Geeslin v. Nissan Motor ( 2000 )

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.
_________________________________________________
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this opinion should not be published and is not precedent except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).