[00:00:00] Jim Sorenson: Well, I wanna welcome everyone to the podcast today. My name is Jim Sorenson and I am the host. With me today is Tyler and Tyler, thank you for joining us on the Banking on Credit Union Podcast. We’re happy to have you today.
[00:00:14] Tyler Van Leuven: Yeah, thanks for having me, Jim.
[00:00:15] Jim Sorenson: So, on this podcast we talk about all things legal in credit unions.
[00:00:21] Tyler and I and our firm represent credit unions and, today, we’re going to talk about repossessions and we you’ve talked about them before on the podcast, but this is a common issue and today we’re going to talk about a question we get over and over again, Tyler, and it’s one that you’ve heard numerous times from our clients and I’ll go ahead and pose the question.
[00:00:44] So the question is, the debtor’s hiding our collateral, typically in auto. What do we do to get the car? We can’t seem to recover the car. We can’t seem to repossess the car. What do we do? I mean, this is a question we hear over and over again, isn’t it?
[00:00:58] Tyler Van Leuven: At least once a week.
[00:00:59] Jim Sorenson: [00:01:00] So, I want to start it off. What do we do? How do we deal with that?
[00:01:04] Tyler Van Leuven: There are several different things that we can do. I mean, from a legal perspective, I mean, obviously you can hire a PI to go out and look for the vehicle. Some repossession agents will offer that service. You got to remember that it’s got to be peacefully repossessed, lots of times that doesn’t apply if it’s behind a locked gate or in a garage, but the second option really is to file what’s known as a replevant.
[00:01:26] A replevant is where, basically, before we make an allegation, they have to come in and show cause why they don’t think the car should be taken, and lots, 98% of the time they don’t show up, a writ of a replevant is issued. And then the sheriff goes out and attempts to, locate the collateral where we have indicated we think it is.
[00:01:48] This applies if it’s behind a locked gate. We need to know that because you would have to have, like, a special break order provision. So that’s really, and lots of times it [00:02:00] won’t even be at that location. But what a replevant does allow us to do is, Now that we have a legal action going, we can pursue, not for the liability, but we can set family members for depositions and set anybody who may or may not have information about the vehicle for a deposition.
[00:02:22] I’ve done, you know, I can remember when I did many years ago in Volusia County over in Daytona area, where a member didn’t have the car, didn’t know where the car was. It’s gone. I came out in the morning, it was gone. And you know what? We set we filed a replevin. Sheriff went out there, couldn’t find the car.
[00:02:41] So what I did is I sent Mama, I sent her mother for a deposition. And you know what? Miraculously, the car showed up. And when we set a family member for deposition, we’re going to ask them for telephone records. And there’s a lot of things that we can ask for in order to try to help us locate. [00:03:00] A, where the member is, or B, where the collateral is.
[00:03:03] Jim Sorenson: So let’s talk about the raplevin process for a second. Raplevins are, as you mentioned, the option in Florida. Writs of possession are the option in Georgia. They’re similar. Very similar. But there are differences. So let’s talk about a raplevin process in Florida. Is there one particular way raplevin? Kind of walk us through the process of getting the lawsuit started and kind of. What are the choices that need to be made early in the case?
[00:03:35] Tyler Van Leuven: Sure, there’s two types of replevens in Florida. There’s a no notice and there’s a notice. A no notice will need to post a bond for twice the value of what we declare will be, and that is where we file a complaint for a writ of repleven.
[00:03:51] We post the bond, the judge basically issues the writ of repleven. And then if they’re able to get the car [00:04:00] or I’m just gonna say car it could be anything car rv atv, any personal property.
[00:04:06] I’ve done everything I feel like I hate rvs. Just so everybody knows that right off the bat and if you know me well enough. You’ve heard me speak about this subject, you know that I do not like rvs because they miraculously disappeared but that being said then after the car has been received by the sheriff, if they’re able to get it, then it’s set for a hearing.
