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KANSAS COMMENT, 2010

1. Under the UCC, a secured creditor has the right to take possession of collateral without resorting to legal process if it can be done without a "breach of the peace." K.S.A. 84-9-609. This term is generally left to case law definition, but it raises delicate problems when it comes to repossessing furniture or other property that is within a home or apartment. The disputes that result from such a situation are rarely the type that get to the appellate courts for resolution. It is necessary, therefore, to make it clear that dwellings cannot be entered absent the consent of the occupants except under the supervision of the court. This section is subject to the limitations imposed by the preceding sections. That is, the creditor may not take possession of the collateral until after there has been a default (K.S.A. 16a-5-109) and the consumer has been given the notice and right to cure provided by K.S.A. 16a-5-110 and 16a-5-111.

2. If, instead of exercising self-help, the creditor opts to bring a replevin action under K.S.A. 60-1005 and 60-1006, the notice and hearing safeguards now found in those provisions will of course come into play. Here, too, however, the creditor may proceed in replevin only after default under K.S.A. 16a-5-109 and only after the notice and right to cure requirements to K.S.A. 16a-5-110 and 16a-5-111 have been satisfied.

Law Review and Bar Journal References:

"The New UCC Article 9 Amendments," Barkley Clark, 44, J.B.A.K. 131, 179 (1975).

"Summary Repossession, Replevin, and Foreclosure of Security Interests," Thomas V. Murray, 46 J.B.A.K. 93, 98 (1977).

"Creditor Beware: From Default Through Deficiency Judgment," Wanda M. Temm, 60 J.K.B.A. No. 8, 17, 19 (1991).

CASE ANNOTATIONS

1. Where second self-help repossession attempt occurs successfully without incident, totality of facts reveals no breach of peace. Wade v. Ford Motor Credit Co., 8 Kan. App. 2d 737, 741, 745, 668 P.2d 183 (1983).

2. Writ of execution did not permit officers to enter locked residence of defendant. State v. Reno, 260 Kan. 117, 127, 918 P.2d 1235 (1996).