A fundamental concept of law is providing due process

May 5 2012 - 4:25pm

Delbert Coats (not his real name) is a small Southern Utah town's curmudgeon. He is the grumpy guy that cusses out the kids, drives his 1958 pickup at 15 miles an hour up and down Main Street just to be aggravating, sitting comfortably in his bib overalls. Delbert is old and hobbles around on two canes he made out of lead pipe, with the ends capped and T-joints for the handles.

One fine winter day, while cruising Main Street, Delbert saw a tow truck attempting to hook into his son-in-law's hay truck. Observing the tow truck was the town's one police officer, who likes to call himself "Chief," and the female county sheriff's deputy assigned to the area. Delbert decided that having his son-in-law's hay truck repossessed is a bad idea and drove off Main Street, right at the repossession agent trying to hook to the hay truck.

Delbert's truck was not moving fast, because it never moved fast, and the repossession agent easily got out of the way. Delbert unrolled the driver side window to yell curses and the sheriff's deputy jumped into action, diving through the open window to grab the keys.

She succeeded in stopping the truck, but not Delbert, who waddled out of his disabled pickup. The deputy immediately snatched a claw hammer out of Delbert's overalls to avoid it being wielded against anyone. Delbert, all 300 or so pounds, continued threateningly, but slowly, on his lead pipe canes toward the tow truck driver. The deputy jumped on his back to slow him down, and Delbert tried to strike her with his cane.

Delbert was subdued, and when his canes were removed, he sat down in a snowdrift and refused to move. Chief and the deputy were not strong enough to get Delbert into the patrol car, so they went next door to the justice of the peace and asked for his help.

With an officer on each arm, the Justice of the Peace bent over and grabbed Delbert's legs. Because he was in range, Delbert bit the justice of the peace. Delbert was finally arrested and taken to jail. After everyone left, the repossession agent hooked up the hay truck and towed it to his lot.

One of the fundamental concepts of the law and the Constitution is that a person cannot be deprived of life, liberty or property without due process of law. Most people have a vague idea of what this requires -- actual notice of legal action and the right to be heard. Lawyers and judges have written a large library on due process, but due process for this column can be simplified to: The government cannot take your stuff without giving you an opportunity to present your case.

In almost every car purchase, you waive your right to due process for nonpayment. This is called a self-help repossession and means the lender can simply come and pick up the vehicle if you get behind on payments (or if the lender believes you are behind on payments).

The contract clause reads: "The Lender may immediately take possession of the property by legal means or self-help, but in so doing may not breach the peace or unlawfully enter on to your premises." This is the due process waiver, but it only applies to the lender and is only allowed if there isn't a breach of the peace or trespass.

This means cars locked in garages can't get repossessed because it would require breaking into a premise. Also, any peace-breaching dispute with the repossession agent should stop the repossession.

Delbert, I believe, pled guilty to disorderly conduct. His son-in-law then successfully sued the bank for a wrongful repossession, as a self-help repossession cannot take place if there is a breach of the peace and Delbert was a walking breach of the peace.

Yet, the repossession agent, not Delbert, had committed the first and most egregious (legal for really, really bad) breach of the peace when he brought the police officers. You can waive your due process rights with the lender, but not the government. If governmental authorities are going to be used to take your property, they must have a court order and follow proper due process procedures. Self-help repossession can never enlist the police.

E. Kent Winward is an Ogden attorney. He can be reached at 801-392-8200 or creditcorrection@gmail.com.

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