Espinosa v. Metcalf

• Decision Date: 25 July 2022
• Docket Number: 21-cv-10356-DJC
• Parties: SERGIO ESPINOSA SR. and SERGIO ESPINOSA JR., Plaintiffs, v. ANDREW C. METCALF d/b/a JUDGMENT ACQUISITIONS UNLIMITED, CHAMPION FUNDING, INC., EXPORT ENTERPRISES INC., MASSACHUSETTS CONSTABLE INC. d/b/a MASSACHUSETTS CONSTABLES OFFICE and BRIAN ABELLI, Defendants.
• Court: U.S. District Court — District of Massachusetts

SERGIO ESPINOSA SR. and SERGIO ESPINOSA JR., Plaintiffs,
v.
ANDREW C. METCALF d/b/a JUDGMENT ACQUISITIONS UNLIMITED, CHAMPION FUNDING, INC., EXPORT ENTERPRISES INC., MASSACHUSETTS CONSTABLE INC. d/b/a MASSACHUSETTS CONSTABLES OFFICE and BRIAN ABELLI, Defendants.

No. 21-cv-10356-DJC

United States District Court, D. Massachusetts

July 25, 2022

MEMORANDUM AND ORDER

Denise J. Casper United States District Judge

I. Introduction

Plaintiffs Sergio Espinosa Sr. and Sergio Espinosa Jr. (collectively, “Espinosas”) have filed this lawsuit against Andrew C. Metcalf (“Metcalf”) d/b/a Judgment Acquisitions Unlimited (“JAU”), Champion Funding, Inc. (“Champion”), Export Enterprises Inc. (“Export”), Massachusetts Constable Inc. d/b/a Massachusetts Constables Office (“MCO”) and Brian Abelli (“Abelli”) (collectively, “Defendants”) alleging violations of the Fair Debt Collection Practices Act (“FDCPA”) codified at 15 U.S.C. § 1692 et seq. (Counts I, II, III, IV, VI, VII and VIII), violations of Mass. Gen. L. c. 93 and 93A (Counts V and IX), conversion (Count X) and violation of 42 U.S.C. § 1983 (Count XI) arising from an attempted debt collection. D. 41. MCO and Abelli have moved to dismiss. D. 52. For the reasons stated below, the Court DENIES the motion.

1

II. Standard of Review

On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the Court must determine if the facts alleged “plausibly narrate a claim for relief.” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (citation omitted). Reading the complaint “as a whole,” the Court must conduct a two-step, context-specific inquiry. Garda-Catalan v. United States, 734 F.3d 100, 103 (1st Cir. 2013). First, the Court must perform a close reading of the claim to distinguish the factual allegations from the conclusory legal allegations contained therein. Id. Factual allegations must be accepted as true, while conclusory legal conclusions are not entitled credit. Id. Second, the Court must determine whether the factual allegations present a “reasonable inference that the defendant is liable for the misconduct alleged.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (citation omitted). In sum, the complaint must provide sufficient factual allegations for the Court to find the claim “plausible on its face.” Garda-Catalan, 734 F.3d at 103 (citation omitted).

III. Factual Background

The Court draws the following factual allegations from the Espinosas' second amended complaint (“SAC”), D. 41, and accepts them as true for purposes of resolving MCO and Abelli's motion to dismiss.

In 2006, Champion obtained a judgment against Sergio Espinosa Sr. (“Senior”) for a credit card debt he incurred for the purchase of personal and household items. Id. ¶¶ 33-35. At the time, Senior's son Sergio Espinosa Jr. (“Junior”) was still a minor. Id. ¶ 38. Junior had no connection to the credit card debt or related judgment. Id. ¶ 37. At some point, Champion hired Metcalf and his company JAU to collect on the 2006 judgment. Id. ¶ 39. Champion, Metcalf and JAU then hired MCO and Abelli, the movants here, for their services. Id. ¶ 40. “Upon information and belief,” MCO is “an organization of constables that regularly collects, or attempts to collect, debts

2

and judgments owed or due to third parties through property seizures and executions on judgments.” Id. ¶ 25. Also “[u]pon information and belief,” Abelli does the same and allegedly markets himself as a “Massachusetts Constable” and as “Director/Chief' of MCO. Id. ¶¶ 27, 29. At Champion, Metcalf and JAU's request, MCO and Abelli directed Export to seize the Espinosas' vehicles to satisfy the 2006 judgment. Id. ¶ 41.

Senior and Junior live together in Dracut, Massachusetts at a residence owned by Senior and rented in part by Junior (“Espinosa Residence”). Id. ¶¶ 42-43. On September 22, 2020, at about 3:30 a.m., the Espinosas awoke to the sound of a truck in their driveway. Id. ¶ 44. Junior went outside and saw Defendants trying to tow his Mini Cooper vehicle from the driveway. Id. ¶ 45. As the person moving the vehicle was securing it, Junior confronted the individual- identified as an employee of Export-and advised him that he had no right to tow the vehicle. Id. ¶¶ 46-47. Abelli or another uniformed constable from MCO supervised the seizure. Id. ¶¶ 72, 80. Junior advised the constable that he was the sole owner of the Mini Cooper and provided his registration for the car reflecting same. Id. ¶ 73. Defendants claimed they had a right to seize the vehicle and drove off with it. Id. ¶¶ 48, 74. As alleged, Junior “felt physically intimidated by the presence of the uniformed [c]onstable and would have further resisted the Defendants' attempt to . . . seize his vehicle if the uniformed [c]onstable had not been present.” Id. ¶ 75.

