Barnes v. Northwest Repossession, LLC et al

Filing 152

MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 9/26/2016. Mailed notice(gel, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Nicole Barnes,
Plaintiff,

Case No. 14 C 03116

v.
Northwest Repossession, LLC,
Austin Car Credit, Inc., and
Bob Soltani,

Judge John Robert Blakey

Defendants.
MEMORANDUM OPINION AND ORDER
In July 2012, Plaintiff Nicole Barnes (“Plaintiff”) purchased a 2003 Buick
Park Avenue from Defendant Austin Car Credit, Inc. (“Austin”). In April 2013,
Defendant Northwest Repossession, LLC (“Northwest”) repossessed the vehicle at
Austin’s request. Plaintiff alleges that Northwest’s repossession was unlawful and
now brings suit under both federal and state statutory and common law. On March
10, 2016, Northwest moved for summary judgment on all counts. Northwest’s Mot.
Summ. J. [90]. The same day, Plaintiff cross-moved for partial summary judgment
on the issue of liability as to Count I. Pl.’s Mot. Summ. J. [94]. For the reasons
stated below, Northwest’s motion [90] is granted in part and denied in part;
Plaintiff’s motion [94] is granted.

I.

Background 1
A.

Plaintiff’s Purchase from Austin

On July 10, 2012, Plaintiff purchased a used 2003 Buick Park Avenue from
Austin. PSOF [96] ¶ 11. The cash price for the vehicle was $2,600. PSOF [96] Ex.
G. After added costs for delivery and handling, sales tax, and license plates, the
total amount owed to Austin equaled $3,000. Id.; NSOF [92] ¶ 8.
The same day, Plaintiff traded in a used 2000 Mercedes Benz for a $2,000
credit towards the purchase of the Buick, which reduced her amount owed to
$1,000. PSOF [96] ¶¶ 16-17; PSOF [96] Ex. G. In addition to the trade-in, Plaintiff
provided $200 in cash, resulting in a final unpaid balance of $800. PSOF [96] ¶ 17.
Plaintiff agreed to pay the remaining $800, interest free, in four, bi-weekly
payments of $200 starting on August 1, 2012 and ending on September 26, 2012.
Id. The “Memorandum of Installment Sale” provided to Plaintiff at the time of her
purchase stated that Austin would impose a $50 late charge on every late payment.
PSOF [96] Ex. G.
B.

Plaintiff’s Payment History

Between July 11, 2012 and late January 2013, Plaintiff failed to make any
additional payments to Austin. PSOF [96] ¶ 19. As a result, Austin imposed $50
late fees at the beginning of August, September, October, November, December, and

The facts are taken from the parties’ Local Rule 56.1 statements and accompanying attachments.
“NSOF” refers to Northwest’s statement of undisputed facts [92], with Plaintiff’s responses [133]
cited as “R. NSOF.” “PSOF” refers to Plaintiff’s Local Rule 56.1 Statement of Facts [96], with
Northwest’s responses [129] cited as “R. PSOF.” “PSOAF” refers to Plaintiff’s Local Rule 56.1
Statement of Additional Facts [133], with Northwest’s responses [142] cited as “R. PSOAF.”

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January, which, according to Austin’s account ledger, increased Plaintiff’s overall
balance to $1100. PSOF [96] Ex. K.
On January 3, 2013, Austin mailed Plaintiff a “Final Notice of Intent to
Collect Payment.” NSOF [92] Ex. H. The Final Notice identified the 2003 Buick
Park Avenue and stated the following:
This notice is intended for above named or parties with the
security/property listed above. This notice is to inform you that the
above named or parties are behind on their payments for the sum of
$1050.00. 2 Failure to comply will result in repossession of the property
and the opportunity to cure the breach. Thank You.
Id.
Due to a change of address, Plaintiff did not receive the Final Notice. PSOF
[96] ¶ 21.

