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02/16/96 CHRYLSER CREDIT CORPORATION v. JAMES

February 16, 1996

CHRYLSER CREDIT CORPORATION, PLAINTIFF-APPELLEE,
v.
JAMES KOONTZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Bond County. No. 93-LM-41. Honorable A. Callis Rongey, Judge, presiding.

The Honorable Justice Maag delivered the opinion of the court: Chapman, J., and Kuehn, J., concur.

The opinion of the court was delivered by: Maag

JUSTICE MAAG delivered the opinion of the court:

Defendant, James Koontz, appeals from a deficiency judgment entered against him and in favor of the plaintiff, Chrysler Credit Corporation (Chrysler), in the amount of $4,439.92.

Koontz entered into an agreement with Chrysler to purchase a 1988 Plymouth Sundance in exchange for 60 monthly payments of $185.92. Koontz defaulted on the contract in early 1991. Chrysler notified Koontz that it would repossess the vehicle if Koontz did not make up the missed payments. Koontz notified Chrysler that he would make every effort to catch up on the payments, that he did not want the vehicle to be repossessed, and that Chrysler was not to enter onto his private property to repossess the car.

On the night of April 21, 1991, Chrysler sent the M & M Agency to repossess the vehicle pursuant to section 9-503 of the Commercial Code (the self-help repossession statute). (810 ILCS 5/9-503 (West 1994).) The vehicle was parked outside of Koontz's home in his front yard when he heard the repossession in progress. Koontz, who was in his underwear, rushed outside and hollered, "Don't take it," to the repossessor. The repossessor did not respond and proceeded to take the vehicle.

Chrysler sold the vehicle and filed a complaint against Koontz seeking a deficiency judgment for the balance due on the loan. Koontz filed an affirmative defense alleging that Chrysler's repossession of the vehicle breached the peace, the remedy for which includes a denial of a deficiency judgment to the secured party.

The case was tried before the circuit court of Bond County in a bench trial on February 8, 1995. On March 6, 1995, the trial court entered its order finding "that Chrysler Credit Corporation's actions to repossess said vehicle did not constitute a breach of the peace." The court then entered the deficiency judgment on behalf of Chrysler in the amount of $4,439.92 plus costs and attorney fees of $950.00. Koontz appeals from this judgment.

Koontz raises only a single issue on appeal. He contends that the trial court erred in finding that Chrysler's repossession did not breach the peace because there was evidence that Koontz made an unequivocal oral protest to the repossession of his vehicle at the time of repossession. Koontz argues that when the vehicle was taken despite his protest, "Don't take it", a breach of the peace occurred, citing Dixon v. Ford Motor Credit Co. (1979), 72 Ill. App. 3d 983, 391 N.E.2d 493, 29 Ill. Dec. 230. In Dixon, the court, relying upon White and Summers, Uniform Commercial Code § 26-6, at 972, stated that "when a creditor repossesses in disregard of the debtor's unequivocal oral protest, the repossession may be found to be in breach of the peace." Dixon, 72 Ill. App. 3d at 988, 391 N.E.2d at 497.

Chrysler contends that Koontz's oral protest did not breach the peace because "none of the elements of violence indicated in the decisions cited by the Defendant exists [sic] in this case." Chrysler argues by implication that without an element of violence there can be no breach of the peace. Chrysler also argues that if we find that an oral protest without an element of violence constitutes a breach of the peace, then we would be narrowing the self-help repossession statute to the point that it would be useless to a secured creditor.

We recognize that the self-help repossession statute extends a conditional self-help privilege to secured parties; however, we must apply the statute in a way that reduces the risk to the public associated with extrajudicial conflict resolution. It is apparent that the self-help remedy is efficient for secured creditors and results in reduced costs for both creditors and debtors. Efficiency and reduced litigation costs are desirable. Still, a debtor's private property interests and society's interest in tranquility must also be protected.

Because self-help repossession is statutory, we look to the language of section 9-503 to establish the parameters of the remedy that the statute offers to secured parties who seek to repossess collateral without judicial process. The statute provides in pertinent part: "Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action." (810 ILCS 5/9-503 (West 1994).) The key to whether a self-help repossession is permissible depends on whether the peace has been or is likely to be breached.

Section 9-503 does not define breach of the peace, and the phrase "breach of the peace" has never had a precise meaning in relation to specific conduct. The phrase has been construed on several occasions. In Cantwell v. State of Connecticut (1940), 310 U.S. 296, 308, 84 L. Ed. 1213, 60 S. Ct. 900, 905, the court stated: "The offense known as breach of the public peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others." In Leavitt v. Charles R. Hearn, Inc. (1974), 19 Ill. App. 3d 980, 312 N.E.2d 806, we noted that implied force may also constitute a beach of the peace. ( Leavitt, 19 Ill. App. 3d at 986, 312 N.E.2d at 811, citing Atkinson v. Lester (1837), 2 Ill. 407.) The Restatement (Second) of Torts § 116, comment a, at 192 (1965), provides that "[a] breach of the peace is a public offense done by violence, or by one causing or likely to cause an immediate disturbance of public order." Threats and epithets directed at another may or may not constitute a breach of the peace, depending upon the likelihood that a disturbance will follow.

We therefore conclude that the term "breach of the peace" connotes conduct which incites or is likely to incite immediate public turbulence, or which leads to or is likely to lead to an immediate loss of public order and tranquility. Violent conduct is not a necessary element. The probability of violence at the time of or immediately prior to the repossession is sufficient. We now turn to Koontz's contention that ...


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