Expert: Regan Shinski - 3/2/2010

Question
I was sued by my finance company for not making my car payments. I filed an answer and asserted an affirmative defense that defects in the contract rendered it partially or entirely void.  Acting in pro per, I defeated a motion for summary judgment and expected to win at trial when they requested, and were granted, a dismissal without prejudice.  Now I'm worried they may try to repo the car, even though I have a good case that no money is owed.  Is this an option for them and should I request a restraining order?

Answer
Hello Michael:

You did not send this question to me but I saw it in the question pool.  I don't know how long ago you asked it or if you have resolved the question but I thought I would weigh in.

They can repo the car in most states without having to go to court first, so it is likely you are at risk of a repo if you haven't made payments as they think you should - I know there is obviously a disagreement on the payment issue - but if THEY think you missed payments they can repo.  This is assuming they still have a lien on the vehicle.  As long as they have the lien, you can be at risk.

Now you have options if they repo.  Most likely it seems you would sue them for an illegal repo based on the contract issue you mentioned.  I won't speak to the validity of your argument since I cannot see the documents.  However, this issue is going to have to be resolved at some point if the lien is in place and you are not making payments because they likely won't release the lien.  You will need that at some point to sell the car.  In some states, after exhausting repo efforts, they can even declare the vehicle lost or stolen and you won't be able to register or title it annually down the line.

So I'm not sure what you are trying to do?  If you are just trying to buy some time without making payments, you can continue stalling tactics or wait for them to make the next move.  However, if you think your argument is solid and you "expected" to win, why not sue them to get a clean title?  Why would you want a restraining order if you are right?  I'm not being sarcastic, but I would be hopping mad because they have a lien on a vehicle that you think is yours clean and free.

Regarding the restraining order, I do not think it would be granted unless they have no claim to the vehicle or are acting in a threatening or harassing way.  They have the claim to the vehicle with the lien and you have not mentioned threatening, harassing, or illegal actions on their part so I do not think it would be granted.  YOUR court option is not a restraining order but a lawsuit to get their name off the title as a lien holder.

Good luck and good work so far.  Make up your mind if you want the status quo or if you have enough confidence in your case to get the lien cleared.

Regan