State and Federal Courts have long struggled with balancing the interests of debtors and secured creditors when it comes to the issue of self-help repossession. Self-help repossession refers to a creditor’s seizure of property that is the security interest (or collateral) of a loan. For example, when a bank seizes a person’s car because he was delinquent on the car loan, the bank has performed self-help repossession.
Generally speaking, section 9-503 of the Uniform Commercial Code gives a secured creditor the right to take possession of collateral if the debtor falls delinquent on the loan. However, there are some limitations. For example, a creditor cannot repossess collateral if doing so involves a “breach of the peace.” A “breach of peace” is somewhat of an ambiguous term, however, the use of physical force to repossess a car for example would be considered unlawful.
Aside from litigation over whether a creditor has breached the peace, there has been a considerable amount of case law on the issue of whether a debtor is entitled to a hearing prior to repossession. The concerns to both parties are significant. The creditor is motivated to take possession of collateral quickly and inexpensively since delay could result in damage to the collateral, depreciation to the collateral, and/or time for an embittered debtor to thwart future repossession attempts. On the other hand, depriving a debtor of property without first being heard poses serious risks to the debtor. Often such “surprise” tactics leaves debtors without necessary housing or transportation. Further, repossession without a court hearing deprives a debtor without his “day in court.”
This is a similar argument to the one the plaintiff made in the Supreme Court case of Fuentes v. Shevin. That case involved the issue of whether repossession without judicial intervention violated the Fourteenth Amendment to the United States Constitution as a deprivation of property without due process of law. However, the Supreme Court ruled that the Fourteenth Amendment only protects against state action. Since a secured creditor is considered a private party, it is immune from those Constitutional provisions. The subsequent case of Flagg Brothers v. Brooks contained a similar decision and creditor’s rights to self-help repossession have generally been immune against federal attack.
If you are a debtor facing repossession, you may want to be hasty in trying to resolve the issue with a creditor. Do not expect a court hearing first or you may find yourself without transportation.
By: Noel Goodman
Posts Tagged ‘Federal Courts’
Repossession Laws – A Review of the Legality of Self-Help Repossession
April 4th, 2010Jailed Father on Hunger Strike to Protest Denial of His Parental and Other Constitutional Rights
December 15th, 2009ir Sanjari, was divorce after a 17 year marriage. He’s a UK Citizen who was originally invited to the United States to Stony Brook University, New York for a research position.
Now he’s destitute and on a hungar strike in jail to protest the unconstitutional denial of father’ rights and more.
Initially, Sanjari and his ex-wife shared equal custody of their children and had similar incomes. Nevertheless he was ordered to pay $1,000 a month in child support. Such a payment is the first sign that something is seriously amiss.
But when he lost his job and applied for a reduction in ‘child support’, it was denied. This denial is also not unusual – wrong, but not unusual. His ability in the recession to get a job to cover the outrageous child support payment faded. It brought on hardships for him. Eventually his ex-wife won sole custody of the children, he says, by lying about him while he was out of the country on vacation.
Sanjari, a competent man, was not idle though. He learned the law to fight for his children and his rights to see them and care for them on his own. He fought in the Indiana family court, its district court, and eventually in federal courts. He had to go on the run to stay out of jail for not paying what he couldn’t pay – a common circumstance for fathers under such ‘child extortion’ orders. He spent time helping other parents with their family court cases while he was on the run.
Unfortunately, though well-versed in constitutional and federal legal processes, it became apparent that he’d get no due process to protect rights clearly denied to him. For the child support he couldn’t pay, he’s been sent to jail.
Amir is now on a hunger strike to try to expose his plight and that of other fathers under this tyrannical anti-father system that separates fathers from their children and turn them into criminals.
Sanjari hasn’t had any solid food since March 26, the day he was arrested. Once trim at 150 lbs, he’s now down to 115. He drinks some nutritional supplements with potassium and sodium to keep his brain functioning normally.
I stress that the constitutional denials Sanjari has had to face that set him up for his tribulations are not unusual for fit fathers under family court actions. Yet Amir’s personal sacrifice to garner some public notice is honorable.
The denials he faces are unjustified. He knows it, and many other decent fathers know it. And his efforts will in large part be suppressed by both the courts and all those who profit by the present day denial of fathers rights.
Fathers Rights means basic constitutional rights for a fit father to maintain physical and legal custody of his children to the same extent of a ‘fit’ mother – and then, of course, all other fundamental rights due a free person.
The denial of a fit father’s rights begin in a state’s county family court where his children are essentially kidnapped from him without the required constitutional due process to prove unfitness nor assigning him equal physical and legal custody of his children. The family court simply usurps all his rights by declaring that it will assign custody to one parent and make the other parent pay whatever it assigns as ‘child support’.
And why? Because the court claims it can deny fundamental rights based on it ‘alleged’ right to determine what’s in the ‘best interests of children’ who have fit parents. It’s an absurd claim when both parents are fit and willing to parent fully or at least equally to the other. It’s absurd because it’s unconstitutional.
But since, collectively, a multibillion dollar industry has grown up around the denial of a father’s rights because of the enormous benefits that can then accrue to them. Benefits include child support, collection fees, lawyers’ fees, GAL fees, course fees, extracted directly from fathers.
And then there are additional benefits from enormous government money transfer to family courts systems, state revenue agencies, domestic violence agencies and organizations, and federal revenue collections too.
Who supports this extortion industry?
Just follow the money. And with all that money comes plenty of propaganda to justify what happens based on extraneous reasons and vilifying men or fathers – but always steering clear of the clear constitutional rights violations that this system depends upon.
Unfortunately even the federal courts are afraid to over-rule the unconstitutional family court procedures and orders as is their duty when states’ procedures violate the U.S. Constitution. There’s just too much money and political push to make waves against the ‘divorce and domestic violence industry’.
That’s what Amir Sanjari found out – as other have too. What will you do when it’s your turn to go to court?
By: Shane Flait
