Justice Dept. says tow company violated SCRA

[BlueJessamine]

Source: Navy Times

By Karen Jowers - Staff writer

The Justice Department alleges that a Norfolk company violated the Servicemembers’ Civil Relief Act by selling a Navy lieutenant’s car without a court order after he deployed to Iraq.

It is the first lawsuit filed by the Justice Department’s Civil Rights Division under the SCRA since the division was granted authority to enforce that law in 2006.

The complaint also alleges that Earnest A. Cooper, vice president of B.C. Enterprises, Inc., doing business as Aristocrat Towing, may have violated other service members’ rights under the SCRA.

The investigation began with a referral from the Navy to the Justice Department.

“Our men and women in uniform make great personal sacrifices to protect our nation overseas, and it is our responsibility to ensure that their rights are protected here at home,” said Grace Chung Becker, acting assistant attorney general for the Civil Rights Division, in a statement announcing the suit.




Read more: http://www.navytimes.com/news/2008/12/military_justicelawsuit_SCRA_121108w/

[Xithras]

1. Did the tow company know he was in Iraq?

That's what it will come down to. If they knew, they're screwed. If not, they'll get off.

My assumption is that it went like this: Virtually all apartment complexes have rules limiting how long an "unused" car can sit in a parking spot. He went to Iraq and left his car there, so the apartment complex had it towed. The tow company held it in storage for a couple months and auctioned it off for the fees owed (a legal right they possess in most states). Under the SCRA, the tow company would have needed a judges permission to execute the lien if the servicemember was deployed...BUT that restriction only exists if the tow company should have been reasonably aware that he was overseas. If the tow company was under contract to the apartment complex, they may have had no idea who, or where, he was.

[amdezurik]

2. I got a "the page has gone AWOL" message

if you saw it maybe you can fill in a couple of gaps. Did the complex have only general parking or some reserved for residents and if the former was it parked in one of those spaces? Did he notify the cmplex managers he would be deployed? If so THEY may be liable too.

[BlueJessamine]

3. "AWOL link"

from the article:


According to the complaint, filed Dec. 10 in U.S. District Court for the Eastern District of Virginia, in Norfolk, Lt. Yahya Jaboori deployed to Iraq in late March 2007.

Before he deployed, he parked his 1991 Acura, with military parking decals and stickers, at Centre Green Condominiums, where he owned and lived in a condominium.

On June 6, 2007, Aristocrat Towing towed his car. On July 28, 2007, the company, which is also a storage operation, sold the car at auction without obtaining a court order. The action was meant to enforce a storage lien that the company had placed on Jaboori’s property — which he could not pay, since he was deployed and knew nothing about what had happened.

The lawsuit asks the court to issue an order declaring that the company violated Jaboori’s rights under the SCRA, and preventing the company from violating the SCRA by enforcing a storage lien on any service member’s property during a period of military service, or for 90 days afterward, without a court order.

The Justice Department also seeks “appropriate monetary damages” for Jaboori and other identified victims.


link:

http://www.navytimes.com/news/2008/12/military_justicelawsuit_SCRA_121108w/

[amdezurik]

4. Ok they need to be screwed to the wall

IMHO. It seems he was parked in HIS spot and the towing company took it upon themselves to steal his car, and with the stickers on it there is simply no way they can claim they did due dillegance if they did not bother to find out. I hope they are sued into the ground.

[Xithras]

7. In most decent apartments, you can't just leave a car in "your" spot.

Many years ago when I was still an apartment dweller, I lived in several nice apartment complexes. The rules varied, but all required that cars be kept registered, operable, clean, and that they had to be moved regularly (one complex I was in required once every 14 days, another let you park them for up to 60 days). If there were cobwebs between the car and the concrete, a chalked tire would quickly follow.

My assumption, backed by personal experience (my roommate had his VW Bug towed from his parking spot because he parked it a few weeks when his tags expired), is that the apartment complex noticed that the vehicle looked abandoned and called in the tow company. Some complexes don't even need management approval for that sort of thing and just hand the responsibility over to security guards or the tow company directly. My mother in law lives in an apartment complex that does that today. All residents get stickers for their cars with numbers that match their spots. The tow company is preauthorized to tow any cars parked in resident spots without a sticker AND to tow resident cars that are parked in the wrong places. The tow company drivers generally cruise the parking lots looking for violators when they have no other calls.

Which still introduces the possibility that the tow company may have had no idea he was deployed. Base stickers prove nothing.

Here's my question...who was paying the rent? Didn't they notice the car was gone? Why didn't they contact the tow company for him?

[amdezurik]

8. a bit of a difference here

in a condo you buy you normally get a spot that you own. And if you have the proper sticker on it, and it is on private property (yours) and still registered then towing it can be seen as theft.

[Xithras]

10. That really depends on the condo complex.

Lots of condos have shared parking or treat all grounds outside of the actual dwelling as common space subject to HOA rules. I'm sure you've heard about HOA's taking people on regarding flagpoles, creches, and paint color choices. Most also have rules about your cars. Again, that's assuming that the condo complex didn't just have common parking in the first place.

There are really too many details here to know exactly what happened, but unless these guys are genuine crooks (in which case they'd already be in jail) I kind of doubt that they just randomly towed his car from a driveway.

[happyslug]

11. No such exception exists, it is the duty of the tow truck operator to find out

Ignorance of the service member's status is NOT a defense. Any legal action has to wait till the service member returns from Iraq OR the tow truck operator had to ask permission of his local Court for permission to do what ever is being asked. The tow operator did NEITHER and thus liable under the Act.

http://usmilitary.about.com/od/sscra/l/blscramenu.htm

Section 302 seems to cover this situation:
(1) PROTECTION AFTER ENTERING MILITARY SERVICE- After a service member enters military service, a contract by the service member for--

(A) the purchase of real or personal property (including a motor vehicle); or

(B) the lease or bailment of such property, may not be rescinded or terminated for a breach of terms of the contract occurring before or during that person's military service, nor may the property be repossessed for such breach without a court order.
http://usmilitary.about.com/library/milinfo/scra/bl302.htm

Notice the requirement in (1)(B) "nor may the property be repossessed for such breach without a court order."

