[JennieL]

My question involves an auto loan or repossession in the State of: Indiana

I am being sued by a bank regarding my car being repossessed in 2002. I missed two payments, Nov. and Dec., I paid the two payments the following January, car was reposs. in Feb. I am being sued now by the bank. Their accounting log does not reflect my payment in Jan. Also, I was not notified of the sale of the car in April. The cert. letter stating the auction went to my old address. I contacted the bank on several occasions to inquire about my rights, no reply.

What are my chances for winning this lawsuit?

[OhMy]

My question involves an auto loan or repossession in the State of: Indiana

I am being sued by a bank regarding my car being repossessed in 2002. I missed two payments, Nov. and Dec., I paid the two payments the following January, car was reposs. in Feb. I am being sued now by the bank. Their accounting log does not reflect my payment in Jan. Also, I was not notified of the sale of the car in April. The cert. letter stating the auction went to my old address. I contacted the bank on several occasions to inquire about my rights, no reply.

What are my chances for winning this lawsuit?

When you sign for a car loan you are responsible for the full amount. When a lender does a repo they sell the car and hold you responsible for the balance.

On top of that you have to pay the lender repo fees, legal fees, court costs, interest on the loan etc.

The lender sent you a letter to your last know address they had on file for you.

Yes they can take you to court and get a judgment against you. From what you say on here , they did nothing wrong.

If you are ONE DAY LATE they have the right to repo a car. Although most will not do that unless you are 30 or more days late.

I know that this is not what you wanted to hear, but this is how it works. Sorry.

[JennieL]

The lender had my current address on file - I was receiving prior letters and statements, yet the certified ltr stating the sale went to the wrong address. By law, they are required to notify me.

[OhMy]

The lender had my current address on file - I was receiving prior letters and statements, yet the certified ltr stating the sale went to the wrong address. By law, they are required to notify me.

This will not be enough to get you out of your loan agreement, it is all after the fact (repo and late payments).

You are still responsible for the loan. Mailing a letter to your prior address will not cure the default.

[JennieL]

No offense taken - just useful information that I appreciate! One last question, how I can make sure the accounting is correct for default amount owed - (deduction of last two payments were not on accounting log). Shall I request a new accounting? Thanks!

[aaron]

Take a look at Article 9.1 of the Indiana Commercial Code, focusing on 26-1-9.1-609 et seq, and these statutes,

IC 26-1-9.1-625 - Remedies for secured party's failure to comply with chapter

(a) If it is established that a secured party is not proceeding in accordance with IC 26-1-9.1, a court may order or restrain collection, enforcement, or disposition of collateral on appropriate terms and conditions.

(b) Subject to subsections (c), (d), and (f), a person is liable for damages in the amount of any loss caused by a failure to comply with IC 26-1-9.1. Loss caused by a failure to comply may include loss resulting from the debtor's inability to obtain, or increased costs of, alternative financing.

(c) Except as otherwise provided in IC 26-1-9.1-628:

(1) a person that, at the time of the failure, was a debtor, was an obligor, or held a security interest in or other lien on the collateral may recover damages under subsection (b) for its loss; and

(2) if the collateral is consumer goods, a person that was a debtor or a secondary obligor at the time a secured party failed to comply with IC 26-1-9.1-601 through IC 26-1-9.1-628 may recover for that failure in any event an amount not less than the credit service charge plus ten percent (10%) of the principal amount of the obligation or the time-price differential plus ten percent (10%) of the cash price.

(d) A debtor whose deficiency is eliminated under IC 26-1-9.1-626 may recover damages for the loss of any surplus. However, a debtor or secondary obligor whose deficiency is eliminated or reduced under IC 26-1-9.1-626 may not otherwise recover under subsection (b) for noncompliance with the provisions of IC 26-1-9.1-601 through IC 26-1-9.1-628 relating to collection, enforcement, disposition, or acceptance.

(e) In addition to any damages recoverable under subsection (b), the debtor, consumer obligor, or person named as a debtor in a filed record, as applicable, may recover five hundred dollars ($500) in each case from a person that:

(1) fails to comply with IC 26-1-9.1-208;

(2) fails to comply with IC 26-1-9.1-209;

(3) files a record that the person is not entitled to file under IC 26-1-9.1-509(a);

(4) fails to cause the secured party of record to file or send a termination statement as required by IC 26-1-9.1-513(a) or IC 26-1-9.1-513(c);

(5) fails to comply with IC 26-1-9.1-616(b)(1) and whose failure is part of a pattern or consistent with a practice, of noncompliance;

(6) fails to comply with IC 26-1-9.1-616(b)(2); or

(7) fails to comply with IC 26-1-9.1-502(f).

(f) A debtor or consumer obligor may recover damages under subsection (b) and, in addition, five hundred dollars ($500) in each case from a person that, without reasonable cause, fails to comply with a request under IC 26-1-9.1-210. A recipient of a request under IC 26-1-9.1-210 that never claimed an interest in the collateral or obligations that are the subject of a request under that section has a reasonable excuse for failure to comply with the request within the meaning of this subsection.

(g) If a secured party fails to comply with a request regarding a list of collateral or a statement of account under IC 26-1-9.1-210, the secured party may claim a security interest only as shown in the list or statement included in the request as against a person that is reasonably misled by the failure.

IC 26-1-9.1-626 - Action in which deficiency or surplus is in issue

In an action arising from a transaction in which the amount of a deficiency or surplus is in issue, the following rules apply:

(1) A secured party need not prove compliance with the provisions of IC 26-1-9.1-601 through IC 26-1-9.1-628 relating to collection, enforcement, disposition, or acceptance unless the debtor or a secondary obligor places the secured party's compliance in issue.

(2) If the secured party's compliance is placed in issue, the secured party has the burden of establishing that the collection, enforcement, disposition, or acceptance was conducted in accordance with IC 26-1-9.1-601 through IC 26-1-9.1-628.

(3) Except as otherwise provided in IC 26-1-9.1-628, if a secured party fails to prove that the collection, enforcement, disposition, or acceptance was conducted in accordance with the provisions of IC 26-1-9.1-601 through IC 26-1-9.1-628 relating to collection, enforcement, disposition, or acceptance, the liability of a debtor or a secondary obligor for a deficiency is limited to an amount by which the sum of the secured obligation, expenses, and attorney's fees exceeds the greater of:

(A) the proceeds of the collection, enforcement, disposition, or acceptance; or

(B) the amount of proceeds that would have been realized had the noncomplying secured party proceeded in accordance with the provisions of IC 26-1-9.1-601 through IC 26-1-9.1-628 relating to collection, enforcement, disposition, or acceptance.

(4) For purposes of subdivision (3)(B), the amount of proceeds that would have been realized is equal to the sum of the secured obligation, expenses, and attorney's fees unless the secured party proves that the amount is less than that sum.

(5) If a deficiency or surplus is calculated under IC 26-1-9.1-615(f), the debtor or obligor has the burden of establishing that the amount of proceeds of the disposition is significantly below the range of prices that a complying disposition to a person other than the secured party, a person related to the secured party, or a secondary obligor would have brought.

Please note that these statutes may have changed since the date of the repossession.

We lack the information to know if you suffered any damage due to the delivery of notice to the wrong address.

How do you know that their certified letter went to the wrong address?

[JennieL]

I requested and received a copy of the letter when I realized what had happened.

[aaron]

Back in 2002? Before or after the sale?

[JennieL]

In 2003 after the sale after I realized what they did and what my rights were.

[aaron]

Well, review the law provided above to identify possible counterclaims, and bring them in the pending lawsuit.