[00:04:28] And at that point the defendant can come in and make it out, you know, show cause why they don’t think that the car should actually be sold. And in no notice, you can’t sell the car until you have a further order in court that allows you to do that. In a notice, which is probably 95% of the ones that we file are a notice.
[00:04:48] You file a complaint, you put an allegation in there that, where you think the car is, why you think we’re entitled to it. And then it’s set for what’s known as an order to show [00:05:00] cause hearing. And that’s an is it’s issued by the court and it’s a notice for the defendant to appear at a certain date and time.
[00:05:06] We serve it on the member and they will show up, or they don’t show up. 90% of the time, they don’t show up. And then that’s a pretty simple allegation with the judge. Hey, we have a contract, we have a breach. This is where we think the car is. We submit an order to the clerk of court and the clerk of court issues, the WR of replevin. We go out and it’s a very similar process in Georgia of possession in Georgia.
[00:05:36] Jim Sorenson: That was gonna be my next question. Yeah. What’s, how does a WR of possession process work in Georgia?
[00:05:41] Tyler Van Leuven: Very similar. I mean, you file your, I guess, a motion for WR of, or petition for writ of possession. And then, actually, I don’t.
[00:05:52] Jim Sorenson: There’s no hearing.
[00:05:53] Tyler Van Leuven: Yeah, there’s no hearing in Georgia, so then, basically, it’s entered based upon the facts that we’ve alleged, and then [00:06:00] the sheriff goes out and attempts to execute on the writ of possession. So, it’s a little bit different. It’s a little bit easier, but lots of things are a little bit easier in Georgia, for the most part.
[00:06:13] Jim Sorenson: So, what common question we get is, you know, it goes along with what we’re talking about here is. We don’t know where the car is, and we don’t know where the borrower is. You know, you only have one borrower on the loan, one person on the title. The borrower is the only person on the title. And the repo agent, the credit union, has not been able to find the borrower or the car.
[00:06:39] They no longer live at the address that’s on record. They no longer work at the place of employment. And the car can’t be found anywhere. And so they come to us and they say, Hey, can we replevin in that situation? What’s kind of the answer there?
[00:06:54] Tyler Van Leuven: Well, I mean, there’s nothing to replevin. If you don’t know where the car is, you don’t know where the bar is, that’s going to be hard to[00:07:00] do replevin.
[00:07:01] Jim Sorenson: Because we have to have somebody to serve.
[00:07:02] Tyler Van Leuven: Right. But we could file. I mean, if it’s more of filing the case in order to try to Subpoena family members, who you believe may have knowledge of where the car is, that’s a little bit different. But we certainly, and we would use the last known address of the member, but it’s a little wishy washy.
[00:07:20] You know, I think there’s probably other ways to go about it. For instance, I mean, just hiring a person, you could hire a PI. We’ve had clients do that with a lot of success. And sometimes, you know, PIs have access to information that, you know, we can’t necessarily get.
[00:07:34] Jim Sorenson: So, with the replevin, and I think this is what’s important that everybody know, in this situation where you cannot find the car and you cannot find your borrower, you know, it’s possible that we could file the lawsuit or whoever the lawyer is preferably us, but whoever your lawyer is could file the lawsuit.
[00:07:52] And then you know, hey, well, we know where this family member is, so we’ll subpoena them to appear for a deposition [00:08:00] and they’ll tell us. Where the member is, they’ll give us information that will lead us to the borrower in the car. And sometimes that happens, sometimes that doesn’t. It, you know, what the credit union needs to understand, obviously, is the cost to file the repleven, just your court costs, not even attorney’s fees, is going to be with the filing fee and all the initial stuff. You’re talking about five to six hundred dollars.
[00:08:25] Tyler Van Leuven: Yeah.
[00:08:26] Jim Sorenson: And then, of course, you’ve got attorney’s fees on top of that. So, if you go down that road of actually filing the lawsuit, bringing a family member in for a deposition, having them deposed, your cost, your legal fees you’re going to be north of $1,500, maybe $2,000. It just depends.
