by Shawn P. McClure, Esq.

While I subscribe to the belief that a secured lien holder should always know the location of its collateral, I understand that is essentially impossible to practice. Which is why a secured lien holder may some day find themselves in a position where they find their collateral in the possession of a third party. Often that third party is a garage looking to be paid for repairs, towing or storage with respect to the collateral.

Under Pennsylvania law, the secured lien holder is generally on the hook for repairs and towing charges. The theory being that the secured lien holder receives any benefit bestowed upon the collateral. However, a dispute often arises over storage fees. Particularly, where a garage stores the collateral and then makes no effort to inform the secured lien holder of the collateral’s location.

With typical charges of $25.00-$35.00 per day, these storage fees can quickly accumulate. A garage is entitled to any storage fees incurred after the secured lien holder gave “consent” to storing the collateral. Obviously, if the secured lien holder gave express consent to store the collateral, there is no issue. The problem arises in instances of implied consent. Implied consent will be found when the garage has sent notice to the secured lien holder that they have the collateral and the secured lien holder does not pick up the collateral.

However, most problems arise when express consent is not given and notice is not sent. The secured lien holder after months of contacting the Debtor about delinquent payments finally hears from the Debtor that the collateral has been at the local garage for months. So what does a secured lien holder do?

1. Immediately contact the garage and find out exactly what amount of money they are demanding. Obtain a break down of the charges identifying what is for repairs, towing, storage, etc. Also, find out what they are charging per day to store the collateral.

2. Immediately make a reasonable offer, in writing, to the garage to resolve the matter. Pennsylvania case law provides that if a garage declines a reasonable offer to a secured lien holder, then the garage cannot seek any storage fees if it is later found consent to storage did not exist.

3. It is usually best to settle. However, if the garage is unreasonable, then immediate legal action should be taken by contacting your creditors’ rights attorney.

The New York CLLA meeting is always busy.  This year, there was a buzz of excitement relating to a few areas.

First, everyone was taking about how the economy affects them.  For a group of collection and bankruptcy professionals, it was interesting to hear the dichotomy.  Pure collection folks (especially consumer collection folks) were bemoaning the reduction in collections.  Although they have more accounts, people are less able (willing?) to pay.  The commercial folks said the same things, but seemed a little more pessimistic.  Why?  In most places (with wage garnishment), the debtor will eventually get back to work.  A failed business is generally “failed” forever.  Those with creditor bankruptcy or workout practices were much more upbeat. They are busy (and making money).

Another area of “buzz” was the League’s Stategic Plan.  There was focused discussion and energy behind the movement of the Key Strategy Teams toward their first year objectives.  Click here to view the Plan.

Finally, there was an excitement around CLLA’s new Executive Vice President, Oliver Yandle.  Oliver is proving himself to be an asset in his very early weeks.  Now having been through one Fall meeting, I am sure he is even better position to help the CLLA reach its strategic goals and more.