Nelson v. Santander Consumer USA, Inc.

• Decision Date: 08 March 2013
• Docket Number: No. 11–cv–307–bbc.,11–cv–307–bbc.
• Citation: 931 F.Supp.2d 919
• Parties: Heather NELSON, Plaintiff, v. SANTANDER CONSUMER USA, INC., Patrick K. Willis Co., Inc. dba American Recovery Service and Assetsbiz Corp., Defendants.
• Court: U.S. District Court — Western District of Wisconsin

931 F.Supp.2d 919

Heather NELSON, Plaintiff,

v.SANTANDER CONSUMER USA, INC., Patrick K. Willis Co., Inc. dba American Recovery Service and Assetsbiz Corp., Defendants.

No. 11–cv–307–bbc.

United States District Court, W.D. Wisconsin.

March 8, 2013.

Ivan Hannibal, Consumer Rights Law Office, McFarland, WI, Mary Catherine Fons, Fons Law Office, Stoughton, WI, for Plaintiff.

David Zev Smith, Gary Steven Caplan, Reed Smith LLP, Max A. Stein, Boodell & Domanskis, LLC, Chicago, IL, for Defendants.

OPINION and ORDER

BARBARA B. CRABB, District Judge.

Defendant Santander Consumer USA, Inc. called plaintiff Heather Nelson's cellular telephone number more than 1000 times over the course of a year in an attempt to collect a debt on two vehicles plaintiff had financed. In May 2010 defendantSantander repossessed one of those vehicles. (Plaintiff alleges that defendants American Recovery Service and AssetsBiz Corp. assisted Santander with the repossession.) In response, plaintiff filed this lawsuit in which she contends that defendants' actions violated her rights under the Fair Debt Collection Practices Act (15 U.S.C. §§ 1692–1692p), the Telephone Consumer Protection Act (47 U.S.C. § 227), the Wisconsin Consumer Act (Wis.Stat. §§ 421.101–427.105) and Wisconsin common law. Jurisdiction is present under 28 U.S.C. §§ 1331 and 1367.

Several motions are now before the court, including motions for partial summary judgment from both sides. Plaintiff has filed a motion for summary judgment with respect to her claims under the Federal Telephone Consumer Protection Act and the Wisconsin Consumer Act, dkt. # 67; defendant Santander has filed a motion for summary judgment with respect to plaintiff's claim under the Fair Debt Collection Practices Act. Dkt. # 71. In addition, the parties have filed dueling motions to “strike.” Plaintiff seeks to strike portions of a declaration submitted by one of defendant Santander's witnesses, dkt. # 83; defendant Santander seeks to strike new proposed findings of fact that plaintiff filed with her reply brief. Dkt. # 135. Finally, defendant Santander has filed a motion for leave to file an amended answer to assert a new affirmative defense. Dkt. # 113. (Because defendant Santander is the only defendant at issue in the motions filed, I will refer to it simply as “defendant” for the remainder of the opinion.)

For the reasons discussed below, I am granting in part and denying in part plaintiff's motion for partial summary judgment. As a result, I am awarding plaintiff $571,000 in statutory damages under 47 U.S.C. § 227(b)(3)(B) and $1000 in statutory damages under Wis. Stat. § 425.304. I am denying the remaining motions, with the exception of defendant's motion to strike. I have not considered any of the new proposed findings of fact that plaintiff filed with her reply brief because they violate the court's summary judgment procedures and plaintiff did not seek permission to file them.

From the parties' proposed findings of fact and the record, I find that the following facts are undisputed.

UNDISPUTED FACTS

In 2007 plaintiff Heather Nelson obtained credit from HSBC Auto Credit, Inc. to refinance two automobile loans, one for a van and another for a truck. Plaintiff's monthly payment for the truck loan was $491.15.

Both loan agreements included the following provisions:

PAYMENTS. Payments you make on this Loan will be applied to your account in any manner that we choose that is permitted by law. We may, but are not required to, extend or defer your obligation to make payments, with or without your consent, and interest will accrue on unpaid balances of principal during any such extension or deferral. The amount of your final payment will depend on the amounts and dates of the payments you make.

* * * * * *

SECURITY INTEREST. You grant us a security interest in the Collateral, which consists of: (a) the Vehicle described on page one; (b) any accessories, equipment, and replacement parts installed in the Vehicle within ten days of the date of this Agreement; (c) any insurance premiums or charges for debt cancellation or gap waiver coverages, service contracts, warranties, or similar arrangements, which are returned to us; (d) the proceeds of any insurance policies,debt cancellation or gap waiver coverages, service contracts on the Vehicle, or similar arrangements; and (e) the proceeds of any insurance policies on your life or health that are financed as part of the Principal. This security interest secures payment of all amounts owed under this Agreement, your other obligations in this Agreement, and in any transfer, renewal, extension, modification, or assignment of this Agreement.

