Case Law

New Hampshire Repossession Case Law

Case Name: MacLeod v. C & G Investment Group
Case Location: 118 B.R. 1 (1990)

Prior to the repossession on April 27, 1990, the defendants had made two prior attempts. In each case, the defendants’ agents came onto the plaintiff’s property with uniformed State Police and, over the verbal protests of Plaintiff John MacLeod, attempted to start the equipment. However, the equipment failed to start and the defendants and police left.

Before the attempted repossessions, the State Police were shown the Security Agreement, which they mistook for a court order authorizing the repossession. On April 27, a policeman woke MacLeod at 6:30 a.m. and told him that a repossession was going to take place and he was not to leave the house. He also was told not to “do something stupid.” After starting the equipment with the assistance of a mechanic, the defendants’ agents took the equipment.

In this case the Court stated, in part, “we believe the introduction of law enforcement officers into the area of self-help repossession, regardless of their degree of participation or nonparticipation in the actual event, would constitute state action thereby invalidating a repossession without proper notice and hearing.”

The court further concluded that if a creditor is allowed to unofficially use the power of the state to squelch potential breaches of the peace, the creditor can effectively evade or avoid the statute which makes it clear that “if the strong arm of the law is needed, then the creditor must secure judicial intervention when a police officer is carrying out or sanctioning the repossession.”

This case makes it very clear that law enforcement cannot be involved in the self-help repossession process, which is commonly referred to as “Color of Law.”

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Case Law

In the case of Northside Motors of Florida, Inc. v. Brinkley, 282 So. 2nd (FL 1973), the court’s ruling states, in part, “The Supreme Court of the United States has since emphasized and re-emphasized that state action will not be found in the purely private conduct of an individual voluntary engaged in without some form of active assistance or cooperation on the part of the state.” This means that law enforcement shall not be involved in the self-help (non-judicial) repossession process unless some violation of law occurs.

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