Alice Westbrook v. Twenty 4 Seven Recovery Inc.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 17, 2020
• Docket: 19-11292
• Status: Unpublished

Opinion

Case: 19-11292 Date Filed: 01/17/2020 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-11292 Non-Argument Calendar ________________________

D.C. Docket No. 3:17-cv-00534-AKK

ALICE WESTBROOK,

Plaintiff - Appellant,

versus

NASA FEDERAL CREDIT UNION,

Defendant,

TWENTY 4 SEVEN RECOVERY INC.,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Northern District of Alabama ________________________

(January 17, 2020) Case: 19-11292 Date Filed: 01/17/2020 Page: 2 of 6

Before JORDAN, GRANT, and TJOFLAT, Circuit Judges.

PER CURIAM:

Alice Westbrook appeals the entry of summary judgment in favor of Twenty

4 Seven Recovery, Inc. on her claim that Twenty 4 Seven violated the Fair Debt

Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., when it repossessed

her late husband’s car. Finding no error, we affirm.

I.

Westbrook’s husband bought a Dodge Charger that was financed with an

installment loan through NASA Federal Credit Union. The loan agreement gave

the credit union a security interest in the Charger in the event of a default on the

loan. After her husband died, Westbrook notified the credit union of his death,

which triggered an automatic default. The credit union made arrangements to

repossess the car, and the repossession was assigned to Twenty 4 Seven.

Late in the evening of January 30, 2017, Twenty 4 Seven employee Mike

Sproles arrived at Westbrook’s home to repossess the Charger. Westbrook’s son,

Scott, saw Sproles backing his tow truck up to the Charger, which was parked

under an open carport. Westbrook called the police, and she and her son went

outside to confront Sproles and object to the repossession. They got into a

“heated” discussion with Sproles, and Sproles and Scott “exchanged some smart

aleck comments.” Scott knew that his mother had kept up with the car payments,

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so he did not think that the repossession could be legal. He told Sproles that he

could not leave with the car until the police arrived.

A city police officer responded to Westbrook’s call. After confirming that

Twenty 4 Seven had instructions from the credit union to collect the Charger, the

officer declined to interfere with the repossession. He instructed Sproles to give

Westbrook Twenty 4 Seven’s contact information, and Sproles towed the Charger

away without further objections from the Westbrooks.

Westbrook sued Twenty 4 Seven in federal court, contending that its

repossession of the Charger violated the FDCPA. The district court granted

Twenty 4 Seven’s motion for summary judgment, and this appeal followed.

II.

“We review a district court’s grant of summary judgment de novo, viewing

the evidence in the light most favorable to the nonmoving party.” Agrelo v.

Affinity Mgmt. Servs., LLC, 841 F.3d 944, 949–50 (11th Cir. 2016). Summary

judgment is appropriate “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(a). “A genuine issue of material fact does not exist unless there is

sufficient evidence favoring the nonmoving party for a reasonable jury to return a

verdict in its favor.” Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir.

2000) (en banc) (citation omitted).

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III.

Westbrook argues that Twenty 4 Seven’s repossession of the Charger

violated the FDCPA because Twenty 4 Seven had “no present right to possession

of the property” when Sproles towed the vehicle away. 15 U.S.C. § 1692f(6)(A).

She does not dispute that her husband’s car loan went into default after his death or

that Twenty 4 Seven had the right to repossess the vehicle on behalf of the credit

union after the default. Instead, she argues that Twenty 4 Seven lost the “present

right to possession” when she and her son objected to the repossession and got into

a “heated” discussion with Sproles.

Westbrook relies on Alabama law, which permits secured creditors to take

possession of collateral after default “without judicial process, if it proceeds

without breach of the peace.” Ala. Code § 7-9A-609(b)(2). But even assuming for

the sake of discussion that a breach of the peace under Alabama law would cause a

creditor to lose the “present right to possession” of the collateral within the

meaning of the FDCPA, there was no evidence from which a jury could find that a

breach of the peace occurred during the encounter with Sproles.

Alabama’s “self-help” repossession statute “allows the secured party to

proceed without judicial process only if that can be done peacefully (i.e., without

risk of injury to the secured party, the debtor, or any innocent bystanders).”

Callaway v. Whittenton, 892 So. 2d 852, 856 (Ala. 2003) (quoting Gen. Fin. Corp.

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v. Smith, 505 So. 2d 1045, 1048 (Ala. 1987)). Actual “violence is not necessary to

finding a breach of the peace”; the statute also prohibits the use of “constructive

force, such as ‘threats or intimidation.’” Id. (quoting Madden v. Deere Credit

Servs., Inc., 598 So. 2d 860, 865 (Ala. 1992)). A “breach of the peace” may also

include the use of “fraud, trickery, chicanery, and subterfuge,” “a disturbance of

the public tranquility, by any act or conduct inciting to violence or tending to

provoke or excite others to break the peace,” or the “violation of any law enacted

to preserve the peace and good order.” Id. The “heated” conversation that

Westbrook and her son had with Sproles does not even arguably rise to this level.

Westbrook has not alleged that Twenty 4 Seven used fraud, trickery, or

chicanery to repossess the Charger, or that Twenty 4 Seven used any force or

constructive force; she concedes that Sproles did not touch her or threaten or

intimidate her or her son in any way. Sproles did not try to take her car keys from

her or try to keep her from getting her belongings out of the car. And there was no

need to forcefully overcome any physical resistance from the Westbrooks, since

neither of them made any effort to physically obstruct the repossession.

Nor did Sproles say anything to provoke a breach of the peace. He did not

curse or yell at them—there is no evidence that he even raised his voice.

Westbrook testified that Sproles “had a little smart attitude, but he didn’t say

anything out of the way.” Scott testified that he was upset and angry at Sproles

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and “felt like just punching him in the nose”—partly because of the situation and

partly because of Sproles’s “smart aleck” attitude—but he did not hit Sproles or

threaten to do so. To the contrary, although Scott made some “snarky” comments,

he tried “to just keep peace” and did not offer Sproles any violence or even yell at

him. These circumstances—which are undisputed by the parties—do not amount

to a breach of the peace under Alabama law. See id. (citing with approval Chrysler

Credit Corp. v. Koontz, 661 N.E.2d 1171, 1173–74 (Ill. Ct. App. 1996), in which

the Illinois Court of Appeals held that the debtor’s yelling “Don’t take it!” did not

amount to a breach of the peace).

IV.

The undisputed facts are such that no reasonable jury could find that a

breach of the peace occurred while Sproles took possession of the Charger. Thus,

even assuming that a creditor’s breach of the peace could cause it to lose the

“present right to possession of the property” under 15 U.S.C. § 1692f(6), Twenty 4

Seven did not lose that right here, and the district court correctly granted summary

judgment in its favor on Westbrook’s FDCPA claim. We therefore affirm.

AFFIRMED.