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Indiana Repossession Triggers Acceleration Clause, Statute of Limitations

Profile ImageBy: Nicholas Rohner, Attorney

In 2004, Robert Imbody (“Imbody”) financed the purchase of a truck through Fifth Third Bank (“Bank”). Imbody made all scheduled payments until March of 2006. On May 31, 2006, the Bank repossessed the truck. The Bank sold the truck at auction and a deficiency balance of more than $14,000 was established. On June 5, 2012, the Bank filed a complaint against Imbody for breach of the loan contract. Following a bench trial, the Indiana trial court entered judgment in favor of the Bank and Imbody appealed.

At issue on appeal was whether the Bank’s claim was barred by Indiana’s six-year statute of limitations (“SOL”). Imbody contended that the Bank’s cause of action accrued, and the SOL began to run, on May 31, 2006, when the Bank repossessed the truck.

In a short opinion, the Court of Appeals focused on the loan agreement’s optional acceleration clause. The Court emphasized that the SOL does not begin to run immediately upon a debtor’s default, but rather when a creditor exercises its option to accelerate. In the absence of a specific notice of acceleration, a creditor must undertake some affirmative act to make it clear to the debtor that it has accelerated the debt.

The Court ruled that repossession is an affirmative act that accelerates the final maturity of a debt. Thus, when the Bank repossessed the truck on May 31, 2006, it accelerated the debt and triggered the SOL. Because of this, the Bank’s complaint, filed on June 5, 2012, was time-barred. See Imbody v. Fifth Third Bank., 12 N.E.3d 943 (Ind. Ct. App. 2014).

Strangely, the Court’s decision failed to address a glaring issue–the possible restarting of the SOL due to partial payments by Imbody. After the deficiency had been established, Imbody agreed to pay the Bank $100 per month toward the debt and made fourteen payments. On appeal, the Bank asserted that the cause of action accrued, and the SOL began to run, on February 29, 2008, when Imbody made his last payment on the deficiency balance.

The law in Indiana for more than a century has been that a voluntary payment on a debt, either before or after the expiration of the SOL, has the effect of starting the running of the statute anew. See, e.g., Spencer v. McCune, 126 N.E. 30 (Ind. Ct. App. 1920). However, since the Court failed to discuss the partial payment issue, even in dicta, this writer can only conclude that the well-established law regarding voluntary partial payments renewing the SOL was not abrogated by the Imbody decision.

 

Repair Shops, Storage Facilities and Liens, Oh My…

By Amy Holbrook, Partner

In Ohio, like most states, there is a law that allows a garage or storage facility to obtain an abandon vehicle title on vehicles with a value of less than $2,500.00 and have been left by their owners for fifteen days or more. This abandon vehicle title, however, cannot be obtained until all lien holders have been informed of the abandoned vehicle through a written notice.

So here is a scenario that I see often. Dorothy Debtor takes her vehicle to Tinman’s Auto Body Shop for body work in January. Let’s say the vehicle has a fair market value of $8,000.00 when it’s dropped off, and repairs are estimated to cost about $2,500.00. Tinman’s begins work on the vehicle, but, eventually, Dorothy Debtor stops returning calls, and her check for the repair work bounces. Tinman’s stops all work on the vehicle and parks it on its property. At this point the vehicle is worth $5,500 ($8,000 – $2,500 for the necessary repair work). At this time, Tinman’s cannot even try to get an abandon vehicle title because the vehicle is worth more than $2,500.

What often happens, however, is that Tinman’s will simply let the vehicle sit on its property accruing storage charges. In July, six months later, Tinman’s decides the time is right to go after that abandon vehicle title. It now justifies this by stating that the vehicle is worth less than $2,500, and this is how Tinman’s does the math:

  • Fair Market Value: $8,000
  • Repair Cost: -$2,500
  • Storage Costs: -$3,600 ($20/day for 180 days)
  • Vehicle’s Value: $1,900

To complicate matters, Tinman’s will notify Lion Lien Holder that it has this abandon vehicle on his property as required by the statute, but will further demand payment from Lion Lienholder, and that math will likely look like this:

  • Charge for partial repair work: $500.00
  • Storage Costs $3,600.00 ($20/day for 180 days)
  • Total Demand: $4,100.00

While some garages and storage facilities will negotiate on fees for storage, many will not and deem the refusal of the lien holder to pay the demanded amount as a forfeiture of its interest in the vehicle enabling the garage to move forward in obtaining an abandon vehicle title.

