United States District Court, N.D. Alabama, Middle Division
ROGER W. WATTS, JR., Plaintiff,
WELLS FARGO DEALER SERVICES, INC., Defendant.
OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE
case concerns Roger W. Watts, Jr.'s attempts to retain
possession of a BMW car for which he has not paid. This
matter is before the court on Defendant/Counter-claimant
Wells Fargo's Motion for Summary Judgment. (Doc. 60).
Wells Fargo moves for summary judgment on both Mr.
Watts's claims and its counterclaim for breach of
contract. Mr. Watts did not respond to the motion; therefore
Wells Fargo's facts are undisputed pursuant to the
court's requirements for summary judgment briefs in
Appendix II, referenced in the court's Scheduling Order.
(Doc. 22 at 5).
Standard of Review
judgment allows a trial court to decide cases when no genuine
issues of material fact are present and the moving party is
entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(a). When a district court reviews a motion for
summary judgment it must determine two things: (1) whether
any genuine issues of material fact exist; and if not, (2)
whether the moving party is entitled to judgment as a matter
of law. Id.
moving party “always bears the initial responsibility
of informing the district court of the basis for its motion,
and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Once the moving party meets its burden
of showing the district court that no genuine issues of
material fact exist, the burden then shifts “to the
non-moving party to demonstrate that there is indeed a
material issue of fact that precludes summary
judgment.” Clark v. Coats & Clark, Inc.,
929 F.2d 604, 608 (11th Cir. 1991). The court cannot grant a
motion for summary judgment merely because the nonmoving
party fails to respond; it “must consider the merits of
the motion” and “ensure that the motion itself is
supported by evidentiary materials.” United States
v. One Piece of Real Prop., 363 F.3d 1099, 1101 (11th
reviewing the evidence submitted, the court must view all
evidence and factual inferences drawn from it in the light
most favorable to the non-moving party. See Augusta Iron
& Steel Works, Inc. v. Emp'rs Ins. of Wausau,
835 F.2d 855, 856 (11th Cir. 1988) (citation omitted).
However, the non-moving party “need not be given the
benefit of every inference but only of every reasonable
inference.” Graham v. State Farm Mut. Ins.
Co., 193 F.3d 1274, 1282 (11th Cir. 1999) (citation
Factual and Procedural History
case centers on Mr. Watts's purchase of a 2011 BMW, VIN
WBAKC8C56BC434525, from CarMax on credit in May 2014. Wells
Fargo, a preferred lender for CarMax, loaned Mr. Watts $50,
363.40 at 9.9% interest to finance the purchase from CarMax.
Mr. Watts signed the Retail Installment Contract with CarMax;
the agreement specifically provided that the contract and Mr.
Watts's obligations to make payments under it were
assigned to Wells Fargo. Under the contract, Wells Fargo
retained a security interest in the car. The contract
provided that Mr. Watts would make monthly payments and that,
if he defaulted on those payments, Wells Fargo had the right
to repossess the vehicle. The contract also provided for an
award of reasonable attorneys' fees and court costs, not
to exceed 15% of the amount Mr. Watts owed at the time of
default and referral, incurred in collection or enforcement.
Mr. Watts made payments on that loan through June of 2015,
with those payments totaling $11, 239.15 of the $70, 438.80
he was scheduled to pay under the contract. In October 2015,
Wells Fargo apparently unsuccessfully attempted to repossess
Watts brought this lawsuit in November 2015 in state court.
Wells Fargo removed it to federal court in December 2015, and
Mr. Watts amended his complaint in May 2016. Mr. Watts's
“Amended Verified Fair Debt Collection Practicing Act
Complaint; Petition for Declaratory Relief and for
Compensatory and Punitive Damages” apparently asserts
two claims: one alleging that Defendant Wells Fargo violated
the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.
§ 1692 et seq., by failing to validate the debt
it claims Mr. Watts owes under the Retail Installment
Contract, and another stating that, under the contract, Mr.
Watts is the rightful owner of the vehicle and Wells Fargo is
indebted to him. Wells Fargo filed a Counter-complaint
alleging that Mr. Watts breached the Retail Installment
Contract and seeking a preliminary injunction to obtain
possession of the collateral as well as attorneys' fees
under the contract.
all evidence supported a breach of the contractual obligation
to pay on the loan for more than a year, this court granted
Wells Fargo's request for a preliminary injunction and
ordered Mr. Watts to turn over possession of the car to Wells
Fargo by noon on October 28, 2016. Mr. Watts failed to turn
over the car and, after a series of evasive measures on Mr.
Watts's part, including the filing of a bankruptcy case
that was dismissed, reinstated, and dismissed again, the
court found him in civil contempt of the court's Order on
March 23, 2017. The court ordered that Mr. Watts remain in
the custody of the U.S. Marshals until he surrendered
possession of the vehicle to the Marshals. He remains in
custody as of this date despite the court's repeated
admonitions to him, including as recently as May 15, 2017,
that he holds the keys to the jail.
extent Mr. Watts's Amended Complaint states a claim under
the FDCPA, that claim fails as a matter of law because Wells
Fargo is not a “debt collector” under the
statute. That a defendant is a debt collector comprises an
element of an FDCPA claim. Janke v. Wells Fargo &
Co., 805 F.Supp.2d 1278, 1281 (M.D. Ala. 2011) (quoting
Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355,
1360-61 (S.D. Fla. 2000)) (“In order to prevail on an
FDCPA claim, a plaintiff must prove that: . . . (2) the
defendant is a debt collector as defined by the FDCPA . . .
.”). The FDCPA defines a “debt collector”
as “any person who uses any instrumentality of
interstate commerce or the mails in any business the
principal purpose of which is the collection of any debts, or
who regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or due
another.” 15 U.S.C. § 1692a(6). The statute
explicitly excludes from that definition “any officer
or employee of a creditor while, in the name of the creditor,
collecting debts for such creditor.” Id. at
§ 1692a(6)(A). This exclusionary language has
universally been interpreted as applying to a creditor itself
and not merely officers or employees of a creditor.
E.g., Shedd v. Wells Fargo Bank, N.A., No.
14-0275-WS-M, 2016 WL 3264127, at *9 & n.16 (S.D. Ala.
June 13, 2016) (collecting cases). So the FDCPA by its clear
language excludes or does not apply to a creditor like Wells
the Retail Installment Contract, Wells Fargo owns the debt
owed to it by Mr. Watts; its attempts to collect on that debt
are those of a creditor who cannot be liable under the FDCPA.
Shedd, 2016 WL 3264127, at *8-9 (finding that Wells
Fargo was a creditor under § 1692a(6)(A) where it owned
the subject promissory note and mortgage); Johns v. Wells
Fargo Bank, N.A., No. 14-0254-KD-C, 2015 WL 9238957, at
*9 (S.D. Ala. Dec. 17, 2015) (finding that Wells Fargo was
exempt from liability under the FDCPA as a creditor because
it owned the debt on which it was attempting to collect);
Janke, 805 F.Supp.2d at 1282 (dismissing
plaintiff's FDCPA claim because Wells ...