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1.1.4 Organization of This Treatise

Chapter 2, infra, analyzes the scope of Article 9 and other laws under which creditors may claim a right to repossess personal property. These scope issues are a critical initial question in every case, as the consumer’s rights and remedies vary greatly depending on whether Article 9 or some other body of law governs the transaction. The chapter also analyzes choice of law issues that arise in repossession cases, and whether federal law preempts state repossession law.

Chapters 3 through 13, infra, cover rights and remedies relating to security interests that fall within the scope of Article 9, including security interests in personal property granted by agreement, such as in motor vehicles, manufactured homes, and household goods. Chapter 14, infra, covers repossession in consumer lease transactions, including automobile lease and rent-to-own transactions, and Chapter 15, infra, covers artisan’s liens and other statutory liens on personal property.

In analyzing repossession of personal property pursuant to a security agreement, Chapters 3 through 13, infra, are organized in the same sequence as a repossession. Chapters 3 and 4, infra, deal, respectively, with whether there is a valid security interest in the property, and whether a default is sufficient to lead to a repossession. Chapters 5 and 6, infra, respectively examine judicial and non-judicial seizure of property (and threats to seize property). Chapter 7, infra, details the law concerning seizure of unsecured property along with collateral, such as personal property left in the trunk of a repossessed car. Chapter 8, infra, explores the use of the Bankruptcy Code to stop a repossession, recover repossessed property, or eliminate a deficiency obligation.

Chapters 9 and 10, infra, examine various types of dispositions of repossessed property. Chapter 9, infra, focuses on the consumer’s reinstatement of the agreement or redemption of the collateral; the creditor’s sale of the collateral or retention of the collateral in full satisfaction of the debt; and court-supervised sales of the collateral. Chapter 10, infra, on the other hand, focuses exclusively on and provides more detail on the creditor’s disposition of repossessed property via a sale. Chapter 11, infra, deals with computation of the surplus due the consumer or the deficiency due the creditor after that sale.

It is common for a consumer to come to an attorney after an automobile has been repossessed and the creditor is seeking a deficiency. In this situation, it is generally appropriate to turn first to Chapter 12, infra, which examines consumer defenses to a deficiency action, including references to the various issues set out in Chapters 3 through 11, infra. Chapter 13, infra, alternatively, discusses the consumer’s affirmative remedies in consumer repossession cases, including a detailed discussion of unfair and deceptive acts and practices (UDAP), UCC, and Fair Debt Collection Practices Act claims. When there are defenses to a deficiency claim, the consumer often has affirmative claims as well.

Chapter 14, infra, examines repossession issues in the context of consumer leases. Section 14.2, infra, covers repossessions of automobiles pursuant to a lease agreement and § 14.3, infra, covers seizure of rent-to-own property. Chapter 15, infra, covers seizures of personal property pursuant to statutory liens.

Appendix A, infra, reprints relevant provisions of UCC Articles 1, 2A, 3, and 9. Appendix B, infra, is a state-by-state summary of the repossession laws of each of the fifty states, the District of Columbia, Puerto Rico, and the Virgin Islands. Appendix C, infra, reprints portions relevant to repossession law of the Fair Debt Collection Practices Act, the federal rebate statute, the Servicemembers Civil Relief Act, the FTC Credit Practices Rule, and federal consumer protection regulations concerning manufactured homes.

Appendix D, infra, provides two sets of sample answers, defenses, and counterclaims to a deficiency action, a sample complaint to enjoin a repossession sale, a sample affirmative individual complaint seeking damages for repossession practices, and a sample class action complaint. Appendix E, infra, includes sample interrogatories, document requests, and requests for admissions.