[00:00:11] Speaker 02:
Good morning.

[00:00:12] Speaker 02:
Just a moment, council, while we get settled here.

[00:00:15] Speaker 02:
Sure.

[00:00:16] Speaker 02:
No worries.

[00:00:29] Speaker 02:
All right, council, good morning.

[00:00:31] Speaker 05:
Good morning, and may it please the court.

[00:00:32] Speaker 05:
My name is Yitzhak Zellman, and I represent the plaintiff appellant, Vanessa Chavez.

[00:00:37] Speaker 05:
I'd like to reserve four minutes for a bottle, your honor.

[00:00:39] Speaker 02:
Thank you, council.

[00:00:41] Speaker 05:
Your Honors, this is a case involving a wrongful repossession.

[00:00:44] Speaker 05:
In Arizona, under the UCC, a secured creditor cannot proceed with a non-judicial self-help remedy if there's a breach of the peace.

[00:00:55] Speaker 05:
In this case, Your Honors, Ford sent the repos, as she mentioned, down to a grocery store parking lot in the middle of the afternoon where my client was shopping.

[00:01:03] Speaker 05:
Mr. Chavez, Robert Chavez, her husband, sought a repo man, confronted him, said, what are you doing?

[00:01:07] Speaker 05:
As soon as he heard it's a repo, said, you're not taking my car.

[00:01:10] Speaker 05:
calls his wife out of the store, Mrs. Chavez.

[00:01:13] Speaker 05:
She confronts the repossessionation, says, you're not taking my car.

[00:01:17] Speaker 05:
Was there a breach of the peace at that point?

[00:01:19] Speaker 05:
Yes.

[00:01:20] Speaker 02:
How?

[00:01:21] Speaker 05:
Well, Your Honor, breach of the peace is an elastic concept, right?

[00:01:27] Speaker 05:
And we look to a variety of triggers to see which of those fit the circumstances in that case.

[00:01:34] Speaker 05:
There's a slew of majority case law across the country.

[00:01:37] Speaker 05:
which stands for the proposition that when there is a verbal objection, a verbal confrontation between the repo man and the debtor, the repossession must stop because it's received.

[00:01:45] Speaker 04:
You're correct that some courts say that, but that's not the uniform rule.

[00:01:50] Speaker 04:
There are some courts that are pretty firm on the idea that a verbal objection standing alone is not enough.

[00:02:00] Speaker 04:
Isn't that correct?

[00:02:02] Speaker 05:
Absolutely, Your Honor.

[00:02:03] Speaker 05:
There's not a uniform rule.

[00:02:04] Speaker 05:
It is a majority and a minority position.

[00:02:06] Speaker 04:
So what happened after the Chavises said stop, don't do this?

[00:02:15] Speaker 04:
What happened that constituted a breach of peace?

[00:02:19] Speaker 05:
Well, they object, right?

[00:02:21] Speaker 05:
She keeps saying over and over again.

[00:02:22] Speaker 04:
After they object.

[00:02:24] Speaker 05:
Right.

[00:02:24] Speaker 05:
The repo man says, I'm taking this car anyway.

[00:02:26] Speaker 05:
She calls Ford to see if they can stop it.

[00:02:28] Speaker 05:
She's on the phone.

[00:02:28] Speaker 05:
She's crying and pleading with them.

[00:02:30] Speaker 05:
They're not willing to stop it either.

[00:02:32] Speaker 05:
She goes back to the repo agent, her and her husband again,

[00:02:34] Speaker 05:
arguing with this guy begging, please don't take the car.

[00:02:36] Speaker 05:
And he's like, I'm taking the car.

[00:02:38] Speaker 05:
And he ultimately repossessed the vehicle.

[00:02:39] Speaker 02:
How did he get the keys?

[00:02:42] Speaker 05:
The repossession agent said he got it from the Chavez's.

[00:02:44] Speaker 05:
She says she didn't hand it to them.

[00:02:46] Speaker 05:
Do we know how they got it?

[00:02:47] Speaker 05:
We don't.

[00:02:47] Speaker 05:
Many of these repossession companies, it's very easy to cut a new key.

[00:02:51] Speaker 05:
It's a lot when they need to.

[00:02:52] Speaker 05:
We don't know how they got it here.

[00:02:53] Speaker 05:
It is a dispute of fact.

[00:02:54] Speaker 05:
She says she didn't.

[00:02:55] Speaker 04:
It's not a matter of whether they cut a key or not.

[00:02:58] Speaker 04:
The facts that we have right now are that they wound up with the key.

[00:03:04] Speaker 04:
The repo people say she gave it to us.

[00:03:07] Speaker 04:
And what does she say?

[00:03:09] Speaker 05:
She does not remember giving it to them.

[00:03:11] Speaker 04:
Does she remember them taking it from her, unwillingly?

[00:03:15] Speaker 05:
She did not recall the key being handed over at any point.

[00:03:20] Speaker 05:
That's a testimony.

