The enforcement of liens by sale most often arises with motor vehicles. Thus, while liens can be imposed on a variety of types of property for a variety of reasons, this article focuses principally on motor vehicle liens. Such liens may arise from the owner’s failure to pay for vehicle repairs or to pay fees for the storage of the vehicle or other property. In still other cases, vehicles are seized and sold as a result of being abandoned or parked improperly, particularly during deployment or overseas military assignment of the vehicle owner.

However, enforcement of the lien by sale must comply with the applicable state law. Further, a federal law, the Servicemembers’ Civil Relief Act (SCRA) also imposes additional requirements when the lien is enforced against a servicemember (SM). Failure to comply with such requirements may expose the enforcing agent to liability and afford the victims with restitution and other remedies.

Scope Note. Procedures concerning real estate foreclosure and liens on real estate are beyond the scope of this article. Further, except concerning SCRA rights, the repossession and sale of vehicles subject to a security interest (as when a buyer fails to make a payment on a car loan) is also beyond the scope of this article.

QUESTIONS AND ANSWERS

1. Q. I am an active duty servicemember (SM) and took my car to a mechanic to get it fixed. The mechanic won’t let me take my car back until I pay the repair bill. The mechanic even threatened to sell my car. Can the mechanic really sell my car?

Yes. North Carolina law gives any person who is in the business of repairing, servicing, towing, or storing vehicles a lien to ensure payment [NCGS chapter 44A]. After the vehicle is sold, the proceeds of the sale are first applied to payment of the mechanic’s charges and the costs of the sale. The vehicle owner gets anything left over.

However, before such sale can take place, the mechanic must comply with North Carolina requirements and with the SCRA.

Further, threatening to take action that cannot be legally taken is a violation of North Carolina debt collection law. Therefore, a mechanic that threatens to sell your car without going through any legal procedures or misleads you into believing that your car can be sold whenever the mechanic wants, has violated the law. North Carolina has two debt collection statutes, one applicable to “debt collection agencies,” essentially companies in the business of collecting debts of others, (NCGS 58-70 et seq) and a separate statute applicable to creditors collecting their own debts (NCGS 75-50 et seq).

2. Q. What does North Carolina state law require before the mechanic or towing company can enforce the lien by sale?

Here are the basics.

First, the person holding the lien cannot bring an action against you until the repair bill has been unpaid for 30 days after due (or if a lien for towing and storage, the lien has gone unpaid for ten days from when it was due). Sometimes mechanics threaten to sell your car in 30 days. However, the mere passage of 30 days does not allow the mechanic to sell the car. At that point, the mechanic is only allowed to start a court action against you, not sell the vehicle.

Secondly, if the vehicle is one that is required to be registered, the lienor must notify the Department of Motor Vehicles (DMV) that it is asserting a lien. The DMV will then issue a notice to interested parties, including the vehicle owner (as “reasonably ascertainable”) of the proposed sale. The vehicle owner has ten days from the receipt of this notice to request a hearing prior to sale.

Thirdly, if a hearing is requested, the vehicle can be sold under North Carolina law only pursuant to a court order. The lienor must submit to the court clerk a proper application to sell the property. If the legal requirements have been met, the court clerk (special proceedings section) will issue an order authorizing the sale. If the vehicle owner fails to request a hearing within the time allowed, North Carolina laws authorizes the lienor to proceed to sale. (However, the SCRA, as explained later in this article, requires a judicial order when the lien is being enforced against a servicemember.)

3. Q. Are there any rules about how the sale is to be conducted?

Yes. The lienor may conduct either a private or public sale, both of which are subject to certain state requirements.

-A private sale can be conducted in any “commercially reasonable,” manner. If the lienor chooses a private sale of a motor vehicle, it must notify the DMV and, at least 30 days prior to the sale, must mail notice of the intended sale to interested parties, including the vehicle owner (as “reasonably ascertainable”).

-If the lienor chooses a public sale of a motor vehicle, it must, at least 20 days prior to the sale, notify the DMV and interested parties, including the vehicle owner. Further, if the vehicle has a value of $3,500 or more, the lienor must post a copy of the notice of sale at the courthouse door in the county where the sale will take place and publish notice of sale once a week for two consecutive weeks in a newspaper of general circulation in the county where the sale will take place. The date of the last newspaper notice must be at least five days before ethe sale.

