United States District Court, N.D. Alabama, Northwestern Division
K. KALLON UNITED STATES DISTRICT JUDGE
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
LEGAL STANDARD FOR SUMMARY JUDGMENT
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).
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).
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.
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.
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.
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.
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
Whether a Breach of the Peace Invalidates a Present Right
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 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