Case Law

Oregon Repossession Case Law

Case Name: Jack Harris v. City of Roseburg
Case Location: 664 F. 2d 1121 US App. Ct (1977)

Westerman V. Oregon Automobile Credit Corporation
122 P. 2d 435 OR Sup. Ct. (1942)

In Harris v. City of Roseburg, the court addressed the issue and parameters of non-judicial interference in a self-help repossession. Bergman, a police officer for the City of Roseburg, was present at a self-help repossession. The debtor, Jack Harris, was delinquent in his payments and in April, 1978, Lee Cantwell, who retained a security interest, decided to repossess the semi-tractor. Fearing violence if he attempted to repossess the vehicle alone, Cantwell asked the Roseburg City Police Department to provide an officer to “stand by” while Cantwell repossessed the vehicle. Bergman advised Cantwell that he “could not participate in it, no way, shape or form.” Harris filed an action, alleging that Bergman, Miller (another police officer at the scene) and the City of Roseburg had, by their actions, deprived him of his Fourteenth Amendment right to due process. The court reasoned that in order for Bergman to claim immunity for such violation he must show that: (1) he was acting sincerely and with the belief that he was doing right, not knowing that his official action would violate Harris’ constitutional rights (subjective good faith); and (2) he should not have reasonably known that his official action would violate those rights (objective good faith). The court concluded that from the evidence the police officers were simply doing what they reasonably considered necessary under the circumstances to avoid violence, stating that, “we find no evidence of “malicious conduct” or reckless disregard of appellant’s (Harris) constitutional rights. From other case law we find that even the mere presence of a police officer at the scene of a self-help repossession without judicial authority constitutes “color of law” and Wrongful Repossession.”

In Westerman v. Oregon Automobile Credit Corporation, the court specifically held that the creditor may not commit an assault, battery or false imprisonment in the process of a self-help repossession and if, during the repossession, the debtor objects, protests and obstructs the seller it becomes the duty of the seller to desist. The court also noted that securing the aid of a police officer who pretends to act “colore officii” (color of law) has been held to be an “equivalent of force” in some jurisdictions.

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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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