In Steube v. Santander Consumer United States, No. 19-cv-522-wmc, 2020 U.S. Dist. LEXIS 236322 (W.D. Wis. Dec. 16, 2020), Judge Conley granted summary judgment against a debtor who claimed to have protested during a repossession.
More to the point, in describing what constitutes a protest for purposes of 11 constituting a “breach of the peace,” the Hollibush court explained that while consent of the debtor it not required, “a debtor’s affirmative statement to a person in the process of repossessing collateral that the collateral may not be taken” is required. Id. at 806, 508 N.W.2d at 452-53. Moreover, cases citing to Hollibush, including a case from the Seventh Circuit, similarly required an express statement that the agent seeking to repossess the vehicle may not take it. See, e.g., United States v. Alexander, 573 F.3d 465, 475 (7th Cir. 2009) (“But Hollibush does not stand for the proposition that the mere fear of resistance by the debtor is a breach of the peace. Instead, Hollibush held that the creditor’s agent breached the peace by repossessing the debtor’s vehicle when the debtor or her fiancé told the agent not to repossess the vehicle.”); Russell v. Santander Consumer USA, Inc., No. 19-CV-119, 2019 WL 4572882, at *5 (E.D. Wis. Sept. 20, 2019) (“Under Wisconsin law, if a creditor repossesses in disregard of the debtor’s unequivocal oral protest, the creditor commits a breach of the peace.”); Jackson v. City of Milwaukee, No. 12-CV-00490, 2013 WL 3154073, at *1 (E.D. Wis. June 20, 2013) (“A breach of the peace occurs when a creditor either resorts to violence or takes property over the express objection of the debtor.”). At minimum, the law requires the debtor to expressly state that the repossessor may not take the vehicle. Nevertheless, plaintiff contends that Steube “objected by asking the repossession agents to leave the vehicle and not to take it, and the repossession agents refused.” (Pl.’s Opp’n (dkt. #58) 5.) In support, she cites to her deposition testimony in which Steube testified that she “asked them to leave the car and not take it.” (Steube Dep. (dkt. #38) 74.) The transcript of Steube’s conversations with Phantom’s agents, however, belies a 12 direct, express statement by Steube asking, much less telling, Langron or Davenport not to take her car. See Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”). As quoted above, Steube simply asked, “How can I call them to get it so you cannot take it? I can’t call them and have them put a stop on it?” (Langron Aff., Ex. F (dkt. #43-4) 4.) That question and the subsequent conversation with Langron focusing on how the vehicle could be returned if she filed for bankruptcy certainly shows disappointment and frustration with the repossession, as well as a desire either to retain her car or have her car returned soon, but it falls far short of constituting a verbal assertion of her right to retain it or objection to its repossession, or at least a reasonable jury must find based on the undisputed facts. If anything, the exchange between Steube and the Phantom’s employee, Langron reflects her acknowledgment of, or at least resignation to, his right to repossess the vehicle, and certainly never any disagreement that might have escalated into a disturbance of the peace. Accordingly, the court will grant defendants’ motion for summary judgment on plaintiffs’ claims that defendant violated the WCA and the FDCPA by breaching the peace in repossessing her vehicle.