493 F.

2d 739
14 UCC Rep.Serv. 1

Joyce SHIRLEY, Plaintiff-Appellant,

v.
STATE NATIONAL BANK OF CONNECTICUT, DefendantAppellee.
No. 222, Docket 73-1783.

United States Court of Appeals, Second Circuit.

Argued Dec. 10, 1973.
Decided Feb. 14, 1974.

Neal Ossen, Hartford, Conn. (Mary R. Hennessey, Robert Dombroff,

Hartford, Conn., on the brief), for plaintiff-appellant.
Francis J. McNamara, Jr., Stamford, Conn. (John F. Spindler, Robert W.
Worley, Jr., Fredric H. Weisberg, and Cummings & Lockwood, Stamford,
Conn., on the brief), for defendant-appellee.
Before KAUFMAN, Chief Judge, and MANSFIELD and MULLIGAN,
Circuit judges.
MULLIGAN, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the
District of Connecticut, Hon. Jon O. Newman, Judge, granting defendant's
motion to dismiss the complaint for failure to state a claim pursuant to 42
U.S.C. 1983 upon which relief can be granted. We agree with the district court
that the alleged conduct does not constitute state action and therefore affirm.

The plaintiff, Joyce Shirley, commenced this action on September 12, 1972,
seeking money damages, as well as a judgment declaring the Connecticut Retail
Instalment Sales Financing Act, Conn.Gen.Stat.Rev. 42-83 et seq., and, in
particular, section 42-98, unconstitutional. Section 42-98 provides that upon
default by a purchaser under a retail instalment contract, the holder of the
contract may repossess the goods without the requirements of any prior hearing

or of notice to the purchaser, if the contract expressly makes the default a

ground for retaking the property.
3

The complaint alleged that on or about October 7, 1971, the plaintiff entered
into a contract of conditional sale with Hart Volkswagen Corp. of West
Hartford for the purchase of a Ford Thunderbird. The contract provided for 24
monthly instalment payments by the plaintiff starting on November 1, 1971. In
the contract, plaintiff acknowledged receipt of an exact copy of the completed
and executed instrument. The contract on its face warned the buyer not to sign
if there were any blank spaces and advised the purchaser that she had the right
to pay in advance the full amount due and to obtain a partial refund of the
finance charge. The contract further advised that the purchaser had the right to
redeem the property if it was repossessed for default, as well as the right to
require, under certain conditions, a resale of the property. The contract defined
defaults, which included the failure to pay any part of the purchase price when
due. The plaintiff agreed to return the automobile in the event of default and
further acknowledged the right of the seller in such event, with or without
previous notice, to repossess the vehicle. On or about October 7, 1971, the
seller assigned the conditional sales contract to the defendant bank, State
National Bank of Connecticut. After seven instalments, the plaintiff defaulted
and made no payments for June, July or August, 1972. On or about August 23,
1972, the defendant repossessed the automobile.

On November 30, 1972, the defendant moved to dismiss the complaint for
failure to state a claim pursuant to 42 U.S.C. 1983 upon which relief could be
granted and for lack of subject matter jurisdiction under 28 U.S.C. 1343. On
April 2, 1973, Judge Newman, having heard the parties, dismissed the
complaint on the former ground, finding 'no action under color of state law.' On
April 3, 1973, the judgment appealed from was entered.

The initial, and here the key question is whether or not the defendant Bank's
peaceful repossession of the plaintiff's automobile on August 23, 1972,
constitutes 'state action' so as to support a claim under 42 U.S.C. 1983. Since
the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed.2d 835 (1883), it has
been recognized that the Fourteenth Amendment applies only to actions of the
'States' and not to actions which are 'private.' The 'under color of state law'
provision in section 1983 is equivalent to the state action requirement of the
Fourteenth Amendment. Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 n. 7,
90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); United States v. Price, 383 U.S. 787,
794-795 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966).

