United States District Court, S.D. Indiana, Indianapolis Division
NICHOLE L. RICHARDS, Plaintiff,
PAR, INC., and LAWRENCE TOWING, LLC, Defendants.
ENTRY ON RICHARDS' MOTION TO RECONSIDER
WALTON PRATT, JUDGE
matter is before the Court of a Motion to Reconsider filed
pursuant to Federal Rule of Civil Procedure 59(e) by
Plaintiff Nichole L. Richards. (Filing No. 55.) On
July 16, 2018, the Court granted PAR, Inc.'s and Lawrence
Towing, LLC's (collectively, “Defendants”)
Motion for Summary Judgment, finding Richards did not have a
valid claim under the Fair Debt Collection Practices Act
(“FDCPA”) because the Defendants had a present
right to repossess her Chevrolet Tahoe and any claim that
they breached the peace while doing so was an independent
matter of state law. (Filing No. 53.) The Court
declined to exercise supplemental jurisdiction over
Richards' state law claims and dismissed those claims
without prejudice. Id. at 11. The Court entered
final judgment pursuant to Fed. R. Civ. Pro. 58. (Filing
No. 54.) Richards now asks the Court to reverse its
summary judgment order and enter an order denying
Defendants' Motion for Summary Judgment (Filing No.
56 at 15). For the following reasons, the Court
denies Richards' Motion to Reconsider.
motions to reconsider are not specifically authorized by the
Federal Rules of Civil Procedure, courts in the Seventh
Circuit apply Rule 59(e) or Rule 60(b) standards to these
motions. Smith v. Utah Valley Univ., 2015 U.S. Dist.
LEXIS 70271, at *3-4 (S.D. Ind. June 1, 2015). A motion to
alter or amend under Rule 59(e) “must be filed no later
than 28 days after the entry of the judgment.”
Fed.R.Civ.P. 59(e). If timely filed, a motion styled as a
motion to reconsider should be considered under Rule 59(e).
Kiswani v. Phoenix Sec. Agency, Inc., 584 F.3d 741,
742 (7th Cir. 2009). The Court issued its Order on
Defendants' Motion for Summary Judgment on July 16, 2018
(Filing No. 53). Richards filed her “Motion to
Reconsider” (Filing No. 55) on August 11,
2018, twenty-six days after the Court's Order. Therefore,
the Court will analyze the Motion as a motion to alter or
amend under Rule 59(e).
purpose of a motion to alter or amend judgment under Rule
59(e) is to ask the court to reconsider matters
“properly encompassed in a decision on the
merits.” Osterneck v. Ernst & Whinney, 489
U.S. 169, 174 (1989). “A Rule 59(e) motion will be
successful only where the movant clearly establishes: (1)
that the court committed a manifest error of law or fact, or
(2) that newly discovered evidence precluded entry of
judgment.” Cincinnati Life Ins. Co. v. Beyrer,
722 F.3d 939, 954 (7th Cir. 2013) (citation and quotation
marks omitted). Relief pursuant to a Rule 59(e) motion to
alter or amend is an “extraordinary remed[y] reserved
for the exceptional case.” Foster v. DeLuca,
545 F.3d 582, 584 (7th Cir. 2008). A Rule 59(e) motion may be
used “to draw the district court's attention to a
manifest error of law or fact or to newly discovered
evidence.” United States v. Resnick, 594 F.3d
562, 568 (7th Cir. 2010). A manifest error “is not
demonstrated by the disappointment of the losing party. It is
the wholesale disregard, misapplication, or failure to
recognize controlling precedent.” Oto v.
Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir.
2000) (citation and quotation marks omitted). Furthermore,
“a Rule 59(e) motion is not an opportunity to
relitigate motions or present arguments, issues, or facts
that could and should have been presented earlier.”
