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Bednarz v. Lovald

United States District Court, E.D. Wisconsin

October 27, 2016

JOHN BEDNARZ JR., ALISON BEDNARZ, Plaintiffs,
v.
RYAN LOVALD, NICHOLAS RYDZEWSKI, ASSET TOWING & RECOVERY LLC, Defendants.

         ORDER GRANTING DEFENDANTS' MOTION TO STRIKE AND BAR TESTIMONY (DOC. 48), GRANTING DEFENDANTS' RULE 7(H) EXPEDITED NON-DISPOSITIVE MOTION FOR LEAVE TO SERVE SUBPOENA (DOC. 72), DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC. 34), DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. 39), AND SETTING STATUS CONFERENCE

          C.N. CLEVERT, JR. U.S. DISTRICT JUDGE..

         In the early morning hours of March 25, 2015, defendants attempted to repossess a 2001 minivan owned by John and Alison Bednarz. Appearing on the front porch of his home with a firearm in hand, John Bednarz told defendant Ryan Lovald to leave. There is no dispute that Lovald left the Bednarz residence. However, the parties cannot agree on whether Lovald left to call the West Allis Police about the firearm or to assist with the repossession. Further, they cannot agree on whether Bednarz consented prior to the time that defendants took possession of the minivan. While the parties have filed cross-motions for summary judgment, genuine issues of material fact preclude relief. Additionally, defendants have filed motions to strike portions of Mark Lacek's expert report and deposition testimony, and to serve a subpoena on Gramann Reporting to obtain a copy of the audio recording of Lacek's May 3, 2016, deposition. The latter motions will be granted, and a conference will be held for further scheduling.

         As an initial matter, defendants moved to strike portions of Lacek's expert report and deposition testimony that set forth legal conclusions and to bar Lacek from testifying regarding those matters at trial. Lacek, who owns a repossession company and has worked in the field for over 30 years, has been retained by plaintiffs to offer an expert opinion “referencing breach of the peace involving repossession of a 2001 Honda Odessey on . . . March 25, 2015, from John Bednarz, Jr.” At this stage, defendants have not filed a Daubert challenge and have limited their request to striking certain portions of Lacek's opinions.

         With respect to Lacek's expert report, defendants object to the following:

1. In my opinion, taking into consideration the documents reviewed in this case, the Uniform Commercial Code (UCC), and the numerous rulings by courts across the country regarding the self help repossession process, a breach of peace did occur during the repossession of the Bednarz vehicle. (P. 7)
2. Lovald was wrong to ask the police department to assist him in the repossession effort. Lovald admitted knowing that a police officer at the scene of a repossession is a breach of the peace. (P. 7)
3. The acts by defendants Asset Towing & Recovery, Nicholas Rydzewski and Ryan Lovald could be ruled as violations of the FDCPA. (P. 9)
4. Defendants Lovald, Rydzewski and Asset Towing & Recovery could not legally repossess the vehicle due to the protest by Mr. Bednarz. Clearly defined in the C.A.R.S. training manual, color of law at the scene of the repossession constitutes a breach of the peace. (P. 9)
5. Defendants Lovald, Rydzewski and Asset Towing & Recovery could not use the City of West Allis to accomplish repossessing the Bednarz vehicle. (P. 9)

         The deposition testimony at issue includes the following statements:

1. I've been asked to offer my opinion referencing breach of the peace involving repossession of a 2001 Honda Odessey . . . . (6:4-6)
2. At any time during the police department's interactions with Bednarz, the repossession company could have made it clear to the police it would be a breach of the peace to continue with the repossession efforts. (12:20-24)
3. The acts by Defendants Asset Towing & Recovery, Nicholas Rydzewski and Ryan Lovald could be ruled as a violation of the FDCPA. Specifically - and you requested specifically - Defendants Lovald, Rydzewski and Asset Towing & Recovery could not legally repossess the vehicle due to the protest by Mr. Bednarz, clearly defined in the CARS Training manual, color of law at the scene of the repossession constitutes a breach fo the peace. (12:25-13:8)
4. Additionally, Defendants Lovald, Rydzewski and Asset Towing & Recovery could not use the Defendant, City of West Allis, to accomplish repossessing the Bednarz vehicle. (13:9-12)
5. The efforts of the West Allis Police Department place the police department in violation of the Wisconsin ...

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