Thigpen v. Westlake Services, LLCThigpen v. Westlake Services, LLC
Before BACHARACH, KELLY, and EID, Circuit Judges.
Mr. Thigpen bought a truck and entered a contract to pay in installments, and the seller assigned the contract to Westlake Services, LLC. Mr. Thigpen stopped paying and sued Westlake for nondisclosure and
1. Consideration of Westlake‘s Reply Brief
On appeal, Mr. Thigpen argues that the district court erred by considering arguments presented for the first time in Westlake‘s reply brief. In district court, Mr. Thigpen requested leave to file a surreply brief “to address and rebut [Westlake‘s] new arguments.” R. at 311. The district court allowed Mr. Thigpen to file a surreply, and he did so.
Even though Mr. Thigpen got what he requested, he argues that the district court shouldn‘t have considered the arguments newly asserted in Westlake‘s reply brief. We reject this argument because the court didn‘t err: Mr. Thigpen asked for a chance to file a surreply, he received permission and filed the surreply, and the court considered the surreply just as he had requested.1
2. Grant of Summary Judgment
Nor did the court err in granting summary judgment to Westlake. Mr. Thigpen asserted claims involving the
a. Standard of Review
We conduct de novo review of the district court‘s grant of summary judgment. Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015). In that review, we draw all reasonable inferences in favor of the nonmoving party (Mr. Thigpen) to determine whether Westlake was entitled to judgment as a matter of law. Id.;
b. Claims under the Truth in Lending Act
Mr. Thigpen claims violation of the
i. Timeliness
For this claim, a one-year period of limitations exists,
The [district] court misapplied equitable tolling by holding Plaintiff‘s [Truth in Lending Act] claims time-barred based on billing statements. Plaintiff never received the required disclosures in the first place, so there was nothing in those statements that could have triggered the statute of limitations. Billing statements do not have [Truth in Lending Act] disclosures within them so this information should have been in the [retail installment contract].
Appellant‘s Opening Br. at 20.
After signing the contract, Mr. Thigpen waited two years to sue. So the claim would ordinarily be time-barred. But he argues that (1) he was entitled to equitable tolling and (2) the violations were continuing. These arguments lack merit.
For equitable tolling, Mr. Thigpen argues that he couldn‘t have discovered the violations earlier. For the sake of argument, we can assume that the limitations period is subject to equitable tolling when a debtor couldn‘t reasonably discover the violation earlier. See Jones v. TransOhio Sav. Ass‘n, 747 F.2d 1037, 1041 (6th Cir. 1984) (recognizing equitable tolling for claims under the
Mr. Thigpen also claims that Westlake continued to violate the statute by
- sending misleading billing statements to him and
- failing to disclose finance charges for the insurance.
But the Act requires disclosures before extending credit.
Absent a basis for equitable tolling or a continuing violation, the claim is time-barred.
ii. Adequacy of the Disclosures
Undisputed Evidence of Conspicuous Disclosures
Under the Act, a creditor must clearly and conspicuously disclose the annual percentage rate, amount financed, and specific finance charge.
Mr. Thigpen doesn‘t explain why these disclosures would have lacked the required clarity or conspicuousness.
He does argue that Westlake failed to disclose the finance charges for insurance. But Mr. Thigpen doesn‘t present any evidence that Westlake offered insurance. Westlake just told Mr. Thigpen that he needed to obtain insurance from an acceptable insurer.
Mr. Thigpen also argues that Westlake failed to tell him that he could obtain an itemization of the finance charges. But the district court explained that Westlake had provided the itemization in the contract itself, and Mr. Thigpen doesn‘t identify any deficiencies in the itemization.
Scope of the Summary-Judgment Motion
Westlake urged summary judgment based on arguments that
- the contractual disclosures were complete and conspicuous,
- there was no need to disclose a right to get an itemized list of finance charges because the contract itself had provided the itemization,
- the contract disclosed a right to get insurance from other companies and Westlake itself didn‘t offer insurance,
- there‘s no evidence of advertising for the truck that Mr. Thigpen bought, and
- there‘s no evidence about past requirements for downpayments.
The district court tracked these arguments in granting summary judgment, explaining that Westlake had
- “clearly delineated” the required information on the first page of the contract,
- provided an itemized list of charges rather than explain the right to request such a list,
- explained that Westlake had disclosed the right to choose an insurer, and
- concluded that Mr. Thigpen hadn‘t presented evidence of advertisements for the truck or the customary practices involving downpayments.
R. at 345–47.
We thus reject Mr. Thigpen‘s argument that the district court decided issues outside Westlake‘s summary-judgment motion.
Purported disregard of evidence
Mr. Thigpen also insists that the district court ignored his evidence of advertising, failure to credit his downpayment, and a continuing violation from the billing statements.