The Existence of state action appears significantly in prejudgment seizures

where a state official participates in the action which is the subject of

complaint. Thus, in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct.
1820, 23 L.Ed.2d 349 (1969), a court clerk's exparte issuance of a summons,
pursuant to a Wisconsin statute authorizing prejudgment garnishment of wages,
provided a sufficient intrusion of the State to constitute state action. In Fuentes
v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), state statutes
authorized creditors to initiate replevin procedures by summary writs issued by
state courts and executed by state officials. The seizure complained of here, on
the other hand, was by a private individual without the intrusion of state
process or state officials.
7

Nevertheless, it is established that a private person may act under color of law.
"To act 'under color' of law does not require that the accused be an officer of
the State. It is enough that he is a willful participant in joint activity with the
State or its agents.' United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 16
L.Ed.2d 267 (1966).' Adickes v. S. H. Kress & Co., supra 398 U.S. at 152, 90
S.Ct. at 1606.

Has there been any joint activity between the State of Connecticut and the Bank
in the repossession of the plaintiff's car? When the plaintiff purchased the
Thunderbird on credit, she agreed to make monthly payments over a two-year
period and on default agreed that the seller 'may, with or without legal process,
and with or without previous notice or demand for performance, enter any
premises wherein the chattels may be, and take possession of the same . . ..'
The plaintiff agreed in advance to the seizure of her vehicle. There was
therefore no conspiracy between the defendant and the State of Connecticut, but
rather a contract between the plaintiff and the defendant.

How then has the State of Connecticut become sufficiently implicated so that
the seizure can be interpreted as state action? Plaintiff argues that
Conn.Gen.Stat.Rev. 42-98(a)1 authorizes the retaking. But if the peaceful
repossession of the chattel authorized by the contract is valid in any event, how
does the statute constitute a state involvement? The first inquiry must be,
whether, absent a state statute, a Connecticut creditor would have the selfhelp
remedy complained of. There is nodispute but that under the common law of
Connecticut, the right of peaceful repossession without a hearing was
recognized.2 See Sager v. Schmidt, 98 Conn. 736, 120 A. 504 (1923);
Crompton v. Beach, 62 Conn. 25, 25 A. 446 (1892); Swift's Digest of Laws of
Connecticut 376-77, 468-69 (Dutton & Cowdrey Rev.1864). The statute in
Connecticut, therefore, does not create any right otherwise unavailable. But the
appellant argues that there is more than codification here; Connecticut now has
a detailed statutory scheme-- the Retail Instalment Sales Financing Act-- which

displays a strong concern for consumer protection.3 See Keyes v. Brown, 155
Conn. 469, 232 A.2d 486 (1967).
10

While Connecticut legislation unquestionably exists, we do not believe that this

in any way constitutes such a significant state involvement as to constitute state
action. The injury complained of here is the seizure of the plaintiff's car.
Paragraph 5 of the complaint, entitled 'Statement of Claim,' alleges that the Act,
'42-83 et seq., and in particular 42-98, enables creditors and their agents to
obtain immediate possession of goods from those lawfully in possession
thereof, without the requirement of any prior hearing or of notice to those in
said lawful possession.' But the statute did not authorize the seizure, as we have
pointed out. Actually, the statute made the seizure more difficult. Since the
passage of the Act, seizure can only be had if the seller has accorded the
purchaser all of the protection set forth in the statute.4 Thus, the State does not
encourage seizure, nor does it in any way aid or abet the seller. The partnership,
if any, is with the purchaser and not the defendant. See Adickes v. S. H. Kress
& Co., supra.

11

We see nothing in Coleman v. Wagner College, 429 F.2d 1120 (2d Cir. 1970),
relied upon by appellant, contrary to our position here. In Coleman, the State of
New York had moved into the field of private college disciplinary procedures
and enacted legislation, one purpose of which was 'to deter student disturbances
by the clear announcement of rules of conduct and of the penalties for
disobedience.' 429 F.2d at 1126 (Friendly, J., concurring). It was the imposition
of the disciplinary policy by the State which created the mischief complained of
and allegedly constituted state action (a proposition not determined in that
case). But here the Stat is not a 'joint participant in the challenged activity.'
Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 862,
6 L.Ed.2d 45 (1961). The state enactment was amelioratory not regressive; it
did not 'move in' on the plaintiff or other buyers, but rather on the instalment
sellers.5 See Fairfield Credit Corp. v. Donnelly, 158 Conn. 543, 264 A.2d 547
(1969), striking down waiver of defense clauses in consumer goods conditional
sales contracts.