[00:03:20] Speaker 05:
Go ahead.

[00:03:21] Speaker 05:
So the point is, Your Honor, when the district court said, hey, I'm going to follow, I'm going to conclude as a matter of law that in Arizona, repossession in the face of oral opposition alone does not constitute a breach of the peace.

[00:03:33] Speaker 05:
he made two critical errors.

[00:03:34] Speaker 05:
The first, again, he said, I'm following the majority view on this.

[00:03:38] Speaker 05:
That is not the majority view.

[00:03:40] Speaker 03:
Now, in... Can I ask you, what rule are you asking for?

[00:03:43] Speaker 03:
Are you asking for any oral opposition?

[00:03:46] Speaker 03:
You know, as soon as they came out, if they said, I'm taking the car, and they say, I object, right there, that's a breach of the peace, and they have to stop?

[00:03:54] Speaker 05:
I'm not arguing for any bright-line rule at all.

[00:03:56] Speaker 05:
In fact, in the lower court on the defendant's motion for summary judgment,

[00:04:00] Speaker 05:
They said that a bright line rule would be antithetical to how the Arizona courts have addressed it.

[00:04:05] Speaker 03:
There hasn't been a bright line rule here, and I'm not asking for one today.

[00:04:08] Speaker 03:
Okay, so does your position depend on the nature of the exchange?

[00:04:12] Speaker 03:
Are you saying if the exchange is very heated, that could be a breach of the peace, but if it's just a disagreement over whether to take the car, that's not?

[00:04:21] Speaker 05:
What I'm saying is the courts consider a number of factors that are listed on page 18 and 19 of the respondents brief, including verbal confrontation, threats of law enforcement, reactions of third parties, that kind of stuff.

[00:04:34] Speaker 05:
And what I'm saying is, as happened in, let's say, Rand versus Porsche, the jury should be allowed to determine, apply these factors to these disputed facts and say, hey, under these circumstances, do we believe that there could be a breach of the peace?

[00:04:46] Speaker 05:
What facts are disputed here?

[00:04:48] Speaker 05:
Oh, I mean, all the actors are disputed.

[00:04:51] Speaker 05:
My client says she just objected to repossession over and over again.

[00:04:55] Speaker 02:
That's not disputed.

[00:04:57] Speaker 05:
Yeah, the repossession agent says that never happened.

[00:05:00] Speaker 02:
Repossession agent says... Okay, if we take that in the light most favorite of hers, she objected over and over again.

[00:05:04] Speaker 02:
Would that constitute a breach of the peace?

[00:05:07] Speaker 05:
In combination with the fact that she's crying in a public parking lot trying to stop this, in combination with the fact he grew very stern in her and raised his voice at her.

[00:05:14] Speaker 05:
over and over again, I'm saying a reasonable jury can look at these facts and say that would be a breach of the peace, Your Honor, even under the defendant's preferred definition of the term.

[00:05:23] Speaker 04:
At some point in the exchange, the confrontation, I think you would describe it that way, but the exchange between the two, she made a phone call to Ford Motor Credit, is that right?

[00:05:38] Speaker 05:
Yes, Your Honor.

[00:05:39] Speaker 04:
In an effort to see if she could go in and bring in the account current, correct?

[00:05:44] Speaker 05:
Yeah, they said she's behind a hundred bucks and she said I'll bring it tomorrow.

[00:05:49] Speaker 04:
Okay.

[00:05:50] Speaker 04:
How did she get the number to call FMC?

[00:05:55] Speaker 05:
I think she said she had it in her phone.

[00:05:57] Speaker 05:
If I recall the testimony correctly.

[00:05:59] Speaker 04:
Okay.

[00:06:00] Speaker 04:
I was under the impression that maybe the repo people gave it to her.

[00:06:04] Speaker 05:
I could be wrong.

[00:06:04] Speaker 05:
My understanding is I think she had it in her phone.

[00:06:07] Speaker 04:
And at some point,

[00:06:09] Speaker 04:
In the entire scenario, she was given an opportunity to retrieve her personal items from the car, correct?

[00:06:18] Speaker 05:
After the breach of the peace, Your Honor.

[00:06:19] Speaker 05:
After this confrontation.

[00:06:20] Speaker 05:
After he made it clear he's not listening to her.

[00:06:22] Speaker 04:
I'm trying to articulate my question in the best way I know how.

[00:06:27] Speaker 04:
After everything that you've described occurred, isn't it true she was allowed to get her personal items from the car?

[00:06:35] Speaker 05:
Yes.

[00:06:36] Speaker 04:
Okay.

[00:06:37] Speaker 04:
That's all I wanted to know.

[00:06:37] Speaker 02:
Is that consistent with the breach of the peace?

[00:06:39] Speaker 02:
They all of a sudden made nice again then after the breach?

[00:06:43] Speaker 05:
So Your Honor, under the Arizona statute, a repossession- Could you answer my question?

[00:06:48] Speaker 02:
Yes.

