United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Robert Blakey, United States District Judge.
2012, Plaintiff Nicole Barnes (“Plaintiff”)
purchased a 2003 Buick Park Avenue from Defendant Austin Car
Credit, Inc. (“Austin”). In April 2013, Defendant
Northwest Repossession, LLC (“Northwest”)
repossessed the vehicle at Austin's request. Plaintiff
alleges that Northwest's repossession was unlawful and
now brings suit under both federal and state statutory and
common law. On March 10, 2016, Northwest moved for summary
judgment on all counts. Northwest's Mot. Summ. J. .
The same day, Plaintiff cross-moved for partial summary
judgment on the issue of liability as to Count I. Pl.'s
Mot. Summ. J. . For the reasons stated below,
Northwest's motion  is granted in part and denied in
part; Plaintiff's motion  is granted.
Plaintiff's Purchase from Austin
10, 2012, Plaintiff purchased a used 2003 Buick Park Avenue
from Austin. PSOF  ¶ 11. The cash price for the
vehicle was $2, 600. PSOF  Ex. G. After added costs for
delivery and handling, sales tax, and license plates, the
total amount owed to Austin equaled $3, 000. Id.;
NSOF  ¶ 8.
same day, Plaintiff traded in a used 2000 Mercedes Benz for a
$2, 000 credit towards the purchase of the Buick, which
reduced her amount owed to $1, 000. PSOF  ¶¶
16-17; PSOF  Ex. G. In addition to the trade-in,
Plaintiff provided $200 in cash, resulting in a final unpaid
balance of $800. PSOF  ¶ 17. Plaintiff agreed to pay
the remaining $800, interest free, in four, bi-weekly
payments of $200 starting on August 1, 2012 and ending on
September 26, 2012. Id. The “Memorandum of
Installment Sale” provided to Plaintiff at the time of
her purchase stated that Austin would impose a $50 late
charge on every late payment. PSOF  Ex. G.
Plaintiff's Payment History
July 11, 2012 and late January 2013, Plaintiff failed to make
any additional payments to Austin. PSOF  ¶ 19. As a
result, Austin imposed $50 late fees at the beginning of
August, September, October, November, December, and January,
which, according to Austin's account ledger, increased
Plaintiff's overall balance to $1100. PSOF  Ex. K.
January 3, 2013, Austin mailed Plaintiff a “Final
Notice of Intent to Collect Payment.” NSOF  Ex. H.
The Final Notice identified the 2003 Buick Park Avenue and
stated the following:
This notice is intended for above named or parties with the
security/property listed above. This notice is to inform you
that the above named or parties are behind on their payments
for the sum of $1050.00. Failure to comply will result in
repossession of the property and the opportunity to cure the
breach. Thank You.
a change of address, Plaintiff did not receive the Final
Notice. PSOF  ¶ 21. Nevertheless, on January 28,
2013, Robert Jackson (“Jackson”), Plaintiff's
boyfriend, made a $100 cash payment to Austin, which reduced
her balance to $1, 000. Id. ¶ 23; PSOF  Ex.
K; PSOAF  Ex. 2 at 2. The same day, Austin gave
Plaintiff a $50 late fee credit, further reducing
Plaintiff's total unpaid balance to $950. PSOF  Ex.
January 29, 2013 and March 8, 2013, Austin accepted several
more $100 cash payments from Jackson. PSOF  ¶ 23; PSOF
 Ex. K; PSOAF  Ex. 2. As of March 8, 2013,
Austin's account ledger reflected a remaining balance of
$150. PSOF  ¶ 24; PSOF  Ex. K.
The Alleged Final Payment and Release of Lien
alleges that, on March 11, 2013, Jackson made a final cash
payment of $150 for the remaining balance on the Buick. PSOF
 ¶ 25. Northwest denies that this final payment
occurred. R. PSOF  ¶ 25.
admits, however, that the same day, Vicki Thompson
(“Thompson”), an Austin employee, signed the
Release of Lien section of the Buick's Certificate of
Title and gave the Certificate of Title to Jackson. R. PSOF
 ¶¶ 26-27; PSOF  Ex. L. The Release of
Lien section states, “[t]he lienholder on the vehicle
described in this Certificate does hereby state that the lien
is released and discharged.” PSOF  Ex. L.
maintains that Thompson's signing of the Release of Lien
and her delivery of the Certificate of Title to Jackson was a
mistake, a claim Plaintiff disputes. NSOF  ¶ 28; R.
