Nichole L. Richards v. Par, Inc.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1184
NICHOLE L. RICHARDS,
Plaintiff-Appellant,
v.
PAR, INC., and
LAWRENCE TOWING, LLC,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:17-cv-00409-TWP-MPB — Tanya Walton Pratt, Judge.
____________________
ARGUED SEPTEMBER 19, 2019 — DECIDED MARCH 25, 2020
____________________
Before SYKES, HAMILTON, and BRENNAN, Circuit Judges.
SYKES, Circuit Judge. When Nichole Richards defaulted on
her car loan, her lender hired PAR, Inc., to repossess the
vehicle. PAR subcontracted with Lawrence Towing to carry
out the repossession. Richards protested when employees of
the towing company arrived at her Indianapolis home and
tried to take the car. She ordered them off her property. They
summoned the police, and a responding officer handcuffed
2 No. 19-1184
Richards and threatened her with arrest. The officer re-
moved the handcuffs after the car was towed away.
Richards sued PAR and Lawrence Towing for violating
the Fair Debt Collection Practices Act (“FDCPA” or “the
Act”). As relevant here, the Act makes it unlawful for a debt
collector to take “nonjudicial action” to repossess property if
“there is no present right to possession of the property
claimed as collateral through an enforceable security inter-
est.” 15 U.S.C. § 1692f(6)(A). Richards concedes the validity
of the security interest and admits that she defaulted on her
loan. Her argument is that the defendants lacked a present
right to possess the vehicle because Indiana law authorizes
nonjudicial repossession only if the repossession “proceeds
without breach of the peace.” IND. CODE § 26-1-9.1-609. If a
breach of the peace occurs, the repossessor must immediate-
ly stop and seek judicial remedies.
The district judge viewed the claim as an improper at-
tempt to repackage a state-law violation as a violation of the
FDCPA and entered summary judgment for the defendants.
We reverse. Whether a repossessor had a “present right
to possession” for purposes of § 1692f(6)(A) can be deter-
mined only by reference to state law. Based on the eviden-
tiary record, a reasonable jury could find that the towing
company employees did not have a present right under
Indiana law to possess Richards’s vehicle when they seized
it. Accordingly, she has a viable FDCPA claim.
I. Background
Richards obtained a loan from Huntington National Bank
to finance her purchase of a used Chevrolet Tahoe. The loan
agreement gave the bank a security interest in the vehicle
No. 19-1184 3
and the right to take possession of it if Richards defaulted on
her payment obligations. The agreement also specified that
any repossession would proceed without a breach of the
peace.
When Richards later defaulted on her loan payments,
Huntington contracted with PAR, Inc., to repossess the
Tahoe. PAR in turn subcontracted with Lawrence Towing to
complete the repossession. In the early-morning hours on
February 6, 2017, employees of Lawrence Towing arrived at
Richards’s home in Indianapolis to take possession of the
Tahoe. Richards protested and said she would not voluntari-
ly surrender it. They persisted, and one of them told her they
could “either do this the hard way or … do this the easy
way.” Richards ordered them to leave her property. They
responded by calling the police.
An officer arrived and Richards continued to object to the
repossession. When she stepped off her porch, the officer
grabbed her arm, handcuffed her, and threatened her with
arrest. He removed the handcuffs after the Tahoe was towed
away.
Richards sued PAR and Lawrence Towing alleging a vio-
lation of the FDCPA—more specifically, a violation of
§ 1692f(6)(A) of the Act, which prohibits debt collectors from
“[t]aking … 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.” (Emphasis added.) The basis of her claim
is that the Lawrence Towing employees had no “present
right to possess” the Tahoe when they seized it because
section 26-1-9.1-609 of the Indiana Code permits reposses-
sion of collateral without judicial process only if the repos-
4 No. 19-1184
sessor “proceeds without breach of the peace.” The com-
plaint also raised several state-law claims.
The judge entered summary judgment for the defend-
ants, construing the claim as an impermissible attempt to use
the FDCPA to enforce a violation of state law. The judge
declined to exercise supplemental jurisdiction over the state-
law claims, dismissing them without prejudice. After an
unsuccessful motion for reconsideration, the judge entered
final judgment for the defendants, and this appeal followed.