Nevertheless, on January 28, 2013, Robert Jackson (“Jackson”),

Plaintiff’s boyfriend, made a $100 cash payment to Austin, which reduced her
balance to $1,000. 3 Id. ¶ 23; PSOF [96] Ex. K; PSOAF [133] Ex. 2 at 2. The same
day, Austin gave Plaintiff a $50 late fee credit, further reducing Plaintiff’s total
unpaid balance to $950. PSOF [96] Ex. K.
Between January 29, 2013 and March 8, 2013, Austin accepted several more
$100 cash payments from Jackson. 4 PSOF [96] ¶ 23; PSOF [96] Ex. K; PSOAF [133]

It is unclear why, as of January 3, 2013, Austin’s account ledger listed Plaintiff’s balance as $1100,
while the Final Notice stated a balance of $1050. The discrepancy may be attributable to the fact
that, generally, Austin’s account ledger was not immediately updated. PSOF [96] ¶ 31. Regardless,
the inconsistency is not material to the Court’s analysis.
2

The record does not explain why Plaintiff suddenly began making payments in January 2013,
particularly if the Final Notice from Austin was never received.

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Specifically, Austin’s account ledger and receipts indicate $100 cash payments on January 31,
February 5, 6, 8, 13, 22, 26, and March 8, 2013. PSOF [96] Ex. K; PSOAF [133] Ex. 2. The parties
dispute the total amount of Jackson’s payments. Plaintiff alleges that the total payments from

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3

Ex. 2. As of March 8, 2013, Austin’s account ledger reflected a remaining balance of
$150. PSOF [96] ¶ 24; PSOF [96] Ex. K.
C.

The Alleged Final Payment and Release of Lien

Plaintiff alleges that, on March 11, 2013, Jackson made a final cash payment
of $150 for the remaining balance on the Buick. PSOF [96] ¶ 25. Northwest denies
that this final payment occurred. R. PSOF [129] ¶ 25.
Northwest

admits,

however,

that

the

same

day,

Vicki

Thompson

(“Thompson”), an Austin employee, signed the Release of Lien section of the Buick’s
Certificate of Title and gave the Certificate of Title to Jackson. R. PSOF [129] ¶¶
26-27; PSOF [96] Ex. L. The Release of Lien section states, “[t]he lienholder on the
vehicle described in this Certificate does hereby state that the lien is released and
discharged.” PSOF [96] Ex. L.
Northwest maintains that Thompson’s signing of the Release of Lien and her
delivery of the Certificate of Title to Jackson was a mistake, a claim Plaintiff
disputes.

NSOF [92] ¶ 28; R. NSOF [133] ¶ 28.

Northwest does not allege,

however, that Austin sent additional notices to Plaintiff notifying her of the mistake
or demanding immediate payment of the supposed $150 outstanding.

Jackson totaled at least $900, PSOF [96] ¶ 23, a claim supported by Austin’s receipt records and
account ledger. PSOAF [133] Ex. 2; PSOF [96] Ex. K. Northwest asserts that Jackson paid no more
than $800. R. PSOF [129] ¶ 23. Ultimately, the dispute is not material to the Court’s analysis.

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D.

The Repossession of Plaintiff’s Vehicle

On or about January 29, 2013, Austin hired Northwest to repossess the Buick
from Plaintiff. NSOF [92] ¶ 20; NSOF [92] Ex. I at 6, 11; PSOF [96] Ex. E at 21;
PSOF [96] Ex. R at 8. Austin did not maintain a standing contract with Northwest,
PSOF [96] ¶ 34, but had hired Northwest approximately thirty times in the past.
PSOF [96] Ex. F at 3.

Northwest assigned one of its employees, Zach Miller

(“Miller”), to the job. NSOF [92] ¶ 31. Austin did not cancel its order to repossess,
despite accepting Jackson’s late payments between January 28, 2013 and March 8,
2013. See NSOF [92] Ex. G at 21:20-22:7; 27:22-29:22.
At approximately 3:00 a.m. on April 30, 2013, Miller located Plaintiff’s Buick
on the street in front of Plaintiff’s residence. NSOF [92] ¶ 31. Without notifying
Plaintiff, Miller loaded the vehicle onto his tow truck and began driving away. R.
NSOF [133] ¶ 31. At the same time, Jackson, who was residing with Plaintiff,
awoke to get a glass of water. PSOF [96] ¶ 40. While up, Jackson saw Plaintiff’s
Buick being towed down the street. Id. Believing that a theft was in progress,
Jackson quickly awoke Plaintiff and the two gave chase in another vehicle. Id. ¶¶
42-43. By the time the couple reached Miller’s tow truck, Plaintiff and Jackson
were approximately two blocks from Plaintiff’s residence. NSOF [92] ¶ 35. At that
point, Miller was stopped on the side of the road and attempting to re-secure the
Buick, which had come unattached, back onto the tow truck. PSOF [96] ¶¶ 44-45.
Jackson pulled the vehicle he was driving in front of the tow truck, boxing it
in from the front. Id. ¶ 45. Jackson exited his vehicle and approached Miller, who