[00:06:48] Speaker 02:
Is that consistent with the breach of the peace that they peaceably went to her home to let her get her personal belongings?

[00:06:58] Speaker 05:
And the answer I was giving, Your Honor, was simply that

[00:07:01] Speaker 05:
The Arizona statute does not allow repossessions to proceed in breach of the peace.

[00:07:05] Speaker 05:
The second that peace is breached, it has to stop.

[00:07:08] Speaker 05:
If they make nice afterwards, if he apologizes afterwards, that's too late for that.

[00:07:11] Speaker 02:
We're trying to determine if there's a breach of the peace and we look at the totality of the circumstances.

[00:07:18] Speaker 02:
And so it's kind of incongruent to say there's a breach of the peace, but yet they followed her to her home or however they got there for her to get her possessions out.

[00:07:30] Speaker 02:
If there were a breach of the peace, I don't see that as following naturally from a breach of the peace.

[00:07:36] Speaker 05:
Well, so again, let's look at what the appellees have provided on appeal.

[00:07:41] Speaker 05:
In the response brief, they put forward a proposed definition of breach of the peace, which is conduct that either disturbs the public tranquility itself or that can reasonably be expected to provoke another to do so.

[00:07:54] Speaker 05:
You can find that on pages 17, 18, 30, and 32 of their brief.

[00:07:58] Speaker 02:
When there are criminal cases involving breach of the peace, generally that's what you have.

[00:08:03] Speaker 02:
Some disorderly conduct or something that threatens the peace of the public.

[00:08:08] Speaker 02:
So that's kind of the common law or traditional view of what a breach of the peace is.

[00:08:14] Speaker 02:
And so, you know, we're trying to figure out how that fits within this

[00:08:20] Speaker 05:
Certainly, and Your Honor, that's the point that I'm trying to make.

[00:08:23] Speaker 05:
If that's the definition that applies, Your Honor, we should have been allowed to go to a jury, and here's why.

[00:08:27] Speaker 05:
Courts across the country have recognized that a contested repossession, a confrontational repossession, when you're coming down and taking someone's car and they don't want you to take that car, they're begging it with you, please don't take the car.

[00:08:37] Speaker 05:
A lot of my clients are living out of those cars.

[00:08:39] Speaker 05:
This is how you get to the grocery store to get food, or how did it get to their jobskeeper roof over their heads.

[00:08:43] Speaker 04:
Is this a hypothetical description of what happened in this case?

[00:08:47] Speaker 05:
I'm just talking about a confrontational repossession in general, Your Honor.

[00:08:51] Speaker 05:
When there's a confrontational repossession, courts recognize those.

[00:08:53] Speaker 04:
People living in their cars or using their cars to find groceries are not part of the fact pattern of this case, are they?

[00:09:01] Speaker 05:
I mean, in this case, she was at the store to get groceries.

[00:09:03] Speaker 05:
She was at the Safeway.

[00:09:05] Speaker 05:
Okay.

[00:09:06] Speaker 05:
But Your Honor, what I'm trying to get at, courts across the country have agreed that these are inherently emotional, tense, and intense situations.

[00:09:12] Speaker 05:
that when a repossession continues over those objections, things can and often do go bad.

[00:09:18] Speaker 05:
And those are appellate judges and state court judges from across the country, including DeMari versus Riker in the Appellate Division in New Jersey in 1997, the Ford Motor Credit versus Ryan decision

[00:09:28] Speaker 05:
out of the Appellate Division in North Carolina, Ohio in 2010.

[00:09:31] Speaker 05:
The recent LaValley versus Skyland decision at the District of Massachusetts in 2025, and the less recent, but Sogan versus Alaska Federal Credit Union from the Western District of Washington in 2018, as well as the Holly Bush and Gable decisions from the federal and state courts of Wisconsin.

[00:09:47] Speaker 05:
The point that I'm getting at, Your Honor, is that these are deeply emotional situations, and when you're ignoring the debtor's objections, you're ignoring a likely source of escalation that often can and does lead to coverage.

[00:09:57] Speaker 03:
But I mean, I guess I'm having some of the same questions Judge Rollinson has.

[00:10:00] Speaker 03:
You know, when we look at what happened after, where the keys were handed over, there's not a claim that they were forcibly taken from her, and it seems like that is something she would recall if it had happened.

[00:10:11] Speaker 03:
And then, unusually, I think in all these cases, I mean, the cases all involve a little bit different facts, but the one fact that I didn't see in other cases is the repossession agent's actually taking her back to her home so that she could have time to take the items out.

[00:10:25] Speaker 03:
which, you know, if it was a fraught situation, I don't see why they would ever consider doing that.

[00:10:31] Speaker 03:
It's a somewhat dangerous job to be repossessing items like this, and I think these people have their own self-interests in mind where they definitely don't want to be hurt or worse over this.

[00:10:41] Speaker 03:
But the fact that they went back to the house, let her have the time to remove items, doesn't that shed some light on the whole interaction?