* * * * * *

DEFAULT. You are in default: (a) upon failure to pay any installment when due; (b) upon failure to comply with any provision of this Agreement; (c) if the Vehicle is lost, stolen, substantially damaged, destroyed, sold, encumbered, removed, concealed, attached, levied upon, confiscated, or subject to forfeiture under law; (d) upon the initiation of any proceeding in bankruptcy, receivership, or insolvency involving you or the Vehicle; (e) any statement or warranty you made in connection with this Loan is untrue or inaccurate at the time when made; or (f) you or any guarantor dies, becomes incompetent, or ceases to exist. Our waiver of any default or our acceptance of any late payment does not constitute a waiver as to any other default.

REMEDIES UPON DEFAULT. Upon default, we may, at our option and without notice except as may be required by applicable law, accelerate this Loan and declare the entire unpaid amount of this Loan immediately due and payable, and exercise all or any of our rights of enforcement, including without limitation the right to peaceably repossess the Vehicle. We may also recover from you any reasonable and lawful expenses related to enforcement of our rights, including attorney fees not in excess of 15% of the amount you owe (if attorney is not our salaried employee), court costs, and any fees incurred in repossessing or selling the Vehicle. You may be subject to suit and liability, if not prohibited by law, if any amount obtained upon sale or disposition of the Vehicle is insufficient to pay the balance of the Loan and any other amounts due under this Agreement. You will pay simple interest at the lesser of the Contract Rate or the maximum legal rate of interest on the unpaid balance of any judgment in our favor.

* * * * * *

EXCHANGE OF INFORMATION. You understand that from time to time we may receive credit information concerning you from others, such as credit reporting agencies. If you fail to fulfill the terms of your credit obligation, a negative report reflecting on your credit record may be submitted to a credit reporting agency. You agree that the Department of Motor Vehicles (or similar state agency) may release your residence address to us. You agree that our supervisory personnel may monitor or record telephone calls between you and our representatives in order to evaluate the quality of our service to you. If you are serving in the U.S. Armed Forces, you agree that we may communicate with your superior officer(s) regarding your Loan, including without limitation, the collection and timely payment of your Loan.

Beginning in March or April 2010 defendant Santander Consumer USA, Inc., an automobile finance company, began making calls to 608–512–xxxx in an attempt to collect the debt from those loans. At some point, defendant purchased HSBC Auto Credit, including plaintiff's loans. (The parties dispute whether defendant began its efforts to collect the debt before it purchased HSBC.)

The number defendant called belonged to a cellular phone that plaintiff used and paid for, but only the name of plaintiff's husband appears on the monthly bill. Plaintiff had not included that cell phone number in her loan application documents. In the calls to plaintiff, defendant “demanded” that she make payments on her loan. (The parties dispute whether plaintiff had defaulted on her loans or was behind on her payments.) Some of the messages were recordings.

In making these calls, defendant used the Aspect telephony system, a computer telephone software system that routes and places inbound and outbound calls. Aspect has the capacity to (1) store telephone numbers and then call them; and (2) perform “predictive dialing” and “preview dialing.”

In predictive dialing, the system times the dialing of numbers using an algorithm to predict when an agent will become available to receive the next call. To facilitate that method of dialing, defendant created lists of customer telephone numbers to be called on a particular day. In preview dialing, an employee chooses a telephone number by clicking on a computer screen and the system calls it. Defendant's employees never called plaintiff by pressing numbers on a keypad.

In a letter dated April 13, 2010, plaintiff wrote the following message to defendant: “You may not at anytime contact me at any work number listed. This includes [four telephone numbers including 608–512–xxxx]. Any conversations need to be addressed in writing.” (The parties dispute whether plaintiff told defendant verbally not to call her cell phone number.) Defendant continued to call plaintiff at the same number after she sent this letter.

On May 29, 2010, defendant repossessed plaintiff's truck. (The parties dispute whether defendant sent and plaintiff received a document dated April 29, 2010 called “Notice of Right to Cure” or “Notice of Right to Cure Default” regarding the truck loan.)

Between March 2010 and April 2011, defendant called 608–512–xxxx 1026 times. In addition, defendant left 116 prerecorded messages on the voicemail for this phone.

OPINION

I. DEFENDANT SANTANDER'S MOTION FOR SUMMARY JUDGMENT

Defendant's motion for partial summary judgment focuses on plaintiff's claim under the Fair Debt Collection Practices Act and that act's distinction between “debt...