McGrady v. Nissan Motor Acceptance Corp.

Majority - De Ment, District Judge

No, Nissan Motor Acceptance Corporation is not granted summary judgment on the conversion claim because a genuine issue of material fact exists regarding its liability for conversion of Dianne L. McGrady’s personal property and whether an agency relationship by apparent authority existed. Under Alabama law, conversion can occur when personal property is taken from a repossessed vehicle, as the certificate of title does not cover personal property. The court rejected Nissan's arguments that McGrady chose not to retrieve her property or failed to request its return, noting that the taking of personal property, unlike the vehicle itself, was not lawful. McGrady’s testimony that a Nissan employee instructed her to give the keys to the repossessing man was deemed sufficient evidence to create a question of fact as to whether Nissan held out Joiner’s as having the authority to act, thereby establishing apparent authority. Yes, Nissan Motor Acceptance Corporation is granted summary judgment on the Alabama Code § 7-9-501 et seq. claims. McGrady was in default on the contract due to being one month behind on payments, and the contract explicitly stated that Nissan's acceptance of prior delinquent payments did not waive its right to enforce terms, and oral agreements did not modify the contract without written consent. The court found no breach of peace during repossession, as McGrady's own testimony confirmed the agents were courteous and did not use force or threats. Regarding improper notice, Nissan fulfilled its duty under Alabama Code § 7-9-504(3) by "sending" reasonable notification of the private sale after 10 days to McGrady’s correct address, as the law does not require receipt. Lastly, the court found no improper disposal of the vehicle; a low price alone does not prove commercial unreasonableness, and McGrady's claim of a premature sale was a conclusory allegation unsupported by evidence. Yes, Nissan Motor Acceptance Corporation is granted summary judgment on the FDCPA claim. Nissan is an "actual creditor" and not a "debt collector" as defined by 15 U.S.C. § 1692a(6), because its principal business is not debt collection, nor does it regularly collect debts owed to others. Therefore, the FDCPA does not apply to Nissan in this context. Furthermore, no actual or apparent agency relationship was established between Nissan and Nationwide that would make Nissan liable for any FDCPA violations committed by Nationwide. No, Nationwide Credit, Inc. is denied summary judgment on the FDCPA claims. A rational trier of fact could find that Nationwide violated 15 U.S.C. § 1692d (harassment) through its numerous phone calls, rude treatment of McGrady’s mother, calls to her employer, and leaving messages identifying the caller only as "Pam." The court noted that § 1692d is not limited to its enumerated subsections and that conduct should be viewed from the perspective of a susceptible consumer. A genuine issue of material fact exists regarding whether Nationwide received McGrady's cease and desist letter under 15 U.S.C. § 1692c(c), as the presumption of delivery for properly mailed letters creates a factual dispute. Lastly, Nationwide failed to address McGrady's claim that it violated 15 U.S.C. § 1692f (unfair means) by demanding a post-dated check while knowing McGrady had insufficient funds, failing to meet its summary judgment burden, and leaving sufficient evidence for a jury to find a violation. No, Nationwide Credit, Inc. is denied summary judgment regarding the limitation of damages. "Actual damages" under 15 U.S.C. § 1692k(a)(1) include compensation for mental anguish. The court found this consistent with the Fair Credit Reporting Act, Alabama law concerning intentional infliction of mental distress and invasion of privacy, and common sense, emphasizing that a debtor's suffering from harassment could well exceed the $1,000 statutory maximum for additional damages. Yes, Nissan Motor Acceptance Corporation is granted summary judgment on its counterclaim for breach of contract. McGrady was in default, and the contract explicitly stated that a deficiency balance would remain owing after the sale of the vehicle. McGrady’s belief that repossession satisfied the account was erroneous under the contract terms. Her claims of commercially unreasonable disposal due to low price alone or bad faith in selling the vehicle before the 10-day notice period were unsupported by sufficient evidence to overcome summary judgment.