Westbrook v. NASA Federal Credit Union

          MEMORANDUM OPINION

          ABDUL K. KALLON UNITED STATES DISTRICT JUDGE

         Alice Westbrook filed this lawsuit against NASA Federal Credit Union (“NASA FCU”) and Twenty 4 Seven Recovery Inc. (“T4SR”) alleging a claim under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. (“FDCPA”), and various Alabama tort claims. Doc. 13. The court dismissed all claims against NASA FCU, doc. 27, and the tort claims against T4SR, doc. 34. T4SR has now moved for summary judgment on Westbrook's remaining FDCPA claim. Doc. 37. The motion, which is fully briefed and ripe for review, docs. 37-39, 46, 47, is due to be granted.

         I. LEGAL STANDARD FOR SUMMARY JUDGMENT

         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. “Rule 56[] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (alteration in original). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324 (citation and internal quotation marks omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         On summary judgment motions, the court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255. Any factual disputes will be resolved in the non-moving party's favor when sufficient competent evidence supports the non-moving party's version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002) (a court is not required to resolve disputes in the non-moving party's favor when that party's version of events is supported by insufficient evidence). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).

         II. FACTUAL BACKGROUND

         The following facts reflect an assessment of the record in the light most favorable to Westbrook. Westbrook's late husband, Perry Westbrook, entered into a retail installment contract to purchase and finance a 2016 Dodge Charger. Doc. 39-1 at 2. The loan agreement was assigned to NASA FCU and Perry Westbrook was the only borrower on the loan. Id. Roughly five weeks after the unfortunate death of Perry Westbrook, Westbrook made the January 2017 payment for the automobile and informed NASA FCU of her husband's death and her inability to make future payments on the loan. Id. at 3. See also doc. 39-2 at 7 (Westbrook's testimony that she sent a letter to NASA FCU indicating that she was “not able to continue to make the car payments because of [her] Social Security”). This notice triggered an automatic default on the loan, which had a remaining balance of $47, 010.10. Docs. 39-1 at 3; 39-4; 39-5. Moreover, the loan agreement gave NASA FCU a security interest in the automobile in the event of a default. Doc. 39-2 at 2. Consequently, on January 30, 2017, NASA FCU contracted with PAR North American (“PAR”) to collect the automobile “for application against the outstanding loan balance, ” and PAR in turn issued an “Order to Repossess” the automobile to T4SR. Doc. 39-5.

         Later that evening, Mike Sproles, an employee of T4SR, arrived at Westbrook's residence to repossess the automobile located in an open carport. Doc. 39-6. Although the parties dispute at what point the Westbrooks approached Sproles as he attached the automobile to his tow truck, doc. 39-3 at 6, the parties agree that Westbrook's son, Scott Westbrook, came outside to confront Sproles. Docs. 39-6 at 9; 39-7 at 4-5. Shortly after, Westbrook exited her house while on the phone with the police about a “repo man” who was repossessing her car even though the loan was purportedly not in default. Doc. 39-12 at 1-2. During the encounter, the Westbrooks agree that they engaged in a “heated conversation” with Sproles and that Sproles was not physically threatening, violent, or blocking their access to the car. Docs. 39-2 at 11; 39-6 at 7-8; 39-7 at 8-9.

         After Dora Police Officer R. McConico arrived, he explained to the Westbrooks that he was unable to stop the repossession because the car at that point was attached to the tow truck. Docs. 39-12 at 2-3; 39-13. At the request of Officer McConico, Sproles provided T4SR's contact information to the Westbrooks. Doc. 39-13. A few days later, one of T4SR's owners, Nick Keeton, followed up with Westbrook to return the automobile's tag and mentioned that she could file an incident report with T4SR about the repossession. Doc. 39-3 at 11. Westbrook filed this action instead.

         III. ANALYSIS

         The sole issue before the court is whether T4SR violated the FDCPA, which prohibits debt collectors “from making false or misleading representations and from engaging in abusive and unfair practices in connection with the collection of any debt.” Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d 1291, 1302 (11th Cir. 2015) (citing 15 U.S.C. §§ 1692d-1692f). Specifically, repossession companies, which act in “the enforcement of security interests of [debt collectors or creditors], ” Seibel v. Soc'y Lease, Inc., 969 F.Supp. 713, 717 (M.D. Fla. 1997), are prohibited from using “unfair or unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. § 1692f(6)(A). The relevant provision in contention here is the one related to “[t]aking or threatening to take any nonjudicial action to effect dispossession or disablement of property if . . . there is no present right to possession of the property claimed as collateral through an enforceable security interest . . . ” Id.

         To support its contention that it had a present right of possession, T4SR cites to the unrebutted sworn affidavit of Robert Kiel, Vice President of Loan Servicing for NASA FCU, who attested that T4SR had a present right to possess the automobile because (1) Perry Westbrook was the only person listed as a borrower; (2) Westbrook informed NASA FCU of her husband's death and inability to make future payments; (3) Westbrook's notification triggered an automatic default under the loan agreement; and (4) NASA contracted with PAR North America, who then contracted with T4SR to repossess the automobile. Docs. 39-1 at 2-3; 39-4 at 2. Indeed, Westbrook does not dispute that T4SR had a present right to possession over the automobile based on a defaulted loan. Doc. 46 at 18, 22. She argues instead T4SR's breach of the peace during the repossession affected T4SR's ability to maintain its present right of possession and avoid liability under § 1692f(6)(A). The court turns next to the parties' respective arguments on this point, as well as T4SR's various contentions in support of its motion.^[1]

         A. Whether a Breach of the Peace Invalidates a Present Right of Possession

         T4SR argues that its “present right to possession” insulates it from any liability under § 1692f(6)(A). In support of this contention, T4SR cites to a string of cases^[2] in which courts have dismissed § 1692f(6)(A) claims when the plaintiff failed to plead any facts that the “enforcer of a security interest does not have a present right to the collateral at issue.” Wright v. Santander Consumer USA, Inc., 2018 WL 2095171, at *4 (M.D. Fla. May 1, 2018) (citation omitted). These cases are not dispositive however on the issue before this court. In that respect, although the Eleventh Circuit has not ruled on whether a breach of the peace can invalidate a repossession agency's present right to possession and the viability of a § 1692f(6)(A) claim, at least two district courts in this circuit have addressed this precise issue and analyzed the state's self-help repossession statute to determine if the creditor lost its present right to possession. See Yeldell v. Wells Fargo Bank, N.A., 2011 WL 13287064, at *3 (N.D. Ala. Mar. 2, 2011) (finding that a factual dispute remained as to whether a breach of the peace occurred and deprived the creditor of its right to repossess the vehicle) and Wright, 2018 WL 2095171, at *4 (applying ...