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 ‘Fourteenth Amendment’
Repossession Laws – A Review of the Legality of Self-Help Repossession
April 4th, 2010Family Courts Tyrannically Deny Fit Fathers Their Constitutional Right to Parent Their Children
December 12th, 2009courts routinely deny one fit parent – overwhelming the father- his parental right to raise his child. They tyrannically allege a right to deny father’s fundamental rights since they do so for ‘the best interest of the child’.
Such family court claims are tyrannical and directly conflict with constitutional rights and protections – as this article shows.
Fundamental or ‘Constitutional’ rights are enumerated in the Bill of Rights, the further Amendments, and rights raised to that level by Supreme Court Case law. Supreme Court case law overrides all lower jurisdictional laws including family courts procedures.
The Fourteenth Amendment prohibits the state from depriving any person of “life, liberty, or property (i.e. any fundamental right), without due process of law.” Due Process Clause “guarantees more than [a] fair process.”Washington v.Glucksberg, 521 U.S. 702, 719 (1997). It includes a substantive component to the process that “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Id., at 720; see also Reno v. Flores, 507 U.S. 292, 301302 (1993).
The Supreme Court consistently upholds parental right as a fundamental constitutional right. And that’s the right to determine what the best interest of the child shall be.
The Supreme Court asserted that the ‘liberty’ protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923). So parenting includes both legal and physical custody of your children.
To deny a parental right requires constitutional due process that proves he’s either unfit or a clear danger to his children – proven with ‘clear and convincing’ evidence. As such, Santosky v. Kramer 455 U.S. 745 (1982) emphasized to restrict a fundamental right of a parent to any extent, requires a showing of clear and convincing evidence that serious harm will come to the child.
Family courts ignore all constitutional due process when they daily deny a fit father his right to physical and legal custody of his child – a right that every other fit parent has.
Family Court claims to determining ‘best interests of children’ over fit fathers’ rights are illegal in a presumably free republic. Only if there are no fit parents can the court invoke the ‘best interest of the child’ doctrine to assign custody.
In Parham v. J.R. et al 442 U.S. 584 (1979), the Supreme Court declared the ‘best interest of the child’ resides in the fit parent – not in the state: “Our constitutional system long ago rejected any notion that a child is a “the mere creature of the State” and, on the contrary, asserted that parents generally “have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations.”
In the 1978 case of Quillon v Walcott, the Supreme Court ruled: “If a state were to attempt to force the breakup of a natural family, over the objection of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest,” the Due Process Clause would clearly be violated.
In 2000, the United States Supreme Court ruled in Troxel v. Granville 530 U.S. 2000: “[S]o long as a parent adequately cares for his or her children (i.e. is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.”
Under divorce and paternity actions, the ‘equal protection clause’ of the 14th Amendment, requires that one fit parent must necessarily retain all of his fundamental rights to the extent that the other does. But two disputing parents can’t both exercise a few decisions – such as where a child goes to school simultaneously – but these are few.
Now the level of scrutiny required for a family court to infringe upon fundamental rights of either parent is “strict scrutiny”, which requires the court to show that the infringement serves a “compelling state interest” and that there is no constitutionally less offensive way for the state to satisfy this compelling interest.
The constitutionally least offensive way – by far – is an equal partition of time parenting their child. So, during one’s parenting time, that parent can control all decisions about the child which parenting implies, i.e. education, religion, medical, etc, as well as the typical day to day decisions.
The family courts deny a father’s fundamental rights in order to extort money from him and support a billion dollar industry based on such denials. They provably work to the ‘worst interests of the children’
By: Shane Flait
Federal Law Made by Judicial System
October 1st, 2009Plessy v. Ferguson became one of the most famous instances in the history of the United States. In reference to the court conclusion, distinct but equal adaptations for whites and blacks were legitimate, that conflicts the defenses that were certain by the Fourteenth Amendment.
Homer Adolph Plessy, one-eighth African American man in 1892 got on a train to East Louisiana and sat down on the place that was meant for white people only. When the man declined to leave his spot, he was without delay arrested. The conclusion of Supreme Court found Plessy at fault in violation and the man had pay $25 fee.
In reference to the verdict of the Supreme Court, ladies have been allowed in to a military academy that used to be all-male before. John Logan, a teenager, became in 1839 the first woman to request studying at Military Institute of Virginia. The same occurrence happened over hundred years ago, after a female senior from high school filed a request to study at the same institute. Her request has been declined bottomed on the rule in position which dates to 1839. According to this policy, just male learners were accepted to apply. History of straight-sex military schools in the United States of America had finished with the Supreme Court verdict which confirmed equivalent learning opportunities for both female and male students.
The verdict of the US Supreme Court in case of Dennis v. United States indicates that illustration of aggressive communist considered can be penalized by power of government without disobeying the First Amendment of the Constitution.
The Supreme Court supported the certainty of the American Communist Party leaders, because they were promoting the principle of violent revolution. In spite of the fact that in several cases Supreme Court did confirm that openly stated potentially risky ideas are not enough to permit repression of such ideas, the argument of Dennis v. United States motionless signifies the way laws can be interpreted differently counting on the existing political situation. Whether unfortunately or fortunately, but court verdicts very often characterize the interests of the greater part and those who are in power
By: Andrew
