Jordan v. Kent Recovery Services, Inc.

• Decision Date: 28 February 1990
• Docket Number: Civ. A. No. 89-11-JJF.
• Parties: Lois J. JORDAN, Plaintiff, v. KENT RECOVERY SERVICES, INC. and Lee Murray, Defendants and Third Party Plaintiffs, v. MERIDIAN BANK CORPORATION, Third Party Defendant.
• Court: U.S. District Court — District of Delaware

731 F. Supp. 652

Lois J. JORDAN, Plaintiff, v. KENT RECOVERY SERVICES, INC. and Lee Murray, Defendants and Third Party Plaintiffs, v. MERIDIAN BANK CORPORATION, Third Party Defendant.

Civ. A. No. 89-11-JJF.

United States District Court, D. Delaware.

February 28, 1990.

Barbara James of UAW Legal Services Plan, Newark, Del., for plaintiff.

Mark F. Dunkle of Prickett, Jones, Elliott, Kristol & Schnee, Dover, Del., for defendants and third party plaintiffs.

Roger A. Akin of Sawyer & Akin, Wilmington, Del., for third party defendant.

OPINION

FARNAN, District Judge.

Lois J. Jordan filed this suit on January 13, 1989 against Kent Recovery Services, Inc. ("Kent Recovery") and Lee Murray ("Murray"), Kent Recovery's president and owner of all of its stock, alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C.A. §§ 1692-1692o (West 1982 & Supp.1989) (Docket Item ("D.I.") 1). Thereafter, on May 9, 1989, Kent Recovery and Murray (the "defendants") brought a third party complaint against Meridian Bank Corporation ("Meridian"), claiming that Meridian should indemnify the defendants should the defendants be held liable to Jordan (D.I. 13). The defendants then filed a motion for summary judgment on September 18, 1989 and, in their opening brief filed in support of the motion, asserted that the sections of the FDCPA allegedly violated by the defendants do not apply to Kent Recovery (D.I. 24, 25). Jordan filed an answering brief and the defendants followed with a reply brief (D.I. 26, 27). Oral argument was held on December 5, 1989. For the reasons stated below, the Court concludes that summary judgment will be granted to the defendants.

I. FACTS

In early 1987, Jordan purchased a used 1983 Oldsmobile Calais from Freedom Ford in Wilmington, Delaware. Jordan financed the purchase of the car by a loan offered through Freedom Ford, a loan which Freedom Ford later assigned to Meridian. Jordan posted the car as collateral for the loan, thereby giving Meridian a security interest in the car. Apparently, with Jordan's permission, William Smith, the father of her child, took possession of the car and made some of the initial monthly payments on the loan. By December of 1987, however, the payments were three months delinquent. As a consequence, Meridian requested that Kent Recovery "reposses the car on sight if same can be effected without breach of the peace" and "deliver it to Freedom Ford (Wilmington)." Appendix to Defendants' Opening Brief In Support of Their Motion For Summary Judgment ("Appendix") at A-1.

Kent Recovery, responding to Meridian's request, sent Thomas Aponte, an agent of Kent Recovery, to Jordan's home in Wilmington, Delaware in an attempt to repossess the car. At Aponte's first visit to Jordan's home in February of 1988, Jordan proved furtive. As Jordan testified in her deposition, she knowingly misrepresented the car's whereabouts:

Q. Go ahead and tell me what the conversation was that you had with them.

A. Well, as far as I can remember, they was telling me that they come to possess the car. And they asked me where was it, and I told them it wasn't there. And they asked me where it was, and I told them I lent to a friend and that they had went away for the week, and I couldn't get it back until then.

* * * * * *

Q. Where was the car at the time?

A. William Smith had it.

Q. And he had had it a lot longer than one week?

A. He had had it all the time since I had purchased the car.

Q. And so when you told these people from Kent Recovery that you had lent the car to a friend for one week, that really wasn't true, was it?

A. No.

Appendix at A-3 to A-5.

As might be expected, Aponte could not locate the car and made a second visit to Jordan's home about two weeks later. Jordan testified that she again lied about the car's location:

A. Aponte came back, and he knocked on the door.

Q. Okay. Did you answer the door?

A. Yes. And he asked me was the car there. And I said no. And then he went on to say did I know where it was. And at that time I just told him no, I didn't know where it was.

Q. What else did he say?

A. I don't remember what else he said.

Q. All right. Did you tell him at that time that Mr. Smith had the car?

A. No.

Appendix at A-6. Aponte made a third visit, whereupon Jordan told him that Smith had possession of the car. Nevertheless, as her deposition testimony reveals, she neglected to inform Aponte that Smith was in her home at the time of Aponte's visit:

Q. Tell me, if you can remember, everything that you told the man from Kent Recovery on this third visit. You said you told him that Mr. Smith had the car.