4. Q. Is there any way I can get my vehicle back before the court hearing without paying the mechanic or towing company?

Yes. There are some complications, but basically, you can petition the court for return of the vehicle and pay the amount of the asserted lien to the office of the court clerk that will be hearing the case. The clerk can then order the lien holder to relinquish possession of the property to you. As a practical matter, you will probably need an attorney to represent you through this process.

5. Q. I have some personal property in a self-storage facility and am behind in my payments. The storage company is threatening to sell my stored property. Can they do that?

North Carolina law (NCGS 44SA-41) gives the self storge facility a lien on stored property for rent, expenses of preserving the property, and expenses of sale. So yes, the storage facility can sell your property to enforce the lien, but it must comply with the applicable state and federal requirements.

6. Q. What does North Carolina law require the self-storage facility to do before it sells my stored motor vehicle?

North Carolina law gives self-storage facility owners a lien on stored property [NCGS 44A-40 thru 49]. The lien ends when the storage facility relinquishes the property or when the storage fees are paid prior to sale.

The storage facility can not initiate any court action until the bill has been unpaid for 15 days after it is due. Further, if the lien is asserted against a motor vehicle, the storage facility must notify the DMV of intent to assert the lien. The DMV then sends notice to interested parties, including the vehicle owner. The DMV notice advises of a right to request, within ten days of receipt of the notice, a hearing to contest the validity of the lien. If there is a timely request for a hearing, the property can not be sold without a court order.

If no one requests a hearing, North Carolina law provides that the storage facility can sell the vehicle at public or private sale. (However, as explained later in this article, a judicial order is still required if the lien is to be enforced against a servicemember.)

7. Q. What does North Carolina law require the self-storage facility to do before it sells my (non-motor vehicle) stored household goods?

If the property in the self-storage facility is not a motor vehicle, the lienor can sell it only if:

-the unpaid bill is at least 15 days overdue, and

-the lienor issued a notice to interested parties (notice is presumed delivered when mailed to the renter’s last known address or to a verified email), and

-the notice describes the basis for the lien, identifies the property subject to the lien, advises of proposed sale of the property, and advises of the right to request a hearing concerning the validity of the lien within ten days of receiving the notice.

If a timely request for a hearing is made, the property can be sold only pursuant to a court order. If no such request is made, North Carolina law allows the lienor to proceed to public sale. (However, as explained later in this article, federal law still requires a court order when the lien is enforced against a servicemember.)

The property owner has the right of redemption; that is, the property owner can stop the sale by the self-storage facility by paying all the amounts due (NCGS 44A-44).

8. Q. When I deployed, I let my friend use my car. My friend parked it at his apartment complex in violation of the property manager’s rules. The property manager had the car towed. The towing company is now threatening to sell my car if I don’t pay the towing and storage fees. Can they do that?

Once again, the answer is yes, provided that the towing company complies with state and federal law.

9. Q. What does the Servicemember Civil Relief Act (SCRA) say about enforcement of liens by sale?

Section 3958 of the SCRA addresses the enforcement of storage and other liens (50 U.S.C. 3958). “Enforcement” of the lien generally means sale of the property upon which the lien is asserted. The SCRA says that the lien cannot be enforced against a servicemember during military service or for 90 days thereafter without a court order. So, even if your state allows such non-judicial sale, a court order is still needed to comply with federal law if the lien is being enforced against a servicemember.

Furthermore, in addition to requiring a court order to enforce certain liens against a servicemember, this section of the SCRA also says that the court shall, if requested by the servicemember, whose military service materially affects ability comply with the obligation that resulted in the court hearing, delay the proceedings as justice requires, or take other action to preserve the interest of all the parties.

10. Q. What kinds of liens does this section [50 U.S.C. 3958] of the SCRA apply to?

Even though entitled “Enforcement of Storage Liens,” the text of section 3958 provides that it is applicable to “a lien for storage, repair, or the cleaning of the property or effects of a servicemember or a lien on such property or effects for any other reason.”

