Editor's notes.

- In the light of the similarity of the provisions, decisions under former Article 9 are included in the annotations for this Code section. For a table of comparable provisions, see the table at the beginning of the Article.

Repossession though another holds legal title by bill of sale.

- This former section, which made provision as to right of holder of security instrument to possession of chattel upon default by maker, permits one who has right of possession to recover property from one who wrongfully deprives the right holder of possession, although a third person may hold legal title by bill of sale to secure debt. Chastain v. Consol. Credit Corp., 113 Ga. App. 225, 147 S.E.2d 807, later appeal, 114 Ga. App. 474, 151 S.E.2d 889 (1966) (decided under former Code Section11-9-503).

Possession proper.

- Summary judgment was properly entered for a credit union on an owner's claim for wrongful possession as the owner defaulted on the owner's agreement with the credit union by failing to pay the storage fees for the car, which resulted in a garageman's lien; under O.C.G.A. § 11-9-601(a), as the owner was in default, the credit union could, pursuant to O.C.G.A. § 11-9-609(a), take possession of the collateral, and under O.C.G.A. § 11-9-610, the credit union could sell it. Endsley v. Robins Fed. Credit Union, 267 Ga. App. 512, 600 S.E.2d 441 (2004).

Right to title.

- This former section gave broad rights to a secured party to repossess the secured property in order to sell or otherwise dispose of it upon default. At the time that a secured party forecloses on the secured property, it obtains the right of possession, not absolute title. Jeweler's Fin. Servs., Inc. v. Chapes, Ltd., 181 Ga. App. 872, 354 S.E.2d 200 (1987) (decided under former Code Section11-9-503).

Constructive possession.

- It was unnecessary for the creditor to exercise actual physical control of an automobile in order to repossess it. Rather, the creditor could, and did, repossess the automobile by taking constructive possession of it. Avery v. Chrysler Credit Corp., 194 Ga. App. 682, 391 S.E.2d 410 (1990) (decided under former Code Section11-9-503).

Remedy for breach.

- A breach of peace by the creditor does not bar all recovery on a debt. Rather, the remedy available to the debtor for creditor's misbehavior is recovery in tort for damages incurred. Emmons v. Burkett, 179 Ga. App. 838, 348 S.E.2d 323 (1986), rev'd on other grounds, 256 Ga. 855, 353 S.E.2d 908 (1987) (decided under former Code Section11-9-503).

Suing on contract after repossession but prior to selling collateral.

- Secured creditor's election to repossess collateral and then to file suit on contract without first disposing of the collateral was not improper under the terms of the sale contracts or of the UCC. ITT Terryphone Corp. v. Modems Plus, Inc., 171 Ga. App. 710, 320 S.E.2d 784 (1984) (decided under former Code Section11-9-503).

Trial court did not err in granting summary judgment to a bank, a secured creditor, that brought an action for money judgment on a note while holding the collateral pledged by a corporation and an individual because O.C.G.A. §§ 11-9-601(c) and11-9-609(a)(1) allowed a secured creditor in possession of a debtor's collateral to employ a number of different remedial steps until the debt was satisfied. Okefenokee Aircraft, Inc. v. Primesouth Bank, 296 Ga. App. 782, 676 S.E.2d 394 (2009).

Breach of the peace.

- Where plaintiff's asserted abduction during the course of having plaintiff's car repossessed was unrefuted in the record, it could not be said as a matter of law that defendants' alleged conduct did not amount to a breach of the peace. Roach v. Barclays-American/Credit, Inc., 164 Ga. App. 616, 298 S.E.2d 304 (1982) (decided under former Code Section11-9-503).

The Court of Appeals could not say as a matter of law that creditor's entry into the business premises was in breach of the peace since, because debtor was not present at the time, there was no evidence of "accompanying incitement to immediate violence," nor "unequivocal oral protest of the defaulting debtor." Emmons v. Burkett, 179 Ga. App. 838, 348 S.E.2d 323 (1986), rev'd on other grounds, 256 Ga. 855, 353 S.E.2d 908 (1987) (decided under former Code Section11-9-503).

