MEMORANDUM
Presently before this Court is Defendant, Collateral Adjustment Corporation’s
I. BACKGROUND
On December 11, 2015, Plaintiff initiated this lawsuit by filing a Complaint against Defendant CAC, Consolidated Asset Recovery Systems Inc. (“Defendant CARS”), and Dealer Funded, LLC (“Defendant DFL”)(collectively “Defendants”). (Doc. No. 1.) The Complaint is comprised of the following four counts: Count I alleges violations of the Fair Debt Collection Practices Act (“FDCPA”) at 15 U.S.C. § 1692 et seq. against Defendant CAC and Defendant CARS, Count II alleges violations of the Uniform Commercial Code (“U.C.C.”) at 18 Pa. C.S.A. § 9607 et seq. and the Pennsylvania Motor Vehicles Sales Finance Act (“MVSFA”) at 69 P.S. § 615 et seq. against all Defendants, Count III alleges violations of the Fair Credit Extension Uniformity Act (“FCEUA”) at 73 P.S. § 2270.1 et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) at 73 P.S. § 201-1 et seq. against all Defendants, and Count IV alleges negligence claims against all Defendants. (Id.)
Defendant DFL is a Georgia Corporation licensed to do business in Philadelphia as a buyer of used car credit purchase agreements. (Compl. ¶ 4.) Defendant CARS is a corporation regularly engaged in the business of debt collection and automobile repossession. (Id. ¶ 5.) Defendant CAC is a Pennsylvania Corporation also engaged in the business of automobile repossession. (Id. ¶ 6.) According to Plaintiff, Defendant CARS and Defendant CAC were hired by and acted as Defendant DFL’s agents.
The facts of this ease begin on or about October 2014, when Plaintiff entered into a Retail Installment Sales Contract (“RISC”) for the financed purchase of a 2006 BMW X3 (“subject car”). (Id. ¶10.) Plaintiff was in default on her loan, and on or about September 22, 2015, at the direction of Defendant DFL, Defendant CAC came to her residence and repossessed the subject vehicle. (Id. ¶¶ 11-12.) On or about September 29, 2015, Plaintiff went to the New Jersey Manheim lot to redeem her vehicle. (Id. ¶ 13.) Plaintiff alleges that after retrieving the vehicle and inspecting it, she noticed that personal property was removed, trash was littered throughout the vehicle, and that the vehicle had been damaged due to being improperly towed by Defendant CAC. (Id. ¶ 14.)
Presently before this Court is Defendant CAC’s Motion to Dismiss the Compliant under Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) for failing to attach a necessary writing upon which her entire claim is based. In the alternative, Defendant CAC moves this Court under Rules 12(b)(6) and 12(f) of the Federal Rules of Civil Procedure for an Order dismissing Counts I, II, and III of Plaintiffs Complaint for failure to state a claim, and striking paragraphs 41 and 49, as well as sections A, B, D, E, and G of Plaintiffs Prayer for Relief. In her proposed order to this Court, Plaintiff has agreed to the following: dismissal of Count III; paragraphs 41 and 49 are stricken from the Complaint; Section A’s references to the UTPCPL and FCEUA are stricken; and Section G of Plaintiffs Prayer for Relief is stricken as to Defendant CAC.
II. STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Kost v. Kozakiewicz,
The United States Supreme Court (“Supreme Court”) set forth in Twombly, and further defined in Iqbal, a two-part test to determine whether to grant or deny a motion to dismiss. See Ashcroft v. Iqbal,
Initially, the court must ascertain whether the complaint is supported by well-pleaded factual allegations. Iqbal,
Upon a finding of a well-pleaded complaint, the court must then determine whether thesé allegations “plausibly” give rise to an entitlement to relief. Id. at 679,
III. DISCUSSION
A. Failure to Attach a Necessary Writing
We do not agree with Defendant CAC’s first contention that Plaintiffs Complaint should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failing to attach the RISC. Federal Rule of Civil Procedure 8(a) “permits a
Here, Plaintiff has alleged that the RISC exists, that the agreement was between her and Defendant DFL, and that it involved the subject car. (Compl. ¶¶ 10, 17.) Most importantly, Plaintiff admits that she was in default on her RISC at the time of the repossession and makes no argument that it was not a valid agreement, (Compl. ¶ 12.) Furthermore, Plaintiff cannot locate a copy of the contract. (PL’s Resp. to Def.’s Mot. to Dismiss Compl. at 1.) In light of the liberal notice pleading standards embodied in Rule (8)(a), the Court finds that Plaintiff has sufficiently alleged facts to place Defendant CAC on notice of the RISC such that it can reasonably respond.
