“Breach the peace” has no clear definition; however, there are some common examples:[2] X Research source the lender broke into your garage to take the car the lender physically removed you from the car from repossessing it the lender confronted you and tried to intimidate you Be sure to document the repossession. Videotape it, if possible. You should also take pictures of any broken locks or damage done to your property during the repossession. At a minimum, write down your memories of the repossession. Did the lender confront you? What was said? Were threats made? These notes, written soon after the repossession, can help you later at trial.
You should receive this letter within 10 days of the sale. [4] X Research source The letter might threaten you with further action, such as a lawsuit. You should take this letter seriously. Double check to make sure that the loan balance amount is right. Look through your own paperwork to see how much money you owe.
The loan paperwork might not have granted the creditor a security interest in the car. Read your loan documents. If the lender does not have a security interest, then it was not entitled to repossess your car. The loan paperwork didn’t give the creditor the right to sue you for the deficiency. The creditor who wants to sue you is not the same creditor on the loan document. Furthermore, it has no document showing that the loan was validly assigned to it. In this situation, the plaintiff has no standing to sue you because you don’t owe it money.
your right to redeem the car and when you could do that your right to reinstate the loan (if allowed by state law) and when you could do that the date of the car sale, if it was a private sale the date, time, and location of the auction, if the car was sold at auction a calculation of the deficiency balance
The creditor sold the car to friends or family. This is not commercially reasonable. The creditor didn’t sell the car. If the creditor decides to keep the car, then your debt is fully satisfied and you can’t be sued. The creditor made a private sale when most repossession sales in your area are handled by auction. The creditor did not get the car appraised before selling it for junk. [7] X Research source The creditor did not advertise the sale and did not let interested buyers inspect the vehicle. The advertisements did not describe the car accurately (make, model, mileage, general condition). The creditor waited too long to sell, allowing the car to depreciate in value as it sat in a lot.
To find a lawyer, you can visit your state’s bar association, which should have information on finding a lawyer in your state. The bar association may also run a referral program. If costs are a concern, understand that most states allow you to hire a lawyer to do only discrete tasks. This is called “limited scope representation. ” For example, you could hire a lawyer to draft court documents for you or to coach you about how to handle a trial. Ask during your consultation whether the attorney offers this service. [8] X Research source
The mediator is not a judge. Instead, the mediator helps the parties come up with creative, workable solutions that both parties can agree to. [9] X Research source If you are interested in mediation, then you should check whether your local courthouse offers a mediation program. Also, you can call your local or state bar association to check if there is a mediation program you can use.
Unfortunately, you might waive your right to appeal if you arbitrate. [10] X Research source For this reason, you should think carefully before agreeing to arbitration. Although a trial may be slower, you would still keep your ability to appeal should you lose.
You will receive a copy of the complaint and a summons. The summons will tell you how much time you have to respond. [11] X Research source Make note of the date.
Alternately, you might need to draft your answer using a CD or book of legal forms.
The lender waited too long to sue. Each state gives people only a limited amount of time to bring a lawsuit. This is called the “statute of limitations. ”[14] X Research source To find your statute of limitations, search for “repossession deficiency statute of limitations” and “your state” on the Internet. Your state doesn’t allow deficiency judgments. Some states don’t allow creditors to get deficiency judgments. [15] X Research source In this situation, you can get the case tossed out of court. Deficiencies in the loan paperwork (see above).
As counterclaims, you can raise any deficiency in the repossession process. For example, if the lender breached the peace in retrieving your car, then raise that as a counterclaim. [16] X Research source Also point out any deficiencies in the notices you were given or in the manner of sale of the car.
You must send a copy of your answer to the creditor’s attorney (if one is listed on the complaint) or to the creditor (if no attorney is listed). [17] X Research source Ask the court clerk for acceptable methods of service.
Requests for production. Here, you request relevant documents in the plaintiff’s custody and control. To defend against the deficiency judgment, you should seek any paperwork related to the sale of the car. Interrogatories. These are written questions the creditor must answer under oath. Interrogatories are helpful for getting basic information. For example, you could get the name of the auctioneer (if the car was sold at auction) or the name of the private party the car was sold to (if sold to a private party). Depositions. In a deposition, you ask witnesses questions in person. A court reporter will record the testimony, which can sometimes be used later at trial. Depositions typically take place in an attorney’s office.
Summary judgment motions are technical and require extensive familiarity with the law. If you want to bring one, then you should think about hiring an attorney to draft it for you.
If you can’t afford a lawyer, then see Represent Yourself in Court (U. S. ) for tips on how to defend yourself in court.