12

We are reduced then to the proposition that the mere fact that the State has
legislated in the area of peaceful repossession constitutes sufficient
participation to be appropriately denominated 'state action.' As Chief Judge
Kaufman pointed out in Male v. Crossroads Associates, 469 F.2d 616, 621 (2d
Cir. 1972): 'Although the mere existence of a state or federal regulatory scheme
standing alone with nothing more is not sufficient to bring those regulated
within the scope of the Fourteenth Amendment, (see Moose Lodge No. 107 v.
Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972)), the regulation and

its extent must be considered in weighing the circumstances of each case.' In

Crossroads, we found that the State's 'demonstrated intention to regulate the
tenant selection procedures' (469 F.2d at 622), which there was the 'challenged
activity,' constituted state action. But here the decision to repossess is entirely
that of the seller; it is authorized by the agreement and the State, in our view,
plays no significant role.
13

The point is made decisively in Moose Lodge No. 107 v. Irvis, supra, where
the Pennsylvania Liquor Control Board, in licensing the Moose Lodge to serve
liquor, subjected the private club to detailed and extensive state regulation. The
Court there held that 'however detailed this type of regulation may be in some
particulars, it cannot be said to in any way foster or encourage racial
discrimination. Nor can it be said to make the State in any realistic sense a
partner or even a joint venturer in the club's enterprise.' 407 U.S. at 176-177, 92
S.Ct. at 1973. As we have indicated, since peaceful repossession existed at
common law in Connecticut, the mere codification of that right does not, in our
view, constitute state action. No delegation of traditional state power has been
granted to any private person.

14

Most of the States have passed and continue to enact legislation codifying and
defining the common law in the commercial law area. New York has a Law
Revision Commission, for example, which is charged with this responsibility.
Were the mere codification of common law sufficient to constitute significant
state involvement, then, of course, the door to Fourteenth Amendment intrusion
would be opened wide to continuing federal scrutiny. We find no support for
this proposition in the precedents which bind us. On the contrary, the
Connecticut statute under attack (section 42-98) is substantially the same as
section 9-503 of the Uniform Commercial Code which permits peaceful
repossession by a secured party upon default. The attack on this section of the
Code has already been mounted, and the same authorities have been discussed
and the same issues decided. The only federal courts of appeals which have
faced the problem have failed to find the significant state action required.
Bichel Optical Laboratories, Inc. v. Marquette Nat'l Bank, 487 F.2d 906 (8th
Cir. 1973); Adams v. Southern Cal. First Nat'l Bank, 492 F.2d 324 (9th Cir.
1973). Moreover, the vast majority of state and federal district courts, where
repossession of chattels by creditors has been challenged, have reached the
same conclusion.6

15

The appellant here relies upon Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct.
1627, 18 L.Ed.2d 830 (1967). That case involved an amendment to the
California State Constitution, which barred the State from placing any
limitation on the right of a person to dispose of his real property. The

amendment, in effect, created a State Constitutional right to discriminate,

repealing prior acts of the state legislature which had regulated racial
discrimination in housing. The Supreme Court held that this effectively
constituted state action which encouraged racial discrimination. The distinction
is clear. The State of California by express Constitutional Amendment
permitted what was formerly prohibited. Here the right to private repossession
always existed. Codification did not encourage the practice one whit. As we
have pointed out, the legislation made it less attractive by providing greater
safeguards to the consumer in the conditional sales contract.
16

Although we believe that this sufficiently distinguishes Reitman, as the court

noted in Adams v. Southern Cal. First Nat'l Bank, supra, at 333, 'we are not
convinced that the resolution of the state action question involving prejudgment
self-help repossession of secured property is controlled by a case involving
racial discrimination.' Judge Friendly has also argued 'that racial discrimination
is so peculiarly offensive and was so much the prime target of the Fourteenth
Amendment that a lesser degree of involvement may constitute 'state action'
with respect to it than would be required in other contexts . . .' Coleman v.
Wagner College, supra, 429 F.2d at 1127 (concurring opinion); see Friendly,
The Dartmouth College Case and the Public-Private Penumbra 26 (1968). See
also United States v. Wiseman, 445 F.2d 792, 795 n.3 and cases cited (2d Cir.),
cert. denied, 404 U.S. 967, 92 S.Ct. 346, 30 L.Ed.2d 287 (1971).