B. Failure to State a Claim Pursuant to Federal Rule of Civil Procedure 12(b)(6)
1. Violations of the Fair Debt Collection Practices Act
Defendant CAC argues that Count I of Plaintiffs Complaint regarding violations of the FDCPA, 15 U.S.C. § 1692, et seq. should be dismissed under Rule 12(b)(6) for several reasons including: (1) a repossession agency is not a “debt collector” for FDCPA purposes; (2) Plaintiff admitted she defaulted on her loan; therefore, Defendant CAC had a right of possession and did not violate § 1692f(6)(A) of the FDCPA as a matter of law; (3) and no facts were pleaded that support a finding under § 1692f(6)(B), § 1692f(6)(C), or § 1692d. (Def.’s Mot. to Dismiss Compl. at 4-6.)
We do find that a repossession agency is a “debt collector” for FDCPA purposes, but it is only subject to § 1692(f)(6) and not the remaining provisions of the statute. Under the FDCPA, “[f]or the purpose of section 1692f(6) of this title, such term [debt collector] also includes any person who uses any instrumentality of interstate commerce or the mails in any business the
The Third Circuit has interpreted § 1692a(6) to mean that repossession agencies are subject to the FDCPA, but only for § 1692f(6) and not the remaining provisions of the statute. See Piper v. Portnoff Law Assocs., Ltd.,
Since Defendant CAC is a repossession agency, we must now decide whether Plaintiff has sufficiently pleaded a claim under the sole applicable provision of the FDCPA, § 1692f(6). (Compl. ¶6.) § 1692f(6) provides that the following conduct violates the FDCPA:
(6) Taking or threatening to take any nonjudicial action to the effect of dispossession or disablement of property ■if- .
(A) there is no present right to possession of the property claimed as collateral through an enforceable security interest;
(B) there is no present intention to take possession of the property; or
(C) the property is exempt by law from such dispossession or disablement.
15 U.S.C. § 1692f(6). Here, the inquiry does not need to go very far as Plaintiff has admitted her car was repossessed because she defaulted on her RISC. (Compl. ¶¶ 11-12.) Therefore, Defendant CAC had a right of possession and was not in violation of § 1692f(6)(A). Additionally, Plaintiff does not plead any facts that suggest violations of § 1692f(6)(B) or § 1692f(6)(C). For these reasons, Plaintiff has not pleaded with sufficient facts a plausible claim under 15 Ü.S.C. § 1692f(6). We will allow Plaintiff fourteen days to file an Amended Complaint if she so chooses to cure her deficiencies.
2. Violations of the Uniform Commercial Code and the Pennsylvania Motor Vehicles Sales Finance Act
Next, Defendant CAC argues that Count II of Plaintiffs Complaint regarding violations of' the U.C.C., 13 Pa. C.S.A. § 9607 et seq., and the MVSFA, 69 P.S. § 615 et seq., should be dismissed under 12(b)(6) because Plaintiff did not adequately allege a breach of the peace. (Def.’s Mot. to Dismiss Compl. at 7-8.) As a threshold matter, we note that Plaintiff cites the incorrect statute in her Complaint. Plaintiff is alleging a breach of the peace, which is a violation of 13 Pa. C.S.A. § 9609 et seq. However, Plaintiff cites § 9607(c), which states the following:
(c) Commercially reasonable collection and enforcement. A secured party shall proceed in a commercially reasonable manner if the secured party:
(1) undertakes to collect from or enforce an obligation of an account debtor or other person obligated on collateral; and
(2) is entitled to charge back uncollected collateral or otherwise to full or limited recourse against the debtor or a secondary obligor.
