Monday, September 24, 2007

Even Ford Motor Credit has due process rights

The government can seize your automobile if it can show that the car played a role in your criminal conduct. The process is called civil forfeiture, and a series of cases over last few years in State and Federal court has outlined the due process that the govermment must afford the owner of the vehicle. But if you're making payments on the car, what about the due process rights of the company that retains a security interest in the vehicle, like Ford Motor Credit, Inc.?

In Ford Motor Credit, Inc. v. City of New York, decided on September 24, 2007, the Second Circuit (Walker, Hall and Cote) ruled that these companies also have rights, particularly since they still own the car until the driver pays off the loan. The problem for these companies is that civil forfeiture takes a long time, and during that lengthy process, the value of the car decreases while it sits in a secure parking lot somewhere on government property. So the Court of Appeals ruled today that "Ford Motor Credit has a property interest in the present value of a seized vehicle." That way, it can get the car back and sell it while the car still has value.

Having a property right in something means that the government must provide you due process in order to take it away. Due process is an elastic term, and the Constitution provides almost no guidance about what process is due when the government wants to strip you of a liberty or property interest. For this reason, due process law is really judge-made, based on the court's sense of fairness while recognizing the need for the government to go about its business without too much red-tape.

In the context of car forfeitures, the Court of Appeals held, in addition to the driver, Ford Motor Credit is also an "interested party" for purposes of receiving due process. The City argued otherwise, claiming that Ford Motor Credit is not in any position to help the prosecution prove its case against the driver. That may be true, the Second Circuit said, but Ford Motor Credit still has an interest in getting the car back as quickly as possible, and that financial interest means that it has the incentive to move the criminal case along quickly.

In the end, due process for Ford Motor Credit is as follows: if the company has a security interest in the seized vehicle, the government must allow it participate in the forfeiture action and the forfeiture action must commence within 25 days from Ford Motor Credit's demand for the vehicle.

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