Simple Self-Help Repossession

As a general rule, a creditor may repossess personal property without filing a lawsuit or obtaining a court order authoring the repossession attempt if the property can be repossessed without the use of force, and a disturbance or violence is not reasonably likely.  Texas Business & Commerce Code §9.609[1] allows a creditor to use “self-help” repossession, but only if the collateral can be seized without committing a breach of the peace.  “Breach of the Peace” is not defined in the Code, but Texas courts have forged a workable definition.[2]  Breach of the peace typically includes “conduct that incites or is likely to incite immediate public turbulence, or that leads to or is likely to lead to an immediate loss of public order and tranquility.”[3]  As an example, if repossession is verbally or otherwise contested at the time of and in the immediate vicinity of an attempted repossession, by the defaulting party or another person in control of the collateral, the repossessor must stop the repossession attempt.[4]  Importantly, the repossessor may not commit a separate offense while attempting to repossess the collateral; thus, unlawfully entering the property, for example by breaking a lock or jumping a fence, is prohibited.

 

 

[1] Sec. 9.609.  SECURED PARTY’S RIGHT TO TAKE POSSESSION AFTER DEFAULT.
(a)       After default, a secured party:
(1)  may take possession of the collateral;  and
(2)  without removal, may render equipment unusable and dispose of collateral on the debtor’s premises under Section 9.610.
(b)       A secured party may proceed under Subsection (a):
(1)  pursuant to judicial process;  or
(2)  without judicial process, if it proceeds without breach of the peace.
(c)       If so agreed, and in any event after default, a secured party may require the debtor to assemble the collateral and make it available to the secured party at a place to be designated by the secured party that is reasonably convenient to both parties.
[2] See e.g. Chapa v. Traciers & Assocs, 267 S.W.3d 386 (Tex.App.—Houston [14 Dist.] 2008) (relying on definitions from other states).
[3] Id. at 396.
[4] Id.

 

 

This answer is provided in the spirit of public education and not as legal advice. If you require legal advice for a particular situation, you should consult an attorney.



0 Comments

Leave a reply