Meer v. Dennis Dillon Auto Park & Truck Center, Inc et al

Filing 68

MEMORANDUM DECISION the motion for summary judgment 45 is granted. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

WENDI L. MEER
Case No. 1:12-cv-025-BLW
Plaintiff
MEMORANDUM DECISION
vs.
DENNIS DILLON AUTO PARK &
TRUCK CENTER, INC., et al.,
Defendants

INTRODUCTION
The Court has before it defendants’ motion for summary judgment and plaintiff’s
petition seeking to disqualify the Court from hearing this case and transferring
jurisdiction to the Ninth Circuit. The motions are fully briefed and at issue. For the
reasons explained below, the Court will grant the motion for summary judgment and
deny the petition for disqualification and transfer.
BACKGROUND
On September 1, 2009 Plaintiff Wendi Meer entered into a Closed End Motor
Vehicle Lease Agreement and Disclosure with defendant Dennis Dillon Auto Park &
Truck Center. Defendant Treasure Valley Leasing (TVL) financed and serviced the
lease.

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The lease required Meer to make monthly payments of $240.49 per month and
keep the vehicle insured at all times. See Exhibit A (Dkt. No. 45-3). To make those
payments, she authorized TVL to take automatic withdrawals from her checking account
on the tenth of each month in the amount of $240.49. See Exhibit A (Dkt. No. 49-1).
On November 8, 2010, TVL received notice from Meer’s insurer – State Farm –
that her auto insurance on the leased vehicle would be terminated on November 17, 2010,
for Meer’s non-payment of the insurance premium. On November 15, 2010, two days
before State Farm’s termination date, TVL notified Meer that her car would be
repossessed if she did not obtain insurance. Meer obtained insurance the next day,
November 16, 2010. See Exhibit D (Dkt. No. 49-1). TVL claims that Meer never told
them that she had obtained insurance, and Meer does not dispute that claim. On
November 17, 2010, TVL repossessed the car but returned it later that same day when
Meer provided proof of insurance.
In March of 2011, Meer contacted TVL to arrange for a late payment for April of
2011. TVL agreed and accepted Meer’s payment over the phone by debit card on April
13, 2011. TVL claims that Meer requested that they stop the automatic withdrawals from
her checking account; Meer denies she made any such request. The Court will assume
Meer’s version is correct. At any rate, TVL did stop the automatic withdrawals.
On May 11, 2011, when no automatic payment had been withdrawn from her
account the previous day, Meer called TVL and asked that the automatic payments be

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reinstituted. The next day, May 12, 2011, she made her May payment over the phone
with a debit card.
TVL did not reinstate the automatic payments and so no payment was withdrawn
from Meer’s account on June 10, 2011. On June 22, 2011, TVL contacted Meer to notify
her that her account was past due and needed to be brought current. It is undisputed that
Meer never made her monthly payment for June 2011. Instead, on June 24, 2011, Meer
faxed a letter to TVL’s Registered Agent stating that because TVL had breached the
contract by failing to automatically withdraw her monthly payments, “this contested debt
will not ever be paid by myself, heirs or assigns.” See Exhibit I (Dkt. No. 50-1).
TVL repossessed the vehicle on July 13, 2011. Meer filed this lawsuit on January
20, 2012. She claims that (1) the defendants breached their agreement by failing to
automatically withdraw payments from her bank account; (2) made unauthorized
withdrawals from her bank account; (3) wrongfully repossessed her vehicle; and (4)
improperly damaged her credit rating and reputation. These acts, she alleges, violate the
Uniform Commercial Code and various Idaho statutes. The defendants have moved for
summary judgment on all claims. Meer has filed a motion to disqualify the Court for
bias, and seeks to transfer jurisdiction of this litigation to the Ninth Circuit. The Court
will take up that motion/petition first.
ANALYSIS
Motion to Disqualify & Petition to Transfer

