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Duncan v. Asset Recovery Specialists, Inc.

United States District Court, W.D. Wisconsin

July 5, 2017

DANELLE DUNCAN, Plaintiff,
v.
ASSET RECOVERY SPECIALISTS, INC., GREG STRANDLIE, and WELLS FARGO BANK NA d/b/a WELLS FARGO DEALER SERVICES, Defendants.

          OPINION AND ORDER

          WILLIAM M. CONLEY, District Judge

         In this civil action, plaintiff Danelle Duncan asserts a variety of federal and state law claims against defendants all arising out of their repossession of her vehicle and holding of personal belongings contained in it. Before the court is defendants' motion for summary judgment on all claims. (Dkt. #33.) For the reasons the follow, the court will grant defendants' motion as to plaintiff's only federal claim, which is based on defendants Asset Recovery Specialists, Inc., and Greg Strandlie's alleged attempt to collect $100 from Duncan to retrieve her personal belongings, and decline to exercise its supplemental jurisdiction over the state law claims, dismissing those claims without prejudice.[1]

         UNDISPUTED FACTS[2]

         A. Duncan's Vehicle Purchase and Loan

         On November 12, 2013, plaintiff Danelle Duncan purchased a 2014 Kia Optima from Russ Darrow Madison, LLC. She paid $10, 000 at the time and financed approximately $23, 000 more via a retail installment contract with Russ Darrow. (Raabe Aff., Ex. A (dkt. #36-1).) To obtain the loan, Duncan gave a security interest in the vehicle as collateral for the loan. That same day, Russ Darrow assigned its interest in the retail installment contract to defendant Wells Fargo Bank NA d/b/a Wells Fargo Dealer Services. As such, Wells Fargo became the lien holder for the 2014 Kia Optima.

         B. Duncan's Default

         Duncan used the vehicle for her own personal, family and household purposes, but failed to make full and timely payments as required under her retail installment contract for the months of December 2014, January 2015 and February 2015. As a result, on February 26, 2015, Wells Fargo sent Duncan via certified mail a notice of right to cure for past due amounts totaling $887.15. (Raabe Aff., Ex. B (dkt. #36-2).) In response, Duncan managed to make certain payments, but then failed to make full and timely payments as required for the months of May 2015, June 2015 and July 2015. On July 30, 2015, Wells Fargo then sent Duncan a second notice of right to cure, this time for past due amounts totaling $1, 907.76. (Id., Ex. C (dkt. #36-3).) Following that notice, Duncan appears to have made some additional payments, but again failed to make full and timely payments as required under the contract for the months of August 2015, September 2015 and October 2015. On October 28, 2015, Wells Fargo sent Duncan a third notice of right to cure, this time seeking past due amounts of $1, 372.70. (Id., Ex. D (dkt. #36-4).)

         Each of the three notices sent Duncan included the following statement:

SPECIAL NOTICE: If you do not either (1) pay the total amount past due as stated in paragraph 1 or (2) perform any covenants required to be performed as stated in paragraph 2 by the date indicated above, then your entire outstanding balance will become immediately payable without further notice, demand or right to cure.

(Defs.' PFOFs (dkt. #34) ¶ 10.)

         After the third notice of right to cure, Duncan made a payment of $500 on November 23, 2015, and $300 on January 12, 2016, which unfortunately did not cover the total amount past due. Duncan admits that she had not brought her loan current as of January 27, 2016. Indeed, at her deposition, Duncan testified that she had no ability to dispute the accuracy of Wells Fargo's loan payment data generally.

         C. Repossession of Duncan's Vehicle

         Wells Fargo contracts with defendant Asset Recovery Specialists, Inc. (“ARS”), to repossess vehicles at a minimum rate of $350 per car. On December 13, 2015, ARS received an order from Wells Fargo Dealer Services to repossess Duncan's vehicle and was provided an address for the vehicle of 1910 Hawks Ridge Drive, Verona, Wisconsin. That address is for an apartment building where Duncan both leases an apartment and a parking stall.

         On January 27, 2016, defendant Greg Strandlie, acting as president and sole owner of ARS, [3] and another individual, Ryan Williamson, went to the designated address. Strandlie avers that he observed the door to the parking garage was open, and it remained open during the entire period that they were present. (Defs.' PFOFs (dkt. #34) ¶ 18.) Even more specifically, Strandlie represents that they did not have to open or unlock any door to gain entry. Strandlie also avers that during the repossession of Duncan's car, which was in that parking garage, he observed a maintenance man near the garage who never objected to Strandlie and Williamson's presence.

         In contrast, Duncan contends that the door must be opened by a remote and closes right after a car exits. (Pl.'s Resp. to Defs.' PFOFs (dkt. #39) ¶ 18.) Still, Duncan concedes that she cannot identify anyone else who was present to witness the repossession of the car, nor how Strandlie and Williamson gained entry to the garage. Duncan further concedes that she did not personally observe the repossession.

         Upon entry into the garage, Strandlie avers that he observed Duncan's car, the 2014 Kia Optima, along with other vehicles. There is no dispute that Duncan's car could not be viewed, either through a window or an open door, from outside of the building. Strandlie also avers that he saw no sign at the entry to the garage restricting entry, nor does Duncan aver that one is posted, though she points out that there are private property signs located at both entrances to the building's driveway from the street. (See Duncan Aff., Ex. 1 (dkt. #43-1).) Strandlie verified that the vehicle in question was the subject of the repossession order, after which Williamson drove the ARS tow truck into the garage and hooked up the vehicle.[4] The vehicle was then towed to ARS's facility at 280 Business Park Circle on January 27th. Duncan discovered that her vehicle was no longer in the apartment garage around 4:00 p.m. that same day.

         D. Parking Garage Configuration

         The parking garage is located under Duncan's apartment building.[5] There are no apartments on the ground floor level. From the parking garage, residents generally need two keys to access their apartments -- one to access the building and one to access their individual apartments. There are no living quarters, places to sleep, cook, eat, watch television, use a restroom or bathe or shower in the garage area. As such, Duncan admits that she has never lived or resided in the garage.

         There are three ways to access the garage. First, it can be accessed by a large, vehicle-sized door. This garage door is operated by a remote opener given to tenants when they pay for a parking space in the building. Duncan maintains that this garage door can only be opened from outside by an opener. Second, the garage can be accessed by a person- sized door next to the vehicle door that only opens with a key. Third, the garage can be entered from inside the apartment ...


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