Brownstone Publ'g, LLC v. AT&T, Inc., 2009
U.S. Dist. LEXIS 25485, at *7 (S.D. Ind. Mar. 24, 2009).
position is that “the court committed a manifest error
of law or fact in failing to apply the unanimous
interpretation of [15 U.S.C.] § 1692(f)(6) and in
overlooking the terms of the parties' agreement.”
(Filing No. 56 at 4.) Section 1692f(6)(A) makes the
following a violation of federal law: “Taking or
threatening to take any nonjudicial action to effect
dispossession or disablement of property if…there is
no present right to possession of the property claimed as
collateral through an enforceable security interest.”
In its Order on Defendants' Motion for Summary Judgment,
the Court found that Defendants had an enforceable security
interest in the Chevrolet Tahoe, and thus they had a present
right to possession and did not violate § 1692f(6)(A).
Richards disagrees with the Court's reading of the
understanding is that Defendants lost their present right to
repossession by breaching the peace under Indiana law.
(Filing No. 56 at 5.) According to Richards, a
§ 1692f(6) present right to repossession, even when it
is supported by an enforceable security interest, can be
extinguished by a violation of a state self-help statute.
Id. at 6. She cites as authority for this assertion
one federal Court of Appeals opinion from the Eighth Circuit
and numerous District Court orders from within the Seventh
Circuit and elsewhere. Id. at 7-11. Richards also
argues that the Court of Appeals for the Seventh Circuit has
consulted state law in FDCPA cases unrelated to breach of the
peace and that other provisions of the FDCPA require courts
to examine state law. Id. at 11-13. Last, Richards
argues that, independent of state law, a provision in her
loan agreement in which her creditor agreed not to breach the
peace when taking possession of any collateral property also
extinguishes Defendants' present right to repossession
under § 1692f(6)(A). Id. at 13-14.
response, Defendants argue that when a claim for recovery
under the FDCPA is based solely on the premise that the
defendant violated state law, the FDCPA claim is dismissed,
allowing the plaintiff to pursue the remedy contemplated by
the state law that the defendant violated. (Filing No. 58
at 4.) Defendants cite Montgomery v. Huntington
Bank, 346 F.3d 693 (6thCir. 2003), in which
the Court of Appeals for the Sixth Circuit declined to use
state law as a reference point for interpreting the FDCPA.
Id. at 3. Defendants disagree that the text of the
loan agreement supports a FDCPA claim, arguing that the
Seventh Circuit disapproved of using contractual provisions
to formulate a § 1692f violation in Bentrud v.
Bowman, 794 F.3d 871 (7thCir. 2015).
Court of Appeals for the Seventh Circuit has not directly
ruled on this issue, but it has addressed the issue several
times, most directly in Beler v. Blatt, Hasenmiller,
Leibsker & Moore, LLC, 480 F.3d 470
(7th Cir. 2007). In that case, like in this one, a
debtor admitted that she violated a security agreement by
failing to make payments, but claimed that the defendant
violated the FDCPA. Beler argued that defendants, by freezing
her checking account, violated the provision of § 1692f
that prohibits debt collectors from using “any unfair
or unconscionable means to collect or attempt to collect any
debt.” 15 U.S.C. § 1692f. Beler asked the court
for a broad ruling declaring that violation of any other rule
of positive law by a debt collector was unfair or
unconscionable under the FDCPA. The Court of Appeals declined
to issue that broad holding. In doing so, it noted that
§ 1692f creates its own rules (or authorizes the courts
and the FTC to do so); it does not so much as hint at being
an enforcement mechanism for other rules of state and federal
law. This is not a piggyback jurisdiction clause. If the Law
Firm violated the Social Security Act, that statute's
rules should be applied. Likewise, if the Law Firm violated
Illinois law. Section 1692f does not take a state-law dispute
and move it to federal court, even though the amount in
controversy is well under $75, 000 and the parties are not of
480 F.3d at 474.
Although not at issue in Beler, the Court of Appeals
addressed § ...