17

We see no other theory of state involvement here shich is possibly applicable.

We recognize that the problems involved in determining whether 'state action'
is present are not susceptible of solution by facile formulae. Our examination of
the Supreme Court decisions, as well as those of our own and other circuits,
compels the conclusion, however, that none is present here.

18

Finding no state action, we affirm, without reaching the dur process question.
IRVING R. KAUFMAN, Chief Judge (dissenting):

19

On or about August 23, 1972, the State National Bank of Connecticut seized a
Ford Thunderbird in the possession of Joyce Shirley without so much as
notifying her in advance, affording her an opportunity to abort the seizure at a
prior hearing, or, by any other means, obtaining her meaningful consent.1 My
brothers do not reach the question whether the Bank's conduct was in conflict
with the fundamental safeguards provided by due process because they, like the
court below, cannot discern the 'state action' requisite to establishing a violation
of the Due Process Clause of the Fourteenth Amendment. Since I am of the

view that the lawful non-consensual taking of property is a uniquely

governmental function, I consider its exercise, whether by state officials or by
private individuals so empowered, subjuct to the due process constraints
functionally required to avoid arbitrary deprivations. Accordingly, I must
respectfully dissent.
20

The linchpin of the majority's reasoning is that

21

. . . since peaceful repossession existed at common law in Connecticut, the

mere codification of that right does not, in our view, constitute state action. No
delegation of traditional state power has been granted to any private person.2

22

Indeed, this reliance on the creditor's right to repossess at common law is

highlighted by comparison of the instant holding with our recent decision in
Hernandez v. European Auto Collision, Inc., 487 F.2d 378 (2d Cir. 1973). In
Hernandez, we did not hesitate to reverse the dismissal of a complaint in an
action where plaintiff challenged the constitutionality of the sale provisions of
New York State's garageman's lien statute3 on the ground that the lienor's
power to sell the automobile without an opportunity for a prior hearing violated
due process. Yet, the only distinction, frail indeed, between this case and
Hernandez is that the private power to repossess existed at common law while
in Hernandez the lienor's right to sell the encumbered chattel did not.4 It is
inconceivable that the fundamental right to be free of arbitrary deprivations of
property should turn on the now disfavored theory of title passage5 upon which
the differing rights of the conditional seller and the lien holder rested at
common law. Instead, as one commentary aptly noted:

23

The fact that the law under attack is new and creates, rather than codifies,
common law rights should not change the inquiry. The focus for state action
purposes should always be on the impact of the law upon private ordering, not
the law's age or historical underpinnings. Unless the law in some fashion
significantly interferes with private ordering, the challenged conduct should not
be attributed to the state. To make state action turn upon whether the statutory
right being asserted has common law origins would lead to anomalous results.
The identical private conduct, pursuant to the identical state statutory or judicial
law, would be state action in some states while not in others depending solely
upon the fortuitous and unimportant circumstance of the age and history of the
law.

24

W. Burke & D. Reber, State Action, Congressional Power and Creditors'

Rights: An Essay on the Fourteenth Amendment, 47 S.Cal.L.Rev. 1, 47

(1973);6 Cf. New York Times Co. v. Sullivan, 376 U.S. 254, 265, 84 S.Ct. 710,
11 L.Ed.2d 686 (1964). Accordingly, unlike the majority, my analysis of the
'state action' question begins rather than ends with the observation that the right
of peaceful repossession without a hearing was recognized under the common
law of Connecticut.
25

In merely codifying the common law right of repossession, Conn.Gen.Stat.Rev.

