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Auto Repossession, police


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Hi, everyone,

Last week my car was repossessed because it was alleged that I was 57 days behind (not true). Hence, the repo man brought the police with him to my house to recover my vehicle. He first contacted me and told me he was looking to repo my vehicle and explained to me that Wachovia claimed I was 57 days late. Strangely enough when I called Wachovia and read to them a list of all the payments I made by check to them, it was later found out that they cashed my payment for March but didn't credit my account. I had to fax them this documentation and then they later claimed that someone in their company cashed it but it didn't go to the correct account! Go figure.

They claimed that they would do an investigation of this to find out what happened. Now granted April was late but was already mailed off. I was only late on April because I had to attend to my wife running to the hospital on multiple occasions before she gave birth to our first child. So when the repo guy arrived at my house, he had the police with him and he demanded my vehicle. I refused because I told him the situation about Wachovia losing one of my payments while showing him the same paperwork I faxed to them earlier that day. The police tried to force me to give him the key by blocking my car in while both of them refused to allow me to retrieve my personal possessions and my 7 day old Child's car seat (granted she had an upcoming checkup and we needed the car to get her around). I told them this was illegal and that they can't do this. I head that a court order must be given for the police to be allowed to assist in a repo and that "breaching the peace" makes the repo wrong if one rejects to it, especially on the grounds I did.

Can someone help on this please.

Will give more info if needed.

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Here is a link that I found helpful from Illinois Legal Aid which gives pretty detailed information on what is and is not allowed for repossessions.

Here is a link at creditboards which contains a lot of good repossession information.

You should also look up the Uniform Commercial Code (UCC) in your state, if applicable. A key element is ensuring you've received all proper notices required by your state before and after the repossession occurred and within the allotted time.

I am still learning about repossessions myself so I hope this information helps!

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Wow, thats unusual for a police to be that involved in a civil matter when it comes to a repo, in some states all that is needed for a repo to repo your car is for them to notify the police dept in the city where they intend to repo the car and file a small fee to repo it.

I hope you got the officers badge number and once you find out the information you need file a complaint against him and the repo man as well because you have every right to get your belongings out of your car to avoid being charged a storage fee if they were to take your belongings.

Good Luck and nail those heartless people good

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I would contact an attorney and consider suing Wachovia, they should have called off the repo the minute they knew it was a posting error. Have you asked Wachovia directly?

Yes, they claimed because I was late for April that they still had a right to take the car even though their own internal process requires them to do a repo if it is 57-60 days late not less than two weeks late!

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Talk to a lawyer.

Yes, they claimed because I was late for April that they still had a right to take the car even though their own internal process requires them to do a repo if it is 57-60 days late not less than two weeks late!

What does your contract say?

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There should be a section covering non-payment or late payments. Under some contracts the loan can be accelerated if a payment is late.

EVen if there is, I notice this link gives a great explanation on auto contracts and caselaw:

http://www.illinoisprobono.org/index.cfm?fuseaction=home.dsp_Content&contentID=5631

Caselaw has shown that even with these types of agreements it doesn't make it 100% enforceabale at all.

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Get a lawyer. But get a lawyer that lives in another town. Lawyers typically won't sue the police in their own town because they fear reprocussions.

Now here's the poop: The policeman is in big-big trouble. As is Wachovia.

The police officer, by helping the repo person essentially seized your vehicle and gave it to the repo man without a court order of posession. That isn't just a violation of some local law. It is a violation of the 4th Amendment to the Constitution! Really. You have a huge civil rights violation against the police department. The police are allowed to be there to keep the peace, but as soon as he assisted with the reposession, he crossed the civil rights line.

As for Wachovia; in accepting your payment, regardless of it being late when they got it, they brought your account current. As long as they accepted your payment before the repo man showed up, that means they had no right to reposess. They are not only liable for the return of the car, but any damages to it. If they have already disposed of the car, they they are liable for replacing it. Also they are liable for emotional distress and punitive damages for breach of contract. If they wanted to reposess, they should have refused the late payment...but since they didn't do that they left themselves exposed to liability.

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Get a lawyer. But get a lawyer that lives in another town. Lawyers typically won't sue the police in their own town because they fear reprocussions.

Now here's the poop: The policeman is in big-big trouble. As is Wachovia.

The police officer, by helping the repo person essentially seized your vehicle and gave it to the repo man without a court order of posession. That isn't just a violation of some local law. It is a violation of the 4th Amendment to the Constitution! Really. You have a huge civil rights violation against the police department. The police are allowed to be there to keep the peace, but as soon as he assisted with the reposession, he crossed the civil rights line.

As for Wachovia; in accepting your payment, regardless of it being late when they got it, they brought your account current. As long as they accepted your payment before the repo man showed up, that means they had no right to reposess. They are not only liable for the return of the car, but any damages to it. If they have already disposed of the car, they they are liable for replacing it. Also they are liable for emotional distress and punitive damages for breach of contract. If they wanted to reposess, they should have refused the late payment...but since they didn't do that they left themselves exposed to liability.

