Under the Fair Debt Collection Practices Act (FDCPA), a debt collector is prohibited from engaging in self-help repossession if it does not have the “present right to possession” of the collateral. Under an Indiana law governing secured parties’ right to take possession of collateral after a default, a secured party proceeding without judicial process has the right to take possession of the collateral only if it does not breach the peace. If the peace is breached, the party must desist and pursue a court order.
In this case, plaintiff Nichole Richards alleges that the defendant debt collectors breached the peace when they repossessed her vehicle and that, by doing so, they lost the present right to possession of the vehicle/ She alleges that, therefore, the debt collectors violated the FDCPA, 15 U.S.C. § 1692f(6)(A), when they repossessed her vehicle. The district granted summary judgment to the debt collectors, refusing to look at the Indiana law in determining whether the debt collectors had a present right to possess the vehicle.
Public Citizen is serving as co-counsel for Ms. Richards in her appeal. Our opening brief explains that state law informs whether debt collectors have a present right to possess collateral under section 1692f(6)(A) and that the debt collectors violated that provision in repossessing Ms. Richards’s vehicle without a present right to possess it.