42-98(a) faithfully incorporated the common law limitation on self-help,
namely, that it be 'without breach of the peace.' If peaceful repossession were
the equivalent of retaking with the consent of the property holder then I would
applaud the wisdom of our forefathers in recognizing that negotiation is a far
superior method of dispute resolution than is recourse to governmental
disposition. But, the private right of repossession under common law, and as
duly reflected by Conn.Gen.Stat.Rev. 42-98(a), was not so narrowly defined.
Peaceful repossession could also be effected, as indeed it was in this case, by
silence and stealth.7 It is this private, non-consensual taking, clothed in
legitimacy first at common law and now by statute, which I find utterly
inconsistent with and a total abdication of, the state's obligation to provide the
minimal safeguards of procedural due process before an individual can be
lawfully deprived of his property without his consent.

26

Why, after all, is the concept of due process considered so fundamental in our
American constitutional system? Justice Harlan, in speaking for a majority of
the Court in Boddie v. Connecticut, 401 U.S. 371, 374-375, 91 S.Ct. 780, 784,
28 L.Ed.2d 113 (1971), eloquently opined:

27

Perhaps no characteristic of an organized and cohesive society is more

fundamental than its erection and enforcement of a system of rules defining the
various rights and duties of its members, enabling them to govern their affairs
and definitively settle their differences in an orderly, predictable manner.
Without such a 'legal system,' social organization and cohesion are virtually
impossible; with the ability to seek regularized resolution of conflicts
individuals are capable of interdependent action that enables them to strive for
achievements without the anxieties that would beset them in a disorganized
society. Put more succinctly, it is this injection of the rule of law that allows
society to reap the benefits of rejecting what political theorists call the 'state of
nature.'

28

American society, of course, bottoms its systematic definition of individual

rights and duties, as well as its machinery for dispute settlement, not on custom
or the will of strategically placed individuals, but on the common-law model. It
is to courts, or other quasijudicial official bodies, that we ultimately look for

the implementation of a regularized, orderly process of dispute settlement.

Within this framework, those who wrote our original Constitution, in the Fifth
Amendment, and later those who drafted the Fourteenth Amendment,
recognized the centrality of the concept of due process in the operation of this
system. Without this guarantee that one may not be deprived of his rights,
neither liberty nor property, without due process of law, the State's monopoly
over techniques for binding conflict resolution could hardly be said to be
acceptable under our scheme of things. Only by providing that the social
enforcement mechanism must function strictly within these bounds can we
hope to maintain an ordered society that is also just. It is upon this premise that
this Court has through years of adjudication put flesh upon the due process
principle.
29

To be sure, Justice Harlan added that 'private structuring of individual

relationships and repair of their breach is encouraged in American life . . ..' Id.
at 375, 91 S.Ct. at 785. The crucial point, however, is that our system of laws is
bedrocked in the principle that the State has a 'monopoly over techniques for
binding conflict resolution.' Moreover, the decisive difference between 'binding
conflict resolution,' on the one hand, and 'private structuring and . . . repair,' on
the other, is the element of voluntary, mutual consent, the presence of which
permits the latter just as its absence requires the former. Accordingly, where, as
here, the creditor is empowered, whether by common law or by statute, to
unilaterally resolve a conflict, he is acting within a sphere reserved for the state
alone and, therefore, his power, like state power, must be fettered by the
restraints of due process.

30

Under the so-called 'public function' test, 8 then, self-help repossession is

infused with the requisite 'state action' because the creditor acts pursuant to a
grant of the state's monopoly power to lawfully seize a significant property
interest without the consent of the holder. I would reach the same conclusion
by applying the 'state action' analysis proffered by my brother Friendly in his
oft cited lecture, The Dartmouth College Case and The Public-Private
Penumbra (1968) at 18, since the '. . . private action (self-help repossession) has
resulted in a general and serious denial of values the (Fourteenth) Amendment
was meant to protect . . ..'9 Accordingly, finding the Bank's summary seizure of
plaintiff's auto permeated with the necessary 'state action,' I would reverse.

