In Westbrook v. Nasa Fed. Credit Union, No. 3:17-cv-00534-AKK, 2019 U.S. Dist. LEXIS 35420 (N.D. Ala. Mar. 6, 2019), Judge Kallon granted summary judgment to a repossession agency.  First, Judge Kallon adopted the majority view that breach of the peace deprives the taker of the right to possession of the property and not vice versa.

T4SR argues that its “present right to possession” insulates it from any liability under § 1692f(6)(A). In support of this contention, T4SR cites to a string of cases  in which courts have dismissed § 1692f(6)(A) claims when the plaintiff failed to plead any facts that the “enforcer of a security interest does not have a present right to the collateral at issue.” Wright v. Santander Consumer USA, Inc., 2018 WL 2095171, at *4 (M.D. Fla. May 1, 2018) (citation omitted). These cases are not dispositive however on the issue before this court.  . . .The court will follow the lead of these cases and will analyze under Alabama law whether a breach of the peace occurred during the repossession. 3 3 Indeed, this seems to be the majority approach. See, e.g., Speleos v. BAC Home LoansServicing, L.P., 824 F. Supp. 2d 226 (D. Mass. 2011) (“A court should look to state law requirements to determine whether there was a present right to possession under the Fair Debt Collection Practices Act (FDCPA) section [*10]  applicable to the enforcement of security interests . . . . [under] 15 U.S.C.A. § 1692f(6).”); Aviles v. Wayside Auto Body, Inc., 49 F. Supp. 3d 216 (D. Conn. 2014) (“Genuine issue of material fact existed as to whether repossession company breached the peace in repossessing car, and thus whether repossession company had right under Connecticut law to take possession of car without judicial process, precluding summary judgment on car owner’s Fair Debt Collection Practices Act (FDCPA) claim against repossession company.”); Vantu v. Echo Recovery, LLC, 85 F. Supp. 3d 939, 944 (N.D. Ohio 2015) (noting that it was alleged that the security enforcer “had no right to present possession of the collateral” because he breached the peace and finding that “its conduct (if true) violated the FDCPA”); Fleming-Dudley v. Legal Investigations, Inc., No. 05 C 4648, 2007 WL 952026, at *5-6 (N.D. Ill. Mar. 22, 2007) (“To determine whether a debt collector had a present right to possession of the property under § 1692f(6), courts in this district and elsewhere have looked to the applicable state self-help repossession statute.”); Buzzell v. Citizens Auto. Fin., Inc., 802 F. Supp. 2d 1014, 1021 (D. Minn. 2011) (“A court should look to state law requirements to determine whether there was a present right to possession under the FDCPA . . . Under Minnesota law, a secured party may engage in self-help repossession as long as it does not breach the peace.”); Pflueger v.Auto Fin. Grp., Inc., 1999 WL 33740813 (C.D. Cal. Apr. 26, 1999) (“Genuine issues of material fact as to whether a breach of the peace occurred during the attempted repossession of an automobile precluded summary judgment [*11]  as to whether the repossessor was exercising its present right to possession, as would have precluded imposition of liability under [15 U.S.C.A. § 1692f(6)].”).

But, Judge Kallon said, there was no breach of the peace.

The Westbrooks’ description of Sproles’ conduct falls outside of the universe of conduct in which the Alabama Supreme Court has found a triable issue for a breach of the peace, which often involve a repossession agent using aggressive means to repossess the vehicle. See, e.g., Callaway, 892 So. 2d at 852 (vehicle owner testified that “the Tracker ran over his foot, that he grabbed the roll bar on the Tracker, and that [the agent] continued to drive the truck towing the Tracker, dragging [the owner] down the driveway”); Thrash v. Credit AcceptanceCorp., 821 So. 2d 968 (Ala. 2001) (“creditor . . . hired third party to repossess debtors’ car and third party squirted liquid dish-washing soap onto debtors’ driveway to make towing easier and debtor was injured when he slipped on soap, thus precluding summary judgment for creditor in negligence and trespass action brought by debtors”); Big Three Motors, Inc. v. Rutherford, 432 So. 2d 483 (Ala. 1983) (“Evidence, including proof that employees of automobile dealership pulled driver off road and repossessed her husband’s automobile, supported finding that actions of dealership’s agents amounted to breach of peace, and that therefore dealership made wrongful repossession.”); see also Wright, 2018 WL 2095171, at *4 (“Plaintiff alleges that Ace’s tow truck driver dragged his mother’s Buick and sister’s boyfriend’s Chevrolet to gain access to the Dodge Dart, damaged the tires of these automobiles, ripped off the Buick’s front bumper, and displayed a pistol to [plaintiff] so that [plaintiff] would not interfere with the repossession.”). Put 13 simply, the Westbrooks have failed to set forth sufficient evidence for a trier of fact to determine that Sproles breached the peace. Alternatively, even assuming that a debtor’s hostile response to a courteous and professional repossession agent could create a beach of the peace, the conduct here falls short of rising to that level. Basically, the purported breach of the peace is the Westbrooks’ contention about the existence of a risk of violence. To support this contention, Westbrook cites to depositions, video, and audio that captured her son’s purported threatening behavior. During Westbrook’s first 911 call, Scott Westbrook is overheard saying “[Sproles] has gone completely nuts . . . he’s gonna crash his [inaudible] real quick . . . because they are afraid of getting shot.” Doc. 39-9. Scott Westbrook also testified that he was “angry” and “felt like just punching [Sproles] in the nose.” Doc. 39-7 at 11, 17. Critically, however, Scott Westbrook never [*18]  acted on his heightened emotions and anger. In fact, he concedes that he never threatened to hurt Sproles and that he simply made “smart” comments to Sproles. Doc. 39-7 at 8 (Scott Westbrook’s deposition that “Q. And I know you said earlier that you may have made some comments that maybe you’re not proud of, but you didn’t threaten to hurt him, did you? A. No. Q. When you say that you made comments, are you just talking about sort of sarcastic or smart aleck comments? A. Yes, yes.”). Also, Scott Westbrook tries to downplay his reaction to Sproles, and praises Sproles for not overreacting. Id. at 12. (Scott Westbrook 14 deposition that “Q. Did you ever — did you ever like lose it and just yell at him? A. No. Q. Or were you just being just kind of snarky? A. Yes.”) and 14 (“A: . . . and in defense of [Sproles], he didn’t know who he was dealing with, you know. I could’ve been some nut that could have just shot him dead, you know, when hewalked up and didn’t say, look, this is who I am . . .”) (emphasis added). Lastly, the officer who responded to Westbrook’s call saw no need to deescalate the situation, which belies Westbrook’s contention about the situation potentially escalating into a public [*19]  disturbance. See Reno v. Gen. Motors Acceptance Corp., 378 So. 2d 1103, 1105 (Ala. 1979) (“Indeed, the fact that the plaintiff himself resorted to a report to the police rather than to a self-help pursuit implies the opposite of a situation tending to disturb the public order.”). To close, even viewing the evidence from the heated verbal exchange in the light most favorable to Westbrook, Sproles’ undisputed professional demeanor and Scott Westbrook’s downplay of his heightened emotions fail to demonstrate a triable issue regarding a breach of the peace. Therefore, because Westbrook’s FDCPA claim rests solely on her contention that T4SR lost its right to possession by breaching the peace, summary judgment is due in T4SR’s favor. As such, the court does not have to reach T4SR’s alternative contention that it had gained  sufficient control over the collateral before the purported breach of the peace, or Westbrook’s argument that T4SR is not entitled to a “bona fide error” defense to a FDCPA claim.