“My Car Was Repossessed”
Having your car repossessed can be extremely upsetting especially if it was a wrongful repossession. Most of us need our cars on a daily basis for transportation to school, work, grocery shopping and medical appointments. Being behind on your car payments is one thing, but it is far more terrifying to find your car missing or, worse yet, in the process of being repossessed!
As a rule, most repossessions occur at night since repossession agents don’t want to have any contact with the owner during the repossession process. Repossessing a vehicle when no one is around substantially reduces the risk of a confrontation.
What is a Wrongful Repossession?
Florida Law allows for an auto repossession by a loan or finance company that has a security interest in the motor vehicle for missed payments or other breaches of the financing agreement. In Florida, consumers do not have to be sent a pre-repossession notice before a repossession is to occur. Moreover, the repossession must be carried out by a trained and licensed “recovery agent.” However, in performing the repossession, the recovery agent, hired by the finance company cannot breach the peace. If there is a breach of the peace, then that is considered a wrongful repossession.
Florida law allows recovery agents — commonly called repo men or repossession agents — to enter your property and take your car without any notice as long as they can do so without a breach of the peace. Though repossession agents can come onto your property, they aren’t allowed to break any locks or enter your home without permission to reach the vehicle. They also can’t use physical force or trickery of any kind. To avoid breaching the peace, most repo companies will try to take your car without confronting you.
Examples of wrongful repossessions are:
- The wrong vehicle was repossessed. It is not unheard of that auto lenders or repo agents will mistakenly repossess the wrong vehicle. This can be due to administrative errors or mistakes in identifying the vehicle in question. If this happens, the repossession is assuredly wrongful and a lawsuit could be justly filed.
- Your vehicle was repossessed even though payments were current. If you’ve been making your payments and the bank still repossesses your vehicle (and you can show proof of payments made), the repossession is wrongful, and legal action can be pursued.
- The repossession involve a breach of the peace.
A breach of the peace may occur in several situations, such as:
- Bodily harm or threat thereof. This can be as minor as grabbing your keys or pushing you out of the way.
- Trespass. The repo agent cannot enter a restricted area or open your garage or gate if they were locked.
- Repossession over objection. If you protest the repossession, the repo agent has to stop.
You are not required to open a garage or move a vehicle that is blocking the ability to conduct the repossession. Moreover, you are not required to unlock a vehicle that the recovery agent is trying to repossess.
Under Florida law, if the car, or other item of value that was repossessed, contained personal items or professional materials, the recovery agent must give these items back to you. You may be expected to pay a small charge for their retrieval. Failure to provide these items back to you may result in criminal charges of petit or grand theft against the individuals directly involved in the act of the repossession. For more information about this, please go to “Getting Your Personal Property Back After Repossession.?
What Happens After the Repossession?
After the repossession, the finance company that requested the repossession must inform you in writing as to their intent to sell your car at a public or private auction. After that, the lender then has the right to obtain a deficiency judgment from you (amount of loan left after the sale of the car). In some cases, if the loan company did not have a legal right to repossess the car, you may have a rights to seek compensation and/or damages against the finance company for wrongful repossession.
Remedies for Wrongful Repossession
If the finance company or recovery agent, or any person acting on their behalf, performs any wrongdoing or unlawful act during the course of the repossession process, the repossession company and loan company may lose some or all of their legal rights against you. Moreover, some act of wrongdoing or unlawful actions could also provide you with compensation and/or the ability to have your car returned to you.
Can I sue for Wrongful Repossession?
You may have several actions for the recovery of money damages for a wrongful repossession:
Statutory Damages: Damages due under the Florida Uniform Commercial Code are calculated as follows: the finance charges on the loan plus 10 % of the cash price for the vehicle. So, an example would be that if the total of the finance charges was $5,000 and the cash-price was $20,000; 10% is $2,000.00. Therefore, statutory damages awarded would be $7,000. In addition to statutory damages, you may be entitled to the following:
Damages for Loss of Use of Vehicle: Did you have to rent a car? Take Ubers?
Pain and Suffering. How painful and traumatic was the wrongful repossession? Were you injured? Did you have to seek medical attention?
Loss of Wages caused by repossession. Did you miss work or lose any other financial opportunities due to the wrongful repossession?
Was you vehicle damaged? If so, you would be entitled to recover from the finance company the cost of repair of you vehicle.
What Can I do to avoid a repossession?
The first and obvious answer is to be careful of biting off more than you can chew when taking out the auto loan. However, we all understand that life happens and that monthly payments that we thought that we could afford have become unmanageable due to a change in our financial situation. In such instances, contacting the finance company and staying in touch with them can go a long way in preventing a sudden and unexpected repossession.
Can I get my Car Back?
It it not unrealistic for the consumer to have the repossessed vehicle returned. However, this depends on many factors, the most important of which is the credit worthiness of the borrower. In any event, the consumer would be required to pay the costs of the repossession and any other related late fees or other costs.
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