[00:10:48] Speaker 05:
Your Honor, I think what you're getting into is whether or not

[00:10:52] Speaker 05:
The disputed facts are, as they say or as we say, in terms of whether or not there was a confrontation.

[00:10:57] Speaker 05:
But the point is, under the law, once there is a confrontation, a breach, it stops there.

[00:11:03] Speaker 05:
The making nice afterwards doesn't allow you to push past all these objections and then say, oh, okay, but we're going to make it better for you now.

[00:11:12] Speaker 04:
Your position, I take it, is that when she said, don't repossess my car, or worse to that effect, that was a breach of peace.

[00:11:21] Speaker 05:
continuing to take the car when she said that was a breach of the peace.

[00:11:24] Speaker 05:
Ignoring her objections.

[00:11:27] Speaker 04:
Anything else?

[00:11:29] Speaker 04:
Once they say, OK, I understand you don't want us to do this, we're taking it anyway.

[00:11:33] Speaker 04:
That's a breach of the peace.

[00:11:34] Speaker 05:
What I'm saying is a reasonable jury can look at those facts and say, even under their definition, that this could reasonably be expected to provoke a disturbance at a public tranquility, which is how they define breach of the peace, Your Honors.

[00:11:46] Speaker 05:
And again, here's what I want to leave with this, Your Honor.

[00:11:51] Speaker 05:
The district court have said, at summary judgment, that this is not a breach of the peace and no reasonable jury could disagree with me.

[00:11:57] Speaker 05:
Nobody can find that this could disturb the public tranquility.

[00:12:00] Speaker 05:
When you have learned state and federal judges from the appellate and trial courts from across the country that have said yes, when you have this situation, you absolutely can conclude that there will be a breach of the public tranquility.

[00:12:09] Speaker 02:
It's not uniform.

[00:12:10] Speaker 02:
That's the problem.

[00:12:10] Speaker 02:
If every court had said that, you would have a stronger argument that they haven't.

[00:12:14] Speaker 02:
But we understand your argument.

[00:12:16] Speaker 02:
Do you want to save some time for rebuttal?

[00:12:17] Speaker 05:
The last 10 seconds, I'm just saying, it doesn't have to be uniform.

[00:12:21] Speaker 05:
all these judges can say so, then a reasonable jury here in Arizona can say that too.

[00:12:25] Speaker 05:
I'll say the rest.

[00:12:26] Speaker 04:
Thank you.

[00:12:38] Speaker 01:
Good morning, Your Honors.

[00:12:39] Speaker 04:
Good morning.

[00:12:40] Speaker 01:
My name is Tim Grimm and I am an attorney for Western International Recovery Bureau, the appellee's

[00:12:51] Speaker 01:
May it please the court.

[00:12:53] Speaker 01:
The question before this panel is very narrow, and it's whether the lower court erred when it found no evidence in the record that there was a breach of the peace when the appellant's car was repossessed over nothing more than her mere verbal protestations.

[00:13:08] Speaker 01:
That's it.

[00:13:10] Speaker 01:
Arizona answers that question, no.

[00:13:12] Speaker 01:
The national UCC majority rule answers it, no.

[00:13:15] Speaker 01:
And the district court below correctly refused to expand state law beyond these subtle limits.

[00:13:20] Speaker 04:
What is the consequence, do you think, for future repossession actions of establishing a rule that says a verbal objection is not enough?

[00:13:38] Speaker 04:
There must be some breach of the peace, some action, some activity that constitutes a breach of the peace.

[00:13:47] Speaker 04:
What's the consequence of adopting a rule like that?

[00:13:51] Speaker 01:
Well, we're looking at the plain language of the statute, the self-help statute.

[00:13:55] Speaker 01:
It says you can do this if you can do it without a breach of the peace.

[00:13:59] Speaker 01:
So if the only protestation is, don't take my car, then I would submit there is no consequence.

[00:14:06] Speaker 04:
So she throws herself on the hood of the car, we've got a breach of the peace.

[00:14:11] Speaker 00:
I would agree with that, yes.

[00:14:12] Speaker 04:
Okay, if she ties her arm to the door handle, that's a breach of the peace.

[00:14:16] Speaker 00:
Sure.

[00:14:16] Speaker 04:
She kicks the tires, that's a breach of the peace.

[00:14:19] Speaker 00:
I would agree.

[00:14:20] Speaker 04:
If she's abusive to the repossession agents, that's a breach of the peace.

[00:14:26] Speaker 01:
We're getting a little closer to the line, what is abusive?

[00:14:29] Speaker 04:
If they're abusive to her, dismissive of her, is that a breach of the peace?

[00:14:36] Speaker 01:
Again, close to the line.

[00:14:37] Speaker 01:
If they're merely dismissive, I would submit not.

[00:14:40] Speaker 02:
If they are swearing.

[00:14:41] Speaker 02:
If they're threatening, if there's threatening language, is that a breach of the peace?