13 Pa. C.S.A. § 9607(c). Plaintiff specifically mentions a breach of the peace in both her Complaint and Response in Opposition to the Motion before us. (Compl. ¶ 28; Pl.’s Resp. to Def.’s Mot. to Dismiss Compl. at 8-9.) Plaintiff, also, references § 9609(b)(2) in her response. (Pl.’s Resp. to Def.’s Mot. to Dismiss Compl. at 8.) Therefore, we will analyze whether Plaintiff has pleaded sufficient facts to state a plausible claim under § 9609 et seq.
13 Pa. C.S.A. § 9609 deals with a secured party’s right to take possession after a default. A secured party can repossess collateral without judicial process if repossession can be accomplished without a “breach of the peace.” 13 Pa. C.S.A. § 9609(b)(2). Pennsylvania courts have not specifically defined what actions constitute a breach of the peace, and there is very little case-law interpreting a breach of the peace in the repossession context. The case-law that exists does not help greatly in resolving the facts of this case since Plaintiff is arguing a breach of the peace occurred because her car was damaged in the course of the repossession. Plaintiff makes no factual allegations that she was present at the repossession, that she made any oral objection at the scene of the repossession, that any law enforcement was involved in the repossession, that Defendant CAC trespassed while executing the repossession, or that Defendant CAC had to enter the subject vehicle with force.
These facts are critical as all of the Pennsylvania cases before us dealt with issues at the scene of the repossession. See Stewart v. North,
Having no binding precedent on point, we will now look to other sources for guidance. Plaintiff cites the classic definition of a breach of the peace as “a violation of the public order, a disturbance of tranquility, by an act or conduct inciting to violence or tending to provoke or excite others to break the peace.” (PL’s Resp. to Def.’s Mot. to Dismiss Compl. at 8);. E. Mikolajcyk, Breach of Peace and Section 9-503 of the UCC—Modern Definition for an Ancient Restriction, 82 Dick.L.Rev.351 (1981) (quoting Anderson Wharton’s Criminal Law & Procedure § 802 (1957)).
Some jurisdictions have adopted a balancing test and consider the following five factors when making a determination if there has been a breach of the peace: 1) where the repossession took place; 2) the debtor’s express or constructive consent; 3) the reactions of third parties; 4) the type of premises entered; and 5) the creditors’ use of deception. See Clarin v. Minn. Repossessors,
We have not been provided with, nor could we locate, a case holding that there was a breach of the peace when a vehicle was repossessed on a public street without objection or confrontation. Chapa v. Traciers & Assocs.,
The cases of Chapa and Jordan illustrate this methodology. In Chapa, a repossession agent, hired by a secured creditor, repossessed a vehicle from a public street when the driver was absent.
there [was] no evidence that Chambers proceeded with the attempted repossession over an objection communicated to him at, near, or incident to the seizure of the property. To the contrary, Chambers immediately ‘desisted’ repossession efforts and peaceably returned the vehicle and the - children when he learned of their presence. Moreover, Chambers actively avoided confrontation. By removing an apparently, unoccupied vehicle from a public street when the driver was not present, he reduced the likelihood of violence or other public disturbance.
Id. at 395 (emphasis added). The court made no consideration of the harm done after the repossession had taken place. Id.
The South Carolina court in Jordan used similar reasoning. In Jordan, a repossession agent was hired by a bank to repossess a truck from a debtor who was in default.
We are not at all sure that the alleged violations of the traffic laws amounted to a breach of the peace, but even if it be assumed that they did, the conduct was not incident to seizing the truck at the residence of the [debtors]. The breach of the peace as contemplated by the statute and our cases refers to conduct at or near and/or incident to the seizure of the property.
Id. Again, the courts main focus was on the conduct that occurred near or incident to the actual seizure.
