Repossession—Should I Take a Police Officer?


ABSOLUTELY NOT…

by Jack S. Barnes, CCRS


For this discussion, we are considering repossession to be the taking of collateral by a lender who has a security agreement on the collateral, has not obtained a court order and is using the self-help provision of the UCC contract.

The Uniform Commercial Code (UCC 9-503) states a secured party has the right to take possession of the debtor's collateral on default without judicial process if breach of peace does not result from that action.

Many UCC contracts have wording that states "in the event of default, the secured party or any sheriff or other officer of the law may take immediate possession of said property without demand and without process."

These statements certainly seem to say we can take a police officer with us to repossess a vehicle without a court order. ALTHOUGH THESE PRACTICES MAY BE PERMITTED BY THE UCC, IT IS A VIOLATION OF THE U.S. CONSTITUTION!!!

The Fourteenth Amendment to the United States Constitution states in part: “Section 1:… nor shall any State deprive any person of life, liberty, or property, without due process of law.”

Self-help repossession provisions of UCC 9-503 do not violate the Fourteenth Amendment if it is the conduct of a private individual dealing with a private individual. Notice how this is emphasized in the following cases.

Northside Motors of Florida, Inc. v. Brinkely, 282 S. 2nd (Fla. 1973). The Florida Supreme Court stated the self-help provision of 9-503 did not violate the due process clause of the Fourteenth Amendment because the due process clause was inapplicable to a factual situation presenting an individual's rights, noting at page 620:

“***The Supreme Court of the United States has since emphasized and reemphasized that state action will not be found in the purely private conduct of an individual without some form of active assistance or cooperation on the part of the state.”

The Superior Court of New Jersey determined in Messenger v. Sandy Motors, Inc., supra, that codification of self-help repossession by enactment of 9-503 cannot give that practice the color of state action so as to take it out of the private area and to make it subject to the Fourteenth Amendment. Therein, the Court quoted with approval the following statement by professor Mentshikoff on behalf of the permanent editorial board for the Uniform Commercial Code:

“Section 9-503 simply recognizes the common knowledge of buyers on time that repossession follows default and makes unnecessary its statement in the contract. It cannot be that codifying a generally understood practice of ancient and honorable lineage and surrounding it with safeguards renders the practice unconstitutional.”

In the case of Messenger v. Sandy Motors, Inc., 295 A. 2nd 502 (NJ 1972), The Superior Court of New Jersey said: “Thousands of cars are repossessed each year. It is difficult to believe the buying public is not well informed of the likelihood of repossession by the bank or finance company if installments are not paid. Plaintiff does not say that he lacked knowledge of such likelihood (of repossession) or that he was unaware of the express terms of his contract; the argument for him is that with or without knowledge of the consequences of default, he and those similarly situated are entitled by the Constitution to a hearing on notice before recaption. I think that argument must be rejected. A car buyer, having a wealth of experience all around him to draw upon and make him aware of the possibility of repossession, is not in a situation where he can properly claim that recaption of his car is a violation of his right to due process because, and only because, no prior hearing on notice to him took place. My conclusion is that if the Fourteenth Amendment has any application at all to this case, there has been no violation of the due process clause.”

At least thirty Appellate Courts that have had the opportunity to consider the issue have upheld the constitutionality of self-help repossession. Some of the cases are:

  • Gary v. Darnell, 505 F 2d 741 (6th Cir. 1974)
  • Turner v. Impala Motors, 503 F 2d 607 (6th Cir. 1974)
  • Bichel Optical Lab., Inc. v. Marquette National Bank of Minneapolis, 487 F 2d 908 (8th Cir. 1973)
  • John Deere Co. of Kansas City v. Catalano, 525 P 2d 1153 (1974)

Should I take a Police Officer?
ABSOLUTELY NOT!!!


The Supreme Court of the United States has emphasized that state action will not be found in the purely private conduct of an individual without state assistance. Police represent the State!

The presence of a police officer, a patrol car accompanying the repossessor, or the showing of a badge has been found by several courts to constitute “Color of Law” and has taken the repo out of the area of “purely private conduct without state assistance.” It is therefore a violation of the U.S. Constitution. The Supreme Court of New Mexico has ruled that a Military Police Officer just at the scene of a repossession on a military base was a violation of the Fourteenth Amendment. Unless you have a proper court order, do not take a police officer or sheriff with you on a self-help repossession.