First, Mr. Thigpen doesn‘t say where he presented evidence of advertising, and we see no such evidence in his response to the summary-judgment motion. In addition, Mr. Thigpen says that he pleaded a failure to credit his downpayment. But at the summary-judgment stage, Mr. Thigpen couldn‘t rest on the complaint: He needed to present evidence, Behrens v. Pelletier, 516 U.S. 299, 309 (1996), and he didn‘t do so.
Second, Mr. Thigpen argues that the district court failed to discuss his claim involving misapplication of the downpayment. But Mr. Thigpen didn‘t
- allege in the complaint that Westlake had misapplied the downpayment or
- discuss such an allegation when responding to the motion for summary judgment.
So the district had no reason to discuss an allegation involving misapplication of the downpayment.
Third, Mr. Thigpen argues that the district court erred by failing to discuss billing statements. Appellant‘s Opening Brief at 25. We disagree. R. at 352. Granted, the court didn‘t discuss whether the billing statements had created a continuing violation. But there was no need. The court reasoned that a claimant couldn‘t circumvent the statute of limitations when alleging a failure to make disclosures when entering the contract. R. at 343; see Stevens v. Rock Springs Nat‘l Bank, 497 F.2d 307, 309 (10th Cir. 1974). Faced with that argument, Mr. Thigpen said nothing about a continuing violation from the billing statements.
We thus conclude that the district court didn‘t disregard his arguments when granting summary judgment to Westlake.
c. Claim under 42 U.S.C. § 1983
Mr. Thigpen also faults the district court for sua sponte criticizing his reliance on
Mr. Thigpen doesn‘t explain why this statement would support appellate relief. The caption of his complaint states: “Civil Rights Complaint Pursuant to
3. Claim under the Federal Debt Collection Practices Act
Mr. Thigpen also claims that Westlake violated the
First, a company is a debt collector only when trying to collect a debt owed to someone else.
Second, the statute excludes liability for companies obtaining an assignment of a debt that isn‘t in default at the time of the assignment. Llewellyn v. Allstate Home Loans, Inc., 711 F.3d 1173, 1187 (10th Cir. 2013). And Westlake obtained an assignment of the installment contract immediately after Mr. Thigpen bought the truck. At that time, he wasn‘t in default.3
Mr. Thigpen challenges the ruling, but he doesn‘t contest the district court‘s reasoning. Instead, he argues that he was called by two other companies: NowPay and High Desert Repossession. If NowPay and High Desert Repossession were debt collectors, they might incur liability under the statute. But Mr. Thigpen doesn‘t explain how their statutory violations could trigger liability for Westlake.
He instead asserts that Westlake could qualify as a debt collector “when collecting via third parties.” Appellant‘s Opening Br. at 34. But the statute targets only debt collectors, and Westlake isn‘t a debt collector. Mr. Thigpen asserts that Westlake could incur liability even it wasn‘t a debt collector, relying solely on Reyes v. Steeg Law, LLC, 760 F. App‘x 285, 288 (5th Cir. 2019) (unpub., per curiam). But this opinion doesn‘t suggest that a creditor can incur liability when collecting a debt through third parties. To the contrary, this opinion merely says that an attorney
Westlake wasn‘t a debt collector, which prevents statutory liability. The Fifth Circuit‘s unpublished per curiam opinion in Reyes has no bearing on this issue.4
d. Claim under the Telephone Consumer Protection Act
Mr. Thigpen also claimed that Westlake had violated the
The district court relied on this exception in granting summary judgment to Westlake. Mr. Thigpen‘s contract said: “[Y]ou agree that we may from time to time make calls and send text messages to you using prerecorded/artificial voice messages or through the use of an automatic dialing device at any telephone number you provide to us in connection with your account.” R. at 53. Through this language, Mr. Thigpen expressly consented to Westlake‘s use of prerecorded messages and
Mr. Thigpen says that the contract language is ambiguous, but doesn‘t say anyone could read this language differently. The Eleventh Circuit addressed similar language: “I authorize Sallie Mae to communicate with me using automated telephone dialing equipment and/or artificial or pre-recorded voice messages.” Lucoff v. Navient Solutions, LLC, 981 F.3d 1299, 1302 (11th Cir. 2020). Considering that language, the Eleventh Circuit concluded that the borrower had “unambiguous[ly]” consented to calls using automated dialing and prerecorded messages. Id. at 1306. The same is true here: Mr. Thigpen unambiguously consented in the contract to Westlake‘s use of automated dialing and prerecorded calls.