The Pennsylvania case-law, as discussed above, has been following a consistent pattern with a similar focus as Cha-pa and Jordan, Pennsylvania courts have put an emphasis on the events that occur at the scene of the repossession, and how the secured party gained access to the real estate upon which the collateral was maintained. See Stewart,
No case-law suggests that Pennsylvania would be willing to extend what constitutes a breach of the peace to situations, like the one before us, involving damage that occurred not incident to the actual seizure. Plaintiff has not pleaded any facts indicating that she, or anyone, was present at the scene, that Defendant CAC used force or threats of force, that Defendant CAC trespassed, or that Defendant CAC used law enforcement. Therefore, Plaintiff has not sufficiently pleaded a plausible claim for a breach of the peace, under § 9609. The recourse for this type of allegation is more appropriately brought as a negligence action, which Plaintiff has already done so in Count IV of her Complaint. For the same reasons as discussed above, we will allow Plaintiff fourteen days to file an Amended Complaint if she so chooses to. cure its deficiencies.
C. Motion to Strike Plaintiffs Prayer for Relief.
Federal Rule of Civil Procedure 12(f) provides that “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” A demand for damages that is not recoverable as a matter of law may be stricken pursuant to Rule 12(f). Seippel v. Jenkens & Gilchrist, P.C.,
Defendant CAC argues that parts A, B, D, E, and G of Plaintiffs Prayer for Relief must be stricken because these damages are not recoverable against it. Plaintiff concedes in her proposed Order attached to her Response that we should strike Section A’s references to the UTPCPL and FCEUA and Section G as to Defendant CAC. Thus, to the extent that Defendant CAC’s Motion asks us to strike these various prayers for relief, it will be grant
IV. CONCLUSION
For the aforementioned reasons, we grant Defendant CAC’s Motion by agreement to the following: dismissal of Count III; paragraphs 41 and 49 are stricken from the Complaint; Section A’s references to the UTPCPL and FCEUA are stricken; and Section G of Plaintiffs Prayer for Relief is stricken as to Defendant CAC. We, also, grant Defendant CAC’s Motion and dismiss without prejudice Count I and Count II of Plaintiffs Complaint for failing to state a claim. Additionally, Sections B, D, and E of Plaintiffs Prayer for Relief are stricken without prejudice. As noted, we will allow Plaintiff fourteen days to properly amend her Complaint. We caution Plaintiff to carefully follow the guidelines set forth in this Opinion, or her claim may be dismissed without leave to amend.
An appropriate Order follows.
Notes
. Although not expressly stated, Defendant may be confusing the stricter fact-pleading standards of the Pennsylvania Rules of Civil Procedure with the liberal pleading requirements of Rule 8(a). See Pa. R. Civ. P. 1019(i) ("[W]hen any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing.”).
. 15 U.S.C. § 1692(e) provides that the purpose of this Act is "to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.”
. “Dismissal without leave to amend is justified only on the grounds of bad faith, undue delay, prejudice, or futility,” Alston v. Parker,
. The Third Circuit recommended a procedure for district courts to follow when dismissing complaints without prejudice and suggested that "district judges expressly state, where appropriate, that the plaintiff has leave to amend within a specified period of time, and that application for dismissal of the action may be made if timely amendment is not forthcoming within that time. If the plaintiff does not desire to amend, he may file an appropriate notice with the district court asserting his intent to stand on the complaint at which time an order to dismiss the action would be appropriate." Borelli v. City of Reading,
. See Walker v. Walthall,
. In interpreting state law, federal courts are bound by the decisions of the state’s highest
We will note that in Plaintiff’s opposition to the Motion before us, she claims a collision caused the damage to the subject vehicle; however, the Complaint makes no mention of a collision and simply states the vehicle was damaged due to improper towing. (Compl. ¶¶ 14-15; PL’s Resp. to Def.’s Mot. to Dismiss Compl. at 8-9.)
. As nonbinding precedent, we decline to follow the Florida First District Court of Appeal case of Quest v. Barnett Bank of Pensacola that Plaintiff cites in her response.
. Sections B and E are stricken as we have found that Plaintiff has failed to adequately allege, as a matter of law, a plausible claim for the corresponding statutes. Section D is stricken because attorney fees are not recoverable absent express authority, agreement of the parties or some other established exception. Mosaica Acad. Charter Sch. v. Commw.,