repossesion redeemed/sueing to rocover damages caused to veh

[fiatmoney]

I am hoping someone can assist me in my effort to recover damages in small claims court caused to my automobile during the time it was held by the bank's agent.

In short, my car was repossessed. I redeemed it and paid all associated fees. When I picked up the car it was badly damaged. Over $1800. The damage occured at the auto auction lot. At first they denied it but finally admitted to it. I had copies of both condition reports showing no damage at the time it was picked up and when booked into inventory by the auction. The auto auction promised to pay, but balked when they found out the amount. I had two estimates from very reputable local shops. The auction co. wanted me to bring it to one of their vendor shops, which I refused to do. They offered half, a take it or nothing settlement. I accepted payment but did not sign any release. The bank and their agent were aware of the situation but both passed the buck and said to go after the auction. Since the car was repoed and moved to the auction on the bank's order, after I had informed them of my intent to redeem, I feel the bank is ultimately responsible for the damage that occured.

I had the car fixed and paid the difference. I have since paid off the loan and have the title. The repo occured less than a year ago. I have made a formal demand to the bank by certified mail, with all supporting documentation included asking them to settle with me and make it right. I gave them a 30 day window to respond. I have not received a response and am about to file a lawsuit against the bank in small claims court. The bank is out-of-state. Any suggestions on how to proceed?

[Edit by fiatmoney on Tuesday, October 22, 2002 @ 12:36 PM]

[calawyer]

what state are you in?

[fiatmoney]

CALAWYER, I pm'd you my state location. This will be a small claim action which I should be able to handle myself. I want to make sure I properly serve the correct corporate entity. I am also wondering about whether a proper action should be against the bank, or joint and severally against all parties involved. The bank, or their repo agent, being out-of-state, would be less likely to show or would have to obtain counsel to appear on their behalf, increasing my odds of winning by default. I should also mention that the repo agent initially mentioned to me that they have insurance to handle this sort of problem.

The car was moved from the local repo agent's secured lot to the auction after I had notified the bank I was going to redeem the car. It took the bank several days to come up with a dollar figure for redemption. If the car had not been moved the damage wouldn't have occured. In addition, I was charged addtional fees by the auction including their "reconditoning", ($150.) which left machine polish marks on the paint and damaged the weather stripping, transportation, ($100.)and a "pull fee" of $50. for bringing the car out of the secured area. I am not disputing the repo, my loan agreement states that if the loan is past due, it is in default and if it is in default, reposession of collateral is allowed. So any verbal arrangements I thought I might have had from the bank are moot. I just want to be made whole on the damages that occured to my vehicle while in the bank's or their appointed agents care. To me that is only fair and just. However, the bank is weaseling so I am forced to proceed. Of course, I want to recover the maximum possible to include court fees and any other amount I might be entitled to under the law.

My questions are as follows:

How do I properly serve and to whom?

Beyond actual damages and court costs what other amounts might I be entitled to under the law?

If I am successful in court, how do I collect?

It seems the bank would be the easiest to collect from but what if the bank ignores the judgement?

[calawyer]

Unfortunately I am not familiar with the small claims court system in your state. I suggest you call your county bar association and see if it has a small claims advisor. These people can be really helpful in helping you determine who to sue and how to serve.

You should also take a look at UCC9-501(1) (revised UCC 9-601()regarding a secured party's duty to preserve collateral in its possession. Then you should check to make sure your state has enacted this provision.

Good luck.

[calawyer]

Whoops. It is actually section 9-207 you should look at. The link to UCC article 9 is found here:

http://www.law.cornell.edu/ucc/9/overview.html

To find out whether and how your state has adopted the relevant UCC section, go here:

http://www.law.cornell.edu/uniform/ucc.html

[fiatmoney]

Thanks, I found the same link myself last night while researching the UCC revisions. I am a little confused by what seems to be double talk in this provision, copied and pasted below:

(1) A secured party must use reasonable care in the custody and preservation of collateral in his possession. In the case of an instrument or chattel paper reasonable care includes taking necessary steps to preserve rights against prior parties unless otherwise agreed.

(2) Unless otherwise agreed, when collateral is in the secured party's possession

(a) reasonable expenses (including the cost of any insurance and payment of taxes or other charges) incurred in the custody, preservation, use or operation of the collateral are chargeable to the debtor and are secured by the collateral;

( the risk of accidental loss or damage is on the debtor to the extent of any deficiency in any effective insurance coverage;

© the secured party may hold as additional security any increase or profits (except money) received from the collateral, but money so received, unless remitted to the debtor, shall be applied in reduction of the secured obligation;

(d) the secured party must keep the collateral identifiable but fungible collateral may be commingled;

(e) the secured party may repledge the collateral upon terms which do not impair the debtor's right to redeem it.

(3) A secured party is liable for any loss caused by his failure to meet any obligation imposed by the preceding subsections but does not lose his security interest.

(4) A secured party may use or operate the collateral for the purpose of preserving the collateral or its value or pursuant to the order of a court of appropriate jurisdiction or, except in the case of consumer goods, in the manner and to the extent provided in the security agreement.

It seems to me that even though the secured party must use, (1).."reasonable care in the custody and preservation of collateral in his possession"..., that,.. "( the risk of accidental loss or damage is on the debtor to the extent of any deficiency in any effective insurance coverage;..."

What might be considerd reasonable care? In my case, the collateral was moved from a secured storage lot at the repossession agent's location, to the auto auction company's facility where the damage occured. I notified the bank immediately that I intended to redeem the collateral, whether by paying the loan balance in full or by bringing it up to date and paying fees associated. The bank was unprepared or unable to quote me a specific amount at that time. The car was moved several days later and just before I was given a redemption amount, which I immediately wired out. I was willing and able to redeem the car immediately but was forced to wait several days to do so. Further, after paying the redemption amount, I was unable to contact anyone at, or get a return phone call from the auction, telling me where, when, and how to pick my car up. It was another 5 days before I could actually get the car.

Ps: It appears that my state adopted the code revisions as shown above.

[Edit by fiatmoney on Thursday, October 24, 2002 @ 09:19 AM]