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The Repo Man Cometh.

posted by Angie Littwin

An AP article by Jay Reeves highlights yet another disturbing consequence of our credit-based recession -- a rise in repo violence. The article details the killing of Jimmy Tanks, a 67-year-old retired railroad worker, who used a rifle to confront a repo crew at 3 in the morning and ended up dead.  The repo man has been arrested for murder. The rise in repo violence probably has a lot to do with the rise in repossessions. Car repos increased by 12 percent in 2008 and are expected to increase another 5 percent in 2009.

But the Uniform Commercial Code has a lot to do with this as well. Under Article 9, a repo is legal as long as the creditor's representatives don't "breach the peace," a test which has led to a body of caselaw that, paradoxically, almost guarantees violence. Basically, if the repo crew can get the automobile away from the debtor without violence occurring (no matter who starts it), the creditor is safe. But if the debtor manages to physically prevent the repo, even by extreme measures such as threats or chaining himself to his car, the creditor's representatives have to leave. This gives repo crews incentive to proceed by stealth, which it turn makes it more likely that debtors will confuse them with car thieves, and it encourages debtors to take extreme measures to defend their cars.

Another disturbing facet of this story is that the debtor had already filed for bankruptcy. The article doesn't mention whether the creditor had managed to get the automatic stay lifted, but if not, then the repo guys had no business whatsoever being there in the first place.

I want to thank my students James Hughes and Beckie Brice for the tip.

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Comments

So perhaps the creditor is an accomplice to murder . . . or at least negligent homicide? Wow. I don't see a TX D.A. going after this one, but it sure raises some interesting possibilities.

I have no sympathy for the repo agents here. Anyone taking a car in the dead of night should have a world of hurt coming down on them. Unfortunately, the wrong person died this night, probably because the homeowner didn't start shooting quick enough

If the creditor was violating the stay, there might be some civil action there, not just violation of the stay. If he filed for 13, would that action be property of the estate? Would the standing trustee be able to pursue it?

You're overstating the case law to conclude that 9-609 requires physical confrontation. While individual courts may have so held, plenty more find the mere threat or likelihood of physical violence to breach the peace, see Giles v. First Virginia Credit Services, Inc., 560 S.E.2d 557 (N.C. Ct. App. 2002), for a good review of the case law, and some go farther and hold mere deception or trickery to breach the peace, see, e.g., Madden v. Deere Credit Services, Inc., 598 So. 2d 860 (Ala. 1992).

If the stay was not lifted then I believe that it belongs to the estate (the violation of stay), the UCC should be as well if there is a surviving spouse (talking about in bankruptcy court). If no surviving spouse then a Federal Action of some sort.

I have had a hand in quite a few of these (violation of stay suits). I think now only if it is converted to a 7 (surviving spouse???) will a 7 trustee be involved. But in the purest sense, I think a UST might have some sort of concurrent jurisdiction (maybe???).

If the stay was not lifted and you can prove any kind of notice then "damages" for a violation of stay in this case could be huge. You could bring in UCC stuff in an Adversary. Wow you can have several defendants in this one because it's like the Creditor doing it.

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