United States District Court, N.D. Alabama, Northwestern Division
MEMORANDUM OPINION AND ORDER
K. KALLON, UNITED STATES DISTRICT JUDGE.
Westbrook brings this action against the Defendants asserting
a claim under the Fair Debt Collection Practices Act, 15
U.S.C. §§ 1692 et seq.
(“FDCPA”), and various state law tort claims.
Doc. 13. The court has for consideration NASA Federal Credit
Union's (“NASA”) motion to dismiss, doc. 6,
which is fully briefed, docs. 12, 17, and ripe for
review. For the reasons explained more fully
below, the motion is due to be granted.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations, ' but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Mere “labels and conclusions” or
“a formulaic recitation of the elements of a cause of
action” are insufficient. Iqbal, 556 U.S. at
678 (citations and internal quotation marks omitted).
“Nor does a complaint suffice if it tenders
‘naked assertion[s]' devoid of ‘further
factual enhancement.'” Id. (citing
Bell Atl. Corp., 550 U.S. at 557).
Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to state a claim upon which relief can be
granted. “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.”
Iqbal, 556 U.S. at 678 (citations and internal
quotation marks omitted). A complaint states a facially
plausible claim for relief “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citation omitted). The
complaint must establish “more than a sheer possibility
that a defendant has acted unlawfully.” Id.;
see also Bell Atl. Corp., 550 U.S. at 555
(“Factual allegations must be enough to raise a right
to relief above the speculative level”). Ultimately,
this inquiry is a “context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679.
FACTUAL BACKGROUND 
late husband was the owner of an automobile which NASA held a
lien on. Doc. 13 at 2. After her late husband died, Westbrook
informed NASA of his death and continued making payments on
the automobile. Id. at 2-3. Despite the note being
current, at NASA's direction, Defendant Twenty Four Seven
Towing repossessed the vehicle roughly five weeks after her
husband's death. Id. at 3. While an employee of
Twenty Four Seven Towing was repossessing the vehicle,
Westbrook confronted them, stating that the vehicle was not
in default and attempting to retrieve her personal items from
it. Id. at 3. The employee refused, causing
Westbrook to call the police, who allowed her to collect her
personal items from the car before the employee repossessed
it. This lawsuit followed.
pleads claims of negligence (Counts I and IV), wantonness
(Count II and V), and conversion (Count III) against
NASA. Id. at 4-7. NASA has moved to
dismiss, contending that Westbrook lacks standing to
challenge the repossession. Doc. 6.
The Negligence and Wantonness Claims (Counts I, II, IV,
negligence and wantonness claims are based on the
repossession of the vehicle while its note was not in default
and the alleged breach of the peace during the repossession.
Doc. 13 at 4-7. A wrongful repossession or a breach of the
peace injures the debtor. See Ala. Code §
7-9A-625(c). As a non-debtor, Westbrook has no standing to
bring negligence and wantonness claims on these bases against
NASA. Indeed, in the context of breach of contract and
conversion claims over the repossession of a vehicle in
similar circumstances, the Alabama Supreme Court has held
that the widow and son of a deceased vehicle owner have no
standing to assert claims arising out of the repossession.
Vest v. Dixie-Midwest Express, Inc., 537 So.2d 13,
14 (Ala. 1988). Alternatively, Westbrook has failed to
adequately plead the requisite injury necessary for her
negligence and wantonness claims. See doc. 13 at 3-7
(pleading only that NASA harmed her because she had to call
the police in order to retrieve her personal items from the
car and that she suffered embarrassment as a result);
Hilyer v. Fortier, 227 So.3d 13, 22 (Ala. 2017)
(“To establish negligence, the plaintiff must prove:
(1) a duty to a foreseeable plaintiff; (2) a breach of that
duty; (3) proximate causation; and (4) damage or
injury”) (citations and quotation marks omitted).
The Conversion Claim (Count III)
argues that she has standing to pursue her conversion claim
due to a possessory interest in the vehicle. More
specifically, Westbrook contends that “[s]ince [she]
paid and Defendant accepted payment from [her] on the
Vehicle, a new possessory interest was created and thus
giving [her] the standing to assert claims for the breach of
that possessory interest.” Doc. 12 at 5. However,
“[t]o be entitled to the right of recovery for
conversion, plaintiff must have general or special title to
the property in question, and the possession or
immediate right of possession.” Ex Parte
Talbott, 2015 WL 5725085, at *7 (Ala. Sept. 30. 2015)
(quoting Hamilton v. Hamilton, 255 Ala. 284, 289
(1951)) (emphasis added). Making voluntary payment on the
vehicle over the course of thirty-eight days, see
doc. 13 at 2-3, is insufficient to give Westbrook the general
or special title and possessory interest necessary for a
conversion claim. Indeed, Westbrook does not claim that she
had a legal title to the automobile-just a “present
right to possess the Vehicle” based on “Defendant
knowingly accept[ing] payment from [Westbrook].” Doc.
12 at 4. Even if Westbrook is correct that making a payment
gave her a possessory interest,  the lack of legal title to the
vehicle is fatal to her conversion claim. See McGee v.
McGee, 91 So.3d 659, 667 (Ala. 2012) (“[T]o
recover under the count of conversion, plaintiff must show
legal title in himself to the property at the time of the
conversion and his immediate right of possession”)
(citations, quotation marks, and emphasis omitted).