The next day, Junior contacted JAU and spoke with Metcalf, advising him that they had no right to take his vehicle and that they had taken the wrong car since Junior had no connection to the 2006 judgment against Senior. Id. ¶ 50. Metcalf responded to Junior “you are lying,” “I deal with liars everyday” and that the Mini Cooper was in fact registered to Senior. Id. ¶ 51. The Mini Cooper was, however, registered to Junior, not Senior, who leases a Honda Accord through Honda Financial. Id. ¶¶ 52-53.

3

Even after being advised that they had seized the wrong vehicle, JAU and Metcalf told Junior that they would “settle” for $4,000 and that Junior would need to pay $3,000 of that sum within twenty-four hours if he wanted his Mini Cooper back. Id. ¶ 54. Further, Junior was advised that attorney Michael Zola (“Zola”) was representing JAU in connection with the judgment enforcement proceedings. Id. ¶ 55. Junior spoke with Zola, who advised Junior to offer Metcalf $4,000 to resolve Senior's debt. Id. ¶ 56. Junior emailed Zola on September 24, 2020 to demand the immediate return of the Mini Cooper, stating that his vehicle was wrongfully taken, that he had no connection to Senior's debt and that he was only fifteen years old when the 2006 judgment entered against Senior. Id. ¶ 57. Junior further advised Zola that his ownership of the Mini Cooper could be verified through correspondence with the bank that provided him a loan for the vehicle, which Junior attached to the email, or by reference to the registration located in the vehicle's glove compartment. Id. ¶¶ 57-58.

Champion, Metcalf, JAU and Export refused to return Junior's Mini Cooper over the next sixteen days. Id. ¶ 59. On October 9, 2020, Export returned Junior's car to the Espinosa Residence and immediately towed Senior's leased Honda Accord from the driveway. Id. ¶ 63. Abelli or another uniformed constable from MCO also supervised this seizure. Id. ¶¶ 72, 80. The Espinosas and Honda Financial repeatedly advised Defendants that they could not legally seize the Honda Accord since Senior does not own the vehicle but instead leases it and provided Defendants with a copy of the lease. Id. ¶¶ 65-66. Defendants refused to return Senior's vehicle unless he paid thousands of dollars in storage fees. Id. ¶ 67. Defendants continued to detain the Honda Accord until May 1, 2021. Id. ¶ 68. “Upon information and belief,” MCO and Abelli advised Export that they should continue to charge Senior with the towing and storage fees associated with the seizures of Junior's Mini Cooper and Senior's leased Honda Accord-despite allegedly knowing that

4

Junior's vehicle was not owned by Senior and that Senior's vehicle was a lease that could not be seized to satisfy the 2006 judgment. Id. ¶¶ 69-71.

IV. Procedural History

The Espinosas commenced this action on March 3, 2021, D. 1, and later filed an amended complaint, D. 13. Export moved to dismiss, D. 18, and the Court allowed that motion in part, D. 31. The Espinosas then filed the SAC, which added MCO and Abelli as Defendants. D. 41. MCO and Abelli now have moved to dismiss. D. 52. The Court heard the parties on the pending motion and took the matter under advisement. D. 62.

V. Discussion

A. Senior Has Standing to Raise Claims as to the Seizure of Junior's Vehicle

MCO and Abelli argue that Counts VI, VII, VIII and IX should be dismissed in part because Senior lacks standing to raise claims as to the seizure of Junior's Mini Cooper. D. 53 at 3; see D. 41 ¶¶ 139-96. Specifically, MCO and Abelli contend that, assuming Senior does not own the Mini Cooper, he has suffered no injury sufficient to satisfy the standing requirements of Article III of the United States Constitution. D. 53 at 3.

The “‘irreducible constitutional minimum' of standing” requires: (1) that the plaintiff has suffered an “injury in fact,” that is, an invasion of a judicially cognizable interest; (2) that the injury be “fairly traceable” to the challenged action of the defendant and not the result of the independent action of a third party not before the court; and (3) that it be likely, not merely speculative, that the injury will be redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154, 167 (1997) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)).

The emotional harm allegedly suffered by Senior as a result of the seizure of Junior's vehicle satisfies Article III's injury requirement. Emotional distress can constitute a concrete

5

injury for Article III purposes: courts have held this in the FDCPA context, see Ben-Davies v. Blibaum & Assocs., P.A., 695 Fed.Appx. 674, 676-77 (4th Cir. 2017), as well as when such distress derives from misconduct directed at a plaintiff's child, see Rideau v. Keller Indep. Sch. Dist., 819 F.3d 155, 168-69 (5th Cir. 2016) (stating that “[t]he emotional pain that results from seeing one's child abused seems to be a sufficiently concrete injury for standing purposes” and noting that “the number of causes of action in which a person may recover for...