May 2013 Vol. 111 No. 7 THE REVIEW

Law-Enforcement Officers and Self-Help Repossession: A State-Action Approach

Aaron Loterstein

Repossession of secured collateral is a fundamental component of the consumer credit industry. The Uniform Commercial Code authorizes a secured party to engage in self-help repossession of secured collateral under section 9-609, so long as the repossession takes place without "breach of the peace." While that term is undefined, several courts have adopted a counterintuitive rule, holding that a law-enforcement officer's presence during a self-help repossession-regardless of purpose or level of involvement-creates a breach of the peace. The Official Comments to the Code have seemingly endorsed this position as well. This Note rejects the primary justifications courts have offered to justify a bright-line rule and makes clear that an officer's involvement in self-help repossession is unrelated to breach of the peace. The correct approach to law-enforcement-officer involvement in self-help repossessions asks whether the officer's presence constitutes state action. An officer's involvement should only invalidate a repossession where it is deemed state action sufficient to trigger a constitutional violation under section 1983. In such cases, the repossession is not of the sort authorized by section 9-609 and would therefore be wrongful, rather than a breach of the peace. In accordance with this approach, this Note concludes with a proposal for a modified Official Comment to section 9-609.

   //  VIEW PDF
& Other Current Events

Speedy Trial as a Viable Challenge to Chronic Underfunding in Indigent-Defense Systems

Across the country, underresourced indigent-defense systems create delays in taking cases to trial...

A Blended Approach to Reducing the Costs of Shareholder Litigation

Multiforum litigation and federal securities law class actions impose heavy costs on corporations and...

The Scope of Precedent

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales...

Reinventing Copyright and Patent

Intellectual property systems all over the world are modeled on a one-size-fits-all principle. However...

Protecting Whistleblower Protections in the Dodd-Frank Act

In 2008, the United States fell into its worst economic recession in over seventy years. In response,...
MAILING LIST
Sign Up to Join Our Mailing List