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continued to re-secure the Buick. Id. ¶ 46; NSOF [92] ¶ 38. Jackson asked Miller
“what the fuck he was doing” with the vehicle. NSOF [92] ¶ 38.
Plaintiff claims that, in response, Miller told him, “I’m repo-ing this bitch.”
PSOF [96] ¶ 48. Plaintiff further asserts that as Jackson got closer to Miller, Miller
pushed Jackson out of the way and returned to the cabin. Id. Northwest disputes
both of these claims. R. PSOF [129] ¶ 48. The parties agree, however, that Miller
never provided Jackson or Plaintiff with any form of identification or repossession
paperwork. PSOF [96] ¶ 49.
After re-securing the Buick, Miller placed the truck in reverse, made a Uturn, and drove away in the opposite direction. NSOF [92] ¶ 40. Jackson returned
to his vehicle, and he and Plaintiff continued to pursue Miller. Id. ¶ 41. Jackson’s
pursuit of Miller continued for multiple hours, and ended only when Jackson was
forced to stop to refuel. Id. ¶ 42. Miller ultimately towed the vehicle to Northwest,
where it was subsequently returned to Austin. Id. ¶ 44.
II.

Legal Standard
Summary judgment is appropriate 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. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir.
2014). A genuine dispute as to any material fact exists if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The party seeking summary

judgment has the burden of establishing that there is no genuine dispute as to any

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material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A court “is not
required to grant summary judgment as a matter of law for either side when faced
with cross-motions for summary judgment.” Crespo v. Unum Life Ins. Co. of Am.,
294 F. Supp. 2d 980, 991 (N.D. Ill. 2003) (citing Market St. Assocs. Ltd. P’ship v.
Frey, 941 F.2d 588, 590 (7th Cir. 1991)). Rather, the court must “evaluate each
motion on its merits, resolving factual uncertainties and drawing all reasonable
inferences against the movant.” Id.
III.

Analysis
Plaintiff’s First Amended Complaint [70] alleges four causes of action against

Northwest: (1) violations of the Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692, et seq.; (2) violations of the Illinois Uniform Commercial Code
(“Illinois Commercial Code” or “Commercial Code”), 810 ILCS 5/9-601, et seq.; (3)
violations of the Illinois Consumer Fraud and Deceptive Business Practices Act
(“ICFDPA”), 815 ILCS 505/2, et seq.; and (4) common law tort of trespass to chattel.
First Am. Compl. [70]. Each count will be discussed in turn.
A.

Count I: Violations of the Fair Debt Collection Practices Act

The FDCPA seeks, in part, to “eliminate abusive debt collection practices,” 15
U.S.C. § 1692, by regulating “the actions a ‘debt collector’ is permitted to take in
collecting a debt.” Fleming-Dudley v. Legal Investigations, Inc., No. 05-CV-4648,
2007 WL 952026, at *4 (N.D. Ill. Mar. 22, 2007). As a consumer protection statute,
the FDCPA “is liberally construed in favor of consumers to effect its purpose.”
Ramirez v. Apex Fin. Mgmt., LLC, 567 F. Supp. 2d 1035, 1040 (N.D. Ill. 2008).

