Bank v. Huizar
| Decision Date | 13 October 2021 |
| Docket Number | Court of Appeals Case No. 20A-CT-1937 |
| Citation | 178 N.E.3d 326 |
| Parties | Horizon BANK, Appellant-Defendant, v. Fabian HUIZAR, Appellee-Plaintiff |
| Court | Indiana Appellate Court |
Attorney for Appellant: Kevin E. Steele, Burke Costanza & Carberry LLP, Valparaiso, Indiana
Attorney for Appellee: Duran L. Keller, Keller Law, Lafayette, Indiana
[1] Horizon Bank ("Horizon"), through an independent contractor, repossessed a Ford Explorer owned by Fabian Huizar due to late payment. Subsequently, Huizar filed a complaint against Horizon alleging that Horizon violated the Deceptive Consumer Sales Act ("DCSA"), the Indiana Uniform Commercial Code ("IUCC"), the Crime Victims Relief Act ("CVRA"), and the Fair Debt Collection Practices Act ("FDCPA"). On September 21, 2020, the trial court entered its Final Appealable Order on All Issues finding: Horizon's repossession of Huizar's vehicle constituted a breach of the peace; Horizon is not a debt collector under the FDCPA; Horizon is liable for statutory damages under the DCSA, however, emotional distress damages are not recoverable under the act; Horizon's breach of the peace violated the IUCC; Huizar is not entitled to actual damages under the CVRA; and Huizar is entitled to costs and attorney's fees under the CVRA, IUCC and DCSA.
[2] Horizon now appeals, raising multiple issues for our review, which we consolidate and restate as: (1) whether the trial court abused its discretion by finding that Horizon breached the peace; (2) whether the trial court erred by finding Horizon was liable under the DCSA; and (3) whether the trial court erred by awarding Huizar attorney's fees under the IUCC and CVRA.
[3] Huizar cross-appeals, raising the following restated issues: (A) whether Huizar judicially admitted that Horizon was not a debt collector under the FDCPA; (B) whether the trial court erred by not awarding emotional distress damages under the DCSA; (C) whether the trial court erred by not granting nominal damages under the CVRA; (D) whether the trial court erred by reducing Huizar's damages under the IUCC; and (E) whether the trial court abused its discretion in assessing attorney's fees.
[4] We conclude that Horizon breached the peace and Huizar judicially admitted Horizon was not a debt collector under the FDCPA. The trial court did not err in determining Horizon was liable under the DCSA but also did not err by failing to award emotional distress damages under that provision. The trial court did not err by failing to grant nominal damages under the CVRA or by reducing Huizar's IUCC damages by the deficiency judgment. And as for attorney's fees, the trial court erred in awarding attorney's fees under the IUCC and CVRA but did not abuse its discretion in determining a reasonable hourly rate for attorney's fees under the DCSA. Accordingly, we affirm in part and reverse and remand in part.
[5] On January 12, 2018, Huizar purchased a 2015 Ford Explorer, financed through Horizon, for his fiancée, Jessica. By July 2018, Huizar had made only three out of the six payments that had come due on the vehicle. Horizon attempted to contact Huizar regarding his lack of payment on numerous occasions, but Huizar did not respond. On July 24, 2018, Horizon sent K.I.G. Recovery Service ("KIG") to repossess the vehicle and sometime after 10:00 p.m., KIG agents Ron Caputo and George Armond arrived at Huizar's home. When the agents arrived, they found the vehicle backed into the driveway.
[6] Caputo went to Huizar's front door and informed Huizar that he was there to repossess the vehicle because Huizar was behind on payments. Caputo then showed Huizar the contract as the basis for the repossession. Caputo testified that he could have just taken the vehicle without going to the door, but he was trying to allow Huizar to remove the personal property from the vehicle. See Transcript, Volume 2 at 149.
[7] While Caputo was talking to Huizar, Armond got into the driver's seat of the unlocked vehicle and locked the doors. Jessica came outside and tried to open the vehicle's doors, but Armond kept locking the doors and refused to let her enter. Huizar then told Caputo that the men needed to get off his property and that he was not letting them take the vehicle. See id. at 56.
[8] Caputo told Huizar that if he did not give up the keys to the vehicle, Caputo would get the police involved. Eventually, Huizar instructed Jessica to provide the keys to Caputo and Armond. Jessica then removed the personal property from the vehicle and Caputo and Armond left with the vehicle. After the incident, Huizar began to feel lightheaded and sweaty, and his hands began to shake badly.
[9] The next day Huizar contacted Horizon in an attempt to reach an agreement to catch up on payments; however, Horizon did not accept his offer and accelerated the loan, requiring full payment. After the repossession, the vehicle was sold at auction for $16,000.00 leaving a deficiency of $7,679.08 on the loan amount. On September 26, 2018, Horizon sent correspondence to Huizar demanding payment of the deficiency balance.
[10] On November 22, 2018, Huizar filed a complaint against Horizon alleging that Horizon violated the DCSA, the IUCC, and the CVRA. Huizar later amended his complaint to include a FDCPA claim. Horizon filed a counterclaim against Huizar for the alleged deficiency remaining on the vehicle loan and sought attorney's fees. Following a bench trial, the trial court issued sua sponte findings of fact, conclusions of law, and judgment in favor of Huizar on all his claims, awarding damages for each and determining Huizar was entitled to attorney's fees in an amount to be determined.
[11] Horizon filed a Motion to Correct Error alleging in part that it was not a debt collector under the FDCPA and could not be liable under that statute. The trial court held a hearing on Horizon's motion, during which Huizar's counsel stated, "I'm advocating for my client still I believe now that Horizon is not a debt collector under the FDCPA[.]" Id. at 14. "I don't know what you want to do there because ... they didn't put on that evidence ... but what you'll find is that you can take away the FDCPA and still give Mr. Huizar complete relief[.]" Id.
[12] The trial court also held a hearing on Huizar's request for an award of attorney's fees. Huizar's attorney Duran Keller requested $400 an hour for approximately 185 hours of work on this case. Keller submitted his own affidavit and multiple affidavits from other attorneys regarding the reasonableness of his rate.1 See Exhibits, Volume 1 at 83-115.
[13] At the attorney's fee hearing, Zach Williams, a practicing attorney in Tippecanoe County, testified that he practices business and employment litigation, and that his highest rate is $300 an hour. Williams testified that he has co-counseled on many matters with Keller. Horizon presented the testimony of Jim Schrier, a commercial law attorney who has practiced for over thirty years in the Lafayette area. Schrier testified that his rate was $290 an hour and that he was unaware of any attorneys in the area charging $400 an hour.
[14] Subsequently, the trial court entered its Final Appealable Order on All Issues, granting Horizon's motion to correct error in part and denying Huizar's claims under the FDCPA. The trial court maintained its previous decisions regarding the DCSA, IUCC, and CVRA and awarded attorney's fees to Keller for a reduced number of hours at a reduced hourly rate. The trial court concluded in relevant part:
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