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Raymond v. CoVantage Credit Union

United States District Court, W.D. Wisconsin

July 13, 2017

ERIC RAYMOND, Plaintiff,
v.
CoVANTAGE CREDIT UNION, BONAFIDE RECOVERY, LLC, MICHAEL MATIJEVIC and STRASSER & YDE, S.C., Defendants.

          OPINION AND ORDER

          BARBARA B. CRABB DISTRICT JUDGE

         This 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.

         Each 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.

         I 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 claims.

         Plaintiff fairly alleges the following facts in his complaint.

         ALLEGATIONS OF FACT

         On or 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.

         At an 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.

         The 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.)

         On or about January 26, 2015, plaintiff notified defendant CoVantage in a letter that he was represented by counsel.

         On or 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.

         On June 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 judgment.

         On or 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.

         On or 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.

         Plaintiff did not become aware of defendant Bonafide Recovery's “agency relationship” with defendant CoVantage until he received “discovery responses” in July 2016. Id. at ΒΆ 50. He did not become aware of ...


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