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Russell v. Santander Consumer USA, Inc.

United States District Court, E.D. Wisconsin

September 20, 2019



          NANCY JOSEPH, United States Magistrate Judge

         Steven and Nancy Russell bought a 2013 Dodge Journey from a dealership in Illinois. Santander Consumer USA, Inc. purchased the Russells’ retail installment contract for the vehicle. After falling behind on their payments, Santander obtained a judgment of replevin and enlisted AssetsBiz-Wisconsin, LLC, and its repossession agent, Michael Sancinati, to repossess the Russells’ vehicle. The Russells now sue AssetsBiz and Sancinati for violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 and sue all three defendants for violations of the Wisconsin Consumer Act (“WCA”), Wis.Stat. 421 et seq., stemming from the repossession.

         AssetsBiz and Sancinati move for summary judgment as to the FDCPA claim on the grounds that neither are “debt collectors” pursuant to the statute. They further move for summary judgment as to the WCA claims on the grounds that the Russells entered into their retail installment contract in Illinois and the WCA only applies to consumer transactions made in Wisconsin. For the reasons explained below, AssetsBiz’s and Sancinati’s motion for summary judgment is denied as to the FDCPA claim. The parties will be granted leave to supplement their arguments as to the defendants’ motion for summary judgment on the WCA claims.


         Steven and Nancy Russell reside in Racine, Wisconsin. (Defs.’ Proposed Findings of Fact (“DPFOF”) ¶ 8, Docket # 32 and Pls.’ Resp. to DPFOF (“Pls.’ Resp.”) ¶ 8, Docket # 36.) On September 5, 2016, the Russells entered into a retail installment contract with Antioch Chrysler, Dodge, and Jeep for the purchase and finance of a 2013 Dodge Journey, vehicle identification No. 3C4PDDDG4DT607562 (“the vehicle”). (Id. ¶ 2.) The contract was executed in Antioch, Illinois. (Id. ¶ 3.) The contract was subsequently assigned to Santander. (Id. ¶ 4.)

         The Russells fell behind on their payments (Compl. ¶ 21, Docket # 1), and on March 14, 2017, Santander sued the Russells in Racine County Circuit Court to recover possession of the 2013 Dodge Journey (DPFOF ¶ 1 and Pls.’ Resp. ¶ 1). On March 17, 2017, Steven Russell accepted service of the summons and complaint in the Racine County action on his and his wife’s behalf. (Id. ¶¶ 9–10.) The complaint in the Racine County action alleges that a written notice was mailed to the last known address of Steven and Nancy Russell, informing the Russells that they were in default and had a right to cure the default within fifteen days. (Id. ¶ 11.) The written notice gave the name, address, and telephone No. of Santander and identified the retail installment contract and property upon which the debt was due. (Id.) The complaint in the Racine County action alleged that the Russells failed to timely cure the default for $1, 509.49 on or before February 24, 2017 as required. (Id. ¶ 12.)

         A hearing was held in the Racine County action on April 10, 2017 and a judgment of replevin was entered on April 20, 2017. (Id. ¶¶ 13–14.) The judgment of replevin stated that Santander was entitled to immediate possession of the vehicle. (Id. ¶ 15.) The judgment of replevin stated that Santander or its agents had the right to recover the vehicle from the Russells and that the sheriff may be used to recover the property and deliver it to Santander. (Id. ¶ 16.) In August 2017, the Russells and Santander entered into a modification and deferral of the consumer credit transaction. (Pls.’ Proposed Additional Facts ¶ 31, Docket # 36.)

         On October 14, 2018, Steven Russell was inside his house when he heard his vehicle’s security alarm go off. (DPFOF ¶ 17 and Pls.’ Resp. ¶ 17.) Steven’s friend, Eric Peckman, came inside the house shortly thereafter and told Steven that someone was taking his vehicle. (Id.) Steven retrieved a handgun and stepped outside his house. (Id. ¶ 18.) After stepping outside of his house, Steven saw a man, who he later learned was Sancinati, attempting to repossess his vehicle. Steven informed Sancinati that he had a gun and he needed to stop and leave. (Id. ¶¶ 19–20.) After Steven informed Sancinati that he had a gun and that Sancinati needed to stop and leave, Sancinati ceased his efforts to repossess the vehicle and drove away, leaving the vehicle. (Id. ¶ 21.)

         Although the defendants dispute these two allegations, the Russells allege in their complaint that at no point during Steven’s interaction with Sancinati did he remove the handgun from his pocket. (Compl. ¶ 30.) The Russells further allege that Sancinati called the police and falsely accused Steven of pointing a gun at him during the attempted repossession. (Id. ¶ 32.)

         Approximately thirty minutes after Sancinati left, officers from the Racine Police Department arrived at the Russells’ home. (DPFOF ¶ 22 and Pls.’ Resp. ¶ 22.) Although the parties do not address all of the specific following facts in either of their proposed findings of fact, the Russells’ complaint alleges that the officers handcuffed Steven and placed him in the back of a police car for questioning. (Compl. ¶ 33.) At some point after arriving at the Russell home, the police officers contacted Sancinati and told him that he could come repossess the car while they were present. (Id. ¶ 34.) While Steven was detained in the back of the police car and while the officers were present, Sancinati returned to the Russell home and repossessed the vehicle. (Id. ¶ 35.)


         Pursuant to Fed.R.Civ.P. 56(a), a party can seek summary judgment upon all or any part of a claim or defense asserted. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “Material facts” are those under the applicable substantive law that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. The mere existence of some factual dispute does not defeat a summary judgment motion. A dispute over a “material fact” is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         In evaluating a motion for summary judgment, the court must draw all inferences in a light most favorable to the nonmovant. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, when the nonmovant is the party with the ultimate burden of proof at trial, that party retains its burden of producing evidence which would support a reasonable jury verdict. Celotex Corp., 477 U.S. at 324. Evidence relied upon must be of a type that would be admissible at trial. See Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). To survive summary judgment, a party cannot rely on his pleadings and “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248. “In short, ‘summary judgment is appropriate if, on the record as a whole, a rational ...

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