NSOF  ¶ 28. Northwest does not allege, however,
that Austin sent additional notices to Plaintiff notifying
her of the mistake or demanding immediate payment of the
supposed $150 outstanding.
The Repossession of Plaintiff's Vehicle
about January 29, 2013, Austin hired Northwest to repossess
the Buick from Plaintiff. NSOF  ¶ 20; NSOF  Ex.
I at 6, 11; PSOF  Ex. E at 21; PSOF  Ex. R at 8.
Austin did not maintain a standing contract with Northwest,
PSOF  ¶ 34, but had hired Northwest approximately
thirty times in the past. PSOF  Ex. F at 3. Northwest
assigned one of its employees, Zach Miller
(“Miller”), to the job. NSOF  ¶ 31.
Austin did not cancel its order to repossess, despite
accepting Jackson's late payments between January 28,
2013 and March 8, 2013. See NSOF  Ex. G at
approximately 3:00 a.m. on April 30, 2013, Miller located
Plaintiff's Buick on the street in front of
Plaintiff's residence. NSOF  ¶ 31. Without
notifying Plaintiff, Miller loaded the vehicle onto his tow
truck and began driving away. R. NSOF  ¶ 31. At the
same time, Jackson, who was residing with Plaintiff, awoke to
get a glass of water. PSOF  ¶ 40. While up, Jackson
saw Plaintiff's Buick being towed down the street.
Id. Believing that a theft was in progress, Jackson
quickly awoke Plaintiff and the two gave chase in another
vehicle. Id. ¶¶ 42-43. By the time the
couple reached Miller's tow truck, Plaintiff and Jackson
were approximately two blocks from Plaintiff's residence.
NSOF  ¶ 35. At that point, Miller was stopped on the
side of the road and attempting to re-secure the Buick, which
had come unattached, back onto the tow truck. PSOF 
pulled the vehicle he was driving in front of the tow truck,
boxing it in from the front. Id. ¶ 45. Jackson
exited his vehicle and approached Miller, who continued to
re-secure the Buick. Id. ¶ 46; NSOF  ¶
38. Jackson asked Miller “what the fuck he was
doing” with the vehicle. NSOF  ¶ 38.
claims that, in response, Miller told him, “I'm
repo-ing this bitch.” PSOF  ¶ 48. Plaintiff
further asserts that as Jackson got closer to Miller, Miller
pushed Jackson out of the way and returned to the cabin.
Id. Northwest disputes both of these claims. R. PSOF
 ¶ 48. The parties agree, however, that Miller
never provided Jackson or Plaintiff with any form of
identification or repossession paperwork. PSOF  ¶
re-securing the Buick, Miller placed the truck in reverse,
made a U-turn, and drove away in the opposite direction. NSOF
 ¶ 40. Jackson returned to his vehicle, and he and
Plaintiff continued to pursue Miller. Id. ¶ 41.
Jackson's pursuit of Miller continued for multiple hours,
and ended only when Jackson was forced to stop to refuel.
Id. ¶ 42. Miller ultimately towed the vehicle
to Northwest, where it was subsequently returned to Austin.
Id. ¶ 44.
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. Spurling v. C
& M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir.
2014). A genuine dispute as to any material fact exists 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). The
party seeking summary judgment has the burden of establishing
that there is no genuine dispute as to any material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). A court “is not required to grant summary
judgment as a matter of law for either side when faced with
cross-motions for summary judgment.” Crespo v. Unum
Life Ins. Co. of Am., 294 F.Supp.2d 980, 991 (N.D. Ill.
2003) (citing Market St. Assocs. Ltd. P'ship v.
Frey, 941 F.2d 588, 590 (7th Cir. 1991)).
