jmf8756 Posted March 22, 2012 Report Share Posted March 22, 2012 What is considered "commercially reasonable" when it comes to how long between a vehicle is repossessed and it is sold at auction. DH has one that DOFD was 6/08, repo'd in 2/09, sold at auction 9/10. The letter on this website says to wait until 2 years after the date of sale to dispute, but isn't 17 months to sell it (not to mention add 35k miles) a bit much? I would think they would have gotten more money for it had they sold it sooner and not put that many miles on it, therefore, the deficiency wouldn't be as much. Link to comment Share on other sites More sharing options...
GrumpyGus Posted March 23, 2012 Report Share Posted March 23, 2012 I understand your question, but I am unsure what you are trying to accomplish. All that matters is the DOFD. If they ran the miles up on it and then sold it, how does this change anything? Are you looking to pay off the balance? Are you concerned about the balance that is being reported to your CR? What's the scoop? Link to comment Share on other sites More sharing options...
jmf8756 Posted March 24, 2012 Author Report Share Posted March 24, 2012 1. If DOFD is the date they go off of, we're almost out of SOL as far as trying to investigate It and not worry about being sued. 2. Concerned that the balance isn't truly accurate because of the miles and time put on it between when it was repo'd and when it was sold. Wouldn't they have gotten more for it had they sold it sooner? Should we have to pay for their use of the vehicle in that time period? If it was a legitimate amount we wouldn't have a problem paying it but feel they didn't act in a "commercially reasonable" manner and we shouldn't be responsible for their unreasonableness. Link to comment Share on other sites More sharing options...
TomnTex Posted March 25, 2012 Report Share Posted March 25, 2012 I think I understand what your getting at! Had the not sat on it so long and put miles on it that were not necessary, it would have sold for a higher price and you would have less of a deficiency to pay back.Sounds like they used it for personal use etc. which I think would have been illegal. Link to comment Share on other sites More sharing options...
Denita Posted March 25, 2012 Report Share Posted March 25, 2012 (edited) I think I understand what your getting at! Had the not sat on it so long and put miles on it that were not necessary, it would have sold for a higher price and you would have less of a deficiency to pay back.Sounds like they used it for personal use etc. which I think would have been illegal.I agree with Tom - vehicles are a depreciating asset both in time and wear and tear. 35k miles is a huge amount of value to have "lost". There must be a timeframe for the creditor to come after the debtor for the deficency - and not mess with the collateral in the meantime. Sounds like they converted the collateral to their own use (you would have to check with Texas statutes to see what the rules of conversion are)...and then they are coming after you for the deficiency after they used up the collateral! They can't have it both ways.... You might want to check the UCC too. If the creditor was using your vehicle, it certainly would make it difficult (maybe impossible) for you to redeem. I think you are on the right track thoughOk. Apparently in Texas the creditor has to declare whether they are going to retain the collateral or dispose of it before they do it. Your creditor did both. I found something that might help you fight this deficiency: check Tanenbaum v Economics Laboratory Inc, 628 S.W 2d 769 (Texas 1982). This had to do with laundry equipment but its the same principle. Good Luck. Edited March 25, 2012 by Denita Link to comment Share on other sites More sharing options...
