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Simpson v. American Credit Acceptance, LLC

United States District Court, E.D. Tennessee, Knoxville

May 11, 2017

PATRICIA SIMPSON, Plaintiff,
v.
AMERICAN CREDIT ACCEPTANCE, LLC, Defendant.

          MEMORANDUM OPINION

         This case is before the undersigned pursuant to 28 U.S.C. § 636(c), Rule 73(b) of the Federal Rules of Civil Procedure, and the consent of the parties, for all further proceedings, including entry of judgment [Doc. 8].

         Now before the Court is Defendant's Motion for Summary Judgment and Memorandum of Law in Support [Doc. 14]. The Plaintiff has not filed a response to the Motion, and the time for doing so has expired. See E.D. Tenn. L.R. 7.2 (“Failure to respond to a motion may be deemed a wavier of any opposition to the relief sought.”). Accordingly, for the reasons more fully set forth below, the Court finds the Defendant's Motion [Doc. 14] well-taken, and it is GRANTED.

         I. BACKGROUND

         The following facts are taken from the Defendant's Statement of Undisputed Facts, unless otherwise noted.

         The Plaintiff signed a Retail Installment Contract (“Contract”) for her purchase of a used car from U-Drive Auto, LLC (“U-Drive”) on October 17, 2011. [Doc. 14 at 2]. Under the Contract, the Plaintiff agreed to make monthly payments starting on November 16, 2011. Id. at 2. The Contract contained an assignment provision whereby U-Drive assigned the Contract to Auto Finance, a division of the Defendant. Id. The Defendant bought the Contract from U-Drive before the Plaintiff's first monthly payment was due. Id. The Plaintiff was not in default when the Defendant acquired the Contract. Id.

         The Plaintiff filed a Complaint on July 7, 2016, in Blount County Circuit Court alleging that the Defendant wrongfully repossessed the car and listed on the Plaintiff's credit report that the car had been repossessed on two occasions. [Doc. 1-1 at 2]. The Complaint states that no right existed for repossession under the security agreement and contract. Id. The Complaint alleges that as a result of the Defendant's unlawful and illegal actions, the Plaintiff suffered extreme mental anguish, embarrassment, and humiliation and that only monetary damages can suffice. Id. The Complaint states that, for instance, on one occasion, the vehicle was repossessed from her work site. Id. at 3. The Complaint states that there was no notification in advance that the car was being repossessed and that there was no opportunity to dispute the repossession. Id.

         The Complaint continues that the Defendant's actions, i.e., listing on the Plaintiff's credit report that the car had been repossessed on two different occasions for failure to comply with the contract, violate § 47-18-104(27) of the Tennessee Consumer Protection Act. Id. Further, the Complaint states that the Defendant is guilty of negligent infliction of emotional distress. Id. Finally, the Complaint alleges that the Defendant is guilty of violating 15 U.S.C. § 1629k of the Fair Debt Collection Practices Act. Id.

         The Complaint was removed [Doc. 1] to this Court on September 14, 2016.

         II. POSITIONS OF THE PARTIES

         In its Motion, the Defendant asserts that it is not subject to the Fair Debt Collection Practices Act (“FDCPA”) because it is not a debt collector. In addition, the Defendant asserts that the Plaintiff has not alleged whether the Defendant's principal purpose was to collect debts. Further, the Defendant argues that the Plaintiff has not alleged facts regarding the regularity with which the Defendant collected debts, nor has she alleged that the Defendant collected a debt due to another entity. Furthermore, the Defendant argues that it is undisputed that it acquired the debt before the Plaintiff's default.

         In addition, the Defendant argues that with respect to the Plaintiff's claim under the Tennessee Consumer Protection Act (“TCPA”), she has no private right of action. The Defendant asserts that even if she did have a private right of action, the Plaintiff's claim is preempted by the Fair Credit Reporting Act. Further, the Defendant submits that the TCPA does not apply to the alleged conduct. Finally, the Defendant argues that the Plaintiff's negligent infliction of emotional distress claim fails because she has not established all of the necessary elements.

         III. STANDARD OF REVIEW

         Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is proper “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). The moving party bears the burden of establishing that no genuine issues of material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n. 2 (1986); Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339 (6th Cir. 1993). All facts and all inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Burchett v. Kiefer, 301 F.3d 937, 942 (6th Cir. 2002).

         “Once the moving party presents evidence sufficient to support a motion under Rule 56, the nonmoving party is not entitled to a trial merely on the basis of allegations.” Curtis v. Universal Match Corp., 778 F.Supp. 1421, 1423 (E.D. Tenn. 1991) (citing Celotex, 477 U.S. at 317). To establish a genuine issue as to the existence of a particular element, the non-moving party must point to evidence in the record upon which a reasonable finder of fact could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 ...


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