Vehicle loan or lease -- Struggling to pay your loan -- Complaint #5937628

Complaint Overview

Complaint ID: 5937628

Company: Patrick K Willis Company INC

Product: Vehicle loan or lease

Sub-Product: Lease

Issue: Struggling to pay your loan

Sub-Issue: Lender trying to repossess or disable the vehicle

State: Georgia

ZIP Code: 30305

Date Received: 2022-08-31T12:00:00-05:00

Date Sent to Company: 2022-08-31T12:00:00-05:00

Company Response: Closed with explanation

Timely Response: Yes

Consumer Disputed: N/A

Submitted Via: Web

Consumer Narrative

XXXX XXXX & XXXX XXXX XXXX XXXX XXXX XXXX AMERICAN RECOVERY SERVICE, XXXX XXXX XXXX XXXX ( XXXX ) This email is intended to assist us in establishing the facts with regards to my XXXX XXXX XXXX being towed unlawfully. The facts presented here are primarily based on the Uniform Commercial Code and Tennessee state law ; breach of peace during a repossession. Below you will find my official statement of the incident and case law supporting this claim. CFPB Complaint Number XXXX ( XXXX XXXX XXXX XXXX XXXX XXXX ) I HAVE THE FOLLOWING EVIDENCE : XXXX. XXXX XXXX of an American Recovery Service employee ( Passenger ) stating that his partner ( Driver ) not only tried to fight me during the repossession, but he also tries to fight other consumers during repossession. XXXX. XXXX XXXX of an American Recovery Service employee ( Passenger ) acknowledging that his partner ( driver ) intimidated me by threatening to call the police and have me arrested for not giving him the keys and letting him repossess the vehicle. The employee is also heard agreeing that the actions of the driver were wrong and apologized. OFFICIAL STATEMENT : XXXX XXXX XXXX & XXXX : XXXX XXXX XXXX XXXXXXXX XXXX XXXX. XX/XX/XXXX XXXX While inside my XXXX XXXX apartment, my little sister stated that she heard my car alarm going off. As I looked out of the window, I could see a XXXX XXXX ( passenger ) aggressively shaking my car and attempting to open my the doors and another XXXX XXXX ( driver ) looking under the car. I immediately went downstairs to see what was going on. When I got outside, I asked both men what they were doing. The driver stated " I'm taking the car, that's what I'm doing. '' I then stated to him " Your are not taking my car, who are you? '' The two individuals then began hooking straps to my front tires and lifting up the vehicle ; while stating they had been looking for me for over XXXX hours ; and XXXX instructed them to repossess my vehicle. I instructed both men to put my car down immediately. They both refused to do so. Around this time my family was watching from the balcony as well as some of the neighbors. My dad then ran downstairs to see what was going on. When my XXXX came down he said to the two repo men " What's going on? You guys are not taking his car. put it down. '' They both again refused to do so. My XXXX was visibly upset. To prevent any escalation I told him I would take care of it and asked that he go back upstairs. He complied and went back upstairs to watch from the balcony with the rest of my family. Around this time, the driver began demanding my car keys. I refused to give him my keys in which he then became enraged. He began shouting profanities at me and saying things like, " we're taking the XXXX car '', " pay your XXXX bills on time '', " it's best you give me the keys before you get arrested ''. " If you dont give us the XXXX keys and we can't make a new one, your windows are going to be busted and you'll be paying for that XXXX. '' By the driver 's body language and size, it was clear he was using his height and weight to intimidate me. An argument between him and I then ensued in front of everyone watching. At one point during the argument, the driver told me if I touched his equipment or tried to stop the repo he would lay me on the ground. As we continued arguing, I attempted to get things out of my car but the passenger blocked me with his body from doing so. I asked him to move out of the way and he did not. The driver then began yelling ; telling me that I had the opportunity to get my things in the beginning but now I do not. He then instructed the passenger to get inside the tow truck so they could " get the XXXX out of here. '' The driver and I continued arguing for several minutes. During this time, he continually threatened to call the police if I did not move out of the way and give him the keys ; and at one point walked up to me to yell in my face. The passenger then tried to intervene ; attempting to calm things down. The environment was loud, became was very hostile and started to alert additional neighbors. The passenger then went to speak with the driver in private. While doing so, I went inside of my car to get my suitcase. After speaking with the driver, the passenger then pulled me to the side to talk in private. The passenger pleaded with me to give him the keys and make things easy on myself. He stated that if I did not comply, the driver would call the police and I would be arrested. He apologized for the drivers behavior and told me he is just a worker ; and has no authority over the driver. In addition to being arrested, he stated the driver would most likely break the window to get into the car if he does not have the keys. He made it clear to me that no matter what I said or did, they were not leaving without the vehicle. As the passenger and I continued talking in private, the driver began yelling again. He told the driver to get inside the truck " NOW '' ; also stating it was time to go. The driver and I began arguing again. The driver was now instructing the passenger to call the police on me. The passenger then frantically pleaded with me to just give him the keys. He pulled out his cellphone and gave me his phone number and stated he would call me afterwards to discuss everything that happened. He then told me he had to go and told me one last time to give him the keys or things wouldn't end well. By this time, all of my neighbors were watching, my family watched, and I feared being assaulted or arrested in front of everyone ; so I complied with their demands. After giving them the keys, the driver and passenger left with my vehicle. I did not receive any paperwork or information related to the repossession. Later