Fraud or Trickery in Massachusetts Car Repossession

As I previously wrote, in the course of a Massachusetts car repossession, it routine (and illegal) for repossession agents to come onto your property late at night, wake you up, and demand your car keys. This is illegal because repo men cannot come onto your property at all or at any time to repossess your vehicle without getting your permission ahead of time.
However, another common illegal practice is that repo agents, when bargaining for your keys, will cross the line and lie to you about what will happen if you don't comply. The ones I have heard most frequently are:
1. We'll damage your car if we have to tow it. First, they cannot tow a car out of your driveway without your permission. Second, they are not allowed to damage your car even if they do. This statement, in itself, subjects a repossession company to liability under the Massachusetts Division of Banks regulations.
2. The creditor will charge you more money if we have to tow the car. Well, taking the car over your objection is illegal in the first place--both as a statutory trespass and a breach of the peace--so as creditor should not be able to impose a charge on your for an illegal act.
3. If you don't give us the keys, we'll just take the car anyway (or call the police). That's a similar threat to those above, but its simplicity and frequency draws attention to a basic fact. A repo agent has no right to do that and due to the the Massachusetts Division of Banks regulations has no right to even make a false threat. If they actually do call the police, this is illegal as a breach of the peace.
False threats, lies, and trickery are not always enough on which to base a case. However, such unlawful act are almost accompanied by others.

*Note: If your car has been repossessed in Massachusetts, we might be able to help. However, due to high call volume after I posted information here about Massachusetts car repossession, we must first receive the completed form found here: http://www.mass-legal.com/repo_quest.asp. We will review your matter confidentially and free of charge.

Late Night Car Repossession

Car repossessions in Massachusetts are often done at odd times. Just this past week, we received one call about a repossession at 1:00 a.m. and another at 3:00 a.m. Why do repossessions happen so late? Is this legal? I'll try to answer both of those questions here.
Why are repossessions done late at night or early in the morning when people are sleeping? The industry would likely say that it's because more cars are at people's homes when people are sleeping. This makes some sense. They would also likely say that it is easier to avoid confrontation when people are sleeping. While it is true that cars are most often at home during the night, they are also often home in the early to later evening when people awake but home for the night. Moreover, the notion about it being easier to avoid conflict while someone is sleeping is turned on its head in Massachusetts. Here's why. In Massachusetts, we have a law that says that the repo man cannot come onto property you own or rent to take your vehicle without your permission. Consequently, a repo man will usually wake you up and attempt to get the keys from you rather than simply tow the car from your driveway. That means getting you up out of bed in your pajamas for a late-night confrontation: Hardly a scenario designed to avoid trouble. Even putting aside the issue regarding the time of a repossession: this practice is generally illegal because a repo man needs your permission before he steps onto your property, not after.
So the bottom line is that a repo man cannot come onto your property late at night--or at any other time--to take your car without your permission. However, if your car is parked on the street, there is likely no issue regarding what time of day or night your car is towed away.

You can find more about car repossession law in Massachusetts here.

*Note: If your car has been repossessed in Massachusetts, we might be able to help. However, due to high call volume after I posted information here about Massachusetts car repossession, we must first receive the completed form found here: http://www.mass-legal.com/repo_quest.asp. We will review your matter confidentially and free of charge.

Bankruptcy Filings Up 25 Percent in Mass.

Here's the article link.
Bankruptcy filings up 25 percent, year-over-year. "Massachusetts bankruptcy filings spiked 25 percent in the first half of the year when compared to the same period in 2009."

Defense of Marriage Act Declared Unconstitutional

The big legal news of the day is that Judge Tauro of the United States District Court for the District of Massachusetts (Boston) declared the federal Defense of Marriage Act ("DOMA"), 1 USC sec. 7, unconstitutional. The case is styled Gill v. Office of Personnel Management, et al. (link opens .pdf opinion). The case was brought by same-sex spouses married under Massachusetts law. The Court held that "DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution."