These little scoundrels got tricky. They didn't go ahead and cash my april payment. However I do have them on other accounts. I notice what you said is true also and is also a violation of the 14th amendment also:

https://www.nfa.org/TakePolice.aspx

They shouldn't take the police on a repo it is bad bad news!

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Kristy, you should be ashamed of yourself! :? That link is as full of inaccurate information as the rest of the nonsense promulgated by that knucklehead.

I have been properly chastised. ;) Where would I find good info? I have to admit repossessions have always been one of my weaknesses in credit knowledge.

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  • 3 weeks later...

Question to all, In speaking with a lawyer in reference to Auto finance companies mailing you your necessary paperwork after a repo stating, your rights, where they will sell the car, etc. I informed him that I didn't receive any of this from the company he told me all the company has to do is claim they did mail it even if they didn't and they could claim to use this from their records. I don't buy this at all, claiming to send something in the mail and actually doing it are two different things. What type of caselaw exist on this? Don't businesses have to prove that they mailed something this important to you?

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Question to all, In speaking with a lawyer in reference to Auto finance companies mailing you your necessary paperwork after a repo stating, your rights, where they will sell the car, etc. I informed him that I didn't receive any of this from the company he told me all the company has to do is claim they did mail it even if they didn't and they could claim to use this from their records. I don't buy this at all, claiming to send something in the mail and actually doing it are two different things. What type of caselaw exist on this? Don't businesses have to prove that they mailed something this important to you?

I think that's a tricky matter. If a business claims to have a normal procedure for mailing out such notices and they have someone to attest to the fact that this is how all these things are handled then they don't necessarily have to prove that they mailed it out or you received it. There's a supposition that the mail will be delivered to you within a certain amount of time.

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I think that's a tricky matter. If a business claims to have a normal procedure for mailing out such notices and they have someone to attest to the fact that this is how all these things are handled then they don't necessarily have to prove that they mailed it out or you received it. There's a supposition that the mail will be delivered to you within a certain amount of time.

And that is wherein the problem lies. There are many statutues out there that are basically worthless because all one has to do is claim they did something and because it can't be disproven it must be accepted.

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My next question is relating to this:

Notice of Creditor's Intent To Seek Repossession Title

After repossession of a motor vehicle, a secured creditor in Illinois must send a notice to the consumer stating that the creditor intends to apply to the Secretary of State for a repossession certificate of title. [4] 625 ILCS 5/3-114(f-5)(1). See Appendix A. The creditor must also send an affidavit form to the consumer on which the consumer can list any defense to the creditor's application for transfer of title. 625 ILCS 5/3-114(f-5)(2); see model at Appendix B. For example, the consumer could list as a defense that the repossession of the vehicle was wrongful if the consumer was not in default. See Conversion infra. By completing the affidavit and mailing it by certified mail to the creditor within 21 days, the consumer can stop the creditor from obtaining title from the Secretary of State and, consequently, prevent the immediate resale of the repossessed vehicle. Once the consumer timely completes and mails the affidavit, the burden is then on the creditor to file an affirmative action (detinue, replevin or declaratory judgment) to resolve the matter. 625 ILCS 5/3-114(f-5)(2) and 92 Ill. Admin. Code, §1010.160. Often creditors will negotiate the return of the vehicle at this point rather than litigate. If the consumer does not file the affidavit, the Secretary of State issues a repossession title which transfers all rights in the secured property to the creditor, allowing the creditor to sell the property.

Now my question is this for Credit reporting purposes, if you sent in the affadavit of defense and they recieved it, CAN THEY REPORT THE CAR AS REPOSSESSED ON YOUR CREDIT REPORT? In my opinion because the repossession is in dispute as being wrongful I don't think they can list it as a repo on your credit report if I'm correct. Especially when they don't have the repossession title from the Sec of State.

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My next question is relating to this:

Notice of Creditor's Intent To Seek Repossession Title

After repossession of a motor vehicle, a secured creditor in Illinois must send a notice to the consumer stating that the creditor intends to apply to the Secretary of State for a repossession certificate of title. [4] 625 ILCS 5/3-114(f-5)(1). See Appendix A. The creditor must also send an affidavit form to the consumer on which the consumer can list any defense to the creditor's application for transfer of title. 625 ILCS 5/3-114(f-5)(2); see model at Appendix B. For example, the consumer could list as a defense that the repossession of the vehicle was wrongful if the consumer was not in default. See Conversion infra. By completing the affidavit and mailing it by certified mail to the creditor within 21 days, the consumer can stop the creditor from obtaining title from the Secretary of State and, consequently, prevent the immediate resale of the repossessed vehicle. Once the consumer timely completes and mails the affidavit, the burden is then on the creditor to file an affirmative action (detinue, replevin or declaratory judgment) to resolve the matter. 625 ILCS 5/3-114(f-5)(2) and 92 Ill. Admin. Code, §1010.160. Often creditors will negotiate the return of the vehicle at this point rather than litigate. If the consumer does not file the affidavit, the Secretary of State issues a repossession title which transfers all rights in the secured property to the creditor, allowing the creditor to sell the property.