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Generally, Section 1692a(6) of the FDCPA defines a “debt collector” to include
“only those persons or businesses whose principal purpose is the collection of
‘debts.’” Fleming-Dudley, 2007 WL 952026, at *4. Thus, repossession companies—
who seek collection of collateral—are “ordinarily beyond the scope of the FDCPA.”
Purkett v. Key Bank USA, Inc., No. 01-CV-162, 2001 WL 503050, at *2 (N.D. Ill.
May 10, 2001). Section 1692(a)(6), however, contains a limited exception that “[f]or
the purpose of section 1692f(6) of this title, [the term ‘debt collector’] also includes
any person who uses any instrumentality of interstate commerce . . . in any
business the principal purpose of which is the enforcement of security interests.” 15
U.S.C. § 1692a(6). This “last caveat bears emphasis,” because it subjects Northwest
to the FDCPA “solely for purposes of § 1692f(6).” Fleming-Dudley, 2007 WL 952026,
at *4 (emphasis removed) (citing Jordan v. Kent Recovery Services, Inc., 731 F.
Supp. 652, 657 (D. Del. 1990) (“Such a purposeful inclusion for one section of the
FDCPA implies that the term ‘debt collector’ does not include an enforcer of a
security interest for any other section of the FDCPA.”)).
Section 1692f(6) prohibits “[t]aking or threatening to take any nonjudicial
action to effect dispossession or disablement of property if—(A) there is no present
right to possession of the property claimed as collateral through an enforceable
security interest; (B) there is no present intention to take possession of the property;
or (C) the property is exempt by law from such dispossession or disablement.” 15
U.S.C. § 1692f(6). Here, Plaintiff only alleges violations of subsection (A). First
Am. Compl. [70] ¶¶ 114-21.

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To determine whether a debt collector had a present right to
possession of the property under § 1692f(6), courts in this district and
elsewhere have looked to the applicable state self-help repossession
statute.
Fleming-Dudley, 2007 WL 952026, at *5.

In Illinois, “the applicable self-help

repossession statute is § 9-609(b)(2) of the Illinois Commercial Code,” id., which
permits non-judicial repossession of collateral (1) by a secured party; (2) after
default; and (3) if the secured party proceeds without breach of the peace. 810 ILCS
5/9-609 (“After default, a secured party . . . may take possession of the collateral . . .
without judicial process, if it proceeds without breach of the peace.”). Here, based
upon the record, Northwest violated § 9-609(b)(2) because: (1) there is insufficient
evidence that Austin—and by extension Northwest—was a secured party; and (2)
Plaintiff was not in default of her installment agreement at the time of the
repossession.
1.
There Is Insufficient Evidence That Austin Was A
Secured Party At the Time of the Repossession
Section 9-609(b)(2) of the Illinois Commercial Code only permits self-help
repossession by “a secured party.” 810 ILCS 5/9-609 (“[A] secured party . . . may
take possession of the collateral[.]”) (emphasis added).

In relevant part, the

Commercial Code defines “secured party” as “a person in whose favor a security
interest is created or provided for under a security agreement, whether or not any
obligation to be secured is outstanding.” 810 ILCS 5/9-102.
Generally speaking, a security agreement “is an agreement that creates or
provides for a security interest.” Sears, Roebuck & Co. v. Conry, 748 N.E.2d 1248,

9

1250 (Ill. App. Ct. 2001).

It “is the security agreement itself which creates or

provides for the security interest.” Magna First Nat. Bank & Trust Co. v. Bank of
Illinois in Mt. Vernon, 553 N.E.2d 64, 66 (Ill. App. Ct. 1990). Under Illinois law, “a
security interest attaches only to property described in the security agreement.”
Matter of Martin Grinding & Mach. Works, Inc., 793 F.2d 592, 594–95 (7th Cir.
1986). By extension, “a security interest cannot exist in the absence of a security
agreement.”

Allis-Chalmers Corp. v. Staggs, 453 N.E.2d 145, 148 (Ill. App. Ct.

