In addition to numerous other debt collection and consumer protection issues, Golden & Cardona-Loya, LLP represents Californians who experienced wrongful repossessions. California consumers may seek redress under numerous laws for the wrongful repossession of their vehicle.
One common example of wrongful repossession occurs when a dealer sells a vehicle to a consumer, expecting to assign the financing to a third party bank or financial institution, but fails to do so. Under these circumstances, if the dealer does not timely rescind the sales contract, the dealer is responsible for financing the sale and payments must be made to the dealer pursuant to the terms of the sales contract. However, dealerships often do not rescind the sales contract and repossess the vehicle when no money is actually due to avoid having to finance the sale.
What rights does a consumer have in this situation? Below is an illustrative, non-exhaustive list of possible claims a consumer can sue a car dealer for under the example provided above. Golden & Cardona-Loya, LLP obtained a jury award for $108,000 for a similar set of facts (costs and attorneys’ fees were also recovered). (San Diego Superior Court Case # 37-2016-00020113-CU-NP-CTL.)
The purpose of the Rosenthal Fair Debt Collection Practices Act, or “Rosenthal Act,” is to “prohibit debt collectors from engaging in unfair or deceptive acts or practices in the collection of consumer debts and to require debtors to act fairly in entering into and honoring such debts….” (Cal. Civil Code § 1788.1(b).) Unlike its federal counterpart, the FDCPA, the Rosenthal Act’s definition of a debt collector is much broader and includes persons or entities collecting on behalf of themselves or others, such as car dealerships. The Rosenthal Act incorporates certain prohibitions found in the FDCPA which may apply in wrongful repossessions, including:
(a) California Civil Code §1788.17 by failing to comply with 15 U.S.C. § 1692e by using false, deceptive, or misleading representations or means in connection with the collection of a debt;
(b) California Civil Code §1788.17 by failing to comply with 15 U.S.C. § 1692e(2)(A) by giving the false impression of the character, amount or legal status of the alleged debt;
(c) California Civil Code §1788.17 by failing to comply with 15 U.S.C. § 1692e(10) by using a false representation or deceptive means to collect or attempt to collect any debt;
(d) California Civil Code §1788.17 by failing to comply with 15 U.S.C. § 1692f by using unfair or unconscionable means to collect or attempt to collect a debt;
(e) California Civil Code §1788.17 by failing to comply with 15 U.S.C. § 1692f(1) by attempting to collect an amount not authorized by the agreement that created the debt or permitted by law; and
(f) California Civil Code §1788.17 by failing to comply with 15 U.S.C. § 1692f(6) by repossessing the Plaintiff’s vehicle when there was no present right to possession of the vehicle.
A consumer may recover statutory damages of $100 to $1,000 for a violation of the Rosenthal Act. (Cal. Civ. Code §1788.30(b).) In addition to these statutory damages, a plaintiff may also recover actual damages. (Cal. Civ. Code §1788.30(a).) “Actual damages include damages for personal humiliation, embarrassment, mental anguish and emotional distress. …It includes all highly unpleasant mental reactions such as fright or grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea.” (McCollough v. Johnson, Rodenburg & Lauinger, LLC (9th Cir. 2011) 637 F.3d 939, 957, analyzing damages under FDCPA.) California-State courts are in accord. (See Walnut Creek Manor v. Fair Employment & Housing Com. (1991) 54 Cal.3d 245, 255 citing Hess v. Fair Employment and Housing Com. (1982) 138 Cal.App.3d 232, 237; see also Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 300, holding noneconomic damages include emotional distress.) Finally, attorneys’ fees and costs are recoverable. (Cal. Civ. Code §1788.30(c).)
Car dealers commonly not only take the vehicle in wrongful repossessions but at times keep whatever down payment the consumer made in their original purchase of the car. This, too, maybe considered unlawful “Conversion.” We have also helped a number of consumers who had personal items in their car that were not returned after repossession. The law is clear that whatever is in the car must be returned to the rightful owner.
“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.) Actual damages and punitive damages may be recovered for conversion.
California’s Unfair Competition Law (“UCL”), found at Business and Professions Code §17200, “establishes three varieties of unfair competition—acts or practices which are unlawful, or unfair, or fraudulent. ‘In other words, a practice is prohibited as “unfair” or “deceptive” even if not “unlawful and vice versa.”’” (Cel-Tech Communications v. La Cellular (1999) 20 Cal.4th 163, 179-180.)
Under the UCL, consumers may seek restitution of “money or property, real or personal, which may have been acquired by means of such unfair competition.” (Bus. and Prof. Code § 17203.) Consumers may in addition seek an injunction prohibiting the dealer from further unlawful acts. (Id.)
Assuming the consumer timely made any payments called for under the sales contract and the dealer failed to timely and properly rescind the contract, the dealer may be in breach of the sales contract by repossessing.
“Contract law exists to enforce legally binding agreements between parties….” (Applied Equipment Corp. v. Litton Saudi Arabia, Ltd. (1994) 7 Cal.4th 503, 514.) “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)
In terms of what a consumer can seek as a remedy under a contract claim, “‘[c]ontract damages are generally limited to those within the contemplation of the parties when the contract was entered into or at least reasonably foreseeable by them at that time; consequential damages beyond the expectation of the parties are not recoverable. This limitation on available damages serves to encourage contractual relations and commercial activity by enabling parties to estimate in advance the financial risks of their enterprise.’” (Erlich v. Menezes (1999) 21 Cal.4th 543, 550.) “The aim is to put the injured party in as good a position as he would have been had performance been rendered as promised.” (Brandon & Tibbs v. George Kevorkian Accountancy Corp. (1990) 226 Cal.App.3d 442, 455.)
Similar to, but independent from a breach of contract claim, is the breach of the Covenant of Good Faith and Fair Dealing. “There is an implied covenant of good faith and fair dealing in every contract that neither party will do anything which will injure the right of the other to receive the benefits of the agreement.” (Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 658.) Unlike a breach of contract matter, the “‘breach of a specific provision of the contract is not . . . necessary’ to a claim for breach of the implied covenant of good faith and fair dealing.” (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1244.)
Repossessing a car without a right to do so may support a breach of this covenant. Remedies a consumer may seek are the same as a breach of contract, above.
If you are over the age of 65 when a wrongful repossession occurs, you may have an additional claim for violation of the Elder Abuse Act. A violation of Welfare and Institutions Code § 15610.30 occurs by the taking or retaining of real or personal property of an elder or dependent adult for wrongful use or with intent to defraud, or both.
Elder consumers may seek actual damages (as discussed above), punitive damages, treble damages, and attorneys’ fees and costs. (Welf. and Inst. Code § 15657.5; and Civ. Code § 3345.)
If you believe you experienced a wrongful repossession, please contact the attorneys at Golden & Cardona-Loya, LLP for a free consultation. Keep in mind the passing of time may affect your rights and/or possible recovery, so it is important to address these issues as early as possible.