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Notes on Repossessions Repos are or can be a special case depending on what was repossessed and what the laws are in the state in which you live. Repos of homes or other real estate is pretty much standardized throughout the nation, so they are much easier to deal with, but such things as automobiles can be very different due to the fact that some states such as Oklahoma are defined as being "self-help" states meaning that a car dealer does not have to go to court to accomplish a repo. All he has to do is to go out and get physical custody of the vehicle while in Colorado and many other states they have to actually go to court and get a court order allowing them to repo the car. In states where a court order is a necessity, one has a much better chance to go against the repo on many grounds and actually recover the car or whatever was repossessed based on the fact that most court adjudicated repos are full of errors as are almost all repossessions of real property and garnishments. Here are some of the problems that are present in almost all court actions. and in the event that you can go to the office of the clerk of the court where the repossession took place and look up the records on your case, here are some of the things that you can look for and if you find any of them, you can go to court and reclaim your property plus do a lot more in your own behalf. You can do this at any time since there is never a statute of limitations on discovery of errors by the court. And the neat part of it is that although your options never run out, the creditor cannot ever re-file the case and correct his errors. He knowingly made the mistakes and he cannot re-open or fight about it. His goose is cooked. 1. Was the repossession properly advertised as proscribed by law? The law always requires that any repossessions of property be advertised in a newspaper of record a certain number of times, usually at least 3 times. and that proof of publication must appear in the court record. 2. Was the property properly appraised by a competent and properly licensed appraiser? Usually the law requires at least 3 appraisals and sometimes it is required that each be done by a different appraiser. Their appraisals must be a part of the court record as well. Since appraisals are expensive, the plaintiff's attorney usually fudges on this one. 3. Did the plaintiff's attorney have his client or an officer of the company or corporation present in the courtroom to testify to the veracity of your indebtedness or did he just get up in court and testify for his client? Most banks or loan companies don't want to have to go to court and spend a lot of time pursuing an already lost cause, so the attorney just saves them that time and expense by doing the testimony himself, but that's totally illegal. No attorney can be both the attorney of record and give testimony at the same time, but they do it all the time. There must also be written affidavit of testimony signed and sworn to by an officer of the company or corporation under penalty of perjury. If such is not present, again the law has been broken. The simple fact that plaintiff's attorney cannot give testimony in a hearing has been addressed hundreds and hundreds of times over and over again, but one of the most famous cases that one can rely upon is known as Trinsey v Pagliano, Civ. A. No. 34873 United States District Court, E.D. Pennsylvania, May 28, 1964. While the actual matter before the court, Judge Wood presiding, need not concern us in this discussion, in [3] of his decision, Judge Wood ruled: The defendants' motion to dismiss for failure to state a claim unsupported by affidavits or depositions is incomplete because it requests this Court to consider facts outside the record which have not been presented in form required by Rules 12(b) (6) and 56(c). Statements of counsel in their briefs or argument while enlightening to the Court are not sufficient for purposes of granting a motion to dismiss or summary judgment. The judgment of the Court was that the defendants motion to dismiss was denied without prejudice which meant that Judge Wood gave the attorneys a window of opportunity (so to speak) to file a new motion after they had better prepared their case. This author has no idea whether or not the case was ever refiled. But in any event, Judge Wood plainly stated that attorneys can never give testimony by denying motion to dismiss. While attorneys in criminal matters never give testimony, in civil matters They do so more or less routinely because they know that they can usually get away with it, but if they do, they risk having the case re-opened by a knowledgeable person or attorney and if that happens, they lost the case even though they were originally successful in securing judgment or other relief they sought in their original motion or petition before the court. There is no statute of limitations during which time you must beg the court to give you relief for error of attorney. You were denied due process of law and if that happened that's your grounds for reversal. 4. Was the original note you signed or a certified copy of the original note you signed presented to the court or did they simply take a photocopy and present that as evidence? If they simply made a photocopy of the original note you signed and presented that as evidence, it's illegal and reversible. It must be either the original note you signed or a certified copy thereof and it must bear the signature and seal of a notary public who witnessed the signature of the officer of the company or corporation who was signatory to the document in order to be valid. 5. Did the plaintiff actually file a judgment against you or did they simply file a motion for liens pariens instead of an actual judgment? If no actual judgment was filed against you, they only have 5 years in most states to file the actual judgment or renew the "option" to file judgment or the option goes dead and they lose it. What usually happens is that an option is filed if the creditor believes that you will never be able to pay the judgment even if they were to file one. You may need to "lay behind the log" so to speak until the 5 years is up in order to successfully file a quiet title or other action in the case. Also, during this 5 year period you should never attempt to challenge the report on your credit bureau records because that might awaken them and cause them to actually go and either renew their options or to actually file the judgment against you. Better to let sleeping dogs lie until the 5 years is up and their options no longer exist.
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