In Russell v. Santander Consumer United States, No. 19-CV-119, 2020 U.S. Dist. LEXIS 101404 (E.D. Wis. June 9, 2020), the District Court held an automobile finance company responsible for the repossession company’s breach of the peace.

The Russells also sue their creditor, Santander, under Wis. Stat. § 425.206(2)(a) and Wis. Stat. §§ 427.104(1)(h) and (1)(j) for the illegal repossession. The Russells move for summary judgment on their WCA claims against Santander and as to Santander’s affirmative defenses. (Docket # 16 at 10.) The Russells argue that Santander cannot avoid liability under the WCA by acting through its repossession agents. (Pls’ Br. in Supp. at 10- 13, Docket # 57.) It is undisputed that Santander hired a non-party, P.K. Willis, to repossess the Russells’ vehicle. (Pls’ Proposed Additional Facts (“PPAF”) ¶ 149, Docket # 74 and Def.’s Resp. to PPAF ¶ 6, Docket # 72.) P.K. Willis in turn hired AssetsBiz to conduct the physical repossession of the Russells’ vehicle. (Id. ¶ 149 and Def.’s Resp. to 11 PPAF ¶ 12.) Thus, Santander argues that it is not liable for the actions of AssetsBiz and Sancinati because there was no contractual relationship between Santander and AssetsBiz and because there is no case law to support that a creditor is vicariously liable for the actions of a third-party repossession company. (Def.’s Br. at 2, Docket # 71.) The court in Gable addressed a similar issue. In Gable, the creditor, UAC, had a contract with a repossession company, RPI. The parties’ contract expressly classified RPI as an independent contractor and not an agent of UAC. 338 F. Supp. 3d at 946. RPI’s agent, Chase, physically repossessed the plaintiffs’ vehicle. Id. at 948, 954. The plaintiffs sued UAC, RPI, and Chase under Wis. Stat. § 425.206(2)(a) and §§ 427.104(1)(g) and (j). UAC argued that it could not be held liable under the WCA because RPI was an independent contractor under its contract with UAC and not its agent, and because Chase was also not UAC’s agent but RPI’s agent. Id. at 954. Santander is in a similar position [*17]  as UAC-both were two parties removed from the act of repossession. In Gable, the creditor (UAC) hired RPI to repossess Gable’s vehicle, and RPI hired Chase to do the actual repossession. Similarly, in this case, Santander hired P.K. Willis to repossess the vehicle, who in turn hired AssetsBiz to conduct the actual repossession. Santander presumably does have a contract with P.K. Willis and P.K. Willis presumably has a contract with AssetsBiz. But having an actual contract does not matter. The Gable court cited Wis. Stat. § 425.206(2)(a), which states that “[i]n taking possession of collateral or leased goods, no merchant may . . . [c]ommit a breach of the peace.” The court noted that the WCA defines merchant as: a person who regularly advertises, distributes, offers, supplies or deals in real or personal property, services, money or credit in a manner which directly or indirectly results in or is intended or designed to result in, lead to or induce a consumer transaction. The term includes but is not limited to a seller, lessor, manufacturer, creditor, arranger of credit and any assignee of or successor to 12 such person. The term also includes a person who by his or her occupation holds himself or herself out as having knowledge or skill peculiar to such practices or to whom such knowledge or skill may be attributed by his or her employment as an agent, broker or other intermediary. Id. (quoting Wis. Stat. § 421.301(25)). The court found that “[r]egardless of the language UAC included in its contract with RPI, it was UAC that directed RPI to repossess Gable’s car, and it is UAC that falls within the definition of merchant contained in the WCA.” Id. The court continued: “It was UAC’s authority to repossess Gable’s car that RPI was exercising. That UAC chose to authorize RPI to exercise its right under Wisconsin law to take possession of its collateral extra-judicially does not mean it can avoid liability for actions taken on its behalf and at its request.” Id. at 955. The only difference between Gable and this case is that the Russells did not also sue P.K. Willis. It is irrelevant that Santander did not contract with AssetsBiz. As in Gable, P.K. Willis repossessed the Russells’ vehicle on Santander’s authority, and P.K. Willis utilized AssetsBiz to do so. Thus, Santander cannot insulate itself from liability under Wisconsin law by utilizing third-parties to exercise its right to repossession. P.K. Willis and AssetsBiz were taking action at Santander’s request. Like Gable, the repossession agent (RPI/P.K. Willis) used its agent (Chase/AssetsBiz) to repossess the plaintiff’s vehicle. The court found that despite the creditor’s (UAC) contractual relationship with RPI expressly stating that RPI was an independent contractor and not an agent of UAC, and despite the fact that the repossession agent (RPI) used its own agent (Chase) to repossess the vehicle, the court still found that UAC could be liable to the plaintiff under the WCA. I agree with the Gable court’s reasoning. The “merchant” has an independent duty under the WCA to not breach the peace while taking possession of collateral. It would defeat the purpose of the statute if a “merchant” could escape liability under the WCA by using a third-party to take possession of the collateral. Thus, Santander is liable for the breach of the peace under the WCA. The Russells similarly moved for summary judgment as to Santander’s twelve affirmative defenses. (Pls’ Br. in Supp at 17-24.) Santander fails to address the Russells’ arguments as to the affirmative defenses. (See Docket # 71.) Santander has failed to meet its burden of proof as to its affirmative defenses; thus, I will grant summary judgment in the Russells’ favor as to Santander’s affirmative defenses.