[00:08:46] Tyler Van Leuven: Yes.
[00:08:47] Jim Sorenson: So, it’s got to be worth it. And You know, you mentioned, obviously, examples where it has worked, and we both have had examples where it’s worked, and we’ve had examples where it hasn’t worked. So,[00:09:00] you know, to me, this is kind of one of those you really need to probably talk it through with the lawyer.
[00:09:06] Is this a situation that seems like, a good process or should we go the P. I. route? There’s no guarantees here. So it really does depend upon a case by case situation. Some of it will depend on how much is the car worth? How big is the debt? How much are you willing to spend to try to recover that debt?
[00:09:27] If we’re talking about a really old car with not a lot of value, you probably don’t want to spend as much. If you’re talking about a 100,000 BMW probably going to spend more to try to find that BMW. But this is the general groundwork. But, you know, these are ways that you can go about finding the car and getting the car.
[00:09:51] What happens if you have a situation where the borrower can be found, but not the car. [00:10:00] And the sheriff goes out, whether it’s in Georgia or in Florida, the borrower goes out the sheriff goes out to serve the writ, and the borrower for, refuses to give up the car, refuses to tell the sheriff where the car is.
[00:10:18] What happens in those situations?
[00:10:20] Tyler Van Leuven: Well, I mean, if the borrower refuses to tell the sheriff, there’s not a whole lot to be done about it. I mean, we can obviously compel him to come back in the court and put him in front of a judge and have the judge, you know, make a demand that he’ll be held in contempt of court for failure to, you know, provide the location of the vehicle.
[00:10:37] But lots of times, I mean this, if they’re not going to tell you, they’re not going to tell you there’s not a whole lot that can be done. I mean, obviously what we can do is file suit on the note.
[00:10:46] Jim Sorenson: Well, can we depose them and ask them for the location of the car? And if they refuse, that’s a contemptible charge and they could end up sitting in jail.
[00:10:57] Tyler Van Leuven: Yes.
[00:10:57] Jim Sorenson: Of course, if they’re willing to sit in jail [00:11:00] and not give up the location of the car, then you’re kind of at wit’s end.
[00:11:05] Tyler Van Leuven: Yes.
[00:11:06] Jim Sorenson: Sometimes. Of course, and this can be frustrating to clients, but sometimes the borrower lies, right?
[00:11:12] Tyler Van Leuven: Yeah, well, I mean, if they perjure themselves on the record, that’s obviously a situation where we can write to state attorneys or, you know, and ask them to help the person in contempt of court.
[00:11:24] Jim Sorenson: But we have to prove it, right? So if he says, I don’t know where the car is, and he has a believable story, I’m using he as the defendant here, debtor, it could be a she. But if they have a believable story, you know, that can be an issue. I mean, we have, we’ve had this come up now a couple of times recently where our client, credit union, is trying to recover the car.
[00:11:48] We go through the raplevin process, the sheriff goes out, looks for the car, especially these are, you know, in Florida and Georgia, they’re sometimes a little different Georgia, they typically [00:12:00] will go out and knock on the door right away and ask the defendant, where’s the car? In Florida, they don’t typically do that.
[00:12:07] In Florida, usually the sheriffs, most sheriffs departments, in my experience, will go out and they’ll look for the car at the address we’ve given. And so if they drive out to the borrower’s home and it’s not there, and we have the borrower’s work, they’ll drive to the borrower’s work, look for it there.
[00:12:21] They may do that two or three times, and then they usually will contact us and say, hey, I can’t find a car. And so usually in those situations, we have to say, we’ll go knock on the door and ask the borrower where the car is make demand. And so in these couple of cases we’ve had recently one in Georgia, one in Florida the sheriff makes demand.