In an action by a debtor against a creditor-bank, recovery service, and independent contractor hired by the recovery service to repossess the debtor's car, circumstances of debtor's resistance to the seizure by the contractor created genuine issues of material fact as to the debtor's claim for breach of the peace, and both the bank and recovery service could be held liable for damages based on a finding that the contractor breached the peace. Fulton v. Anchor Sav. Bank, 215 Ga. App. 456, 452 S.E.2d 208 (1994).

Trial court erred in granting summary judgment in favor of a creditor as to whether it could be held vicariously liable for an independent contractor's acts in attempting to repossess a debtor's car because the creditor had a non-delegable statutory duty under O.C.G.A. § 11-9-609 to not breach the peace in repossessing the car, and if the contractor's attempt to repossess the car was in violation of the statute, the creditor would be chargeable with that conduct since it was done in violation of a duty imposed upon it by statute; there is nothing in § 11-9-609 that allows a secured party to avoid liability for a wrongful repossession by simply delegating this duty to an independent contractor. Lewis v. Nicholas Fin., Inc., 300 Ga. App. 888, 686 S.E.2d 468 (2009).

Pre-default rights waiver ineffective.

- Guarantor's waiver of an affirmative defense of commercial unreasonability prior to a debtor's default on a loan made in participation with business organization was ineffective since pre-default waiver of rights under was invalid under the former provisions. United States v. Contestabile, 989 F.2d 463 (11th Cir. 1993) (decided under former Code Section 11-9-503).

Cited in Moody v. Nides Fin. Co., 115 Ga. App. 859, 156 S.E.2d 310 (1967); Barnes v. Reliable Tractor Co., 117 Ga. App. 777, 161 S.E.2d 918 (1968); Atkins v. Citizens & S. Nat'l Bank, 127 Ga. App. 348, 193 S.E.2d 187 (1972); White Stores, Inc. v. Meadows, 127 Ga. App. 841, 195 S.E.2d 198 (1973); Trust Co. v. Montgomery, 234 Ga. 187, 215 S.E.2d 8 (1975); Trust Co. v. Montgomery, 136 Ga. App. 742, 222 S.E.2d 196 (1975); Ford Motor Credit Co. v. Milline, 137 Ga. App. 585, 224 S.E.2d 437 (1976); Philyaw v. Fulton Nat'l Bank, 139 Ga. App. 28, 227 S.E.2d 811 (1976); McCullough v. Mobiland, Inc., 139 Ga. App. 260, 228 S.E.2d 146 (1976); First Nat'l Bank & Trust Co. v. State, 141 Ga. App. 471, 233 S.E.2d 861 (1977); Ford Motor Credit Co. v. Hunt, 141 Ga. App. 612, 234 S.E.2d 112 (1977); Ford Motor Credit Co. v. Spicer, 144 Ga. App. 383, 241 S.E.2d 273 (1977); Marshall v. Fulton Nat'l Bank, 145 Ga. App. 190, 243 S.E.2d 266 (1978); Kyburz v. Cobb Bank & Trust Co., 241 Ga. 298, 245 S.E.2d 275 (1978); Ace Parts & Distribs., Inc. v. First Nat'l Bank, 146 Ga. App. 4, 245 S.E.2d 314 (1978); Baker v. Chrysler Credit Corp., 154 Ga. App. 325, 268 S.E.2d 722 (1980); In re Bagley, 6 Bankr. 387 (Bankr. N.D. Ga. 1980); International Harvester Credit Corp. v. Clenny, 505 F. Supp. 983 (M.D. Ga. 1981); Hambrick v. Fidelity Acceptance Corp., 159 Ga. App. 540, 284 S.E.2d 53 (1981); Robbins v. F & M Bank, 161 Ga. App. 53, 289 S.E.2d 288 (1982); Rush v. F & M Bank, 162 Ga. App. 65, 290 S.E.2d 164 (1982); Reis v. Ralls, 250 Ga. 721, 301 S.E.2d 40 (1983); Barney v. Morris, 168 Ga. App. 426, 309 S.E.2d 420 (1983); Barnett v. First Fed. Sav. & Loan Ass'n, 169 Ga. App. 396, 313 S.E.2d 115 (1984); Fidelity Nat'l Bank v. Wood, 178 Ga. App. 171, 342 S.E.2d 350 (1986); Moyer v. Citicorp Homeowners, Inc., 799 F.2d 1445 (11th Cir. 1986); Borden v. Pope Jeep-Eagle, Inc., 200 Ga. App. 176, 407 S.E.2d 128 (1991); Welch v. Ford Motor Credit Co., 227 Ga. App. 904, 490 S.E.2d 206 (1997); Atlantic Coast Fed. Credit Union v. Delk, 241 Ga. App. 589, 526 S.E.2d 425 (1999); Camelot Club Condo. Assoc. v. Afari-Opoku, 340 Ga. App. 618, 798 S.E.2d 241 (2017).