1983).
As applied to this case, a security interest is enforceable under the Illinois
Commercial Code only if “the debtor has authenticated a security agreement that
provides a description of the collateral[.]” 5 810 ILCS 5/9-203(b)(3)(A). Moreover,
Austin’s transaction with Plaintiff is also “subject to other applicable laws relating
to consumers,” id. at 5/9-201 cmt. 3, including the Illinois Motor Vehicle Retail
Installment Sales Act (“IMVRISA”), 815 ILCS 375/1, et seq. Id. at 5/9-201(b)(2).
Under the IMVRISA, every retail installment contract for the purchase of an
automobile must be in writing and “clearly state and describe any security taken or
retained by the seller.” 815 ILCS 374/3-374/4. Furthermore, every vehicle retail
installment contract must disclose, as applicable, a “description or identification of
the type of any security interest held or to be retained or acquired by the seller in
810 ILCS 5/9-203(b)(3) also allows for enforcement of a security interest if “(B) the collateral is not
a certificated security and is in the possession of the secured party under Section 9-313 pursuant to
the debtor’s security agreement; (C) the collateral is a certificated security in registered form and the
security certificate has been delivered to the secured party under Section 8-301 pursuant to the
debtor’s security agreement; or (D) the collateral is deposit accounts, electronic chattel paper,
investment property, letter-of-credit rights, or electronic documents, and the secured party has
control under Section 7-106, 9-104, 9-105, 9-106, or 9-107 pursuant to the debtor’s security
agreement.” None of these conditions apply here.
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connection with the extension of credit, and a clear identification of the property to
which the security interest relates.” Id. at 375/5.
The “burden of proving that an item of property is subject to a security
interest is on the party asserting the interest.” In re Standard Foundry Prod., Inc.,
206 B.R. 475, 478 (Bankr. N.D. Ill. 1997); In re S.M. Acquisition Co., 319 B.R. 553,
564 (Bankr. N.D. Ill. 2005), aff’d and remanded, No. 03-CV-7072, 2005 WL 6292653
(N.D. Ill. Sept. 12, 2005). Because Northwest bears the burden of proof at trial,
Plaintiff “is not required to prove a negative in order to make a prima facie showing
for summary judgment.”

Beamon v. Town of Lyndon, No. 04-C-0250, 2005 WL

2465904, at *2 (E.D. Wis. Oct. 6, 2005). Rather, Plaintiff must merely “inform the
court of ‘the basis of its motion and identify those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
affidavits, if any,’ which it believes demonstrates the absence of a genuine issue of
material fact.” Id. (quoting Celotex, 477 U.S. at 322). Once such a showing is made,
“the party that bears the burden of proof at trial must show that it has admissible
evidence to support its claim.” Id.
Here, Northwest fails to present sufficient evidence of a security agreement
that complies with the Illinois Commercial Code, Motor Vehicle Retail Installment
Sales Act, or relevant case law. The record before the Court contains only one
written “agreement” between Plaintiff and Austin. PSOF [96] Ex. G; NSOF [92] Ex.
D. The document, which describes itself as a “Memorandum of Installment Sale”
(“the Memorandum”), lists the 2003 Buick purchased by Plaintiff and outlines its

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total price, Plaintiff’s trade-in allowance and $200 down payment, and her final
$800 unpaid balance. Id. The document further details the four $200 biweekly
installments Plaintiff agreed to pay beginning on August 1, 2012.

Id.

The

Memorandum, however, fails to identify any security interest held by Austin in
connection with its extension of credit. See id.
Admittedly, the Memorandum does reference other potentially relevant
documents.

For example, the Memorandum mentions a separate “Retail

Installment Contract” and “Bill of Sale” associated with Plaintiff’s purchase. Id.
Additionally, the Memorandum states that Plaintiff’s unpaid balance and other
charges “are secured by a retail installment contract and judgment note executed by
the undersigned on this date.” Id. Northwest, however, fails to provide copies of
these collateral agreements.
Of course, “where an instrument is lost or destroyed, its contents may be
proved by secondary evidence.” Orne v. Cook, 31 Ill. 238, 242-43 (1863). To this
end, documents in the record imply the possible existence of Austin’s security
interest. In addition to the Memorandum of Installment Sale, the Final Notice sent
in January 2013 states that “[f]ailure to comply will result in repossession of the
property and the opportunity to cure the breach.” NSOF [92] Ex. H. Similarly, the
Buick’s Certificate of Title lists Austin as a lienholder, at least until its supposed
release on March 11, 2013. PSOF [96] Ex. L. These tangential references in the
record, however, are not sufficient to create a triable issue.

