type of government department that serves as a justice ministry. Lists of current ministries of justice Named "Ministry" * Ministry of Justice (Abkhazia) * Ministry of Justice (Afghanistan) * Ministry of Just ...
. In 2010, there looks to be a downtrend though, as lenders seized 9,400 properties in April, May and June, 400 fewer than in the first quarter of 2010, according to the Council of Mortgage Lenders (CML).


Germany

Repossession by self-help is generally illegal and constitutes
theft Theft is the act of taking another person's property or services without that person's permission or consent with the intent to deprive the rightful owner of it. The word ''theft'' is also used as a synonym or informal shorthand term for some ...
. In most cases, if the debtor is unable or unwilling to pay an outstanding debt, the creditor must first obtain either a court order authorizing the repossession (''Vollstreckungsbescheid'', only possible if the debtor does not contest the debt) or a regular court judgment. The debt must then be collected by an officer of the court (''Gerichtsvollzieher'') who exclusively may use force to collect the debt, such as opening a door or enlisting help from police. Neither the creditor nor private debt collection agencies may use force or seize property against the will of the debtor. Specific forms of self-help repossession for
Real estate Real estate is property consisting of land and the buildings on it, along with its natural resources such as crops, minerals or water; immovable property of this nature; an interest vested in this (also) an item of real property, (more general ...
are legal. For example, a landlord may seize the tenant's property in a rented object if there are outstanding payments.
Bürgerliches Gesetzbuch The ''Bürgerliches Gesetzbuch'' (, ), abbreviated BGB, is the civil code of Germany. In development since 1881, it became effective on 1 January 1900, and was considered a massive and groundbreaking project. The BGB served as a template in sev ...
, §§ 229, 562b, 592 etc.


See also

*
Detinue In tort law, detinue () is an action to recover for the wrongful taking of personal property. It is initiated by an individual who claims to have a greater right to their immediate possession than the current possessor. For an action in detinue ...
*
Distraint Distraint or distress is "the seizure of someone’s property in order to obtain payment of rent or other money owed", especially in common law countries. Distraint is the act or process "whereby a person (the ''distrainor''), traditionally eve ...
*
Foreclosure Foreclosure is a legal process in which a lender attempts to recover the balance of a loan from a borrower who has stopped making payments to the lender by forcing the sale of the asset used as the collateral for the loan. Formally, a mortg ...
*
Lien A lien ( or ) is a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation. The owner of the property, who grants the lien, is referred to as the ''lienee'' and the pers ...
*
Replevin Replevin () or claim and delivery (sometimes called revendication) is a legal remedy, which enables a person to recover personal property taken wrongfully or unlawfully, and to obtain compensation for resulting losses. Etymology The word "replevi ...


References


External links

* Britis
Citizens Advice Bureau
* America
FTC Facts for Consumers on Vehicle Repossession
* New Zealan
Consumer aid in dealing with Repossession

CML Stats & Forecast
* Britis

* Britis
Homeowners Rescue Advice Centre
* Michiga

{{Real estate Personal finance Property Personal property law