In district court, Mr. Thigpen argued that the consent “must be specific to the method of communication and not derived from vague or ambiguous sources.” R. at 213; see also Appellant‘s Opening Br. at 40 (arguing that consent under the statute must be “specific“). For this argument, he purports to quote a Fifth Circuit opinion stating that “prior express consent ‘must be specific to the method of communication and not derived from vague or ambiguous sources.‘” R. at 213 (purporting to quote Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 56 (2d Cir. 2017)); Appellant‘s Opening Br. at 40 (similar paraphrase of Reyes as stating that consent must be explicit and limited in scope). But the cited opinion
Mr. Thigpen argues that third parties, like NowPay, made calls. Some courts recognize vicarious liability of the creditor when its agent violates the
In his reply brief, Mr. Thigpen also argues that (1) he gave only his cell number and received calls at other phone numbers and (2) he revoked the alleged consent. Appellant‘s Reply Br. at 2-3, 10, 21-23. But he waived these arguments by omitting them in his opening brief. See Sierra Club v. Okla. Gas & Elec. Co., 816 F.3d 666, 667 n.9 (10th Cir. 2016) (“We generally do not consider arguments raised for the first time in a reply brief“).
e. Claim for Breach of Contract
Mr. Thigpen also claimed breach of contract under state law. On this claim, the district court granted summary judgment to Westlake, reasoning that the contract had clearly allowed late fees, required collision insurance, allowed automated calls, and authorized repossession upon a failure to
First, he says that the contract doesn‘t authorize repossession for failing to obtain insurance. As the district court explained, however, the contract said that
- Mr. Thigpen “must insure the [truck],”5
- he would “be in default” upon a failure to undertake any of the contractual obligations, and
- Westlake can “take possession of [the truck]” upon a contractual default.
R. at 52; see R. at 357 (district court‘s discussion of these contract terms). Mr. Thigpen doesn‘t say why he thinks these provisions would leave
Second, he says that the billing statements included fees “not itemized in the [Truth in Lending Act] disclosure box.” Appellant‘s Opening Br. at 43. We have explained above that Westlake had complied with the Act.
Third, Mr. Thigpen includes one sentence stating that Westlake called him more often than what had been allowed in the contract (“time to time“), adding that this issue didn‘t appear in the motion for summary judgment. Appellant‘s Opening Br. at 43. But Westlake didn‘t include this issue because it wasn‘t pleaded: Mr. Thigpen alleged breach of contract, but said nothing in those allegations about calls exceeding his consent for communications “from time to time.”
We thus reject Mr. Thigpen‘s challenges to the ruling on his contract claim.
f. Claim for Unjust Enrichment
Mr. Thigpen also claims unjust enrichment. The district court rejected this claim, holding that unjust enrichment was unavailable because the parties had a contract spelling out the parties’ obligations. Mr. Thigpen doesn‘t challenge this holding. He instead argues that (1) the district court didn‘t address violations outside the contract and (2) Westlake hadn‘t
First, Mr. Thigpen argues that he presented evidence of efforts to collect insurance premiums through an unauthorized demand letter, insisted on fees not itemized in the contract, and unilaterally extended interest on the loans. The district court explained that each of these matters is spelled out in the contract, and Mr. Thigpen doesn‘t say why he thinks the court was wrong. He instead says, without explanation, that these alleged violations would have existed independently of the contract. Without such an explanation, however, we have no reason to disturb the district court‘s reasoning. See Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (“The first task of an appellant is to explain to us why the district court‘s decision was wrong.“).
Second, Mr. Thigpen argues that Westlake didn‘t raise this issue until its reply brief. We disagree. In the motion for summary judgment, Westlake argued that “[a] valid and enforceable retail installment contract governing the parties’ relationship precludes Plaintiff‘s unjust enrichment claim.” R. at 172. In response, Mr. Thigpen argued that Westlake had imposed insurance obligations not clearly disclosed in the contract, collected fees exceeding what was stated in the contract, and unilaterally extended the loan term without proper notice. Id. at 220. Westlake responded in its reply brief. In this situation, the court allowed Mr.
We thus reject Mr. Thigpen‘s challenge to the ruling on his claim of unjust enrichment.
g. Claim under the New Mexico Unfair Practices Act
Mr. Thigpen also asserts a claim under the
- expressly required Mr. Thigpen to insure the truck and
- the contract allowed repossession if he were in default.
R. at 360–62. Mr. Thigpen disagrees with this reasoning, but doesn‘t say what‘s wrong with it. Absent such an explanation, we have no reason to disturb the district court‘s reasoning. See Nixon v. City & City & Cnty. of Denver, 784 F.3d at 1366.
The court also reasoned that Mr. Thigpen lacked any evidence that Westlake
- had misled him by extending the loan while saying that additional payments would improve his financial situation and
- had failed to provide clear disclosures of the total loan cost.
R. at 362. Mr. Thigpen challenges this reasoning based on administrative charges that Westlake had failed to accurately disclose the annual percentage rate and improperly altered loan terms.6 But the charges involving Westlake‘s prior misconduct toward other borrowers doesn‘t support an allegation that Westlake had later misled Mr. Thigpen himself.
***
We affirm the grant of summary judgment. The district court didn‘t err in considering Westlake‘s reply brief because Mr. Thigpen had a chance to respond in a surreply brief. And even though Westlake isn‘t a debt collector, Westlake provided all of the required disclosures in a box brandished at the start of the contract, called Mr. Thigpen only after
Entered for the Court
Robert E. Bacharach
Circuit Judge