So, what can a lien holder do to protect itself? First, any notice coming from a garage or storage facility should be taken very seriously. Procedures need to be put in place for the handling of notices. When a notice comes in it must be addressed. Either start negotiating the fees right away or refer the case to an attorney who can give you advice about what to do when negotiations fail. Don’t forget either, while you may in good faith be negotiating, the garage or storage facility, may only be waiting for the notice time to run so it can get title to the vehicle. Second, if a debtor informs you that a vehicle is at a garage and he cannot afford to pay for the work or that his vehicle was impounded, start gathering information about such things as the name and address of garage and the nature of the work being done. See if your debtor will give you copies of estimates or invoices. Remember, in most states you can file a replevin against anyone in possession of collateral upon which you have a lien. Finally, if you find yourself in the position of having a garage or storage facility obtain an abandoned vehicle title, contact an attorney who can tell you how this too can be remedied.

Changes are Coming in Pennsylvania

By Amy Holbrook, Attorney/Partner

Changes are coming to Pennsylvania’s Motor Vehicles Sales Finance Act (MVSFA). In November of 2013, Act 98 was passed in Pennsylvania and goes into effect December 1, 2014. This Act will repeal both the MVSFA and the Goods and Services Installment Sales Act (GSISA) and amend and consolidate both sets of statutes. The amendments contained in this new Act will require that both dealers and those offering financing thoroughly review some of the substantive changes by this new statute. Some of the changes include:

• Disclosure of a prescribed notice that advises consumers of their rights under the Pennsylvania Unfair Trade Practices and Consumer Protection Law
• Notices to consumers when a contract has been fully paid
• A change in the definition of “heavy commercial motor vehicle”, reducing the manufacturer’s gross weight to 13,000 pounds. Vehicles defined as heavy commercial motor vehicles are subject to a higher maximum interest rate, and a variable rate of interest is allowable on their financing agreements
• Minimum finance charge authority is removed
• A change in the definition of “motor vehicle” will be expanded to include manufactured homes, mobility devices and recreation vehicles
• A prohibition from adding to the original contract the cost of any necessary repairs after the contact was executed
• Allowance for the acceleration of the balance owed if the consumer files bankruptcy, defaults on payments on a cross-collateralized agreement or provides intentionally fraudulent or misleading information on the credit application
• A minimum type-size for terms in an installment contract as well as a requirement that all headers, disclosures, acknowledgments or notices be in a larger type-size

With these changes on the horizon, dealers and those financing or purchasing auto finance paper in Pennsylvania need to familiarize themselves with this new law. Please reach out with any questions or concerns at weltman.com.

Increased Scrutiny in Subprime Auto Finance

By Amy Holbrook

In the past thirty days, the news in the auto finance world has been focused on the subpoenas that were issued by the Department of Justice to GM Financial and Santander Consumer USA. The subpoenas sought documentation on subprime auto loans dating from 2007 and raised concern about increased scrutiny and regulatory review. According to a statement made by GM Financial, the subpoenas are specifically seeking information about underwriting criteria and the methodology for the securitization for these loans.

It is likely that a number of factors brought about this investigation. In June 2014, the Office of the Comptroller of Currency commented that the average auto loan had a value greater than the actual value of the collateral, particularly when lenders were adding in the costs of extended warranties, credit life insurance and other factors. Others have raised concerns that an increased number of private equity firms willing to purchase subprime auto securities have entered the market. This creates greater competition for originators and lenders, who may elect to reduce their underwriting standards and provide credit to individuals with lower creditor scores in order to keep up.

A side effect to reaching further into the subprime space is that the length of the loan tends to get longer, and the monthly payment obligation gets shorter. It provides a greater length of time for a consumer to default and, with a smaller payment, there is a greater risk that if a vehicle must be repossessed, less will have been paid toward the principal.

Breaching of the Peace

By Amy Holbrook, Partner

If you turn on your television any given day of the week and do a little channel surfing, you’re bound to catch of few minutes a “reality” television show about repossessions. Let’s be honest, these shows do offer some entertainment. There are crazy, angry people hiding in high-end vehicles, people destroying collateral to prevent recoveries and stealthy repo men hiding behind shrubs. Those of us in the industry, however, understand how misleading this entertainment can be.

The climate of our industry requires a stricter adherence to compliance standards than it ever has before, making a regular review of repossession policies and standards a good practice.  Most states allow for secured creditors to repossess their collateral but only so long as there is no “breach of the peace”. So what constitutes a breach of the peace? There is no list that provides for every possible scenario, but listed below are multiple behaviors that may be considered breaching the peace.

  • Threats or Acts of Violence
  • Trespass
  • Taking the wrong collateral
  • Damaging Property
  • Doing anything that might incite violence in another
  • Breaking Locks or Windows
  • Arguing, Yelling or Acts of Aggression