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Westbrook v. Nasa Federal Credit Union

United States District Court, N.D. Alabama, Northwestern Division

March 28, 2018

NASA FEDERAL CREDIT UNION, et al., Defendants.



         Alice 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.[1] For the reasons explained more fully below, the motion is due to be granted.


         Under 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, the-defendant-unlawfully-harmed-me accusation.” 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).

         Federal 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.


         Westbrook's 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.

         III. ANALYSIS

         Westbrook pleads claims of negligence (Counts I and IV), wantonness (Count II and V), and conversion (Count III) against NASA.[3] Id. at 4-7. NASA has moved to dismiss, contending that Westbrook lacks standing to challenge the repossession. Doc. 6.

         A. The Negligence and Wantonness Claims (Counts I, II, IV, V)

         Westbrook's 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).

         B. The Conversion Claim (Count III)

         Westbrook argues that she has standing to pursue her conversion claim due to a possessory interest in the vehicle.[4] 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, [5] 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).

         IV. ...

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