[00:14:45] Speaker 01:
I would think so, yes.

[00:14:47] Speaker 01:
And that's not what we have here.

[00:14:49] Speaker 02:
We understand.

[00:14:50] Speaker 02:
We're trying to see where the line is in your mind.

[00:14:53] Speaker 01:
Sure.

[00:14:55] Speaker 01:
That's exactly where I am with this.

[00:14:58] Speaker 01:
If all it is is what you have in this case, don't take my car.

[00:15:01] Speaker 01:
I don't want you to take my car.

[00:15:03] Speaker 01:
And nothing more.

[00:15:05] Speaker 01:
There's no breach of the peace.

[00:15:06] Speaker 01:
Now, had she called the police?

[00:15:08] Speaker 03:
She was a little maybe more emotional.

[00:15:10] Speaker 03:
I know we're in court here.

[00:15:11] Speaker 03:
But she's probably a little more emotional than just don't take my car.

[00:15:14] Speaker 01:
You know, that's tough to tell on the record.

[00:15:17] Speaker 01:
From what we can tell in the record.

[00:15:18] Speaker 02:
She was crying.

[00:15:19] Speaker 02:
That's in the record, correct?

[00:15:20] Speaker 01:
Well, it is.

[00:15:21] Speaker 01:
That's emotion.

[00:15:22] Speaker 01:
The only time she was crying, though, was when she was on the phone with Ford.

[00:15:26] Speaker 01:
There's no evidence that she was crying at the repo guy.

[00:15:30] Speaker 01:
She was repeating, don't take my car.

[00:15:33] Speaker 01:
But there's no evidence that she was very emotional with him.

[00:15:36] Speaker 01:
In fact, the only evidence is from her testimony that he was very stern.

[00:15:39] Speaker 01:
And her husband described him as very strict.

[00:15:41] Speaker 04:
Can I ask you the same question I asked your friend on the other side?

[00:15:45] Speaker 04:
How did she get that number?

[00:15:47] Speaker 04:
Do you know?

[00:15:47] Speaker 01:
Does the record tell us?

[00:15:49] Speaker 01:
So the record tells us that when she came out and said, don't take my car, the repo man stopped and handed her a card with a number on it, presumably for it.

[00:16:01] Speaker 04:
That was my understanding.

[00:16:02] Speaker 01:
Yes.

[00:16:03] Speaker 04:
Thank you.

[00:16:05] Speaker 01:
But yeah, if there is something more than just don't take my car,

[00:16:10] Speaker 01:
Even if she had called the police, she had a phone.

[00:16:12] Speaker 01:
She could have called the police.

[00:16:14] Speaker 01:
Now there's an escalation in the case law.

[00:16:17] Speaker 01:
All the cases, in fact, not all of them, 98 percent of them.

[00:16:21] Speaker 01:
One of the considerations is whether there's police involvement.

[00:16:25] Speaker 01:
She chose not to call the police.

[00:16:26] Speaker 01:
Had she stood behind her car and said, you're not taking my car, that would have been something more than don't take my car.

[00:16:34] Speaker 01:
But none of that is present here.

[00:16:36] Speaker 04:
I'm trying to imagine a

[00:16:38] Speaker 04:
continuing legal education conference, or there are lawyers who represent secured creditors and those who represent insureds, and what they're telling an audience of lawyers, what to look for in a case or how to advise their clients on how to behave in a circumstance like this.

[00:17:04] Speaker 04:
Does the plaintiff bar say

[00:17:07] Speaker 04:
to the lawyers in the audience, your client's got to do something more than just object.

[00:17:13] Speaker 04:
Got to stand in the middle and physically prevent, throw herself on the hood of the car, take a swing at the repo agents.

[00:17:26] Speaker 04:
You see where I'm going.

[00:17:27] Speaker 01:
I do.

[00:17:28] Speaker 01:
And this is the kind of a fact pattern, I think, that lends itself well to the CLE analogy.

[00:17:32] Speaker 01:
because you can come up with so many examples like that.

[00:17:35] Speaker 01:
On one end of the spectrum, you've got someone who intentionally doesn't pay on their car, they see the repo guy coming out, they open their window and yell, don't take my car.

[00:17:44] Speaker 01:
Okay, well, that's one extreme where you say the mere protestation is enough.

[00:17:49] Speaker 01:
On the other end is someone throwing themselves on the car.

[00:17:52] Speaker 04:
I'm trying to imagine your friend on the other side, now that he's experienced this case, having a person in the same circumstance call him

[00:18:02] Speaker 04:
at the moment where the repo people are there to take the car and they're asking him, what do I do?

[00:18:09] Speaker 04:
What should his advice be?

[00:18:15] Speaker 04:
Throw yourself on the hood of the car, I think.

[00:18:18] Speaker 01:
You know, there are some of the cases that were cited by the appellant and even examined by the lower court.

[00:18:24] Speaker 01:
That happened where a repossession was coming and the debtor called their lawyer.