Even though oral

agreements to “create a security interest have been found valid where other

12

documents relating to the transaction evidenced the intent of the parties,” Turk v.
Wright & Babcock, Ltd., 528 N.E.2d 993, 994 (Ill. App. Ct. 1988), no evidence of
such a verbal contract is presented here. To the contrary, the Memorandum of
Installment Sale states that together, the Memorandum and Retail Installment
Contract “constitute the entire agreement” between Plaintiff and Austin. PSOF
[96] Ex. G.
In the end, the “mere possibility that a factual dispute may exist, without
more, is an insufficient basis upon which to justify denial of a motion for summary
judgment.” Posey v. Skyline Corp., 702 F.2d 102, 106 (7th Cir. 1983). Northwest
fails to adequately prove that Austin held a valid security interest in Plaintiff’s
Buick at the time it was repossessed. Absent a secured interest in the vehicle,
Northwest does not qualify as a secured party, and thus cannot invoke § 9-609(b)(2)
of the Commercial Code.
2.
Even Assuming, Arguendo, That Austin Held A Valid
Security Interest In Plaintiff’s Buick, Plaintiff Was Not In
Default Of Her Installment Agreement At The Time Of
Northwest’s Repossession
a)
Plaintiff Was Not In Default Because Her Original
Balance Had Been Paid And Austin’s Late Fees Were
Unlawfully Excessive
Section 9-609(b)(2) of the Illinois Commercial Code sanctions self-help
repossession only “[a]fter default.” 810 ILCS 5/9-609. To begin, Plaintiff alleges
that by the time her Buick was repossessed in April 2013, she had already paid the
entirety of her original loan balance and all assessed late fees. See PSOF [96] ¶ 25.
According to Plaintiff, Jackson provided a final $150 cash payment to Austin on
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March 11, 2013 that extinguished Austin’s—and by extension, Northwest’s—
present right to possession. Id. Plaintiff’s claim is supported by the undisputed fact
that the same day, Vicki Thompson signed the Release of Lien section of the Buick’s
Certificate of Title and gave the Certificate of Title to Jackson. Id. ¶¶ 26-27; PSOF
[96] Ex. L.
Nevertheless, Northwest disputes that Jackson made a final $150 payment.
R. PSOF [129] ¶ 25. Northwest’s contention finds at least some support in the
record. During her deposition, Vicki Thompson denied that such a payment had
been made, and maintained that her signing of the Release of Lien was a mistake.
PSOF [96] Ex. M at 19:15-21, 20:25-21:19; NSOF [92] ¶ 28; R. NSOF [133] ¶ 28. At
this stage, the Court cannot resolve such genuine factual disputes.

Harris v.

comScore, Inc., 825 F. Supp. 2d 924, 927 (N.D. Ill. 2011).
These controversies, however, do not foreclose summary judgment.

Both

Plaintiff and Northwest agree that, between July 11, 2013 and the time of the
repossession, Plaintiff made at least $800 in additional payments to Austin. PSOF
[96] ¶ 23; R. PSOF [129] ¶ 23.

It is undisputed that these payments satisfied

Plaintiff’s original unpaid balance; the only amount outstanding derived from the
monthly late charges imposed by Austin between August and January. PSOF [96]
Ex. K. These fees, however, were unlawfully excessive.
Under the IMVRISA, delinquency charges on installments of $200 or less
may not exceed $10. 815 ILCS 375/11. Moreover, only one delinquency charge may
be collected on any installment, regardless of the period during which it remains in

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default. Id. As a result, Austin could legally impose no more than a $60 total late
fee on Plaintiff, $10 for each of the six months in which Plaintiff failed to make
timely payment. This amount is well below the $50 charge Austin imposed each
month.
A failure to comply with the provisions of the IMVRISA, of course, does not
render Plaintiff’s installment contract void or unenforceable. Route 50 Auto Sales,
Inc. v. Muncy, 771 N.E.2d 635, 637 (Ill. App. Ct. 2002). The noncomplying party,
however, is subject to the penalties provided in the statute. Fandel v. Allen, 937
N.E.2d 1124, 1133 (Ill. App. Ct. 2010). By statute, no person who violates the
IMVRISA, except as a result of an accident or bona fide error of computation, “may
recover any unpaid finance charge, delinquency or collection charge, or refinance
charge in connection with the related retail installment contract.” 815 ILCS 375/24
(emphasis added). Therefore, as a matter of law, Austin was not entitled to any
amount above Plaintiff’s original $800 balance.

