United States District Court, E.D. Tennessee, Knoxville
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].
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.
following facts are taken from the Defendant's Statement
of Undisputed Facts, unless otherwise noted.
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.
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
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.
Complaint was removed [Doc. 1] to this Court on September 14,
POSITIONS OF THE PARTIES
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.
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.
STANDARD OF REVIEW
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).
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 ...