Florida Car Repossession – a General Description
When it comes to Florida car repossession, the first thing you need to know is that if you are late on a payment, the lender does not need permission from you or a court to take possession of the vehicle (theft laws apply here – see Florida statute 812.155). And this is not just for cars, but all repossessions of personal property (airplanes, motorcycles, boats, RV’s, etc.). That being said, once the lender has possession of the vehicle, they may not intentionally destroy the vehicle or dispose of it without your consent (see Florida statute 679.609). If they do, they may be liable for damages plus attorney’s fees unless you fail to act reasonably and mitigate your damages (see Florida statute 679.610).
After repossession, the lender has the right to sell the collateral in a commercially reasonable manner, which includes giving you notice of such sale. As far as how much notice you must receive, there is no strict rule, "56 days" is what many creditors will use. If they intend to use the proceeds of the sale to satisfy the debt, they must give you notice of the sale at least ten (10) days prior to the sale (if the vehicle is a motor vehicle, mobile home, recreational vehicle, or trailer subject to Florida’s Certificate of Title Law, then they must give you twenty (20) days’ notice). The notice must also identify the debtor, the creditor, the telephone number of the creditor, and the location of the collateral and must state the method of intended disposition of the collateral and that the debtor is entitled to an accounting of the unpaid indebtedness and the time and place where the collateral was to be sold.
During the waiting period, you have the opportunity to voluntarily surrender the vehicle and thus avoid having it sold at auction (a voluntary surrender would include the voluntarily giving up of possession of the collateral to the secured party without judicial intervention; for example, a voluntary surrender would include the delivering of the collateral to the secured party or its agent upon demand). You have the right to redeem the vehicle by paying the full amount due (for example, the full amount due under the lease agreement or installment contract plus reasonable expenses incurred in retaking and storing the goods) and any other costs allowed by law , anytime before the sale.
If you have any obvious defenses, you should assert them in writing to prevent them from being waived (you should also send a conservator of the peace letter via certified mail with R/R/R (return receipt requested) to the repossessor. This will put the sheriff on notice that the vehicle is unlawfully in their possession). If the debt was satisfied, you should also forward a written request for title to the lienholder and a copy of the bill of sale to the Department of Highway Safety and Motor Vehicles and all secured parties of record within 30 days after the sale (Florida statute 679.617). This should prevent unlawfully encumbered liens on your title.
Assuming that your vehicle is sold at auction, you would then receive the surplus (i.e., any excess of the sum of the cash proceeds of sale plus interest on the surplus at the rate of 10 percent per year from the date of receipt less the collected expenses of repossession, preparation, litigation, advertising, and sale and attorney’s fees allowed by law, less the expenses listed above) of the sale and are entitled to an accounting of the surplus. But, if the sale of the vehicle is not enough to completely cover the amount owed, you can obtain a deficiency judgment against you for the amount owed. If sold, the money received by the secured party becomes the total due under the lease agreement or installment contract plus any reasonable expenses incurred in retaking and storing the goods, and profits or balances must be applied against the amount due.
As you can see, the rules relative to repossession are pretty straightforward. Unfortunately, lenders get away with taking vehicles on mere suspicion or misinformation (you do have rights when things get out of hand, more on that in my next section). In fact, if the transaction was in writing and included the right to repossession, then you need to be sure that the lender acted commercially reasonable (Florida statute 679.610). If they didn’t, you may be entitled to recover your damages caused by hacking your vehicle without proper notice and/or prior to a contractually authorized default.
The Repossession Process in Florida
The legal process for car repossession in Florida is relatively straightforward, but still requires lenders to follow certain procedures and provide appropriate notifications to borrowers. The Florida Uniform Commercial Code (UCC) outlines the steps that lenders must take when reclaiming a vehicle. When a borrower defaults on an auto loan or lease, the lender may repossess the car without going through the courts, provided they do not breach the peace during the repossession process.
