Seibel v. Society Lease, Inc., 97-27-CIV-FTM-17D.

• Decision Date: 05 June 1997
• Docket Number: No. 97-27-CIV-FTM-17D.,97-27-CIV-FTM-17D.
• Citation: 969 F.Supp. 713
• Parties: Paul SEIBEL, and Marie Seibel, his wife, Plaintiffs, v. SOCIETY LEASE, INC., Key Lease, Inc., Falcon International, Inc., and John Doe, Inc., Defendants.
• Court: U.S. District Court — Middle District of Florida

969 F.Supp. 713

Paul SEIBEL, and Marie Seibel, his wife, Plaintiffs, v. SOCIETY LEASE, INC., Key Lease, Inc., Falcon International, Inc., and John Doe, Inc., Defendants.

No. 97-27-CIV-FTM-17D.

United States District Court, M.D. Florida, Fort Myers Division.

June 5, 1997.

Thomas J. Lyons, Thomas J. Lyons, Sr., Consumer Justice Center, P.A., St. Paul, MN, Denise B. D'Aprile, Law Offices of Denise B. D'Aprile, Port Charlotte, FL, for Paul Seibel, Marie Seibel.

James Robert Freeman, Shear, Newman, Hahn & Rosenkranz, P.A., Tampa, FL, for Society Lease, Inc., Key Lease Inc. of Ohio.

David Jonathon Joffe, Thomas J. Morgan, Law Office of Joffe & Morgan, P.A., Coconut Grove, FL, for Falcon Int'l. Inc.

ORDER

KOVACHEVICH, District Judge.

This cause of action is before the Court on Defendant's Motion to Dismiss and/or Strike (Dkts. 7, 8), and Plaintiffs' Response to Defendant's Motion to Dismiss and/or Strike (Dkt. 9).

STANDARD OF REVIEW

A complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the Plaintiff can prove no set of facts that support a claim for relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). A trial court, in ruling on a motion to dismiss, is required to view the complaint in the light most favorable to the Plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The allegations in the complaint should be taken as admitted by Defendants and liberally construed in favor of the Plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969).

Federal Rule of Civil Procedure 12(f) provides that upon motion by a party or upon the Court's initiative at any time, the Court may order stricken from any pleading any "redundant, immaterial, impertinent, or scandalous matter." Motions to strike will usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties. Poston v. American President Lines, Ltd., 452 F.Supp. 568, 570 (S.D.Fla.1978), citing Augustus v. Board of Public Instruction, 306 F.2d 862 (5th Cir.1962). In evaluating a motion to strike, the Court must treat all well-pleaded facts as admitted and cannot consider matters beyond the pleadings. U.S. Oil Co. v. Koch Refining Co., 518 F.Supp. 957, 959 (E.D.Wis.1981).

FACTS

Plaintiffs are Paul and Marie Seibel. On or about April 11, 1994, Plaintiffs entered into a lease contract with Defendant Society Lease ("Society") for a 1994 Dodge Dakota Truck ("the truck") with monthly lease payments of $367.01, due on the 11th of each month. Plaintiffs filed for a Chapter 7 Bankruptcy in the United States Bankruptcy Court for the Middle District of Florida, Tampa Division, on August 31, 1995. Plaintiffs listed Defendant Key Lease ("Key") as a Creditor Holding Secured Claims in the bankruptcy filings. Therefore, Plaintiffs' attorney sent a letter informing Key of the Plaintiffs' bankruptcy and enclosed a Statement of Intention executed by Plaintiffs indicating that Plaintiffs would continue to make monthly payments on the truck. In a letter dated October 2, 1995, Society's attorney requested that Plaintiffs execute a "Reaffirmation Agreement" on the truck. Plaintiffs executed and returned the Reaffirmation Agreement to Society's attorney. Plaintiffs claim they made all thirteen monthly lease payments on the truck, and Society accepted those payments. Society authorized the truck to be repossessed because it claims that Plaintiffs defaulted on their obligations. Defendant Falcon International, Inc. ("Falcon") then repossessed Plaintiffs' truck.

