A recent car repossession in Utah turned deadly after a 35 year old mother of two attempted to flee from the repo man who in turn took chase after the woman.  The Police report states that their vehicles reached speeds of 70 m.p.h. on a 35 m.p.h. road and that the repossession agent even bumped the repo truck into the fleeing woman’s car before she veered off the road and crashed into a tree, killing the woman.

The police lieutenant who investigated the case was quoted as saying that he “had never seen a repo agent be this aggressive“.

I have seen several references to this tragedy on Facebook and am surprised at the high number of commenters who blame the woman for putting herself in a situation that ultimately lead to her death.  As if she somehow deserved her fate because (1) she was behind on her car payments, and (2) shouldn’t have left in the car.

As a consumer protection attorney, it isn’t shocking to me that someone can fall behind on their car payments. A recent study by Bankrate.com found that 76% of Americans live paycheck to paycheck and that 46% had less than $800 in savings.

It is easy to see how even a temporary reduction in income could lead to a desperate financial situation and could result in a situation where cars are being repossessed by the creditor.

And while many in the online world were quick to state that she should have never left in the vehicle (some even calling it “stealing”), it is at understandable that someone might not make the best decision when faced with losing what may be the only source of transportation for a family and the only way to get to work each day.

Can the Repo Agent Really Chase You Down?

The real issue with what happened in Utah is that the repossession agent chased after the woman when she left in the vehicle.  While secured lenders are entitled to “self-help” and can repossess your car if you fall behind on your monthly payments, there are limits as to what they can do and even say when it comes to taking your car.

Arizona’s Repossession Laws

Arizona’s repossession laws mirror the laws of most states when it comes to taking a car back.  Basically, the law says that if you are in default (i.e. aren’t making your monthly payments), then the bank can take possession of your car even if they don’t have a court order to do so – as long as they don’t “breach the peace”.1)A.R.S. § 47-9609

The Arizona statutes don’t define what it means to “breach the peace” but the general rule is that the creditor cannot utilize force or threats, cannot entered a debtor’s residence without consent, and cannot seize any property over the objection of the debtor.”2)Repossessions, National Consumer Law Center, 7th Ed..

Arizona courts have ruled that repo agents cannot bring a police officer with them when they come to repossess the car, even if the police officer does nothing but stand there – and if they do it invalidates the repossession. 3)See Walker v. Walthall, 121 Ariz. 121, 124 (1978)

Other courts have held that the following actions “breach the peace”:

  • Grabbing keys from the debtor and twisting her wrist;
  • Pushing a door open and striking the debtor in the stomach;
  • Touching a resisting debtor to any extent;
  • Towing a car away while the debtor is inside it, despite her protests;
  • Running over the debtor’s foot with a car and flashing a gun;

Your Remedies for Unlawful Repossession in Arizona

So what happens if a creditor doesn’t follow the law and breaches the peace while they are repossessing your vehicle?  First, repossession can be invalidated and you can get your car back.  Second, you can seek payment of damages based upon Arizona statute and the actual damages you incurred.

Is It a Crime in Arizona to Not Turn Over Your Car?

On many occasions I have had clients tell me that the repo agent that came to take their car told them that if they didn’t turn the car over they could be charged with a felony and face jail time and fees.

It is true that Arizona has a law4)A.R.S. § 13-1813 that makes it a felony to unlawfully fail to turn over a car that is subject to a security interest (click here to read how this terrible law came about).

But there are very specific requirements that must be met first before you could ever be charged with a crime:

  1. First, you must be at least ninety (90) days past due;
  2. Second, the bank (or other lender) has sent you written notice via certified mail return receipt, that you are ninety (90) days late in making a payment and are in default;
  3. You fail to get caught up on the payments within the next thirty (30) days.

Only if all three of these elements are met and then you fail to turn the vehicle over do you run the risk of having a felony charge. And truth be known, the Maricopa County Attorney’s Office rarely prosecutes these as crimes.

A problem I hear frequently is that repo agents will throw this statute around as if merely refusing to turn a car over results in a felony charge.  As you can see, there are very specific requirements and time frames that must expire in order for there to be any criminal liability.

There are plenty of people who have fallen on hard times and had to dealt with the threat of repossession of their car. In Arizona to be without a car really leaves you stranded as the public transportation system has a lot to desired.

It is important to know your rights and not allow bully repo agents to force you into a situation that you can avoid and that, as shown in the Utah case I mentioned at the beginning of this article, can have tragic consequences.

If you are facing repossession of your car or dealing with other debt problems, don’t hesitate to contact my office at (480) 420-4028 or via email at john@skibalaw.com .

 

References   [ + ]

1. A.R.S. § 47-9609
2. Repossessions, National Consumer Law Center, 7th Ed.
3. See Walker v. Walthall, 121 Ariz. 121, 124 (1978
4. A.R.S. § 13-1813