A purchaser bought a car that was financed through a loan. The purchaser fell behind on payments, causing the lender to proceed with repossession of the vehicle. During the repossession, the purchaser made a payment to the lender, told the repo person to stop repossessing the car, sat in the car on the street, and made several objections to the repossession before and after the payment. The vehicle was ultimately repossessed. The purchaser brough suit against the lender and the subcontractors who did the repossessing, alleging violations of the Fair Debt Collection Practices Act (FDCPA) and unlawful possession under a state statute. The lender and subcontractors filed a motion to dismiss.
In Byrd v. Hyundai Motor Fin., No. 8:23-cv-1254-CEH-SPF, 2023 WL 8543709, 2023 U.S. Dist. LEXIS 219642 (M.D. Fla. December 11, 2023), the court denied the motion to dismiss. The court began by discussing the violation of the FDCPA and the state statute, which prohibits a debt collector from using unfair or unreasonable means to collect a debt and requires the debt collector to proceed in a way that does not involve a breach of peace. While there is no definition in Florida for “breach of the peace” courts apply a two-prong test. The first prong was inapplicable here: “whether there was entry by the creditor upon the debtor’s premises.” However, a breach of peace can also occur on a public street, if there is an objection to the repossession by the debtor. The court decided the purchaser’s objections and actions of sitting in the car while making a payment during the repossession were enough to state a breach of the peace under state and federal law and denied the motions to dismiss.
By: The Editors