[00:18:32] Speaker 01:
the courts were holding, okay, now all of a sudden we have the lawyer telling the repo guy, don't take that car.

[00:18:39] Speaker 01:
Or at least advising the client or the debtor, don't take that car.

[00:18:43] Speaker 01:
Now we have something a little bit more than... That's a breach of the peace in your mind.

[00:18:49] Speaker 01:
I wouldn't say it's a breach of the peace, but we're getting closer.

[00:18:52] Speaker 01:
And again, just looking at the facts in this case, all we have is, don't take my car.

[00:18:59] Speaker 01:
Repeat it, don't take my car.

[00:19:05] Speaker 01:
So as you're aware from your hearing analyses, this panel's job is to predict what the Arizona Supreme Court might do in a case like this, because there's very little guidance.

[00:19:18] Speaker 01:
So the Arizona Supreme Court would start with the proposition that it must give effect to the self-help statute.

[00:19:26] Speaker 01:
And the self-help statute tells us that if there is a default, and the debtor here agreed that she knew she was behind on her payments,

[00:19:36] Speaker 01:
They can take possession of the collateral and do so without judicial process if it proceeds without a breach of the peace.

[00:19:43] Speaker 01:
We're not looking to speculate on could there be a breach of the peace.

[00:19:49] Speaker 01:
It was there.

[00:19:50] Speaker 01:
And in this case, the appellant's advancing this idea that because all repos are fraught with emotion and they're somehow volatile,

[00:20:03] Speaker 01:
that any protestation should be enough to put the brakes on it because you then risk some breach of the peace.

[00:20:10] Speaker 01:
I think that goes too far.

[00:20:11] Speaker 01:
There's no evidence here that that happened.

[00:20:15] Speaker 01:
And you can't assume that every repossession is somehow an emotional or volatile thing.

[00:20:21] Speaker 01:
And that certainly is not the case here.

[00:20:25] Speaker 03:
Does the record say anything about the practice of doing this not at the home?

[00:20:30] Speaker 03:
Because I know there's some cases that express concern with

[00:20:32] Speaker 03:
repossessions at homes.

[00:20:35] Speaker 03:
This was obviously done in a public place, but does the record say anything about your client's practices in this regard?

[00:20:40] Speaker 01:
I don't recall that it does.

[00:20:43] Speaker 01:
Now, there's a lot of the cases that describe that, and one of the factors they're using is whether there's a trespass.

[00:20:48] Speaker 01:
So if someone has their car parked in their driveway, and now the repo guy has to go onto the driveway, and they protest and say, don't take my car.

[00:20:56] Speaker 01:
Now you've got the protestation plus the trespass.

[00:20:59] Speaker 01:
So there's nothing in this case about that that I can recall.

[00:21:02] Speaker 01:
But the other case law talks about it.

[00:21:04] Speaker 01:
Would a trespass be a breach of the peace?

[00:21:08] Speaker 01:
I think you're getting closer.

[00:21:09] Speaker 01:
And honestly, from the cases that have been cited, probably.

[00:21:14] Speaker 01:
If you have a trespass plus.

[00:21:16] Speaker 01:
If you just have a trespass, would that be a breach of the peace?

[00:21:21] Speaker 01:
Well, in that case, probably not.

[00:21:23] Speaker 01:
Because in order for there to be a breach of the peace, you have to have a disturbance of the public quiet.

[00:21:30] Speaker 01:
And what you're talking about, I think, is appropriate.

[00:21:33] Speaker 02:
Isn't a trespass a crime?

[00:21:37] Speaker 02:
Well, yeah, it can be.

[00:21:39] Speaker 02:
So wouldn't that be a breach of the peace if you commit a crime to conduct a repossession?

[00:21:43] Speaker 01:
I don't think so, because a lot of the case law, or some of the case law, shows that certain things, certain crimes, like a DUI, can be a breach of the peace because the calamitous result that could come from it.

[00:21:56] Speaker 01:
But speeding is not held to be a breach of the peace.

[00:21:59] Speaker 01:
even though it can also have calamitous results.

[00:22:02] Speaker 01:
So when you're talking about a trespass, for instance, pulling up to someone's driveway to pull a car out of it, you're kind of talking about a covert repossession where the debtor doesn't even know about it.

[00:22:16] Speaker 01:
So in that case, just like speeding is not necessarily a breach of the peace, I don't know that that would be a breach of the peace.

[00:22:31] Speaker 01:
Now, as the Arizona Supreme Court would go forward and continue to analyze this, one of the things they would analyze is, we've already talked about the statute in the plain language of that, they would go into the objectives of the UCC as stated in UCC section 9-503.

[00:22:50] Speaker 01:
And that assigns purposes for the self-help statute.

[00:22:53] Speaker 01:
It tells us that the purpose of that statute is to benefit creditors in permitting them to realize collateral without resort to judicial process.

[00:23:01] Speaker 01:
To benefit debtors by making credit available at lower cost because the creditors don't have to go to court.