Now my question is this for Credit reporting purposes, if you sent in the affadavit of defense and they recieved it, CAN THEY REPORT THE CAR AS REPOSSESSED ON YOUR CREDIT REPORT? In my opinion because the repossession is in dispute as being wrongful I don't think they can list it as a repo on your credit report if I'm correct. Especially when they don't have the repossession title from the Sec of State.

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My next question is relating to this:

Notice of Creditor's Intent To Seek Repossession Title

After repossession of a motor vehicle, a secured creditor in Illinois must send a notice to the consumer stating that the creditor intends to apply to the Secretary of State for a repossession certificate of title. [4] 625 ILCS 5/3-114(f-5)(1). See Appendix A. The creditor must also send an affidavit form to the consumer on which the consumer can list any defense to the creditor's application for transfer of title. 625 ILCS 5/3-114(f-5)(2); see model at Appendix B. For example, the consumer could list as a defense that the repossession of the vehicle was wrongful if the consumer was not in default. See Conversion infra. By completing the affidavit and mailing it by certified mail to the creditor within 21 days, the consumer can stop the creditor from obtaining title from the Secretary of State and, consequently, prevent the immediate resale of the repossessed vehicle. Once the consumer timely completes and mails the affidavit, the burden is then on the creditor to file an affirmative action (detinue, replevin or declaratory judgment) to resolve the matter. 625 ILCS 5/3-114(f-5)(2) and 92 Ill. Admin. Code, §1010.160. Often creditors will negotiate the return of the vehicle at this point rather than litigate. If the consumer does not file the affidavit, the Secretary of State issues a repossession title which transfers all rights in the secured property to the creditor, allowing the creditor to sell the property.

Now my question is this for Credit reporting purposes, if you sent in the affadavit of defense and they recieved it, CAN THEY REPORT THE CAR AS REPOSSESSED ON YOUR CREDIT REPORT? In my opinion because the repossession is in dispute as being wrongful I don't think they can list it as a repo on your credit report if I'm correct. Especially when they don't have the repossession title from the Sec of State.

This is only my thought on the matter, so take it with a grain of salt. But I would think that they could list the repo on your credit reports, but if there is a dispute they need to note that it's under dispute. If your state law requires them to send this affidavit to you before they issue a repo title then you may have more luck disputing this under your state law than under the UCC.

BTW, from my other post, don't let the fact that they'll probably use, "the routine course of business" justification keep you from using "I did not receive proper notice" as one of your defenses. They may say that and the judge may buy it (and generally would because if this is part of their normal business it's a good argument to say that your notices were treated the same as all the others). As with any defense, it's what the judge believes that matters and sometimes you get lucky, so throw in all the possible defenses you can think it.

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This is only my thought on the matter, so take it with a grain of salt. But I would think that they could list the repo on your credit reports, but if there is a dispute they need to note that it's under dispute. If your state law requires them to send this affidavit to you before they issue a repo title then you may have more luck disputing this under your state law than under the UCC.

BTW, from my other post, don't let the fact that they'll probably use, "the routine course of business" justification keep you from using "I did not receive proper notice" as one of your defenses. They may say that and the judge may buy it (and generally would because if this is part of their normal business it's a good argument to say that your notices were treated the same as all the others). As with any defense, it's what the judge believes that matters and sometimes you get lucky, so throw in all the possible defenses you can think it.

I would think that if they need me not to send in the affadavit in order to get the title, then the car isn't officially a repossession. The purpose of the affadvit of defense is to dispute the repo and then issue defense as to why I may get the car back. If any more answers on this please feel free. I'm thinking that it isn't a repo until the Sec of State turns over the title to them.

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I would think that if they need me not to send in the affadavit in order to get the title, then the car isn't officially a repossession. The purpose of the affadvit of defense is to dispute the repo and then issue defense as to why I may get the car back. If any more answers on this please feel free. I'm thinking that it isn't a repo until the Sec of State turns over the title to them.

So, they need you to NOT send in the affidavit to get the repo title? I'm sorry, I'm not familiar with this. But, in that case, if you've filed the affidavit disputing the repo and they can't issue the title then, then it sounds like you have a good argument that they cannot and should not list the account as a repo on your credit reports.

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So, they need you to NOT send in the affidavit to get the repo title? I'm sorry, I'm not familiar with this. But, in that case, if you've filed the affidavit disputing the repo and they can't issue the title then, then it sounds like you have a good argument that they cannot and should not list the account as a repo on your credit reports.

Under Illinois law, the company can only get the car as a repossession if I don't either dispute the repossession with the "affadavit of Defense" or if I fail to send it in on time. Ironically Wachovia decided to try and cash my payment for April after holding onto it for a couple of months. Thankfully I found my proof that I mailed it in to them which wasn't late. However because these goons thought that March was never paid they totally ignored this!

Hence, they misapplied March, didn't bother to cash april and now that I found my proof of mailing showing that they received my payment there are going to be in big trouble for not cashing it. Hence, I was current legally when they took my car.

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