II. Discussion
We review a summary judgment de novo, construing the
evidence and drawing all reasonable inferences in favor of
the nonmoving party—here, Richards. Pantoja v. Portfolio
Recovery Assocs., LLC, 852 F.3d 679, 682 (7th Cir. 2017).
The FDCPA broadly proscribes unfair debt-collection
practices: “A debt collector may not use unfair or uncon-
scionable means to collect or attempt to collect any debt.”
15 U.S.C. § 1692(f). This language is obviously quite general,
but the statute also sets forth some specific prohibited debt-
collection methods. Immediately after the main clause we
just quoted, the statute says this: “Without limiting the
general application of the foregoing, the following conduct is
a violation of this section,” id., and a list of eight specific
prohibited acts follows.
This case involves the sixth: a debt collector may not
“[t]ak[e] or threaten[] 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 collat-
eral through an enforceable security interest.” Id.
§ 1692f(6)(A). Repossessors qualify as debt collectors under
No. 19-1184 5
the Act. Id. § 1692a(6) (defining “debt collector” to include a
person in “any business the principal purpose of which is
the enforcement of security interests”). Together, these
provisions establish the following rule: a repossession
without judicial process violates § 1692f(6)(A) unless the
property is collateral under an enforceable security interest
and the repossessor has a “present right to possession” of the
property.
Richards admits that she defaulted on her loan and that
Huntington’s security interest is valid and enforceable. The
premise of her claim is that the Lawrence Towing employees
lacked a present right to possess the Tahoe when they seized
it because Indiana law permits nonjudicial repossession only
if the process doesn’t breach the peace. More specifically,
section 26-1-9.1-609 of the Indiana Code provides that a
secured party may take possession of collateral without
judicial process only “if it proceeds without breach of the
peace.” If a breach of the peace occurs, the repossessor
“must desist and pursue his remedy in court.” Allen v. First
Nat’l Bank of Monterey, 845 N.E.2d 1082, 1086 (Ind. Ct. App.
2006) (quotation marks omitted).
It’s undisputed that the Lawrence Towing employees
were pursuing a self-help remedy by seizing the Tahoe.
Drawing inferences in Richards’s favor, a reasonable jury
could conclude that a breach of the peace occurred during
the repossession attempt. At that point the towing company
no longer had a present right to possession, but its employ-
ees took Richards’s Tahoe anyway. The record is factually
and legally sufficient to proceed on a claim for violation of
§ 1692f(6)(A).
6 No. 19-1184
The defendants counter with a statutory-interpretation
argument. As they read § 1692f(6)(A), the requirement of a
“present right to possession” means only that the reposses-
sor must have an enforceable security interest in the proper-
ty claimed as collateral. On this reading, the statutory phrase
“through an enforceable security interest” modifies “present
right to possession.” But that interpretation skips over
language that appears between these two phrases.
Recall the actual text of the statute: debt collectors may
not take nonjudicial action to effect dispossession of proper-
ty if “there is no present right to possession of the property
claimed as collateral through an enforceable security inter-
est.” § 1692f(6)(A). Under the last-antecedent canon, “a
limiting clause or phrase … should ordinarily be read as
modifying only the noun or phrase that it immediately
follows.” Lockhart v. United States, 136 S. Ct. 958, 962 (2016)
(quotation marks omitted); see also ANTONIN SCALIA & BRYAN
A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL
TEXTS 144–46 (2012). Thus, in § 1692f(6)(A), the phrase
“through an enforceable security interest” modifies the
phrase directly preceding it: “the property claimed as collat-
eral.” That is, the phrase “through an enforceable security
interest” identifies the legal mechanism through which the
property is “claimed as collateral”; it does not modify “pre-
sent right to possession.”
But the more important and indeed decisive point is that
the FDCPA does not define the phrase “present right to
possession.” Repossession rights are governed by the rele-
vant state’s property and contract law, so in the absence of
an FDCPA-specific rule, we must look to state law to deter-
No. 19-1184 7
mine whether a repossessor had a present right to possess
the property at the time it was seized.
