Raffa v. Dania Bank
| Decision Date | 31 October 1975 |
| Docket Number | No. 73--1394,73--1394 |
| Citation | 321 So.2d 83 |
| Parties | 18 UCC Rep.Serv. 263 Nancy RAFFA, Appellant, v. The DANIA BANK and Bruce Fletcher, Appellees. |
| Court | Florida District Court of Appeals |
Harry G. Carratt, of Morgan, Carratt & O'Conner, Ft. Lauderdale, for appellant.
Theodore R. Hainline of Fleming, O'Bryan & Fleming, Ft. Lauderdale, for appellees.
On September 27, 1972, Nancy Raffa and her husband were entertaining friends at their home in Lighthouse Point. Mrs. Raffa's 1970 Cadillac Eldorado was parked, unlocked with the keys in the ignition, in the driveway of the home, half under the roof of the open, attached carport, half not. Unfortunately, Mrs. Raffa was, at that time and as she knew, over a month behind on the 16th of 36 monthly installments she owed on the car to the Dania Bank under a standard Retail Installment Contract which had been assigned to it. Because of this admitted fact, an officer of the bank authorized a private investigator named Bruce Fletcher, whom it rather euphemistically designated its 'collection agent' for that purpose, to repossess it. Although Mrs. Raffa said the bank had given her no notice at all of its intention to do so, that's just what Fletcher and an employee of his, Joseph Kopel, Immediately did. Fletcher and Kopel went to the Raffas' residence. Kopel walked onto their premises and up the driveway, got into the car (without having to go into the carport 1), turned on the keys and drove it away. When Mrs. Raffa and her guests came out of the house, it was gone and she was, she said, embarrassed about it.
After having resecured the car by paying off the remainder of the loan, Mrs. Raffa sued the Bank and Fletcher for compensatory and punitive damages based on a claim of the car's conversion. The claim was based on two theories of the defendants' alleged wrongdoing: (a) that they had committed an 'unlawful trespass' in the course of repossessing the car; and (b) that they had improperly done so without having first given specific notice of the overdue debt or of their intention to retake the car because of it. The trial judge entered summary judgment for the defendants, thus holding that the record conclusively demonstrated the nonviability of either theory. We affirm his determination as to the first of the plaintiff's assertions and reverse it as to the second.
Our determination of the claim of impropriety in the Manner in which the Bank asserted its contractual and statutory right under the U.C.C. to retake possession of the property which secured its loan is necessarily based upon an interpretation of the Supreme Court decision which specifically upheld the right to the use of self-help in order to repossess, Northside Motors of Florida, Inc. v. Brinkley, Fla.1973, 282 So.2d 617. In Brinkley, the Court, relying both upon the specific terms of the statutory provision in question, F.S. § 679.503, and of the pre-U.C.C. law which the statute merely codified, held that a secured creditor may retake its security if this may be done, as the statute says, 'without breach of the peace . . .' The plaintiff essentially contends that the mere fact that the defendants went onto her property amounted to such a breach of the peace. We cannot accept this contention.
'. . . Seller may, without notice or demand for performance or legal process, lawfully enter any premises where motor vehicle may be found and take possession of it . . .'
Courts in other jurisdictions, applying similar contractual and statutory provisions to situations such as this one, have uniformly held that no 'unlawful' or 'unauthorized' entry or trespass and thus that no 'breach of the peace' was involved when, as here, there was no entry into a home or other closed building on the premises. Dearman v. Williams, 235 Miss. 360, 109 So.2d 316 (1959) so...
To continue reading
Request your trial
-
General Elec. Credit Corp. v. Timbrook
...Corp. v. Vaughn, 142 A.2d 148 (D.C.Cir.1958); Quest v. Barnett Bank, 397 So.2d 1020, 1023 (Fla.Dist.Ct.App.1981); Raffa v. Dania Bank, 321 So.2d 83, 85 (Fla.Dist.Ct.App.1975); Pierce v. Leasing International, 142 Ga.App. 371, 235 S.E.2d 752, 755 (1977); Census Federal Credit Union v. Wann, ......
-
Davenport v. Chrysler Credit Corp.
...Bank v. Baldwin, 289 Ark. 79, 709 S.W.2d 91, 92 (1986) (no entry through gates, doors or other barricades); Raffa v. Dania Bank, 321 So.2d 83, 85 (Fla.Dist.Ct.App.1975) (no entry into home or other closed building); Bloomquist v. First Nat'l Bank, 378 N.W.2d at 86 (entry through broken wind......
-
Pantoja-Cahue v. Ford Motor Credit Co.
...car repossessed from debtor's driveway without entering "any gates, doors, or other barricades to reach" car), Raffa v. Dania Bank, 321 So.2d 83, 85 (Fla. 4th DCA 1975) (no breach of the peace occurred where car was parked partially under carport and undisputed that no door, "not even one t......
-
Madden v. Deere Credit Services, Inc.
...without entering "any gates, doors or other barricades to reach the truck," no breach of the peace occurred); Raffa v. Dania Bank, 321 So.2d 83, 85 (Fla.Dist.Ct.App.1975) (where vehicle was parked partially under an enclosed carport in debtor's driveway, no breach of the peace occurred, it ......
-
Creditor Beware: from Default Through Deficiency Judgment
...173 Okla. 445, 48 P.2d 1074 (Okla.1935). [FN56]. See Butler v. Ford Motor Credit Co., 829 F.2d 568 (5th Cir.1987); Raffa v. Dania Bank, 321 So.2d 83 (Fla.Dist.Ct.App. 1975); Ragde v. Peoples Bank, 53 Wash.App. 173, 767 P.2d 949 (1989). [FN57]. See Thompson v. Ford Motor Credit Co., 550 F.2d......
-
Avoiding Breaches of Peace in "self-help" Repossessions
...1977). [9] See, e.g., Kroeger v. Ogden, 429 P.2d 781, 786 (Okla. 1967) (airplane repossessed from an open hangar); Raffa v. Dania Bank, 321 So.2d 83, 85 (Fla. Ct. App. 1975) (auto repossessed from a private driveway); Gill v. Mercantile Trust Co., 347 S.W.2d 420, 423 (Mo.Ct.App. 1961) (auto......