On the federal level, DOMA limits the recognition of marital rights to heterosexual spouses. The Court held that Congress' reasons for enacting the law bore no rational relationship to the goals it set. The Court also expressed a strong sentiment that the federal government should stay out of the business of defining marriage because that is the traditional and exclusive purview of the States.

I recently wrote about same-sex spouses and some of the special issues they face in bankruptcy, such as that DOMA has been interpreted to bar such spouses from filing joint bankruptcy petitions which, among other things, increases the overall cost of bankruptcy. That may change now, and I would like to bring a test case if presented with the right clients. Judge Tauro's opinion is not binding on the bankruptcy court and it may yet be appealed. However, it broke new ground and will carry considerable weight when used to support a challenge to a joint bankruptcy petition on behalf of same-sex spouses.

Bankruptcy Meeting Locations in Massachusetts

All bankruptcies involve a court meeting. Where that meeting takes place depends on the place you live at the time your bankruptcy case is filed. It's sadly a little confusing, and people ask about it all the time, so I'll set it all out here as clearly as possible.

Chapter 7 cases, Boston:
If you live in Suffolk or Norfolk County, you will have your court meeting in Boston.
If you live in Essex County, but not in Andover, Boxboro, Bradford, Haverhill, Lawrence, Methuen, or North Andover, then you will also have your meeting in Boston.
If you live in any of the following towns in Middlesex County you will also have your meeting in Boston: Arlington, Ashland, Belmont, Burlington, Cambridge, Everett, Framingham, Holliston, Lexington, Lincoln, Malden, Medford, Melrose, Natick, Newton, North Reading, Reading, Sherborn, Somerville, Stoneham, Wakefield, Waltham, Watertown, Wayland, Weston, Wilmington, Winchester and Woburn.
Chapter 7 cases, Brockton:
If you live in Plymouth, Bristol, Barnstable, Dukes, or Nantucket county, you will have your court meeting in Brockton.
Chapter 7 cases, Worcester:
If you live in Worcester county, you will have your court meeting in Worcester.
If you live in Andover, Boxboro, Bradford, Haverhill, Lawrence, Methuen, or North Andover (in Essex county), you will have your court meeting in Worcester.
If you live in any town in Middlesex county except for those listed above, you also will have your court meeting in Worcester. This is the one that gets people because quite a few towns relatively close to Boston end up getting assigned to Worcester (Concord, just for example).
Chapter 13 cases:
Chapter 13 cases are just the same as Chapter 7 cases except that no one goes to Brockton. If you would be assigned to Brockton, you are just assigned to Boston.

That's all. There are other rules involving Springfield, Pittsfield, etc., but I have not idea what these are we do not practice in Western Mass.
The specific meeting locations in Boston, Brockton, and Worcester change from time to time. Current information about the bankruptcy court locations in Massachusetts can be found via a google search or by clicking on the link in this sentence (which goes to our main bankruptcy web site).

Bankruptcy Issues for Same-Sex Spouses

We have represented many same-sex couples in bankruptcy throughout the years, before and after the landmark decision in Goodridge v. Department of Public Health which provided legal recognition to same-sex marriage in Massachusetts. Despite this decision, there continues to be several special issues in same-sex bankruptcy cases.

Bankruptcy is a federal proceeding and same-sex marriage is not recognized on a federal level. See Defense of Marriage Act. This means that same-sex spouses cannot file joint bankruptcy petitions. The impact of this is primarily technical: One can get the same relief with two petitions as with one. Also, here in Massachusetts, if two bankruptcy cases are filed simultaneously, the creditor meeting for each will be assigned the same date, time and trustee. This allows same-sex spouses to experience the creditor meeting together, though--unlike in the case of heterosexual couples--they will still be examined under oath individually.