BTO429 Posted March 25, 2012 Report Share Posted March 25, 2012 (edited) Several questions:Did they send you a notice of repo intentions?§ 348.407. RETENTION OR DISPOSITION OF NON ATTACHED PERSONAL PROPERTY.(a) If a retail installment contract authorizes the holder or a person acting on the holder's behalf to retain or dispose of tangible personal property acquired in the repossession of a motor vehicle that is not attached to the vehicle and not subject to a security interest, the contract or another writing must require the holder to send written notice of the acquisition of the property to the retail buyer in accordance with this section.( The notice must be mailed or delivered to the most recent address of the retail buyer shown on the records of the holder not later than the 15th day after the date on which the holder discovers the property.© The notice must:(1) state that the retail buyer may identify and claim the property at a reasonable time before the 31st day after the date on which the notice was mailed or delivered; and(2) give the location at which and reasonable times during the period that the retail buyer may identify and claim the property.(d) If the property is not claimed before the date described by Subsection ©(1), the holder may:(1) retain the property subject to any legal rights of the retail buyer; or(2) dispose of the property in a reasonable manner and distribute any proceeds of the disposition according to applicable law.Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Fair Market Value:Normally fair market value is determine by adding together the average trade in value and the average resale (by individual sale) and dividing by 2.Did they send you a notice of sale, telling you when and where it would be sold, you do have the right to attend those auctions and attempt to buy back the vehicle. Thats what I did and I got my truck back for only 3900, 06 dodge hemi truck.They repoed over 145 dollars that was their mistake. They tried to change my percentage rate when they took over the loan. I am now involved in a class action suit against them and cant say a lot.Did they send a letter of deficiency? This is required by law if they ever try to sue for the deficiency.Texas right to redemption period. In Texas the lender MUST inform the debtor that they have ten days to redeem the vehicle. This is usually done by catching up the loan and paying the repo fees and any storage fees.Was there a breach of the peace?Now, even though a creditor may repossess without notice, and without a court order, he or she is not allowed to repossess if the repossession involves a “breach of the peace.” That is, a creditor cannot legally break into your garage to get your vehicle, run you off the road, take it by force, take it over your objection, or the like. Court decisions have held that it is OK for a creditor to repossess a vehicle from a driveway or from a public street, so long as it is done without a breach of the peace. What exactly constitutes a “breach of the peace” depends on the facts of each case.If a creditor does breach the peace while repossessing a vehicle, or repossesses one without the legal right to do so, then the creditor may be civilly liable to you for money damages for wrongful repossession, conversion, assault and battery, or other “torts” for which you may be able to sue the creditor.Even though a creditor may not breach the peace in repossessing the vehicle, please don’t just hide or refuse to surrender collateral to a lienholder indefinitely. You have a duty under the civil law, the Texas Business and Commerce Code, Sec 9.503 to make collateral available to a lienholder when demanded.There is also a criminal statute, Hindering Secured Creditors, Sec 32.33 of the Texas Penal Code, which makes it a crime to conceal, remove, or harm, etc. property on which there’s a lien with the intent to hinder enforcement of the lien.Commercially reasonable time: What’s the usual result of repossession? Well, the repossession company takes the repossessed vehicle to a storage lot or auction house, where it’s stored for a period of time. Under state law, the repossessed vehicle must be sold in a “commercially reasonable” manner. You must be given reasonable notice of the date, time and place of the sale, which has been interpreted to mean no fewer than 10 days after the date you were given notice of the sale, at the last known address the lien holder had for you. Edited March 25, 2012 by BTO429 Link to comment Share on other sites More sharing options...
jmf8756 Posted March 25, 2012 Author Report Share Posted March 25, 2012 Tom and Denita, that is exactly what I am getting at! I'm sure he owes something, just not convinced it is exactly what they are claiming. I will look at the case you mentioned and see if it helps. Also, the collection agency that bought the debt in June 2011 is trying to collect way more than what the OC wrote off AND they are adding $424 a month to the amount which is what his monthly payment was. Seems to me like that violates the laws on interest rate caps that Texas has. BTO 429, If they sent all of the required notices it would have been to DH's old address and not where he was living at the time. His mail was forwarded but it was so long ago I couldn't tell you for sure whether they made it in his hands or not. He says he never got anything though. Link to comment Share on other sites More sharing options...
BTO429 Posted March 25, 2012 Report Share Posted March 25, 2012 The if sued it would be up the the Plaintiff to prove that such docs were sent to him. If they don't have those docs then you have defenses against the suit.Please, if you haven't already, read my post again I added a few things. Link to comment Share on other sites More sharing options...
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