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Meer alleges that this Court is biased against her and seeks “removal to the Circuit
Court” on a number of grounds. She filed her motion under 28 U.S.C. § 144 that states in
part as follows:
Whenever a party to any proceeding in a district court makes and files a
timely and sufficient affidavit that the judge before whom the matter is
pending has a personal bias or prejudice either against him or in favor of
any adverse party, such judge shall proceed no further therein, but another
judge shall be assigned to hear such proceeding.
An affidavit is “sufficient” to require transfer to another judge for a decision on
the recusal motion if the affidavit alleges that “the bias or prejudice stems from an
extrajudicial source and not from conduct or rulings made during the course of the
proceeding.” Toth v. TWA, 862 F.2d 1381, 1388 (9th Cir. 1988). Meer has failed to
allege any extrajudicial source for any bias or prejudice. First, she alleges various
instances of delay and incorrect rulings that show, she alleges, that the Court is biased
against her. But those allegations are insufficient under Toth.
The defendant also alleges that the Court held a private conference with opposing
counsel. She points to a line in the Court’s Case Management Order that states that “as
the Court discussed during the Conference with counsel, this deadline will not be
extended . . . .” See Case Management Order (Dkt. No. 13). Meer states that she was not
present at any such conference and thus the Court must have met in private with opposing
counsel. But the Court held no such conference – the Case Management Order was
issued by the Court without any conference with counsel, and the language noted by
Meer is standard form language that should have been deleted before filing because it

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was inapplicable. This likewise provides no ground for recusal. Because the Court will
not recuse itself, the Court will also deny the petition to transfer this case to the Ninth
Circuit.
The Court will now turn to an analysis of defendants’ motion for summary
judgment.
Summary Judgment – Wrongful Repossession in November 2010
In her complaint, Meer challenges the repossession of the vehicle in November of
2010, triggered by the lapse in insurance coverage by Meer’s existing carrier, State Farm.
Meer argues that there was no lapse because she obtained insurance one day before the
expiration date of her State Farm insurance, and one day before the repossession by
defendants. The defendants seek summary judgment on this allegation.
The defendants claim that Meer never informed them that she had obtained new
insurance until after the repossession, and Meer has not disputed that. Thus, the
undisputed facts are as follows: (1) State Farm cancelled Meer’s insurance on the vehicle
as of November 17, 2010; (2) State Farm notified defendants of the cancellation; (3) the
Lease Agreement gave defendants authorization to repossess the vehicle if it was not
covered by insurance, see Exhibit A (Dkt. No. 45-3) at ¶ 24; (4) on November 15, 2010,
the defendants notified Meer that repossession was a consequence of not having
insurance, (5) On November 17, 2010, the defendants repossessed the car; and (6) while
Meer obtained insurance from another carrier one day prior to State Farm’s cancellation,
she never notified defendants of that fact until after the repossession.

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Meer notes that the Lease Agreement only requires her to provide proof of
insurance to the Lessor “at lease inception”, see Exhibit A (Dkt. No. 45-3) at ¶ 15, and
alleges that the Lease contains no obligation for her to notify the Lessor of any changes in
insurance carriers thereafter. She argues that because the vehicle was never uninsured,
the defendants had no right to repossess the vehicle. Her argument goes too far. Keeping
the vehicle insured protects Meer from a charge that she breached the contract, but it does
not protect her from repossession when she fails to notify defendants that she obtained
new insurance after her existing insurer terminated coverage. She chose to wait until
after repossession to reveal her new insurance, and the consequence of her choice is that
she cannot now sue defendants for the repossession.
The Court turns next to Meer’s claim that the defendants committed a breach of
contract by (1) failing to automatically withdraw her monthly payments, (2) finding her
in default for the month of June of 2011; and (3) repossessing her vehicle. The
defendants seek summary judgment on these claims.
The lease agreement obligates Meer to pay $240.49 on the 10th of each month.
She “will be in default if [she] do[es] not make a payment when due.” See Exhibit A
(Dkt. No. 45-3) at ¶ 24. Her default gives defendants the right to terminate the lease and
repossess the vehicle. Id. The undisputed facts are that Meer failed to make the required
payment for June of 2011, and repudiated her obligation to pay, telling TVL on June 24,
2011, that “this contested debt will not ever be paid by myself, heirs or assigns.” See
Exhibit I (Dkt. No. 50-1).