One significant drawback to the treatment of same-sex spouses in bankruptcy is that the cost of two bankruptcy cases is always higher than for one case. However, it has been my experience that same-sex spouses tend to have less joint debt than heterosexual couples (although this may change with time). Consequently, if only one spouse has debt problems, it may be advisable for just that spouse to file bankruptcy. This is a right that all married people have, which may be more often advantageous for same-sex spouses.

Means testing for same-sex couples:
There isn't any real difference in how a means test is formulated for roommates, same-sex couples, straight couples, or anyone else. There are differences with how the forms are filled out, but those are just details. The crux of it is that both spouses are counted in household size for the means test and then any contribution to the debtor's household expenses from the other spouse is also included. This is essentially what happens in a traditional joint case. The mechanics are different, but in a way that benefits gay spouses: the non-filing spouse's total income does not need to be included and then diminished by the so-called "marital adjustment." For a same-sex spouse the non-filing spouse's actual net household contribution need only be listed on the means test.

P.S. I wrote a post a few days after this one reporting on how one Massachusetts (federal) judge declared the Defense of Marriage Act unconstitutional. It can be viewed here.

Options After Your Car is Repossessed in Massachusetts

Here are a few practical tips for what to do after your car is repossessed. What I write here only pertains to Massachusetts because car repossession law is a state-specific matter in almost all respects.
First of all, you're probably distressed if your car was repossessed. That's understandable. You might need your car to get to work, or you might have thought you had more time, your car might have been taken during the dim hours of the night or early in the morning and involved some sort of drama. However, what to do next? Here are some thoughts in question and answer format.

1. Have my rights been violated? Maybe. There are two main ways we see in which rights are violated during repossession. First, you may have not received the required 21-day written notice called "Rights of Defaulting Buyer under the Massachusetts Motor Vehicle Installment Sales Act" before your car was seized. Second, the repossession company may have breached the peace in the course of the repossession. Breaching the peace can mean threats, coercion, and other oppressive acts committed during a repossession. I wrote a bit more about that here.

2. So what if my rights were violated? This is a really good question. Laws only have meaning when people can actually enforce them. The criminal laws are enforced by the police, but individuals have to enforce their own rights under civil law. The repossession laws I am writing about are civil laws.

3. So are these rights enforceable? The really good news is that they often are because other laws exist (such as the Massachusetts Consumer Protection Act) that help people who can't even make their car payments afford expensive attorneys. These laws require the wrongdoers to pay your attorney's fees if you are successful in pressing your rights.

4. But what about the car? Can I get my car? This is not the easy part because the laws I mention above primarily function to get you money damages for wrongful repossession. So, the most common approach if you want your car is to call the car lender ASAP after repossession and agree to pay whatever they want. After doing that you can still sue the car lender for money damages. There is, in general, a 20-day period that you have to "redeem" a repossessed car. Sadly, this is one of oft-ignored laws in the repossession field. So, if you want your car, act as quickly as possible.

5. What can they make me pay to get the car back? The answer is the whole amount of the loan. That's right. However, that is only if the repossession wasn't wrongful--they sent you the 21-day notice, peaceable repossessed the car, etc. The bad news is that, whether or not the repossession was actually wrongful or not, the car lender will always think they've done everything perfectly and that their company is absolutely infallible. So, be nice--even though they do not think they have to, they will often let you have the car back for just the back payments and repossession/storage fees. As I said, you can still sure them for damages afterwards if the repossession was wrongful.

6. What if I can't afford to pay what they are asking? This is pretty common. The options are not too good here, at least for getting the car back. One option: you can file for bankruptcy within the 20-day redemption period and get the car back. Another option: you can quickly file a lawsuit in state court for what is called replevin (and money damages). The state court replevin option is not very common.

*Note: If your car has been repossessed in Massachusetts, we might be able to help. However, due to high call volume after I posted information here about Massachusetts car repossession, we must first receive the completed form found here: http://www.mass-legal.com/repo_quest.asp. We will review your matter confidentially and free of charge.