California Repossession Law: What To Expect And How To Avoid It
Last updated April 15, 2016.
When a creditor comes to repossess your car, boat, or other property, do you know what to do? Here s what you need to know about California repossession law.
When can a creditor repossess my property in California?
Creditors generally retain the right to repossess the property you acquire with a purchase money loan. The most common example is an auto loan, so we’ll use that throughout the article. Keep in mind that the same applies to any property that is collateral for a loan. So, you borrow money to buy a car and the car secures the debt. If you stop paying, the lender can reclaim the property. It may choose to sue and get a judgment against you, but it’s not required as long as the repossession is peaceful.
In California, the lender may repossess your car as soon as you default on the loan, even if the payment is just one day late. The specific terms of your loan agreement may give you a grace period, so read it carefully. West’s Ann. Cal. Com. Code §§ 9601, 9609. In addition, the lender is entitled to repossess after default of any kind on the loan agreement. That means that not only is your car at risk if you miss a payment or pay late, but if you break another term of the loan agreement. For example, auto loans require that you keep the car insured. If you allow your insurance to lapse, your lender has the right to repossess.
You don’t have to be present for the lender to repossess your car. They can take the property from any publicly accessible area, including your driveway. However, a repossession agent can’t break into your house or into a locked or fenced area without permission from the legal owner of the property (you or your landlord).
Of course, just because the lender has the right to repossess doesn’t necessarily mean that it will do so. It’s much easier and cheaper for the lender if you simply continue to make your payments. They’ll only act to repossess if they believe that you’re not going to pay or that you’ll destroy the collateral.
Who can repossess property?
In California, two different types of individuals may repossess your car. First, your lender may hire a repossession agency. Repossession agencies must be licensed by the California Department of Consumer Affairs’ Bureau of Security and Investigative Services (BSIS). They must show you a BSIS ID if you ask for it. You can verify the license online or call BSIS at (916) 322-4000. An employee of the legal owner (probably the bank or the dealership) may also repossess the property; they don’t have to be licensed by BSIS.
After repossession, you ll have to pay for the storage of any personal items left in the car and some lone agreements may require you to pay the costs of repossession and storage of the car itself.
How can I avoid repossession?
If you honor the all of the terms of your loan agreement, the lender cannot repossess your car. If you default on one or more terms, you are at risk for repossession. There are, however, steps you can take to prevent it.
Reinstate the Loan
If you’ve missed one or more payments, the best option is pay all of the missed payments and all applicable late fees at once. This is called “reinstating the loan” or “curing the default.” Your loan agreement may or may not include provisions for reinstatement, but California law protects your right to reinstate the loan even after repossession, until the property is sold or otherwise disposed of. If you falsified information on your loan agreement, hid the car, used it to commit a crime, damaged the vehicle, or threatened violence against the repossession agent, you lose the right to reinstate the loan. In addition, you can only reinstate a loan once every 12 months and a maximum of twice over the course of the loan.
Contact Your Lender
If you can’t afford to pay all of your missed payments and late fees at once, you may reach out to your lender to ask for other options. Repossession is time consuming and expensive and many lenders will be willing to work with you to avoid that option. You may be able to negotiate a longer grace period or a lower interest rate, which will make payments easier.
Sell the Property
You may choose to sell the car yourself. If your car is repossessed, the lender will dispose of it at auction. If the car sells for less than you owe, you’re liable for the difference. If you organize a private sale, you’ll probably get a better price than you would at auction. Selling the car may be difficult, though. It will require the approval of your lender and they can refuse the sale for any reason or no reason at all. However, you may be able to use the lender’s refusal to protect yourself from liability for the deficiency if they receive less at auction than your private buyer offered.
Surrender the Property
You can also choose to surrender the car. You still lose it, but you may be able to negotiate a surrender as full payment of the loan. Then you won’t have to worry about a deficiency after the auction.
Refinance Your Loan
You can offer to refinance through the original lender or through a different lender. A refinanced loan will usually have a longer term, which means you’ll be paying more interest overall. If you choose to refinance, make sure that you can afford your new loan. Make sure it has a lower interest rate than your current one and don’t forget to check the fees. Consider also whether it’s worth refinancing. A new loan may last three to five years or more. If your car is already older, it may not be worth refinancing.
File for Bankruptcy
If you’re having trouble with more than one loan, bankruptcy may be a good option for you. When you file for bankruptcy, you get the protection of the automatic stay. The automatic stay stops all collection actions against you – including repossession. The bankruptcy process will give you some time to organize your finances without worrying about waking up and finding your car has been repossessed. Most debtors can keep their cars and other property through bankruptcy. In addition, you may only have to repay the loan up to the value of the car rather than repaying the full amount of the loan. Bankruptcy is a serious measure for serious debt problems, so reach out to an experienced bankruptcy attorney to discuss whether it’s the right choice for you. If you car has been repossessed, but not yet sold at auction, you still can get the vehicle back through a Chapter 13 bankruptcy.
Don t let repossession take you by surprise.
Whenever you take out a loan, read the entire agreement carefully and make sure you understand everything in it. It will include details about a grace period and the steps your lender will take if you miss payments. If you are going to fall behind on your payments, start considering your options for avoiding repossession. The earlier you act, the easier it is to keep your car.
If you have missed several payments on your loan and are facing property repression, contact one of our experienced attorneys at Borowitz Clark. We have years of experience helping thousands of consumers successfully resolve their financial issues.