[00:12:43] And in both situations, the borrower’s story is, I thought the credit union repossessed the car. It disappeared 30 days ago or 60 days ago or some time period ago. And We don’t know where the car is.
[00:12:59] Tyler Van Leuven: Like [00:13:00] 90% of the time, that is the story.
[00:13:02] Jim Sorenson: And so, in those situations, unless we can prove they’re lying, then it becomes very hard to obviously hold them in contempt or have them found a perjury. So, if they’re good liars, they may be able to get by with it. We, the one situation I have right now in Florida, we’re trying to depose the mother because he lives with his mother. I don’t believe him. I think he’s lying. We’ll see but I don’t believe him. I don’t believe my client believes him.
[00:13:37] And so we’re trying to depose his mother. Well, he doesn’t want his mother deposed. The mother failed to show for the deposition. And we filed a motion of to hold her in contempt or to compel her to appear for deposition. And the debtor has filed a motion in opposition saying we’re just trying to harass this poor mom, she has nothing to do with it.
[00:13:57] And we’re waiting for the judge to rule on that or to hold a [00:14:00] hearing on that. You know, I don’t know what’s going to happen in that case. I do think the bomb probably knows something. I don’t think the guy’s story is true. He could not give a location. He could not give a date on when the car was repossessed.
[00:14:14] He’s unwilling to file a police report. In the one we had in Georgia, the guy actually had filed a police report. He filed a claim with his insurance company. So he’s at least acting consistent with the belief that the car was stolen. Now again, I don’t know if it was or not, I don’t know if he’s lying or not, but he’s taken action that would be consistent with the story, whereas the guy in Florida has not.
[00:14:39] And so, but these are the frustrating issues that our clients face. When they repossess, when they finance cars and the people are willing to not play by the rules, if you will, and try to go about hiding the cars.
[00:14:55] Tyler Van Leuven: Even if it’s not necessarily hidden, if it’s behind a locked gate, you have to file a republican [00:15:00] with the bank, because the repossession agent has to use peaceful means in order to get the car back, so they can’t go cut a lock.
[00:15:08] Or if you can see it in the garage or you know it’s behind the, you know, it’s not unusual to have it behind the debtor’s house. Covered, you know, with a tarp over it. I mean, those are situations where if it’s behind some sort of thing concealed, the repossession agent can’t actually go and breach the piece in order to get the vehicle back, so you would have to file a replevin in those cases.
[00:15:32] Jim Sorenson: And so in getting the lock cut, being able to cut a lock on a gate and go through the gate and get the car with a replevin, is there some additional step in that process? And if so, what’s the step?
[00:15:45] Tyler Van Leuven: Yeah, we have to make an allegation that we need a break order, that it’s being concealed behind a gate. And typically what happens, they have to go out, you know, depending on what court you’re in and where you’re located. A lot of times I’ll have to go out and try to serve on the writ of a [00:16:00] pleb in the first.
[00:16:01] They’ll come back and say it’s behind a locked gate or whatever the situation is, and then you have to go back a second time with a break order, you know, with the judge. But we can make those allegations up front and hopefully short circuit the time and effort to do that.
[00:16:16] Jim Sorenson: But a lot of times it’s a two step process, at least with most judges, that’s what I’ve found.
[00:16:20] Tyler Van Leuven: As you alluded to, in Georgia it’s a little bit easier because unless you’re in one of the big counties in Georgia, It’s amazing, the sheriff is like God in these counties, you know, Georgia has the second most counties in the United States just behind Texas, so when you drive across Georgia, you’ve gone through like 60 counties, so all these little counties, the sheriff lots of times knows who you’re dealing with, these are not your innocent person who’s just one off, lots of times they’ve had experience in my experience with some of these individuals.
[00:16:57] And when you go to a hearing lots of times in these little counties in [00:17:00] Georgia, the sheriff is actually in the courtroom with the judge, and it’s amazing how things get done, a little bit different just because of the size of the counties, you know, are so small. So, I’m not talking about Atlanta, or Macon, or columbus, or Savannah.
