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Westbrook v. Nasa Federal Credit Union

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

May 3, 2018

ALICE WESTBROOK, Plaintiff,
v.
NASA FEDERAL CREDIT UNION, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          ABDUL K. KALLON, UNITED STATES DISTRICT JUDGE.

         Alice Westbrook brings this action 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 Twenty 4 Seven Recovery, Inc.'s motion to dismiss, doc. 29, which is fully briefed, docs. 32, 33, and ripe for review. For the reasons explained more fully below, the motion is due to be granted solely as to the state law tort claims.

         I. STANDARD OF REVIEW

         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.

         II. FACTUAL BACKGROUND[1]

         Westbrook's late husband was the owner of an automobile financed through NASA Federal Credit Union. 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, a Twenty Four Seven employee repossessed the automobile roughly five weeks after her husband's death. Id. at 3. During the repossession, Westbrook confronted the employee, stating that the automobile was not in default and attempting to retrieve her personal items from it. Id. The employee became hostile and refused to allow Westbrook access to the automobile. Id. Westbrook had to call the police in order to collect her personal items from the automobile. Id. This lawsuit followed.

         III. ANALYSIS

         Westbrook pleads claims of negligence (Counts I and IV), wantonness (Count II and V), violation of § 1692f(6) of the FDCPA (Count VII), and invasion of privacy (Count VIII) against Twenty 4 Seven.[2] Id. at 4-9. Twenty 4 Seven contends that Westbrook lacks standing to challenge the repossession and has moved to dismiss her claims. Doc. 29.

         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 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 lacks standing to bring negligence and wantonness claims on these bases against Twenty 4 Seven. See doc. 27 at 4. 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 state law claims arising out of the repossession.[3]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 2-7 (pleading only that she had to call the police to retrieve her personal items from the car and that she suffered extreme embarrassment, shame, anxiety, mental distress, and unspecified “other physical and mental damages” as a result). Accordingly, Twenty 4 Seven's motion is due to be granted as to Counts I, II, IV, and V.

         B. The FDCPA Claim (Count VII)

         The FDCPA prohibits debt collectors from Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if

(A) there is no present right to possession of the property claimed as collateral through an enforceable ...

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