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Because Meer did not make the June payment and repudiated her obligation to do
so, the defendants properly terminated the lease and repossessed the vehicle. Meer
argues, however, that the defendants had a contractual obligation to automatically
withdraw her required payment each month, and their failure to do so resulted in their
own breach of contract. However, Meer has presented nothing to show that the
defendants had an obligation to automatically withdraw her monthly payments. The
documents she signed authorized defendants to automatically withdraw payments from
her bank account but contained no obligation to continue those automatic withdrawals for
the life of the lease.
This might be a different case if Meer made a late payment for June because she
was misled or confused by the termination of the automatic withdrawal process. But that
is not what happened here – Meer never made any payment for June and repudiated her
obligation to do so. The Court rejects, as a matter of law, Meer’s argument that the
defendants’ failure to automatically withdraw her monthly payments provides a defense
to her failure to pay her required monthly payment.
Meer argues, however, that the agreement was actually one of sale, not a lease.
Yet the agreement she signed on September 1, 2009, is entitled “Closed End Motor
Vehicle Lease Agreement and Disclosure.” See Exhibit A (Dkt. No. 45-3) (emphasis
added). It did contain an option to purchase, a standard lease term. Id. at ¶ 6. If that
option was not exercised, Meer was required to return the vehicle. Id. at ¶ 11. To clarify

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any doubt, Meer is listed on the agreement as the “Lessee,” and by signing the lease
represented that she “underst[oo]d that this is a lease.” Id. at ¶ 1.
Meer responds by offering another agreement she signed on the same day, entitled
“Contract Subject to Acceptance of Financing.” She contends that this ‘Contract” was a
purchase agreement, not a lease agreement. The ‘Contract” states that “[i]n the event
Dealer is unable to assign the contract and obtain financing within 10 business days of
the above date . . . the contract shall be null and void.” The defendants claim that they
were unable to secure financing for Meer due to her poor credit rating. Meer does not
challenge this claim. Thus, it is undisputed that defendants could not obtain financing for
Meer, making this “Contract” null and void, according to its terms quoted above.
For all of these reasons, the Court finds as a matter of law that (1) Meer breached
the lease agreement by failing to make her June payment and repudiating her obligation
to make that payment; and (2) defendants properly terminated the lease agreement and
repossessed the vehicle.
Summary Judgment – Improper Damage to her Credit Rating and Reputation
Meer claims that the defendants ruined her credit rating and reputation by
terminating her lease and repossessing her vehicle and reporting these matters to the
credit reporting agencies. This claim is based on Meer’s allegation that the termination
and repossession was improper. However, the Court has found them proper above, and
so these claims must be dismissed.
Summary Judgment – Unauthorized Withdrawals

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Meer alleges that when she arranged with TVL to make a late payment in April of
2011, the payment was taken from her checking account by Dennis Dillon Auto Park and
Truck Center, not by TVL. She has sued Dennis Dillon, claiming that it had no authority
for withdrawing this sum from her bank account.
Meer demonstrates no prejudice from the withdrawal. It was credited in full to her
account and accepted as a late payment. Meer suffered no consequence from the fact that
the Lessor – Dennis Dillon – withdrew the funds rather than TVL. Under the Lease
Agreement the funds were ultimately owed to the Lessor. Meer cites no law that would
give her the right to sue for damages under these circumstances.
Conclusion on Motion for Summary Judgment
Meer cites numerous provisions of the UCC and Idaho statutes in her complaint.
But because the actions of the defendants were proper under the Lease Agreement, these
citations provide no support for her cause of action. The Court will accordingly grant the
defendants’ motion for summary judgment, and will file a separate Judgment as required
by Rule 58(a).

DATED: July 28, 2014

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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