Brown v. Southern Auto Finance Co.

The Fair Debt Collection Practices Act (FDCPA) prohibits debt collectors from engaging in self-help repossession without a “present right to possession” of the collateral. Under the Virginia law governing secured parties’ right to take possession of collateral after a default, a secured party proceeding without judicial process has the present right to take possession of collateral only if it does not breach the peace. If the peace is breached, the secured party must stop its effort to take possession and pursue a court order.

In 2024, a towing company hooked plaintiff Jordan Brown’s car up to a tow truck while he was inside the vehicle and then called the police, who physically removed Mr. Brown from the vehicle over his objections. Mr. Brown sued the company under the FDCPA, alleging that the towing company breached the peace in repossessing the car, therefore lost the present right to possess the car, and accordingly violated the FDCPA by repossessing the car. The district court dismissed the claim, holding that a breach of the peace does not deprive a debt collector of the present right to possess the collateral.

Mr. Brown appealed, and Public Citizen serves as co-counsel on appeal. Our brief explains that state law informs whether debt collectors have a present right to possess collateral under the FDCPA and that the towing company violated the statute in repossessing Mr. Brown’s vehicle without a present right to possess it.