11. Q. I got a loan to buy my car. The loan says that the lender has a security interest in the vehicle, and that if I fail to make timely payments, or otherwise default, then the lender can take various actions against me, like repossess the car or “accelerate” the loan. What does all that legal mumbo jumbo mean?

It is very common for consumers to finance the purchase of a motor vehicle. That is, you obtain a loan from the dealer or other lender to purchase the vehicle. The financing agreement identifies the amount borrowed, the annual percentage rate of interest, the monthly payment amount, the loan duration, and total paid after all the payments are made. The loan also declares a “security interest” in the vehicle. The fine print in the contract describes what is considered to be default and spells out actions the lender can take if a default occurs. These actions typically include repossession, force placing insurance, accelerating the loan, and selling the vehicle. Force placing insurance means that if you fail to insure the vehicle as contractually required, the lender can obtain insurance for you, probably at unusually high cost, and charge you for it. “Accelerating” the loan means that the lender can demand immediate payment not just of the next monthly payment, but of the entire loan.

12. Does SCRA section 3958 and its prohibition against non-judicial lien enforcement sales apply to the financing of motor vehicles?

It is unclear. The broad language of section 3958 says that it applies to “a lien for storage, repair, or the cleaning of the property or effects of a servicemember or a lien on such property or effects for any other reason.” However, at least one federal court has decided that section SCRA 3952 and not section 3958 applies to liens resulting from installment loans. Section 3952 requires the lender / lienor to obtain a court order to enforce a preservice contract against a servicemember (Whigham v Chase Auto Fin. Corp. 826 F. Supp. 2d 914 , E.D. VA. Oct. 5, 2011). According to this view, neither of the above mentioned SCRA provisions about lien enforcement apply to the vehicle finance contract unless the contract was initiated prior to military service.

13. Q. Do any other provisions of the SCRA impact lien enforcement and related court hearings?

Yes. The SCRA is designed to ensure that a servicemember doesn’t lose a civil case because military duties prevent the servicemember from attending the hearing. Therefore, the plaintiff in every civil case is required to file an affidavit (a fancy name for sworn statement) with the court indicating (a) that the defendant is in the armed forces, or (b) that the defendant is not in the armed forces, or (c) that the plaintiff is unable to determine whether the defendant is in the armed forces.

Military defendant with no notice. If the defendant is in the armed forces, has received no notice of the court proceedings, and has made no appearance before the court, the court cannot lawfully enter a default judgement against the defendant without first appointing an attorney to act on behalf of the defendant. The appointed attorney should contact the defendant, advise of the court proceeding, and determine whether the servicemember wants to ask for a delay of proceedings [50 U.S.C. 3951]. If the court enters a default judgement in violation of these provisions, the military defendant can later ask the court to set aside that judgement upon a showing that (a) the SCRA was violated, and (b) the defendant could have presented a meritorious defense had the defendant had an opportunity to be present.

Military defendant with notice. If the defendant is in the armed forces and has received notice of the court proceeding, the servicemember can request that the hearing be delayed so that s/he can attend. The request must indicate that the manner in which the servicemember’s duties materially affect ability to appear and identify when the defendant will be able to appear. The request must also include a letter from the defendant’s commanding officer stating that the defendant’s military duties prevent an appearance in court, and that leave will not be authorized for such an appearance. The better practice is that the CO letter should also indicate when the defendant will be able to appear in court. In response to a proper SCRA stay request, the court is required to delay proceedings at least 90 days, and longer if the court thinks it is necessary [50 U.S.C. 3952]. SMs are encouraged to consult their military legal assistance attorney to draft the letters from the defendant and the defendant’s CO for a delay of proceedings pursuant to the SCRA.

13. Q. What if the plaintiff files a false affidavit with the court that says the defendant is a civilian when the defendant is really a servicemember? Or files a false affidavit that says the defendant’s military affiliation can’t be determined even though the mechanic knows the defendant is in the armed forces?

It is a crime to knowingly file a false affidavit with the court, punishable by a fine and up to a year in prison [50 U.S.C. 3931(c)]. Additionally, if the court entered a default judgement based on the phony affidavit, the military defendant can request that the court set aside the judgement and in addition, can request the award of money damages that resulted from the plaintiff’s criminal action.