that night, the passenger and I met at the same location where my car was towed. We discussed the event for about 30 minutes, then he left. My last communication with the passenger was a phone call on Tuesday XX/XX/XXXX. The recording of the phone call is attached to this email. Supporting Case Law and UCC Code Article 9 of the Uniform Commercial Code ( UCC ) places various requirements on the lender and one of these requirements is that a lender can only repossess goods if it can do so without breaching the peace. While the law allows auto lenders and debt collectors to use self-help repossessions for late payments of a car loan, consumers have rights too. Even if a consumer missed payments, consumer protection laws make it illegal to breach the peace when repossessing any motor vehicle. Under the Uniform Commercial Code ( the main car repossession law ) if the repossession agent commits a breach of the peace, they lose any right to take the vehicle at that time and the repossession process must stop. If the repossession agent continues with repossession after breaching the peace, the UCC and the Fair Debt Collection Practices Act ( FDCPA ) protect consumer rights. A secured creditor certainly has a strong interest in obtaining collateral from a defaulting debtor. That interest, however, must be balanced against society 's interest in the public peace. If a creditor chooses to pursue self-help, it must be expected to take precautions in doing so. Another area in which courts in different states have been consistent in their analysis of claims involving breach of the peace is that violence, or even the perception of violence, occurring during repossession will invariably result in an action for breach of the peace. In XXXX XXXX XXXX XXXX XXXX XXXX XXXX of Appeals ruled that the offensive and insulting language used by a seller as he repossessed a car was sufficiently provocative of violence to constitute a breach of the peace. XXXX. Code Ann . 47-9-503 gives a secured party the option of the self-help remedy of repossession " if this can be done without breach of the peace ''. Conversely, if the repossession may breach the peace, the creditor should resort to the judicial process or risk liability for tortious conduct. See generally 69 Am.Jur.2d Secured Transactions XXXX. The court found that, according to Tennessee case law, " the duty to repossess peaceably [ under XXXX ] is non-delegable, and thus, XXXX secured party is vicariously liable for wrongful acts of the repossessor even if the repossessor is an independent contractor. ' '' Id. at XXXX ( quoting McCall v. Owens, 820 S.W.2d 748, 751-52 ( XXXXCt.App.1991 ) ). A lender can not insulate itself by merely relying on a repo-company and if the repo-company breaches the peace, the lender may be liable. The official comments to Revised Article 9 recommend that courts hold the secured party responsible for the actions of others taken on the secured partys behalf, including independent contractors engaged by the secured party to take possession of the collateral. A number of courts have held that the duty to repossess peaceably under U.C.C. 9-503 is nondelegable. XXXX XXXX XXXX XXXX XXXX XXXX 842 F. Supp. 1202 ( D.Minn. 1994 ) ; Nixon v. Halpin, 620 So. 2d 796, 798 ( Fla.Dist.Ct.App.1993 ) ; MBank ElPaso, N.A . v. Sanchez, 836 S.W.2d 151, 153-54 ( Tex.XXXX ) ; Sammons v. Broward Bank , 599 So . 2d 1018, 1021 ( Fla.Dist.Ct.App.XXXX ) ; Massengill v. Indiana Nat'l Bank , 550 N.E.2d 97, 99 ( Ind.Ct.App.XXXX ) ; Nichols v. Metropolitan Bank , 435 N.W.2d 637, 640 ( Minn.Ct.App.XXXX ) ; General Fin. Corp. v. Smith, 505 So. 2d 1045, 1048 ( AlaXXXX ). Tenn.Code Ann. 47-9-503, Associates had a definite statutory obligation to take precautions against a breach of the peace. As stated in XXXX and the cases quoted supra, that obligation was nondelegable ; it could not be cast off on anyone else. Thus, when XXXX initiated the repossession process by hiring XXXX, the duty to take precautions against a breach of the peace remained with XXXX. When XXXX in turn hired XXXX XXXX to carry out the repossession, the duty to take precautions against a breach of the peace still remained with XXXX. In short, having initiated the repossession process, it was XXXX 's affirmative statutory duty to ensure that the repossession was conducted in a peaceable manner, no matter how tenuous the connection between XXXX and the ultimate repossessor, One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of the contractor employed by him to provide such safeguards or precautions. Restatement ( XXXX ) of Torts 424 ( XXXX ). The general rule [ that an employer is not liable for the tortious acts committed by an independent contractor ] is well settled. But this general rule has important exceptions. One is that an employer is responsible for the manner of performance of certain non-delegable duties, though done by an independent contractor. An employer who by contract or law owes a specific duty to another can not escape liability for a tortious performance by reason of the employment of an independent contractor. The Uniform Commercial Code contemplates certain statutory, punitive, automatic, damages to permit a consumer to recover if a repossession is inappropriate or deemed a wrongful repossession. The most serious of these damages would be the amount of the finance charges plus a XXXX XXXX penalty. These types of statutory damages are available under certain violations of the Uniform Commercial Code. In addition, there are also certain statutory penalties under the Uniform Commercial Code for the companys violation or improper repossession. This is in addition to the amounts previously set forth or actual and consequential damages associated with an inappropriate or wrongful repossession. A substantial award of punitive damages would serve to punish XXXX for allowing a breach of peace to occur and would hopefully motivate XXXX to take added precautions to prevent future violent repossessions if the repossession was effected through a breach of peace, and in a manner sufficiently egregious under Tennessee law. 9-625. REMEDIES FOR SECURED PARTYS FAILURE TO COMPLY WITH ARTICLE 9-609. SECURED PARTYS RIGHT TO TAKE POSSESSION AFTER DEFAULT

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