Smith v. AFS Acceptance, LLC - No. 11 C 5340, 2012 U.S. Dist. LEXIS 75976 (N.D. Ill. June 1, 2012)

Rule:

The Illinois Commercial Code allows a secured party to use self-help repossession without judicial process, if it proceeds without breach of the peace. Under Illinois law, "breach of the peace" as used in the statute connotes conduct which incites or is likely to incite immediate public turbulence, or which leads to or is likely to lead to an immediate loss of public order and tranquility. Whether a given act provokes a breach of the peace depends upon the accompanying circumstances of each particular case.

Facts:

Plaintiff Rosalind Smith obtained an auto loan from AFS to purchase a vehicle. When Smith defaulted on her loan, AFS hired Equitable to repossess the vehicle. While Equitable was in the process of hooking the vehicle up to tow it away, Smith's daughter, Rashai Jackson, jumped into the vehicle and then Smith also jumped into the vehicle. Despite this, the agents continued to tow the vehicle out of the driveway with the door open. The police arrived on the scene while the repossession was in progress and the two women were in the vehicle. The officers stopped the repossession and told Equitable to leave the vehicle in the driveway. Smith and Jackson sued AFS and Equitable for (1) violation of Article 9, § 609(b)(2) of Illinois' Uniform Commercial Code ("Repossession Statute") (Count II); (2) negligence (Count III); and (3) willful and wanton behavior (Count IV). In addition, Equitable has moved to dismiss all five claims against it: (1) violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 (Count I); (2) violation of 810 ILCS 5/9-609(b)(2) (Count II); (3) negligence (Count V); (4) willful and wanton behavior (Count VI); and intentional infliction of emotional distress (Count VII). AFS and Equitable moved to dismiss the claims against it.

Issue:

Should the Sec. 1692(f) claim against Equitable prosper?

Answer:

Yes.

Conclusion:

Plaintiffs have put forward sufficient allegations concerning a "breach of the peace" to survive a motion to dismiss. While plaintiffs certainly played a role in any breach of the peace, Equitable's employees, despite the fact that plaintiffs jumped into the vehicle, raised the rear of the vehicle and actually towed the vehicle away from the driveway with two individuals in the vehicle and the doors open. All this was done while plaintiffs' family members and neighbors yelled at the agents to stop towing the vehicle. Equitable made much of the fact that the plaintiffs themselves played a role in any breach by first jumping into the vehicle, but totally failed to address the fact that its own employees continued to tow the vehicle down the street with the two women in the back. In addition, they did so with a group of people yelling at them to stop. Finally, the police were called to the scene to restore order. Equitable has put forward no cases like this one where both parties contributed, in part, to the breach of the peace. The language of the statute states that the secured party can repossess secured property so long as the secured party "proceeds without breach of the peace." Nothing in this language suggests that the fault for any breach must lie solely with the party doing the repossessing, and Equitable has failed to present any authority to the contrary.