Wrongful Repossession Claims for a Consumer Attorney

WAS YOUR CAR WRONGFULLY REPOSSESSED?

NO POST-REPOSSESSION NOTICE
NO ACCOUNTING
NO NOTICE OF THE SALE
BREACH OF THE PEACE
IMPERSONATING A LAW ENFORCEMENT OFFICER

When your car is repossessed it can be very embarrassing, stressful and scary.

No car, no job, no income

You need to get help if your car has been wrongfully repossessed.

The laws by state vary but they provide great remedies for those who have been a victim of a wrongful repossession

The following is from a case where the vehicle were alleged to have been wrongfully repossessed:

Please accept the following as a reply to the defendant submission, in support of the plaintiff application to vacate the replevin order dated 2/2/2016.  See exhibit E, plaintiff’s motion.  The only issue is whether or not on 2/2/2016, the date that the replevin order the court had subject matter jurisdiction.

The defendant has properly framed and submitted the issue. No order of any kind can be entered or even entertained by the court if there is no jurisdiction to do so.  There is no condition precedent of a final order. The defense set forth the following in their opposition:  See defendant’s brief page 14.

The defendant has clearly set forth correct statement of law. If there is no jurisdiction the court cannot enter ANY order. Thus, the plaintiff agrees that if the court were to vacate its prior order dated February 2, 2016 it would not have the appropriate power to enter another order. This is the very issue which the plaintiff has asked the court to address. The plaintiff has submitted that on the date that the replevin order was entered there was no jurisdiction. There was not complete diversity. This point is not challenged by the defendant. There was no arguable basis for jurisdiction.

 


The defendants position that the Fed. R. Civ. P 60 (b) (4) requires a FINAL order is neither supported by a plain reading of the court rule nor any case law.  The court rules does not say final judgment, final order final proceeding. The rule is very plain: Final judgment, order or proceeding. The rule does not say final order or final proceeding. Moreover, this interpretation of the court rule directly contradicts the argument the defendant submit on page 14 of the brief.  It does not make sense that the court could enter a final order that could be vacated for lack of jurisdiction but any other order could be entered without jurisdiction. Obviously, if there is no jurisdiction, either temporary or final orders entered by the court would be VOID. There is either jurisdiction or there is not. The court cannot enter certain orders and hear matters without subject matter jurisdiction despite the characterization of the order.  Any interpretation to the contrary would certainly violate the U.S. Constitution.

The defendant attempts to backtrack and assert that the selling dealer was a dispensable party. This attempts to muddy the waters. The plaintiff asserted in the court papers that there was no jurisdiction for the court to make a determination on the replevin issue. The defendant failed to address, at any time that the selling dealer, was a dispensable party. Now that the finance company is faced with possible remand based on lack of jurisdiction and they NOW raise the issue.

It appears as though the defendant made a strategic decision not to raise the issue about the selling dealer to avoid in it’s entirely the court addressing this issue at that replevin hearing. They did not want to distract the court from entering the replevin order rather than dealing with the jurisdiction issue. Maybe on the hearing date the court would have severed the claims against the selling dealer?  Who knows? However, this is a nonissue at this point. It is only relevant is that on the date the order was entered there was no jurisdiction, not even an arguable basis. The defendant made a strategic decision and they cannot now change the position they submitted to the court previously.  The defendant desperately wanted the cars returned and they chose not to even address the diversity issue. 

A consumer attorney can make the following arguments

On the day of the hearing the defendant submitted an affidavit that the plaintiff had potentially committed some type of inappropriate conduct regarding the signing of the leases.  Literally it was in court on the day of the hearing with NO PRIOR notice to counsel or the court. Not one word was uttered, on my recollection, that there was jurisdiction or not jurisdiction due to the selling dealer.  There certainly was not any mention of dispensable or indispensable parties.  Why does the defendant not now argue that the repossession company is dispensable?  The repossession company did not authorize the cars to be repossessed.

Corporation Financial made that decision.  The plaintiff has alleged that the “repossession’ for nonpayment was a ruse because the defendants really thought the plaintiff was an exporter.  Why is the repossession company any less dispensable than the selling dealer?  The guise for the repossession has nothing to do with the repossession agent.  Yet the defendant consent to remand?  The contradiction should not go unnoticed by the court.
The dealer is certainly now an indispensable party due to the submissions to the court on the day of the motion hearing. The court was very clear on the day of the hearing. The defendant submitted an affidavit indicating that the plaintiff might have engaged in a type of inappropriate conduct the signing of releases. 

The court was very clear that these submissions, on the day of the hearing, or taken into consideration in ordering the replevin.  These documents concerned the corporate entities entering into lease agreements. Obviously, this is the type of item that one of have been discussed and examined by the selling dealer. The plaintiff would have been required to present appropriate documentation supporting the signing of the lease in these corporate names. It is highly unlikely that a selling dealer, even with approval from the finance company such as the defendant in this case, would sell hundreds of thousands of dollars in high-end vehicles to corporate shells or nonentities.

It is now apparent that the dealer had a significant role in any allegations strewn towards the plaintiff. The defendant, finance company, was very clear that the plaintiff might have committed fraud and execution of the leases. Well, if the plaintiff engaged in this type of fraudulent conduct that is likely that the dealer participated in such conduct.  The selling, dealer, based on these factual assertions, is much more than a witness. Based on these allegations it is possible and likely that the selling dealer, participated in the inappropriate conduct, as asserted by the finance company. This is not the action of a dispensable party.  The monetary gain to the selling dealer is obvious. This litigation involves the sale or lease of five high-end cars worth in excess of $500,000.

It is apparent now, that I am addressing the arguments that should have been made on that day in February. These arguments were not made on that date in February. The order was entered. There was no jurisdiction. We cannot now return to that date and determine whether there was or was not a dispensable or an indispensable party and whether the claims should be severed.  The die was cast. The only issue now is whether on that date there was jurisdiction.

Even if the court were to determine that the claims against the selling dealer are severable, it is irrelevant. They were not severed on the date of the order thus there thus there was no jurisdiction. The defendant is asking the court to sever the claims against the dealer and reconsider the jurisdiction issue as the claims against the selling dealer if they would have been severed. Unfortunately the barn door has been opened. Whether or not the claims against the selling dealer would or would not have been severed is not now the issue.

We do know that on the date of the order was entered there was lack of complete diversity. The claims against the selling dealer were not severed on that date. The defendant is now asking the court to sever the claims Nunc Pro Tunc, to permit the court to exercise jurisdiction on the replevin order, them remand for lack of jurisdiction. (As an aside the defendant has not moved to sever the claims Nunc pro tunc.) The defendant wants the court to revisit the decision making new arguments. This cannot be completed.