Dist. Ct. erred in granting defendant-debt collector’s motion for summary judgment in plaintiff-debtor’s action, alleging that defendant wrongfully repossessed her car in violation of Fair Debt Collection Practices Act (FDCPA). FDCPA makes it unlawful for debt collector to take non-judicial action to repossess property if there is no present right to possession of said property. While plaintiff conceded that she had defaulted on car loan, and that debt collector had security interest in said car, there was triable issue as to whether defendant had present right to possess plaintiff’s car, where Indiana law authorized non-judicial repossession only if repossession “proceeds without breach of the peace.” Here, record contained some evidence as to whether breach of peace occurred, where: (1) plaintiff loudly objected and threatened defendant’s agent during repossession of her car; and (2) agent called police, who handcuffed plaintiff so as to allow agent to tow car away and then released plaintiff after car had been towed away. As such, if breach of peace had occurred, agent was required to immediately stop and seek judicial remedy rather than proceed to tow car away.