Plaintiffs claim the events surrounding the repossession of the truck occurred as follows. At 7:00 a.m. on February 6, 1996, Plaintiff Marie Seibel went outside to pick up the paper and discovered the truck was no longer in the driveway. Marie informed her husband that the truck was missing, and he went outside to search the property. Upon the discovery that the truck was missing, Plaintiff Paul Seibel says he experienced chest pains, rapid heart rate, and then passed out for approximately 10 minutes. Marie Seibel then went inside and retrieved her husband's heart medication, returned and placed the nitroglycerin tablet under his tongue. Paul Seibel regained consciousness, and was able to walk back into the house and call the Port Charlotte County Sheriff's office to report the truck was stolen. He was then informed that the truck had been repossessed by Falcon. Paul Seibel contacted Falcon and was told that Falcon would not return the truck. Falcon instructed Plaintiffs to call Society, who informed Plaintiffs that the truck would not be returned, nor would a temporary vehicle be provided while it investigated the repossession. Society sent Plaintiffs a letter regarding the sale of the vehicle, entitled "Statutory Notice of Repossession and Sale." Ten days after the repossession, and after Plaintiffs' Bankruptcy attorney demanded the return of the truck, Society returned the truck to Plaintiffs. Plaintiffs claim that as a result of the repossession, Marie Seibel was unable to continue working and lost wages in the amount of $600.00, and Paul Seibel experienced a syncope syndrome, diagnosed by Dr. Stults. Plaintiffs claim to have experienced fear, humiliation, anxiety, mental anguish and stress, and out of pocket damages in an amount not less than $750.00 in lost wages and rental car expense as a result of the repossession.

DISCUSSION

A. Falcon's Repossession of the Truck does not Violate the Fair Debt Collections Practices Act and Sec. 559.72(9), Florida Statutes, because Falcon does not fall within the Definition of a "Debt Collector."

After consideration, the Court concludes that the claim against Falcon for violation of the Fair Debt Collections Practices Act ("FDCPA") and Sec. 559.72(9), Florida Statutes, must be dismissed because Falcon does not fall within the statutory definition of a "debt collector." Falcon is in the business of repossessing vehicles; however, this does not place Falcon within the statutory definition of a "debt collector" stated in the Section 559.55(6), Florida Statutes, as follows:

"Debt collector" means any person who uses any instrumentality of commerce within this state, whether initiated from within or outside the state, in any business the principal purpose of which is the collection of debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. The term "debt collector" includes any creditor who, in the process or collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts.

Falcon's activities do not fall within this statute, nor under Title 15 U.S.C. Section 1692, the Fair Debt Collection Practices Act, after which the Florida statute is modeled. Plaintiffs do not allege in their complaint that Falcon ever contacted Plaintiffs by letter, phone, or any other means that might have implied that they were a "debt collector" or a third party in interest. Plaintiffs do not claim that the actual debt was in any way assigned to Falcon. Plaintiffs have not alleged any facts which would bring Falcon within the definition of the statutes.

The definition of "repossession" set forth in Section 493.6101(22), Florida Statutes is as follows:

"Repossession" means the recovery of a motor vehicle as defined under sec. 320.01(1), or mobile home as defined in sec. 320.01(2), or motorboat as defined under sec. 327.02, by an individual who is authorized by the legal owner, lienholder, or lessor to recover, or to collect money payment in lieu of recovery of, that which has been sold or leased under a security agreement that contains a repossession clause. A repossession is complete when a licensed recovery agent is in control, custody, and possession of such motor vehicle, mobile home, or motorboat.

This definition is nowhere reflected, or referred to, in the statutes upon which the Plaintiffs rely in their allegations against Falcon. Furthermore, Falcon is defined as a "recovery agency" and holds itself out to the public as such. Section 493.6101(20), Florida Statutes, defines "recovery agency" as:

Any person who, for consideration, advertises as providing or is engaged in the business of performing repossessions.

Falcon is a "recovery agency," according to the statutes, and Plaintiffs have failed to state factual allegations contrary to this definition, and therefore Falcon does not meet the definition of a "debt collector."

The Federal and Florida statutes upon which the Plaintiffs base their claim only apply to Falcon if it is a "debt collector" under the statutes. Falcon is not a "debt collector," and cannot be held liable for failing to abide by the statutes. The FDCPA applies to creditors, who use abusive practices in collecting their own debts or those assigned to them. The FDCPA does not apply to recovery agencies who have no interest in the debt, and have not had any contact with debtor.

Plaintiffs argue that while repossession companies are not usually subject to the FDCPA, the statute still applies to repossession companies which act in "the enforcement of security interests of others." citing James v. Ford Motor Credit Co., 842 F.Supp. 1202 (D.Minn.1994) aff'd, 47 F.3d 961 (8th Cir. 1995) (citing 15 U.S.C. Sec. 1692a(6), 1692f(6)). However, the court in James limits the application of the FDCPA to repossession companies when they meet the definition of "debt collector." Id. at 962. The court in James refers to the allegation of applying the FDCPA to a repossession company as "substantively weak." Id. at 963. Furthermore, the James court did not reach the merits of whether or not the FDCPA was applicable to repossession companies, because in that case the claim was barred by the statute of limitations. Id.

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