A. Right.

Q. Did you tell him that Mr. Smith lived in Maryland?

A. I could have. I don't remember. I could have told him that.

Q. You didn't tell him that Mr. Smith was in the house?

A. No.

Q. And at the time the man from Kent Recovery was at the door, you knew Mr. Smith was in the house?

A. Yes.

Appendix at A-11 to A-12.

Aponte, despite the obfuscation, was persistent and returned to Jordan's home a fourth time. At that visit Jordan informed Aponte that Smith was employed by a company in Maryland. Aponte went to that company but was told that Smith did not work there. Aponte thereafter made a fifth and final visit to Jordan's home in June of 1988 but was unsuccessful in locating the car. Consequently, the car was never repossessed by Kent Recovery.

Thereafter, on June 13, 1988, Murray, the president of Kent Recovery, sent Jordan a letter informing her that she may have violated a Delaware state law prohibiting the defrauding of creditors and that he might recommend to Meridian that legal action be pursued against her. The letter read in pertinent part:

It appears to us that you are in violation of Delaware Code Title 11 Section 891 covering defrauding secured creditors. We have enclosed copy of this document for your information.

We will allow you ten days upon receipt of this letter for you to discuss this matter with your attorney before recommending the bank seek relief through the court of appropriate jurisdiction.

Appendix at A-23. Neither Meridian nor Kent Recovery pursued legal action against Jordan under Del.Code Ann. tit. 11, § 891 (1987), a statute making defrauding secured creditors a class A misdemeanor. Still, Jordan became upset by the threat of legal action and showed the letter to her attorney.

Jordan, through her attorney, responded to Murray on July 29, 1988, demanding that the repossession of the car, termed debt collection by the letter, be consistent with the FDCPA, which the letter implied had been violated by Kent Recovery's failure to supply the necessary validation of her debt:

Pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et. seq., you are hereby directed to:

1. Cease all further communications with my client, and

2. Provide the undersigned with verification of the purported debt.

Until advised otherwise you should mark this matter as "disputed". I anticipate your cooperation herein.

It is my preliminary opinion that you failed to send my client a "validation notice" after your initial contact(s) with her. Please send me copies of all written correspondence you have directed to my client.

Appendix at A-25. Jordan's attorney wrote a follow-up letter to Murray on August 17, 1988, again demanding a validation notice. Kent Recovery never sent the requested document.

Eventually, Jordan and Smith met with a representative of Meridian. At the meeting, Smith agreed to make the payments on the car loan, a promise on which he reneged after making three payments. Jordan thereafter repaid the loan. Jordan, however, remained dissatisfied with Kent Recovery and Murray. In her complaint, Jordan alleges:

1) that the defendants' failure to provide notification of the debt violated 15 U.S.C. § 1692g(a);

2) that the defendants' failure to disclose that they were collecting a debt violated 15 U.S.C. § 1692e(11);

3) that the defendants' allegedly false suggestion that Jordan may have transgressed a criminal statute violated 15 U.S.C. § 1692e(7); and

4) that the defendants' failure to provide validation of the debt to Jordan after her attorney requested it violated 15 U.S.C. § 1692g(b).

Complaint ¶ 12 (D.I. 1).

As noted, the defendants argue that the sections relied upon by Jordan do not apply to Kent Recovery. The defendants claim that Kent Recovery is a business engaged only in repossession of property and assert that the FDCPA does not circumscribe the conduct of repossession agencies, except in one section of the statute which both parties agree is inapplicable in this case. See 15 U.S.C.A. § 1692f(6) (West 1982). With briefing complete and with oral argument having been held, the defendants' motion for summary judgment is ready for a decision.

II. DISCUSSION

A. Summary Judgment Standard

Defendants' summary judgment motion poses two questions:

1) whether repossession agencies fall outside the ambit of the FDCPA for the purposes of the FDCPA sections relied upon by the plaintiff; and

2) if so, whether Kent Recovery qualifies as a repossession agency or whether it should be considered a "debt collector" and therefore covered by the FDCPA's prohibitions.

Summary judgment may be granted on these questions if there is no dispute between the parties as to genuine issues of material fact and if the defendants are entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-52, 106 S.Ct. 2505, 2509-12, 91 L.Ed.2d 202 (1986). The defendants and the plaintiff agree that the facts in this case are not in dispute. The parties also agree that, in order to answer the two questions presented by the motion, the Court must engage in statutory construction of the FDCPA.

As the United States Court of Appeals for the Third Circuit has noted, "statutory construction is a question...