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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-11292
Non-Argument Calendar
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D.C. Docket No. 3:17-cv-00534-AKK
ALICE WESTBROOK,
Plaintiff - Appellant,
versus
NASA FEDERAL CREDIT UNION,
Defendant,
TWENTY 4 SEVEN RECOVERY INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Alabama
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(January 17, 2020)
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Before JORDAN, GRANT, and TJOFLAT, Circuit Judges.
PER CURIAM:
Alice Westbrook appeals the entry of summary judgment in favor of Twenty
4 Seven Recovery, Inc. on her claim that Twenty 4 Seven violated the Fair Debt
Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., when it repossessed
her late husband’s car. Finding no error, we affirm.
I.
Westbrook’s husband bought a Dodge Charger that was financed with an
installment loan through NASA Federal Credit Union. The loan agreement gave
the credit union a security interest in the Charger in the event of a default on the
loan. After her husband died, Westbrook notified the credit union of his death,
which triggered an automatic default. The credit union made arrangements to
repossess the car, and the repossession was assigned to Twenty 4 Seven.
Late in the evening of January 30, 2017, Twenty 4 Seven employee Mike
Sproles arrived at Westbrook’s home to repossess the Charger. Westbrook’s son,
Scott, saw Sproles backing his tow truck up to the Charger, which was parked
under an open carport. Westbrook called the police, and she and her son went
outside to confront Sproles and object to the repossession. They got into a
“heated” discussion with Sproles, and Sproles and Scott “exchanged some smart
aleck comments.” Scott knew that his mother had kept up with the car payments,
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so he did not think that the repossession could be legal. He told Sproles that he
could not leave with the car until the police arrived.
A city police officer responded to Westbrook’s call. After confirming that
Twenty 4 Seven had instructions from the credit union to collect the Charger, the
officer declined to interfere with the repossession. He instructed Sproles to give
Westbrook Twenty 4 Seven’s contact information, and Sproles towed the Charger
away without further objections from the Westbrooks.
Westbrook sued Twenty 4 Seven in federal court, contending that its
repossession of the Charger violated the FDCPA. The district court granted
Twenty 4 Seven’s motion for summary judgment, and this appeal followed.
II.
“We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the nonmoving party.” Agrelo v.
Affinity Mgmt. Servs., LLC,
841 F.3d 944, 949–50 (11th Cir. 2016). Summary
judgment is appropriate “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “A genuine issue of material fact does not exist unless there is
sufficient evidence favoring the nonmoving party for a reasonable jury to return a
verdict in its favor.” Chapman v. AI Transp.,
229 F.3d 1012, 1023 (11th Cir.
2000) (en banc) (citation omitted).
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III.
Westbrook argues that Twenty 4 Seven’s repossession of the Charger
violated the FDCPA because Twenty 4 Seven had “no present right to possession
of the property” when Sproles towed the vehicle away. 15 U.S.C. § 1692f(6)(A).
She does not dispute that her husband’s car loan went into default after his death or
that Twenty 4 Seven had the right to repossess the vehicle on behalf of the credit
union after the default. Instead, she argues that Twenty 4 Seven lost the “present
right to possession” when she and her son objected to the repossession and got into
a “heated” discussion with Sproles.
Westbrook relies on Alabama law, which permits secured creditors to take
possession of collateral after default “without judicial process, if it proceeds
without breach of the peace.” Ala. Code § 7-9A-609(b)(2). But even assuming for
the sake of discussion that a breach of the peace under Alabama law would cause a
creditor to lose the “present right to possession” of the collateral within the
meaning of the FDCPA, there was no evidence from which a jury could find that a
breach of the peace occurred during the encounter with Sproles.
Alabama’s “self-help” repossession statute “allows the secured party to
proceed without judicial process only if that can be done peacefully (i.e., without
risk of injury to the secured party, the debtor, or any innocent bystanders).”
Callaway v. Whittenton,
892 So. 2d 852, 856 (Ala. 2003) (quoting Gen. Fin. Corp.
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v. Smith,
505 So. 2d 1045, 1048 (Ala. 1987)). Actual “violence is not necessary to
finding a breach of the peace”; the statute also prohibits the use of “constructive
force, such as ‘threats or intimidation.’”
Id. (quoting Madden v. Deere Credit
Servs., Inc.,
598 So. 2d 860, 865 (Ala. 1992)). A “breach of the peace” may also
include the use of “fraud, trickery, chicanery, and subterfuge,” “a disturbance of
the public tranquility, by any act or conduct inciting to violence or tending to
provoke or excite others to break the peace,” or the “violation of any law enacted
to preserve the peace and good order.”
Id. The “heated” conversation that
Westbrook and her son had with Sproles does not even arguably rise to this level.
Westbrook has not alleged that Twenty 4 Seven used fraud, trickery, or
chicanery to repossess the Charger, or that Twenty 4 Seven used any force or
constructive force; she concedes that Sproles did not touch her or threaten or
intimidate her or her son in any way. Sproles did not try to take her car keys from
her or try to keep her from getting her belongings out of the car. And there was no
need to forcefully overcome any physical resistance from the Westbrooks, since
neither of them made any effort to physically obstruct the repossession.
Nor did Sproles say anything to provoke a breach of the peace. He did not
curse or yell at them—there is no evidence that he even raised his voice.
Westbrook testified that Sproles “had a little smart attitude, but he didn’t say
anything out of the way.” Scott testified that he was upset and angry at Sproles
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and “felt like just punching him in the nose”—partly because of the situation and
partly because of Sproles’s “smart aleck” attitude—but he did not hit Sproles or
threaten to do so. To the contrary, although Scott made some “snarky” comments,
he tried “to just keep peace” and did not offer Sproles any violence or even yell at
him. These circumstances—which are undisputed by the parties—do not amount
to a breach of the peace under Alabama law. See
id. (citing with approval Chrysler
Credit Corp. v. Koontz,
661 N.E.2d 1171, 1173–74 (Ill. Ct. App. 1996), in which
the Illinois Court of Appeals held that the debtor’s yelling “Don’t take it!” did not
amount to a breach of the peace).
IV.
The undisputed facts are such that no reasonable jury could find that a
breach of the peace occurred while Sproles took possession of the Charger. Thus,
even assuming that a creditor’s breach of the peace could cause it to lose the
“present right to possession of the property” under 15 U.S.C. § 1692f(6), Twenty 4
Seven did not lose that right here, and the district court correctly granted summary
judgment in its favor on Westbrook’s FDCPA claim. We therefore affirm.
AFFIRMED.
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