Geeslin v. Nissan Motor

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 20, 2000
• Docket: 99-60410
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________________________

No. 99-60410 (Summary Calendar)

OLIVIA S. MCCOOL GEESLIN, Plaintiff-Appellant- Cross-Appellee,

versus

NISSAN MOTOR ACCEPTANCE CORP., Defendant-Appellee- Cross-Appellant.

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Appeals from the United States District Court for the Northern District of Mississippi (97-CV-186) _________________________________________________ July 19, 2000

Before POLITZ, WIENER, and STEWART, Circuit Judges.

Per Curiam*

In this diversity case which also raises a federal question

under the Consumer Credit Protection Act, 15 U.S.C. § 1601 et seq.,

Plaintiff-Appellant-Cross-Appellee Olivia S. McCool Geeslin alleges

error by the district court in two respects: (1) Submitting a

special interrogatory to the jury that did not accurately reflect

controlling Mississippi law; and (2) granting summary judgment on

the federal question on the ground that the specific statutory

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. provision does not provide the debtor a private cause of action

against the creditor. Defendant-Appellee-Cross-Appellant Nissan

Motor Acceptance Corp. (“Nissan”), in its cross-appeal, asserts two

matters that would be relevant only if we were to remand this case

for re-trial. As we affirm the district court in all respects, we

do not reach those questions.

In determining whether Nissan effected the repossession of

Geeslin’s automobile in compliance with the terms of Mississippi

Code § 75-2A-525(3), which authorizes self-help repossession in the

event of default so long as it can be done without a breach of the

peace, the court submitted the following question (“Interrogatory

Number 1") to the jury: “When the Defendant repossessed the

Plaintiff’s automobile on May 30, 1997, did the Defendant open the

Plaintiff’s garage door?” If the jury answered “Yes” to that

question, it was authorized to award damages to Geeslin on the

basis that the repossession would be unlawful because opening the

closed garage door would constitute a breach of the peace. On

appeal, Geeslin contends that, according to Mississippi law, Nissan

may have committed a breach of the peace even if the garage door

were already open when the repossession took place.

Reviewing the jury charge under the highly deferential plain

error standard because Geeslin did not timely object to the charges

given or the failure to give the charge she submitted, we conclude

that the district court did not commit reversible error. The

parties failed to identify the appropriate standard of review for our inquiry; that question turns on whether Geeslin timely objected

to any error. Federal Rule of Civil Procedure 51 provides: "No

party may assign as error the giving or the failure to give an

instruction unless that party objects thereto before the jury

retires to consider its verdict, stating distinctly the matter

objected to and the grounds of the objection." Although Geeslin

submitted proposed jury instructions and interrogatories which the

district court rejected, we do not find that merely submitting

those proposals satisfied her duty to object before the jury

retired.1 Geeslin’s objection to the jury interrogatory in her

post-trial Motion for Judgment Notwithstanding the Verdict and for

New Trial came too late.

Despite a party’s failure to comply with Rule 51, we have

previously reviewed allegations of error in jury instructions

raised on appeal under the plain error standard, and we do so

here.2 In conducting this review, we are exceedingly deferential

to the trial court.3 Acknowledging some ambiguity in Mississippi

law regarding what constitutes a “breach of the peace” for purposes

of § 75-2A-525(3), we nevertheless conclude when we apply the plain

error standard that Interrogatory Number 1 did not contain an

1 Kelly v. Boeing Petroleum Srvcs., Inc., 61 F.3d 350, 361 (5th Cir. 1995) (holding that submission of proposed jury instructions and verdict form does not satisfy Rule 51 objection requirement). 2 Tompkins v. Cyr, 202 F.3d 770, 783-84 (5th Cir. 2000); see Nero v. Industrial Molding Corp., 167 F.3d 921, 932 (5th Cir. 1999). 3 Tompkins, 202 F.3d at 784. obviously incorrect statement of law that “was probably responsible

for an incorrect verdict, leading to substantial injustice.”4

As to Geeslin’s second issue on appeal, we review de novo the

district court’s determination that 17 U.S.C. § 1681s-2(b) of the

Consumer Credit Protection Act does not provide a private cause of

action for the debtor against the creditor, and we affirm.

Contrary to Geeslin’s suggestion, the limitation on enforcement

that appears at § 1681a-2(d), specifying that § 1681s-2(a) shall be

enforced exclusively by the federal agencies and officials and

state officials identified in § 1681s, does not give rise to the

negative implication that § 1681s-2(b) (not mentioned in § 1681a-

2(d)) is subject to unlimited enforcement, including by private

parties. As a threshold matter, we are not convinced that Nissan

violated any § 1681s-2(b) duty by failing to notify consumer

reporting agencies of Geeslin’s dispute regarding the involuntary

repossession of her vehicle.5 Neither is it clear that § 1681s-

2(b) imposes any duties on creditors toward debtors; the duties

listed therein are for the benefit of the credit reporting

agencies.6 Even assuming arguendo that (1) Nissan violated some §

1681s-2(b) duty and (2) the duty runs to the benefit of the

creditor, Geeslin has provided no authority for implication of a

4 Id. at 783-84 (quoting Automotive Group v. Central Garage, Inc., 124 F.3d 720, 730 (5th Cir.1997)). 5 Although Geeslin disputed whether she in fact was in default in the district court, she has not re-urged that issue on appeal. 6 See Carney v. Experian Info. Solutions, Inc., 57 F. Supp.2d 496, 502 (W.D. Tenn. 1999). private cause of action. Federal courts are extremely reluctant to

imply private remedies for violations of federal statutes,

especially where as here Congress has established an elaborate

administrative mechanism for enforcement.7

AFFIRMED.

7 See Cort v. Ash, 422 U.S. 66 (1975); Olsen v. Shell Oil Co., 561 F.2d 1178, 1180 (1977).