[00:23:08] Speaker 01:
And, of course, to support public policy, discouraging extrajudicial acts by citizens.

[00:23:14] Speaker 01:
In that, we have two that are militating for no breach of the peace in a case like this.

[00:23:22] Speaker 01:
We have one that says your primary concern should be safety.

[00:23:26] Speaker 01:
We have two that says let's be reasonable about this.

[00:23:31] Speaker 01:
The Arizona court would then look to Arizona cases.

[00:23:34] Speaker 01:
And as you're aware, there are not many on this topic.

[00:23:38] Speaker 01:
The Walker v. Waffle case was decided on different facts than was present here.

[00:23:43] Speaker 01:
But the appellate court held that a breach of the peace amounts to the debtor, or I'm sorry, the creditor, showing some kind of constructive force, intimidation or oppression.

[00:23:54] Speaker 01:
And I think we can agree there was none of that in this case.

[00:23:57] Speaker 01:
No fact here.

[00:23:59] Speaker 01:
as the lower court pointed out, suggests that anyone involved in the repossession use constructive force, intimidation, or repression.

[00:24:08] Speaker 01:
So the Arizona Supreme Court would then move on to other jurisdictions.

[00:24:18] Speaker 01:
We're looking to see if in the process of the repossession,

[00:24:22] Speaker 01:
Was there a disturbance of the peace or quiet of a neighborhood, family or person by loud or unusual noise, tumultuous or offensive conduct, threatening, producing, quarreling, challenging to fight or fighting, or applying any violent, abusive, or obscene epithets to another?

[00:24:41] Speaker 01:
I think we can agree that there was none of that in this case.

[00:24:44] Speaker 01:
The worst that we have is the plaintiff's or the appellant's testimony that there was a stern conversation, which I would submit does not amount to a breach of the peace.

[00:24:54] Speaker 01:
The lower court in that endeavor considered five factors to determine whether a breach occurred, which is where the repossession took place here, a public parking lot.

[00:25:03] Speaker 01:
The debtors expressed her constructive consent, which we may have constructive consent based on her handing the keys over and her making plans with her friend who was serendipitously in the parking lot and told him, hey, my car is getting repossessed.

[00:25:17] Speaker 01:
Can you give me a ride home?

[00:25:21] Speaker 01:
and the reactions of third parties, there's no evidence of reactions of third parties here.

[00:25:25] Speaker 01:
The type of premises entered, there was no premise entered.

[00:25:29] Speaker 01:
And the creditor's use of deception, there was no deception here.

[00:25:34] Speaker 01:
As you pointed out, there are no facts that are in dispute in this case.

[00:25:38] Speaker 01:
The lower court's 16-page order, it included a detailed recitation of the facts, and none of those are in dispute here.

[00:25:48] Speaker 01:
The appellant repeatedly mischaracterizes the facts in this case as tense and volatile, and there's no such support for that in the record.

[00:25:56] Speaker 01:
For example, we already discussed that the appellant claimed that she was crying.

[00:26:02] Speaker 01:
However, that's misleading.

[00:26:04] Speaker 01:
She only mentioned crying to the Ford people on the telephone.

[00:26:08] Speaker 01:
There's no record of her

[00:26:10] Speaker 01:
crying to the repo agent, and more to the point, there is no evidence of whether this crying was loud and wailing or silent.

[00:26:22] Speaker 01:
Ms.

[00:26:22] Speaker 01:
Chavez testified that she asked her friend Gary, who was serendipitously in the parking lot, to drive her home.

[00:26:27] Speaker 01:
Thus, she was making plans to accommodate the repossession.

[00:26:31] Speaker 01:
We discussed the fact that she got the keys to the repo guy voluntarily.

[00:26:40] Speaker 01:
And by the way, the VPRO guy's testimony about this is on the post.

[00:26:44] Speaker 01:
Ms.

[00:26:44] Speaker 01:
Chavez testified she has no idea how he got the keys.

[00:26:48] Speaker 01:
That means she doesn't know one way or the other.

[00:26:51] Speaker 01:
Ms.

[00:26:51] Speaker 01:
Chavez testified that she does not recall any foul language or physical contact, but the conversation was merely stern.

[00:26:58] Speaker 01:
There was no profanity, there was no insults, there was no threats.

[00:27:03] Speaker 01:
Based on this, would ask you to find that there was no reach of the pace and to uphold the lower court's order.

[00:27:09] Speaker 02:
All right, thank you, counsel.

[00:27:11] Speaker 02:
Rebuttal.

[00:27:16] Speaker 05:
Thank you, Your Honors.

[00:27:17] Speaker 05:
I would say that just to take some of those in reverse order, the testimony at ER 49 was I did feel threatened.

[00:27:23] Speaker 05:
I felt threatened they were going to take my car even though I didn't want them to.