[00:17:21] Jim Sorenson: We’re talking the smaller, more rural counties. So going back to the break order for a second, because I think this is something that a lot of clients don’t understand. So, if we get a break order and the sheriff goes out to enter the property, let’s say cut through a lock and a chain on a fence.
[00:17:40] I mean, is it usually the deputy cutting the lock or are they, what’s happening there?
[00:17:46] Tyler Van Leuven: Lots of times they make arrange, you have to, they’ll ask you who you want to make arrangements with. For instance, if it’s a tow company or if it’s a locksmith they need, you have to give them the name and they’ll [00:18:00] coordinate with that individual to go and do what’s necessary.
[00:18:04] For instance, if it’s picking the lock on a garage or, you know, cutting the chain on a, yeah, deputy’s not gonna go out there and set it, you know, set a, you know, have your school resource officer out there with, you know, some bolt cutters cutting into it. You have to make arrangements and we’re gonna have to pay for that.
[00:18:21] Yeah, so And that’s an expensive remedy, you know, and you need to weigh the cost first the benefits.
[00:18:28] Jim Sorenson: Yeah that was my point is a lot of times I don’t think the client understands that the credit union is gonna have to pay for that. So the credit unions got to make the arrangements at the locksmith we’ve got to coordinate and of course our office helps with that. We’ve got to coordinate the locksmith being there to cut the fence. We’ve got to coordinate the deputy being there and then on top of that, you’ve got to have your tow service, your repossession agent there because sheriff deputy doesn’t tow it back for you.
[00:18:55] He is just there to serve the paperwork and to facilitate and [00:19:00] make sure the, you know, the piece isn’t breached. Make sure the home, the property owner doesn’t come out with a gun and threaten to shoot somebody or their property. wants to fight the repossession agent or the locksmith. So, and it does apply with garages as well.
[00:19:17] So it’s not just simply cutting a chain and a lock on a fence. It could be actually picking the lock to get into a locked garage. And we’ve had numerous of those where we believe the car is in the garage. Sometimes we can see in that some, when I say we the agent or the deputy has been able to see into the garage through a window and know that there’s a red Honda Accord in there and we’re looking for a red Honda Accord.
[00:19:44] But sometimes we don’t know. We just know there’s a garage and they won’t open it up and the car’s never being seen and we believe the car is there. So they go into the garage and behold, the car may be there, it may not.
[00:19:56] Tyler Van Leuven: It never ceases to amaze me that someone will literally put it in a [00:20:00] garage, or sometimes they put it in a storage facility, and won’t pay for it, but won’t tell you where it is, but they don’t get the benefit of enjoying their vehicle, they just don’t want you to have it.
[00:20:12] Jim Sorenson: Yep.
[00:20:12] Tyler Van Leuven: Which goes back to, you know, how you deal with your members, you know, make sure you deal with them in a respectful manner. I mean, I understand that sometimes they get all worked up, but, you know, you get more with sugar than salt, so, you get a situation where it’s you can’t take it personally.
[00:20:30] And sometimes, I’m sure Jim, you’ve seen this and I know I’ve seen it over the years where someone takes it very personally.
[00:20:36] Jim Sorenson: Yeah.
[00:20:36] Tyler Van Leuven: It’s almost as if they’ve taken their car and I got to remind them, look, this is a business and you need to treat them with respect. You know, now they don’t, may not treat you with respect to things, but you’re more likely to get the car or the collateral, personal property, whatever it is.
[00:20:55] If you don’t just come out of the box, just, you know, hotter than. [00:21:00] You know, heck, so.
[00:21:03] Jim Sorenson: Yeah.
[00:21:04] Tyler Van Leuven: You know, I mean, that’s, you gotta remember you’re trying to figure out, help them, assist them, in all ways, you know, any way possible, but ultimately, if you have to get the car, you know, it would be nice if, you know, they’re not just doing it to spite you and because I certainly have seen that. I know Jim, you’ve seen it over the years.