14. What effort does the plaintiff have to make to find out the defendant’s military status before filing an affidavit with the court declaring that it cannot determine the defendant’s military affiliation?

The text of the SCRA says that the plaintiff be “unable,” to determine military affiliation. However, the U.S. Supreme Court, for over half a century, has said that the SCRA should be interpreted liberally in favor of those it is designed to protect. Further, at least one federal court has determined that “unable,” be given its commonly understood meaning, an inability to perform (U.S. v Goines, E.D. NC, denial of motion to dismiss October 17, 2023) .

At a minimum, the plaintiff cannot ignore calls and emails from the vehicle owner claiming current active-duty service. Nor should the plaintiff ignore or fail to investigate obvious clues concerning military affiliation. Further, the better practice is that the plaintiff look-up the defendant’s military status through the Defense Manpower Data Center (DMCD) website. In fact, there appears to b a growing body of law and practice supporting this requirement.

15. Q. What the heck is the DMDC and how can plaintiffs use it to determine the defendant’s military service?

The DMDC hosts a website that can be used to look up whether a person is in the armed forces. To conduct the look up service, the applicant needs to know the name of the person in question, as well as the date of birth or social security number. Such information is commonly provided in applications for loans and other paperwork that the plaintiff may have access to. Once the subject’s information is input, the system will generate a certificate indicating whether the subject is a member of the armed forces.

16. Q. How else can the towing company get the vehicle owner’s name, social security number, or date of birth?

The towing company can establish an account with the NC DMV. The towing company can input the vehicle identification number into the DMV system to obtain the name and address of the vehicle owner.

The towing company can also establish an account with a commercial data broker service. Using the vehicle owner address and name obtained from the DMV, the towing company can obtain the subject’s social security number and / or date of birth.

The towing company can then use the SSN / DoB to make a DMDC request for subject’s military status.

17. Q. I think the towing company, mechanic, or self-storage facility violated the SCRA by failing to get a court order when required, by presenting a false affidavit to the court clerk, or by failing to take reasonable efforts to determine my military status. What can I do about these violations?

You can consult your military legal assistance attorney concerning these matters, advising of the particular facts and circumstances of your case. Bring any relevant documents, such as court papers, email traffic or correspondence, contracts, payment history, etc.

Also, if the facts warrant, you can make an online complaint to the U.S. Department of Justice Servicemembers and Veteran’s Initiative. The Department has successfully sued numerous people and businesses for alleged SCRA violations. If you want, you can read about those cases, also at the DoJ website. Type “Department of Justice Servicemembers and Veterans Initiative” into your internet browser.

In addition to using the website to make a complaint, you can also view previous SCRA cases brought by the Department of Justice. Open the “cases” tab and scroll down to view cases, starting with the most recent.

18. Q. I think the mechanic, towing company, or storage facility violated some aspect of North Carolina law. What can I do about that?

Consult your military legal assistance attorney, who will review the law and evaluate your case. The military legal assistance attorney can also make a demand for relief on the offending party. If the demand is unsuccessful, that attorney may be able to refer you to outside counsel who may be willing to represent you, and to determine if your case is one for which a pro bono (no cost) attorney can be obtained to represent you in litigation. The legal assistance attorney can also help you to complain to any relevant government enforcement agency.

Review

NC law authorizes various people to impose a lien on your property, including motor vehicles, in various circumstances for alleged failure to pay some related bill. The lien can be enforced through the sale of the property. However, to enforce such lien sale, the lienor must follow the required North Carolina procedures. In addition, federal law provides SMs with protection against default judgements and a right to delay proceedings when military service materially affects ability to appear. Furthermore, federal law requires a court order to enforce storage, towing, and mechanic’s liens against a SM, even if the state law does not. Such a court order is also required to enforce a preservice security interest, such as a preservice vehicle financing contract, against a servicemember. It is not entirely clear whether the SCRA requires a court order to enforce a security interest established after the commencement of military service.

SMs are encouraged to review such issues with their military legal assistance attorney or other competent legal counsel.

Rev 18 March 2024