Bankruptcy Law and Repossessions
Breach of the Peace
Repossessions cannot be accomplished with a breach of the peace. If the secured party causes a breach of the peace while repossessiong the collateral, the repossession will be wrongful. When that happens, the Debtor may sue the secured party in conversion for return of the collateral or damages. The creditor also runs the risk of losing their secured status in the vehicle.
A breach of the peace is defined as "[A] violation of public order, a disturbance of the public tranquility, by any act or conduct inciting to violence or tending to provoke or excite others to break the peace, or, as is some times said, it includes any violation of any law enacted to preserve peace and good order. It may consist of an act of violence or an act likely to produce violence. " Morris v. First Natl. Bank & Trust Co. (1970), 21 Ohio St.2d 25, 29, 50 O.O.2d 47, 254 N.E.2d 683, quoting Akron v. Mingo (1959), 169 Ohio St. 511, 513, 9 O.O.2d 7, 160 N.E.2d 225. A breach of peace includes “ ‘all violations of public peace, order or decorum’ ” and “ ‘breaking or disturbing the public peace by any riotous, forceful or unlawful proceedings.’ ” Makepeace v. Chrysler Motors Corp. (May 8, 1981), 2d Dist. No. L–80–187, 1981 WL 5572, quoting Census Fed. Credit Union v. Wann (Ind.App.1980), 403 N.E.2d 348. See Ford Motor Credit Co. v. Ryan, 189 Ohio App.3d 560, 939 N.E.2nd 891 (Ohio App. 2010).
Generally, no breach of the peace occurs by a mere trespass, without something more happening. Pantoja–Cahue v. Ford Motor Credit Co. (2007), 375 Ill.App.3d 49, 55, 313 Ill.Dec. 650, 872 N.E.2d 1039, quoting Chrysler Credit Corp. v. Koontz (1996), 277 Ill.App.3d 1078 1083, 214 Ill.Dec. 726, 661 N.E.2d 1171. If a car is repossessed and there are items in the car, the repossessing party must provide the opportunity to return those items. If the creditor does not allow the return of those items, they can be liable for conversion. Perkins v. City Natl. Bank & Trust Co. (Mar. 22, 1977), 10th Dist. No. 76AP–730, 1977 WL 200020. See also McGrady v. Nissan Motor Acceptance Corp. (M.D.Ala.1998), 40 F.Supp.2d 1323, 1330.