[00:21:26] Jim Sorenson: So let’s talk about one final issue related to this topic. So, in Florida, is there a way that you can take some sort of action to prevent them from being able to hide the car or use the car in these types of situations? Is there some sort of administrative process in place?
[00:21:50] Tyler Van Leuven: Yes, you can go through the DMV and fill out the appropriate forms and do a registration stop. Now you can’t prevent them from using it or hiding it, but it will [00:22:00] definitely prevent them from legally. Being able to re register the vehicle when the time comes.
[00:22:05] Jim Sorenson: So when we say register, we’re talking about the ability to renew the tag and have a valid tag on the vehicle.
[00:22:12] Tyler Van Leuven: Yes, it may affect, you know, to a certain extent, maybe their insurance if it’s by registration.
[00:22:19] Jim Sorenson: So this is one in Florida, as people who are in Florida will know, usually the car’s registration month is the month of the primary owner’s birthday or birth month. So if you were to file for a registration stop in October and their birthday is in December, then the car is registered through December.
[00:22:40] They just would not be able to re register it in December, which means if they get stopped while they’re driving it, first of all, they’re going to get a ticket. But normally what’s going to happen is the police officer, the law enforcement officer, is going to run that tag through the computer system and they’re going to say, oh wait, there’s a [00:23:00] registration stop on this vehicle.
[00:23:02] And so a lot of times at that point, the vehicle may be impounded and the credit union is going to get notice of it. So it can be a useful tool in Florida. It’s not very expensive. There is a fee, of course, anything you do with DMV, there’s a fee. We all know that, right? Surprise.
[00:23:19] But it’s a good tool in Florida that can be real helpful. What about in Georgia? Is there anything like that in Georgia? Yeah, unfortunately there is not. We get that question all the time.
[00:23:30] Tyler Van Leuven: Which is kind of surprising because Georgia actually is a little bit less debtor friendly.
[00:23:36] Jim Sorenson: It is surprising and it’s something that I would love to see the Credit Union League Trade Association work on getting in Georgia because I think it would be really beneficial to have for our clients but it doesn’t exist yet. So unfortunately in Georgia, that, that isn’t an option. But again, like all these remedies, it does have its limits. I mean, if the people have decided they’re going to transfer the [00:24:00] car illegally which usually means they’re taking it out of the country and trying to sell it in another country.
[00:24:05] The registration stops not going to work if they’re going to have it sold to a chop shop and cut up into pieces and used as parts. That’s not going to work. And if they’re just being spiteful, which is, hey, I don’t care that I can’t use it. I’m not going to let the credit union have it because I’m mad at them for whatever reason.
[00:24:23] And that goes back to your point, which is, you know, when you’re dealing with these borrowers along the way, how you treat them matters. I’m not saying we should give the member everything they want. I’m not saying we shouldn’t try to hold them to promises to pay and those types of things, but a lot of times these situations with cars will arise because they feel they haven’t been treated fairly and now they feel justified in hiding the car.
[00:24:51] And so, making sure we’re making every effort to treat the member fairly, to be responsive to their [00:25:00] needs. It helps. It doesn’t eliminate all of them because there’s just some people who, no matter what you do, how you treat them, they’re going to work the system in their favor. But, you know, again, this is one of those topics that we get a lot of questions on.
[00:25:16] And hopefully for those of you listening, you found this helpful. We’re always here to answer your questions. And if we can ever be of assistance to you please contact Tyler Iyer, another lawyer at the firm. And if you find these podcasts helpful and the information we’re distributing helpful, please go and give our podcast a like.
[00:25:38] Again, it’s Banking on Credit Unions. It’s where we talk about all things credit unions. Again, Tyler, thank you for joining us. Thanks for having me. And we look forward to having you again soon, and we’ll talk about some other credit union legal issues. All right.
[00:25:54] Thanks.
