Unlawful repossession Lawyer Manual

If repossession is unlawful, the consumer has the right to get the property back and to be paid money damages.

There are a variety of situations which could make the repossession unlawful:

• The debtor was not in default at the time of repossession either because the debtor did not owe any payments or still had time to make the payments. Check for a history of the creditor accepting late payments or an agreement to allow a late payment (there may be an estoppel argument if no subsequent warning).
• The debtor did not put up the property as collateral on the contract, or if for some other reason the creditor does not have a valid security interest under the law. For example, the repossessed car may not be in the debtor’s name, or the creditor took the car as collateral on an earlier loan, but not on the present defaulted loan.
• The repo man breached the peace when taking the car. This can happen when they take the car over the debtor’s objections made in person at the time of the repo, or by using force or threats, or by breaking into a locked garage or otherwise destroying the personal property of the debtor. See Pantoja-Cahue v. Ford Motor Credit Company, 375 Ill. App. 3d 49 (1st Dist. 2007).

Wrongful repossession may be pleaded as the tort of conversion, a violation of the Illinois Commercial Code, or an unfair practice under the Illinois Consumer Fraud Act.