Secured party responsible for tortious acts committed by agents.

- Although secured party, through its agents, has right to peacefully enter premises and obtain its property, secured party is responsible for any tortious acts committed during repossession. Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 168 S.E.2d 827 (1969) (decided under former Code Section11-9-503).

Threats by agents to defaulting party.

- Threats to have plaintiffs arrested if they did not disclose the location of a vehicle they purchased to individuals who were hired to repossess the vehicle were insufficient by themselves to show that the individuals making the statements violated former O.C.G.A. § 11-9-503. Cornelius v. Nuvell Fin. Servs. Corp., 256 Ga. App. 171, 568 S.E.2d 82 (2002) (decided under former Code Section11-9-503).

Meaning of "breach of the peace."

- See Deavers v. Standridge, 144 Ga. App. 673, 242 S.E.2d 331 (1978) (decided under former Code Section11-9-503).

Absence of the debtor's knowledge or consent to repossession does not constitute a breach of the peace unless abusive and insulting language which incites violence is used or some other violation of the public peace, order, or decorum occurs. Hill v. Federal Employees Credit Union, 193 Ga. App. 44, 386 S.E.2d 874 (1989) (decided under former Code Section11-9-503).

"Self-help" mechanism does not create an agency relationship. Flournoy v. City Fin. of Columbus, Inc., 679 F.2d 821 (11th Cir. 1982) (decided under former Code Section 11-9-503).

Repossessor is not "custodian" under federal Bankruptcy Act.

- A secured creditor who repossesses a debtor's automobile without legal process under former subsection (3) was not a "custodian" within meaning of Bankruptcy Act of 1978, 11 U.S.C. § 101(10)(C), so as to require delivery of possession to the trustee in bankruptcy in accordance with 11 U.S.C. § 543(b). Flournoy v. City Fin. of Columbus, Inc., 679 F.2d 821 (11th Cir. 1982) (decided under former Code Section 11-9-503).

Insurers for repossession company entitled to recover from insurers of repossession management company.

- Insurers' claim that other insurers who had paid a judgment against both insureds for breach of the peace during a repossession under O.C.G.A. § 11-9-609 had no right of reimbursement because fault had not been apportioned under O.C.G.A. § 51-12-33 was rejected; the insurers had a right to recover contribution as subrogees. Renaissance Recovery Solutions, LLC v. Monroe Guar. Ins. Co., F. Supp. 2d (S.D. Ga. July 13, 2016).

Notice prior to repossession.

- Notice is not required prior to repossession absent prior agreement to the contrary. Fulton Nat'l Bank v. Horn, 239 Ga. 648, 238 S.E.2d 358 (1977); Hill v. Federal Employees Credit Union, 193 Ga. App. 44, 386 S.E.2d 874 (1989) (decided under former Code Section11-9-503).

Creditor's right to repossess exists independently of right to accelerate indebtedness, and notice is not required prior to repossession absent provision in agreement to contrary. Ford Motor Credit Co. v. Hunt, 241 Ga. 342, 245 S.E.2d 295 (1978) (decided under former Code Section11-9-503).