[00:27:28] Speaker 05:
When we talk about the Sole Arizona Court of Appeals decision on this action, which is Walker versus Waltoff from 1978, there was a breach of the peace found there by the Court of Appeals even though there was no objection, no confrontation whatsoever.

[00:27:40] Speaker 05:
the repo agent came down with the uniformed deputy and said the reason was to prevent anticipated violence.

[00:27:47] Speaker 05:
And the court of appeals said that's still a breach of the peace because if we allowed this to happen, that would lead to the very volatile situations the UCC was meant to prevent.

[00:27:56] Speaker 05:
Judge Hawkins, you had a question about the consequences that would happen from a rule articulated upholding what the judicial court said, which is oral objection is not enough under a self-help statute.

[00:28:06] Speaker 05:
That's what's going to happen, Your Honor.

[00:28:07] Speaker 05:
It's going to lead to the very volatile situations that

[00:28:10] Speaker 05:
you used to see was meant to prevent.

[00:28:12] Speaker 05:
It's never been the rule in Arizona that those situations have to actually happen, not since the 70s from that Walker case, and not now in 2026.

[00:28:18] Speaker 05:
We shouldn't be going backwards.

[00:28:21] Speaker 05:
So it's not just that there was a stern conversation.

[00:28:24] Speaker 05:
The testimony is that he also raised his voice at Ms.

[00:28:28] Speaker 05:
Chavez when she continued to object.

[00:28:29] Speaker 05:
There was no constructive consent.

[00:28:31] Speaker 05:
She never said, this is OK.

[00:28:32] Speaker 05:
And you know what?

[00:28:33] Speaker 05:
You win.

[00:28:34] Speaker 05:
She objected till the moment he made it clear this is happening.

[00:28:38] Speaker 05:
One way or another, this is happening.

[00:28:39] Speaker 05:
And going back to that question about the CLE, what do we tell people?

[00:28:43] Speaker 05:
Do we tell people you need to fight the repo man?

[00:28:45] Speaker 05:
Is that the scenes we want to see playing out on the streets of Phoenix from now on?

[00:28:49] Speaker 05:
I mean, that's not the rule.

[00:28:51] Speaker 05:
It's not the rule now.

[00:28:52] Speaker 05:
It never has been the rule in Arizona, and it shouldn't be the rule going forward.

[00:28:55] Speaker 05:
But that's basically what we're going to start telling people, because people look to these courts for guidance.

[00:29:00] Speaker 02:
And if you're telling them.

[00:29:01] Speaker 02:
They don't have to fight people.

[00:29:02] Speaker 02:
They can, as Judge Hawkins said, they could just

[00:29:06] Speaker 05:
Put their bodies on the line.

[00:29:08] Speaker 02:
Put their bodies on the car.

[00:29:10] Speaker 02:
That's not fighting.

[00:29:11] Speaker 05:
But that's putting public safety at risk, Your Honor.

[00:29:12] Speaker 05:
And every time a court is considered, which one of those factors that my friend here just mentioned, the easy right to retake collateral or public safety, public safety wins every time.

[00:29:23] Speaker 05:
The courts I've cited today, including the Supreme Court from Texas in the M. Bing versus Sanchez matter, but also going all the way back to Blackstone and his commentaries in the 1700s.

[00:29:32] Speaker 05:
They have an easy right to retain collateral, but not at the cost of public safety.

[00:29:36] Speaker 05:
They can get it another day.

[00:29:37] Speaker 05:
They know where these cars are at all times.

[00:29:38] Speaker 05:
I just want to make this point.

[00:29:40] Speaker 05:
This GPS and these all modern cars have GPS for the most part.

[00:29:43] Speaker 05:
That's how Ford knew how to send WIRB down to a random grocery store parking lot in the middle of the day.

[00:29:47] Speaker 05:
They called them and said, where's the car?

[00:29:49] Speaker 05:
They said, oh, it's over there.

[00:29:50] Speaker 05:
And they came to get it.

[00:29:52] Speaker 02:
But the other, I mean, the statute does use a breach of the peace that has to mean something.

[00:29:59] Speaker 05:
Yes.

[00:30:00] Speaker 05:
adopting the defendant's proposed definition, which is all over their brief, it doesn't mean that the tranquility was already disturbed.

[00:30:08] Speaker 05:
No one ever says that, not the district court, not the defendants, and not in Walker where the disturbance wasn't actually disturbed.

[00:30:14] Speaker 05:
No one was disturbed.

[00:30:15] Speaker 05:
There wasn't a confrontation.

[00:30:17] Speaker 05:
It just, it has to be reasonably expected to provoke someone to disturb the public tranquility.

[00:30:23] Speaker 05:
And that's what you have here when you're taking people's cars and they don't want you to take them.

[00:30:26] Speaker 02:
All right.

[00:30:26] Speaker 02:
Thank you, counsel.

[00:30:27] Speaker 02:
Thank you both counsel for your arguments.

[00:30:30] Speaker 02:
The case is submitted for decision by the court that completes our calendar for the day and for the week we are adjourned.