Section 42-98(a) provides:

When the retail buyer is in default in the payment of any sum due under the
retail instalment contract or instalment loan contract, or in the performance of

any other condition which such contract requires him to perform, or in the
performance of any promise, the breach of which is by such contract expressly
made a ground for the retaking of the goods, the holder of the contract may
retake possession thereof. Unless the goods can be retaken without breach of
the peace, it shall be retaken by legal process, but nothing herein contained
shall be construed to authorize a violation of the criminal law. In the case of
repossession of any motor vehicle without the knowledge of the instalment
buyer, the local police department shall be notified of such repossession
immediately thereafter. In the absence of a local police department or if the
local police department cannot be reached for notification, the state police shall
be promptly notified of such repossession.
2

The right of a holder of a conditional sales contract to exercise self-help

repossession had general recognition at common law. See McCall, The Past as
Prologue: History of the Right to Repossess, 47 S.Cal.L.Rev. 58 (1973), tracing
the history of self-help repossession back to Greek and Roman Law. The
remedy existed even absent a contractual provision granting the right. L. Jones,
The Law of Chattel Mortgages and Conditional Sales 1337 (6th ed. R. Bowers
1933). The principal limitation on its exercise was that the property had to be
retaken without a breach of the peace. W. Prosser, The Law of Torts 22, at 119
(4th ed. 1971)

Thus section 42-84 of the Retail Instalment Sales Financing Act sets forth a
number of provisions which must be included in all retail instalment contracts
and which are clearly calculated to make the consumer a more knowledgeable
purchaser and to provide him with contractual protections that would probably
be otherwise unavailable because of his lack of bargaining power. Section 4285 places limitations on finance charges where the sale involves a motor
vehicle. Delinquency and finance charges are collectible only in accordance
with section 42-91. Clauses providing for confession of judgment are void
under section 42-88. Section 42-96 provides for prepayment and refunds of
finance charges notwithstanding contrary contractual provisions. Finally,
section 42-96 provides for extensive and restrictive regulation of the creditor
upon default of the purchaser

See generally note 3, supra. See also Keyes v. Brown, 155 Conn. 469, 232
A.2d 486 (1967), regarding non-compliance with the Act and sections 42-99
and 42-100 providing penalties for willful violations

We do not overlook Conn.Gen.Stat.Rev. 14-181 (which is identical to section

16 of the Uniform Motor Vehicle Certificate of Title and Anti-Theft Act), relied
upon by appellant as evidence of state action. That section requires that where a
secured creditor transfers an automobile repossessed under a security

agreement, either he or the transferee deliver to the Commissioner of Motor

Vehicles the last certificate of title, an application for a new certificate, and an
affidavit by the creditor that the vehicle was repossessed and that the interest of
the owner was lawfully terminated. Aside from the fact that this section is not
even mentioned in the complaint, it has nothing to do with the seizure which is
the challenged activity here. It comes into play only after the seizure. The
purpose of the statute is to protect innocent purchasers of motor vehicles, to
protect the public by affording identification of vehicles and to keep records
current. If this constitutes state action then the recording of all real property
deeds and new motor car registrations would be the basis for Fourteenth
Amendment state action subject to review in the federal courts. See Burke &
Reber, State Action, Congressional Power and Creditors' Rights: An Essay on
the Fourteenth Amendment, 47 S.Cal.L.Rev. 1, 19-23 (1973)
6