Repossession by agent of lending company is not a conversion, even though without notice to debtor. Thurmond v. Elliott Fin. Co., 141 Ga. App. 574, 234 S.E.2d 153 (1977) (decided under former Code Section11-9-503).

Notice where creditor indicates he will accept late payments.

- If creditor has given debtor reasonable impression that late payments will be accepted or that an arrearage need not be paid immediately, then creditor may be estopped to engage in self-help repossession until the creditor has given notice, demanded payment or otherwise indicated to debtor that the debtor is considered to be in default. Pierce v. Leasing Int'l, Inc., 142 Ga. App. 371, 235 S.E.2d 752, adhered to, 144 Ga. App. 312, 241 S.E.2d 31 (1977) (decided under former Code Section11-9-503).

Notice required where contract preempted by federal law.

- A mobile home financing contract which was silent with regard to foreclosure and repossession did not permit the creditor to repossess by self help without notice, or to foreclose upon seven-days notice pursuant to a writ of possession (O.C.G.A. § 44-14-232), for the simple reason that the parties intended to enter a contract preempted by federal law, which requires 30 days notice to a defaulting debtor prior to repossession or foreclosure. Grant v. GECC, 764 F.2d 1404 (11th Cir. 1985), cert. denied, 476 U.S. 1124, 106 S. Ct. 1993, 90 L. Ed. 2d 673 (1985) (decided under former Code Section11-9-503).

Sale of property by secured party without notice.

- In action for conversion of mortgaged property, instruction that secured party had no right to sell property if no notice was given was erroneous, as the U.C.C. does not prohibit sale without notice, but rather provides that a debtor is entitled to recover any loss caused by such a sale, that is, a loss caused by a sale at a less than adequate price, and is also protected from any action by secured party to recover any deficiency between sale price and balance owing. Trust Co. v. Kite, 164 Ga. App. 119, 294 S.E.2d 606 (1982) (decided under former Code Section11-9-503).

Editor's notes.

- In the light of the similarity of the provisions, opinions under former Article 9 are included in the annotations for this Code section. For a table of comparable provisions, see the table at the beginning of the Article.

Notice not required prior to repossession.

- Prior to taking possession of the collateral, the security interest holder is not required to give notice to the debtor absent prior agreement to the contrary. 1990 Op. Att'y Gen. No. 90-8.

Am. Jur. 2d.

- 68A Am. Jur. 2d, Secured Transactions, §§ 121, 230, 590 et seq.

C.J.S.

- 72 C.J.S., Pledges, §§ 49, 50.

U.L.A.

- Uniform Commercial Code (U.L.A.) § 9-609.

ALR.

- Right of chattel mortgagee to take possession of property without legal process, 57 A.L.R. 26.

Demand for payment or for possession as a condition of seller's right to retake property or otherwise enforce forfeiture under conditional sale, 59 A.L.R. 134.

Right of bank to charge depositor's indebtedness against deposit account without first exhausting collateral, 96 A.L.R. 1240.

Rights and remedies as between parties to conditional sale after seller has repossessed himself of the property, 99 A.L.R. 1288.

Right of conditional seller to retake property without legal process, 146 A.L.R. 1331.

Payment or discharge of principal obligation as affecting right of the pledgee to sue or continue pending suit against the maker of the collateral pledged, or judgment previously recovered on the collateral obligation, 157 A.L.R. 261.

Conditional sale: what amounts to waiver by buyer of seller's duty to give notice before repossessing the property, 174 A.L.R. 1363.

Construction of §§ 301 and 700 of Soldiers' and Sailors' Civil Relief Act of 1940, as amended, relating to instalment contracts for purchase of property, 24 A.L.R.2d 1074.

What conduct by repossessing chattel mortgagee or conditional vendor entails tort liability, 99 A.L.R.2d 358.

Validity, under state law, of self-help repossession of goods pursuant to UCC § 9-503, 75 A.L.R.3d 1061.

Secured transactions: Right of secured party to take possession of collateral on default under UCC § 9-503, 25 A.L.R.5th 696.