In Gay v. Alliant Credit Union, 2017 WL 35704, at *4 (E.D.Mo., 2017), Judge Fleissig said that a creditor need not repossess a boat or bear liability once it sunk. The debtor still owed the money.
In Count II, Plaintiff alleges that Defendant violated the UCC, as codified by Missouri, Mo. Rev. Stat. § 400.9-609, by “promising that it would repossess the boat and by allowing the boat to sink.” (Doc. No. 4 at 5.) The particular section of the UCC relied upon by Plaintiff deals with a “secured party’s right to take possession after default,” and provides that a secured party “may take possession of the collateral…without judicial process, if it proceeds without a breach of peace.” Mo. Rev. Stat. § 400.9-609(b)(2). Nothing in this section requires a creditor to take possession of the collateral; it simply prohibits a breach of peace if a creditor chooses to repossess without judicial process. Here, no repossession took place, and the Court has found no authority (and Plaintiff has cited none) to hold a creditor liable for a breach of peace for simply deciding not to repossess after previously indicating that it would do so. The Court will dismiss Count II.