That is the magic wording that the tow truck operator violated, he did NOT ask a court for permission for what he did. In such situations the tow truck operator tows the vehicle and then sells it for the towing and storage costs. This is done all the time. In almost all states no court action is needed, but if the person is subject to the SCRA then the tow truck operator had to petition a court, his local Common Pleas court would have been sufficient (But NOT his Local Justice of the peace or similar court). All he had to show was the car was legally towed, and he had the legal right to sell it for the costs. The court has duties at that point to protect the Service member (and his or her family) including any equity defense (even if such equity defense is NOT permitted by State law). The court has to step in an protect the service member, even if he or she can NOT be present. The court can order the Car sold, but can also add any other act to make the act more equitable. If the tow truck operator had filed with the local court and obtained a court order to dispose of the car not problem, but the tow operator did not and the Justice Department can step in and enforce this statute.

[Xithras]

12. Common law has exceptions for "reasonableness".

Under the scenario you are providing, tow operators would be under threat of lawsuit for EVERY car they sell, because it's impossible for them to determine with absolute certainty whether a towed car belongs to a deployed servicemember. You can't just call the base and say "Hey, is xxxx in Iraq right now?" They won't answer the question.

If they performed a reasonably diligent search for the owner, including sending letters to the address of record, and received no response or notifications that the person was even IN the military (much less serving overseas) then no judge is going to hold them liable. It is not reasonable to expect that every tow yard in the country hold every unclaimed impounded vehicle until the war is over.

Do you know many people in the military? One of the things they tell you BEFORE DEPLOYMENT is to have someone set up to handle your affairs while you're overseas. When my sister went to Iraq, she had her mail forwarded to my mom's home and gave my mother the legal authorization to act on her behalf. When bills and important letters came in, there was someone to read them and respond if needed. There were several instances, in her case, where my mom had to inform people that she was overseas and unreachable.

So the legal question still comes back to this: Did the tow yard perform due diligince to notify the owner, and is there any reasonable proof that the owner of the tow yard should have known that the owner was in the service? Is there any way that the owner could have known that the owner was in the service? If due diligence and notification were carried out by the tow yard and no response was received, I really doubt that a judge is going to hold them liable.

If the tow yard could have, or should have, known that the guy was in the service and sold it anyway, then there's a valid suit here. If there was no reasonable way for the tow yard to discover that fact, then their ignorance of his status IS a defense.

[happyslug]

13. That has been the problem with Solders and Sailors relief acts since the Civil War

And the courts have been consistent, the Act is in derogation of the Common law, but unlike most laws in derogation the Acts have been reviewed as remedial changes to the Common Law and given broad interpretation. When the act REQUIRES the tow Operator to get a Court Order, he has to. The Common Law makes no such requirements but the Act clearly does so.

Remember the Court (and the term "Court" is repeated throughout the act to reaffirm the concept that court permission is REQUIRED) and only a court can grant any of the REQUIREMENTS of the Act. The Courts have made it quite clear, ignorance of military status is NOT a defense. Read Section 302, it clearly says that "After a service member enters military service, a contract by the service member for--(B) the lease or bailment of such property, may not be rescinded or terminated for a breach of terms of the contract occurring before or during that person's military service, nor may the property be repossessed for such breach without a court order.

The primary reason for this wording is that the Government can NOT afford to have its service members worried about anything BUT their military duties, and if they are losing property do to the fact they are on active service will distract them from their military duties. The Courts accepted this concept and the only way for the concept to work is if someone brings it to the Court's attention. The act REQUIRES any plaintiff to make that known to the court and make a good faith effort to make sure the person is NOT in the military. Furthermore if the Service member learns of the action, he can request and the court MUST grant him a 90 day continence (and the court may do so on its own if the court finds out in any form, even by letter or e-mail). At the end of the 90 day period, the person's commander must report to the court on the availability of the Defendant to attend the hearing, and if the commander says the Service member can NOT attend, the continence is granted again till such time as the Commander informs the court that he can spare the service member AND the service member has leave time to attend the hearing.

None of this is possible if people do NOT take the case to Court, thus the Act requirements that any action be filed in Court BEFORE anything is acted upon. The act is clear on its face.

One last comment, the car in question had a Black Military base entrance Sticker on its bumper (that is reported in all most all of the reports on this incident that I have seen). Anyone who has every seen one knows what that sticker is. Furthermore when you no longer need that sticker it MUST BE TURNED BACK INTO THE MILITARY (Generally base security scrapes it off destroying the sticker but keeping enough to show it was turned back in). Thus there is no way anyone who lived near a military base and tows cars on a regular basis does NOT know what that means, the person who owns the car was active military. Since the Car was clearly marked it belonged to a person on active duty, the towing company had to ask permission of the court to sell that car.

Cannot find the source of the report that the car has a Black Military base sticker on it, but it was reported in one of the news article I read and if true there is no way the towing company did NOT have notice the owner was on Active Service.

[AndyTiedye]

5. Why Does "Aristocrat Towing" Hate America?

[LiberalFighter]

6. Why was his vehicle towed if he parked it where he owns a condo?

Who called to have the vehicle towed?

[amdezurik]

9. sounds like one of the preditory towing companies

that swoop in and then try to black-mail you into buying your car back

[LiberalFighter]

14. If that's the case could they be charged with trespassing?