Rather, the court must “evaluate each motion on its
merits, resolving factual uncertainties and drawing all
reasonable inferences against the movant.” Id.
First Amended Complaint  alleges four causes of action
against Northwest: (1) violations of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692,
et seq.; (2) violations of the Illinois Uniform
Commercial Code (“Illinois Commercial Code” or
“Commercial Code”), 810 ILCS 5/9-601, et
seq.; (3) violations of the Illinois Consumer Fraud and
Deceptive Business Practices Act (“ICFDPA”), 815
ILCS 505/2, et seq.; and (4) common law tort of
trespass to chattel. First Am. Compl. . Each count will
be discussed in turn.
Count I: Violations of the Fair Debt Collection Practices
FDCPA seeks, in part, to “eliminate abusive debt
collection practices, ” 15 U.S.C. § 1692, by
regulating “the actions a ‘debt collector' is
permitted to take in collecting a debt.”
Fleming-Dudley v. Legal Investigations, Inc., No.
05-CV-4648, 2007 WL 952026, at *4 (N.D. Ill. Mar. 22, 2007).
As a consumer protection statute, the FDCPA “is
liberally construed in favor of consumers to effect its
purpose.” Ramirez v. Apex Fin. Mgmt., LLC, 567
F.Supp.2d 1035, 1040 (N.D. Ill. 2008).
Section 1692a(6) of the FDCPA defines a “debt
collector” to include “only those persons or
businesses whose principal purpose is the collection of
‘debts.'” Fleming-Dudley, 2007 WL
952026, at *4. Thus, repossession companies- who seek
collection of collateral-are “ordinarily beyond the
scope of the FDCPA.” Purkett v. Key Bank USA,
Inc., No. 01-CV-162, 2001 WL 503050, at *2 (N.D. Ill.
May 10, 2001). Section 1692(a)(6), however, contains a
limited exception that “[f]or the purpose of section
1692f(6) of this title, [the term ‘debt collector']
also includes any person who uses any instrumentality of
interstate commerce . . . in any business the principal
purpose of which is the enforcement of security
interests.” 15 U.S.C. § 1692a(6). This “last
caveat bears emphasis, ” because it subjects Northwest
to the FDCPA “solely for purposes of §
1692f(6).” Fleming-Dudley, 2007 WL 952026, at
*4 (emphasis removed) (citing Jordan v. Kent Recovery
Services, Inc., 731 F.Supp. 652, 657 (D. Del. 1990)
(“Such a purposeful inclusion for one section of the
FDCPA implies that the term ‘debt collector' does
not include an enforcer of a security interest for any other
section of the FDCPA.”)).
1692f(6) prohibits “[t]aking or threatening to take any
nonjudicial action to effect dispossession or disablement of
property if-(A) there is no present right to possession of
the property claimed as collateral through an enforceable
security interest; (B) there is no present intention to take
possession of the property; or (C) the property is exempt by
law from such dispossession or disablement.” 15 U.S.C.
§ 1692f(6). Here, Plaintiff only alleges violations of
subsection (A). First Am. Compl.  ¶¶ 114-21.
To determine whether a debt collector had a present right to
possession of the property under § 1692f(6), courts in
this district and elsewhere have looked to the applicable
state self-help repossession statute.
Fleming-Dudley, 2007 WL 952026, at *5. In Illinois,
“the applicable self-help repossession statute is
§ 9-609(b)(2) of the Illinois Commercial Code, ”
id., which permits non-judicial repossession of
collateral (1) by a secured party; (2) after default; and (3)
if the secured party proceeds without breach of the peace.
810 ILCS 5/9-609 (“After default, a secured party . . .
may take possession of the collateral . . . without judicial
process, if it proceeds without breach of the peace.”).
Here, based upon the record, Northwest violated §
9-609(b)(2) because: (1) there is insufficient evidence that
Austin-and by extension Northwest-was a secured party; and
(2) Plaintiff was not in default of her installment agreement
at the time of the repossession.
There Is Insufficient Evidence That Austin Was A Secured