Once the lender has repossessed the vehicle, they must notify the borrower of their right to redeem the vehicle before it is sold, as well as provide information about where the vehicle can be recovered. This notice must be sent at least 21 days before the vehicle is to be sold or disposed of. If the lender receives payment in full from the borrower and all associated fees have been paid, then the vehicle will be released to the borrower. If the vehicle is sold, the proceeds of the sale must be applied to the balance of the loan or lease owed by the borrower. Any surplus must be returned to the borrower, while any deficiency must be communicated after the sale.
Importantly, notices must also be provided to any debtors who have lien on the vehicle or have submitted a written request for notification in the past five years. This allows other lienholders to exercise their right to purchase the vehicle or to take any other action necessary to protect their interests. Failure to follow all legal procedures pursuant to Florida law could open the lender up to liability for breaching the peace.
General Borrower Rights Upon a Repossession
Florida’s laws give a car borrower certain rights during the car repossession process. First, a lender must send a notice of default if the loan is delinquent. Lenders are required to give twenty-three days or more after a default notice has been sent before repossessing a vehicle. Lenders may choose to send a default notice only after one monthly payment is past due or alternatively, lenders may send them after a loan is more than thirty days delinquent. For loans with a term of four months or less, lenders may only do a single monthly notice in each six-month period in lieu of a default notice. Lenders may not attempt to repossess without following these procedures, but many do. If your lender sent you a notice of default after which you cured the default within ten days, the law presumes that the notice is void and there is no default.
Second, no person can enter a closed structure or residence without permission to take possession of a vehicle. Further, lenders must take possession without breaching the peace. In other words, lenders cannot push, hit, touch, or use physical force against either a borrower or any other person to repossess a vehicle. Since Florida is a "no fault" divorce state, any power struggle between two parties during the repossession process will be a violation of state law.
Preventing Repossession
Avoiding repossession of your vehicle may be possible if you have some insight into the motivations of your lender. In some cases an informal conversation can persuade the lender to allow you to keep the vehicle. A lender will typically wish to avoid the cost associated with repossessing a vehicle. Therefore if you are behind in making car payments you may wish to contact your lender to discuss your situation. You should not make this call from your car as your phone may be tapped. Your lender is also not likely to reschedule or forgive your payment if you agree to pay them by an automatic bank debit. Again , this agreement may give the lender direct access to your checking account and further motivate them to repossess your vehicle.
You should also consider consulting an experienced Florida car repossession attorney if you are facing a breach of contract claim by your lender.
Post-Repossession
Once your car has been repossessed, the lender will eventually sell it and apply the proceeds to what you owe (i.e., your balance). They are required to send you a written notice of what happened to the vehicle. Within this notice, you should find the following: This notice also has to give you the name and address of the person to whom the auto was sold and describe how much you owe. After finding out how much it sold for, you will have 15 days to redeem the vehicle by bringing in all the requirements or removing any property that you might have left in the car. You will not get any extra time to do either, so make sure you do it right away. If you do not redeem the vehicle, the lender has to send you a list of personal items they found in the car last and how you can pick these items up too. However, they are entitled to keep from that to pay for the costs they incurred to repossess it.
Assistance and Resources
If you find yourself facing the possibility of car repossession in Florida, there are various resources available to help you navigate the complexities of the law and your rights as a borrower. Seeking legal counsel early can help you understand your situation better and decide the best course of action. Legal aid societies may provide assistance to those who cannot afford a lawyer, or a local bar association may be able to connect you with a pro-bono attorney specializing in consumer protection issues .
You can also turn to non-profit consumer protection services that offer foreclosures and repossession counseling to help you develop a strategy for dealing with financial difficulties and negotiating with creditors. The Federal Trade Commission (FTC) is another valuable resource, providing an overview of consumer financial protection laws and local resources that can help you in the event of a repossession.
In addition, the Office of the Attorney General of Florida offers a variety of resources to aid consumers. Their website provides a wealth of information on topics ranging from debt collection, credit repair, vehicle repossession laws and what borrowers can do to prevent or respond to repossession actions.