United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE
case arises out of a defaulted car loan. Plaintiff and debtor
Eric Raymond contends that defendants CoVantage Credit Union,
Bonafide Recovery, LLC, Michael Matijevic and Strasser &
Yde, SC violated his rights under both the Fair Debt
Collection Practices Act and the Wisconsin Consumer Act in
various ways while attempting to collect payment from him.
Now before the court are three motions to dismiss filed by
all of the defendants in three different groups: (1)
CoVantage, dkt. #10; (2) Bonafide Recovery and Matijevic,
dkt. #7; and (3) Strassder, dkt. #11.
set of defendants asserts multiple grounds for dismissing
various claims, but in this opinion I am focusing on the
question whether plaintiff's claims under the Fair Debt
Collection Practices Act are untimely. If they are, the
parties agree that the court should relinquish supplemental
jurisdiction over the remaining state law claims.
conclude that it is clear from the face of the complaint that
plaintiff's federal claims are untimely with the
exception of claims arising from the alleged repossession of
his car. As to those claims, I am converting the motions to
dismiss into motions for summary judgment and giving
plaintiff an opportunity to submit supplemental evidence and
argument on the question whether those claims are timely
under the discovery rule. I am dismissing all other federal
fairly alleges the following facts in his complaint.
about August 16, 2013, plaintiff Eric Raymond purchased a
2013 Kia Soul from Kocourcek Motor Company, Inc. Plaintiff
obtained a loan to purchase the car and the loan was assigned
to defendant CoVantage Credit Union. As collateral, plaintiff
pledged a 1992 Kingfisher Master, a 1992 Suzuki and a 1992
All Trailer Manu.
unspecified time, plaintiff defaulted on the loan. On or
about November 25, 2014, defendant CoVantage sent plaintiff a
“Notice of Right to Cure Default/Take Possession”
with respect to the 2013 Kia Soul. The notice stated that
plaintiff could cure the default by paying (1) $2257 on or
before December 10, 2014; (2) $2257 (the same amount) on or
before November 29, 2014; or (3) $2641.50 on or before
November 30, 2014.
same day, defendant CoVantage sent plaintiff a “Notice
of Right to Cure Default/Take Possession” with respect
to the 1992 Kingfisher and 1992 Suzuki, as well as a 2000
Chevrolet Venture and a 1992 manufactured home. (Plaintiff
does not explain whether or how the Chevrolet and home are
related to the defaulted loan.) The notice stated that
plaintiff could cure the default by paying (1) $1582.88 on or
before December 10, 2014; (2) $1582.88 (the same amount) on
or before December 4, 2014; or (3) $1850.32 on or before
December 5, 2014. With respect to one or more of the vehicles
in the notice, defendant CoVantage does not hold a valid
security interest. (Plaintiff does not identify which
vehicles or vehicles were listed improperly.)
about January 26, 2015, plaintiff notified defendant
CoVantage in a letter that he was represented by counsel.
about February 11, 2015, defendant CoVantage filed a replevin
action against plaintiff in state court, seeking possession
of the Kia, Chevrolet, Kingfisher, Suzuki and Manu. On June
18, 2015, a commissioner ordered replevin of the Kia but
withheld a judgment until the deadline for appeal expired.
22, 2015, defendant CoVantage retained defendant Bonafide
Recovery, LLC “to attempt repossession” of the
Kia. Cpt. ¶ 45, dkt. #1. Defendant Bonafide Recovery
then retained defendant Michael Matijevic as well as Michael
Wiesman as “local repossessing agents.”
Id. at ¶ 46. (Plaintiff named Wiesman as a
defendant in the complaint but has since dismissed all claims
against him. Dkt. #17.) That night, Matijevic and Wiesman
repossessed the Kia. On June 23, 2015, defendant CoVantage
returned the Kia to plaintiff because it had been repossessed
without a court order. On June 25, 2015, defendant CoVantage
filed a request for “a de novo hearing” of the
commissioner's decision. The commissioner did not enter
about August 30, 2015, defendant CoVantage again retained
defendant Bonafide Recovery to repossess the Kia and Bonafide
retained defendants Matijevic and Wiesman. That night,
Matijevic and Wiesman repossessed the Kia.
about September 4, 2015, plaintiff sued defendant CoVantage
in state court for violations of the Wisconsin Consumer Act.
On or about December 11, 2015, CoVantage filed a counterclaim
against plaintiff though their counsel, Strasser & Yde,
S.C., alleging that plaintiff had committed theft and
obtained the loan through intentional misrepresentations.
Defendant Strasser signed the counterclaim. The allegations
in the counterclaim are untrue and were brought for the
purpose of harassment.
did not become aware of defendant Bonafide Recovery's
“agency relationship” with defendant CoVantage
until he received “discovery responses” in July
2016. Id. at ¶ 50. He did not become aware of