A repossessor cannot enter a gated and locked garage to repossess a car. There’s no exception to this rule. If a repossession agency takes a car from a gated and locked garage, the agency has committed a breach of the peace and the consumer can sue the repossession agency.
A repossession must be accomplished without a “breach of the peace.” Courts have long held that breaking into a gated and locked garage to repossess collateral is a breach of the peace. Henderson v. Security Nat. Bank, 72 Cal.App.3d 764 (1977); Purkett v. Key Bank USA, N.A., 2001 WL 503050 (N.D. Ill. May 10, 2001). The California appellate court in Henderson stated: “If the mortgagee [the creditor] finds that he cannot get possession without committing a breach of the peace, he must stay his hand, and resort to the law, for the preservation of the public peace is of more importance to society than the right of the owner of a chattel to get possession of it.” Somewhat archaic language, but well stated nonetheless.
A consumer can assert several claims when his or her car is repossessed from a gated and locked garage. Among other things, the consumer can sue for violations of the California and federal fair debt collection laws because they both preclude repossession of collateral when there is no present right to do so. There is no present right to repossess property when it would result in a breach of the peace. A consumer who prevails on a claim under the California or federal fair debt collection laws can recover actual damages (including the value of the car), statutory damages and his or her attorneys’ fees and costs.
The consumer can also sue for conversion (i.e., civil theft). Conversion gives the consumer the right to recover either the fair market value of the car, or an amount sufficient to compensate the consumer for his or her loss of use of the car (e.g., the rental costs of a similar car). Importantly, the consumer can seek punitive damages with a conversion claim.