District court cases holding that self-help repossession is state action include:
Boland v. Essex County Bank & Trust Co., 361 F.Supp. 917 (D.Mass.1973);
James v. Pinnix, 4 CCH Sec.Tr.Guide 52,172 (S.D.Miss. 1973); Gibbs v.
Titelman, 369 F.Supp. 38 (E.D.Pa.1973); Michel v. Rex-Noreco, Inc., 12 UCC
Rep.Serv. 543 (D.Vt.1972). Representative of reported district court cases
finding no state action are: Johnson v. Associates Finance, Inc., 365 F.Supp.
1380 (S.D.Ill.1973); Nichols v. Tower Grove Bank, 362 F.Supp. 374
(E.D.Mo.1973); Shelton v. General Elec. Credit Corp., 359 F.Supp. 1079
(M.D.Ga.1973); Colvin v. Avco Fin. Serv., 12 UCC Rep.Serv. 25 (D.Utah
1973); Pease v. Havelock Nat'l Bank, 351 F.Supp. 118 (D.Neb.1972); Kirksey
v. Theilig, 351 F.Supp. 727 (D.Colo.1972); Greene v. First Nat'l Exch. Bank,
348 F.Supp. 672 (W.D.Va.1972); Oller v. Bank of America, 342 F.Supp. 21
(N.D.Cal.1972); McCormick v. First Nat'l Bank, 322 F.Supp. 604
(S.D.Fla.1971). The two state supreme courts which have considered the
question have also found an absence of state action. Northside Motors v.
Brinkley, 282 So.2d 17 (Fla.1973); Brown v. United States Nat'l Bank, 509
P.2d 442 (Or.1973). See also Burke & Reber, State Action, Congressional
Power and Creditors' Rights: An Essay on the Fourteenth Amendment, 47
S.Cal.L.Rev. 1, 8 n. 490 (1973), for a compilation of lower state court and
unreported district court cases where the state action argument has been
rejected

As in Fuentes v. Shevin, 407 U.S. 67, 94-96, 92 S.Ct. 1983, 32 L.Ed.2d 556
(1972), the fact that the plaintiff signed a form contract which authorized selfhelp repossession will not immunize a seizure, under a waiver theory, where it
is otherwise defective because the property is seized without prior notice and
an opportunity for a hearing. The absence of consent in the taking itself cannot
be cured by resorting to the meaningless ritual of utilizing a contract of
adhesion in which the fine print, even if read, fails to mention that the debtor

has any right to a pre-seizure hearing

2

The majority's holding in Adams v. Southern Cal. First Nat'l Bank, 492 F.2d
324 (9th Cir. 1973), similarly rests on the premise that 'mere codification' of the
common law cannot supply the requisite 'state action.'

N.Y. Lien Law 200 et seq. (McKinney's Consol.Laws, c. 33, Supp.1972)

L. Hall, Possessory Liens in English Law 67 (1917)

See Uniform Commercial Code 9-202

Although I agree with the authors' reasoning, I cannot accept their resolution of
this anomaly-- to consider both self-help repossession and the sale of liened
goods outside the purview of the Due Process Clause. W. Burke & D. Reber,
supra, 47 S.Cal.L.Rev. at 46. Rather, in rejecting the attenuated subtleties that
dictated the respective rights of debtors and creditors at common law, I would
follow our holding in Hernandez v. European Auto Collision, Inc., supra, and
demand that the requirements of due process must be met here as well

Although we have before us only the bare bones of the complaint, it is

undisputed that the plaintiff was not notified in advance that her car would be
taken. Indeed, the car had been brought to a garage for repair and the plaintiff
was outside the state at the time of the repossession, according to the complaint

See Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966);
Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946); Smith v.
Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944); Hall v. Garson,
430 F.2d 430 (5th Cir. 1970); cf. Coleman v. Wagner College, 429 F.2d 1120
(2d Cir. 1970)

By adopting this functional approach, one can easily distinguish the instant
case from Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32
L.Ed.2d 627 (1972). Although the Fourteenth Amendment was not intended to
interfere with the private ordering of interpersonal relationships and indeed, the
tension between the First and Fourteenth Amendments in this respect is
wellrecognized, see, e.g., id. at 179, 92 S.Ct. 1965 (Douglas, J. dissenting), it
was clearly designed 'to protect (an individual's) use and possession of property
from arbitrary encroachment-- to minimize substantively unfair or mistaken
deprivations of property . . ..' Fuentes v. Shevin, supra, 407 U.S. at 81, 92 S.Ct.
at 1994, 32 L.Ed.2d 556. Self-help repossession, without consent of the debtor
whose property is seized, cannot fairly be characterized in any other way