The defendants respond by invoking our decisions in
Beler v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 480 F.3d 470
(7th Cir. 2007), and Bentrud v. Bowman, Heintz, Boscia &
Vician, P.C., 794 F.3d 871 (7th Cir. 2015). A close look at each
case shows that neither applies here. In Beler the plaintiff
sued a law firm that served her bank with a citation to
discover assets in an effort to execute on a state-court judg-
ment for the law firm’s client. 480 F.3d at 472. In response to
the citation, the bank froze her account. The plaintiff claimed
that the funds in her account came from her social-security
disability payments, which are exempt from collection under
both the Social Security Act and Illinois law. She accused the
law firm of engaging in unfair or unconscionable debt-
collection practices by trying to collect against exempt assets.
Id. at 473.
We rejected that argument, explaining that § 1692f “cre-
ates its own rules … ; it does not so much as hint at being an
enforcement mechanism for other rules of state and federal
law.” Id. at 474. We observed that the phrase “unfair or
unconscionable” in § 1692f “is as vague as they come.” Id.
But it is not “a piggyback jurisdiction clause” or a means “to
enforce existing state and federal laws exempting certain
assets from execution.” Id. We concluded that the FDCPA’s
broad prohibition of “unfair or unconscionable” debt-
collection practices should not be read to displace state
legislative or judicial rules about the execution of state-court
judgments. Id. at 475.
In a similar vein, the plaintiff in Bentrud argued that it
was unfair or unconscionable in violation of § 1692f for the
8 No. 19-1184
defendant to deviate from arbitration procedures dictated by
contract. 794 F.3d at 875. The plaintiff’s claim was premised
on a breach of contract governed by state law. Relying on
Beler, we reaffirmed that § 1692f’s “vague” language prohib-
iting unfair or unconscionable debt-collection practices could
not be read to “transform the FDCPA into an enforcement
mechanism for matters governed by state law.” Id. at 876.
Importantly, both Beler and Bentrud dealt with § 1692f’s
general clause prohibiting “unfair or unconscionable” debt-
collection methods. We held only that this broad and vague
language does not transform every violation of state or
federal law into a violation of the FDCPA. Nothing about the
general phrase “unfair or unconscionable” requires reference
to state law, but elsewhere the FDCPA contains more specif-
ic provisions that do call for an inquiry into state law. As
we’ve explained, § 1692f(6)(A) is one of them.
Two cases illustrate the point. In Seeger v. AFNI, Inc.,
548 F.3d 1107, 1111 (7th Cir. 2008), we consulted Wisconsin
law to determine whether methods used by a cell-phone
company to collect debts in that state were “expressly au-
thorized by the agreement creating the debt or permitted by
law” under § 1692f(1). We could not determine whether the
methods were “permitted by law” without reference to
Wisconsin law. Seeger, 548 F.3d at 1111. A second example is
our en banc decision in Suesz v. Med-1 Sols., Inc., 757 F.3d 636
(7th Cir. 2014) (en banc). That case concerned § 1692i, which
requires a debt collector to file a suit in the “judicial district
or similar legal entity” where the contract was signed or
where the debtor resides. We held that identifying the
“judicial district or similar legal entity” for purposes of
§ 1692i requires the identification of the “smallest geograph-
No. 19-1184 9
ic area that is relevant for determining venue in the court
system in which the case is filed.” Id. at 638. We looked to
Indiana law to identify the smallest “geographic area” for
venue purposes because the collection action in question
was filed in Indiana. Id. at 640.
This case is similar to Seeger and Suesz. A repossession of
property without judicial process violates § 1692f(6)(A)
unless the property is collateral under an enforceable security
interest and the repossessor has a “present right to posses-
sion.” The statute doesn’t supply its own rule for determin-
ing whether a repossessor had a present right to possess the
property when it was seized; that question can be answered
only by reference to state law. In Indiana a repossessor has a
present right to take possession of collateral without judicial
process only if he proceeds without a breach of the peace.
Richards has a sound legal theory and enough evidence to
present her § 1692f(6)(A) claim to a jury.
REVERSED AND REMANDED