Consequently, Plaintiff ceased

being in default of her purchase agreement on February 26, 2013—the day
Jackson’s cash payments equaled $800—more than two months before Northwest’s
repossession on April 30, 2013. PSOF [96] Ex. K. Without a prerequisite default,
Northwest was not entitled to resort to self-help repossession.
b)
Plaintiff Was Not In Default Because
Suspended Its Right To Timely Payments

Austin

Even assuming, arguendo, that Austin’s late fees were not unlawfully
excessive, under Illinois law, “a contracting party may waive provisions beneficial to
it or waive strict compliance by conduct or actions ‘indicating that strict compliance
15

with a particular provision will not be required.’” In re Krueger, 192 F.3d 733, 738
(7th Cir. 1999) (quoting Barker v. Leonard, 635 N.E.2d 846, 848 (Ill. App. Ct. 1994)).
Specifically,
[w]here a party accepts late payments it may waive or suspend its
right to timely payments and its right to declare a forfeiture unless the
buyer is given a definite and written notice of the intention to require
strict compliance with the contract in the future . . . To reestablish
strict compliance, the notice must give a reasonable time for
performance, and what is a reasonable time depends on the facts in the
case.
City of Chicago v. Chicago Title & Trust Co., 563 N.E.2d 65, 70 (Ill. App. Ct. 1990)
(quoting Allabastro v. Wheaton National Bank, 395 N.E.2d 1212, 1217 (Ill. App. Ct.
1979)).
The failure to make payments within the contract time may be waived
by the receipt and acceptance of overdue payments. Where the time
fixed by the contract for performance is permitted to pass, both parties
concurring, the time of performance thereafter becomes indefinite and
one party cannot rescind until full notice and a reasonable time for
performance is given.
Romualdo P. Eclavea, et al., Waiver of Delay: Generally, 12A Ill. Law and Prac.
Contracts § 279 (2016).
Here, Austin sent its Final Notice to Plaintiff on January 3, 2013. In it,
Austin informed Plaintiff that she “was behind on [her] payments” and that
“[f]ailure to comply” would result in repossession of her Buick. NSOF [92] Ex. H.
Plaintiff (through Jackson) however, made multiple efforts to comply with her
purchase agreement by making at least eight $100 payments between January 28,
2013 and March 8, 2013. PSOF [96] ¶ 23; R. PSOF [129] ¶ 23. It is undisputed that
Austin not only accepted these payments, but released the Certificate of Title for
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the Buick to Jackson on March 11, 2013. PSOF [96] Ex. K; PSOAF [133] Ex. 2; R.
PSOF [129] ¶¶ 26-27. Although Austin and Northwest maintain that this release
was a mistake, they never communicated their belief to Plaintiff. Moreover, Austin
never gave notice—written or otherwise—that they were once again requiring strict
compliance regarding their expected $150 remaining balance. Rather, both Austin
and Northwest remained silent towards Plaintiff up until the moment Miller
hooked Plaintiff’s Buick to his tow truck in the dead of night at 3:00 a.m. on April
30, 2013. Such facts are insufficient to declare Plaintiff in default of her purchase
agreement. Absent a default, Northwest was foreclosed from pursuing self-help
repossession.
In sum, Northwest violated § 9-609(b)(2) of Illinois’ self-help repossession
statute because: (1) there is insufficient evidence that Austin—and by extension
Northwest—was a secured party; and (2) Plaintiff was not in default of her
installment agreement at the time of the repossession.

As a result, neither

Northwest nor Austin had a present right to possession of Plaintiff’s Buick on April
30, 2013. Consequently, Northwest violated § 1692f(6) of the FDCPA. 6
3.
Northwest Does Not Raise A Viable Bona Fide Error
Defense
Northwest contests that, even if Plaintiff can establish a violation of the
FDCPA, a question of fact exists regarding Northwest’s bona fide error defense.
In her motion, Plaintiff raises several other theories challenging Northwest’s present right to
possession, including: (1) the events of April 30, 2013 constituted a breach of the peace; (2)
Northwest violated the Illinois Collateral Recovery Act, 225 ILCS 422/1 et seq.; and (3) Thompson
released Austin’s lien and transferred the Certificate of Title to Jackson on March 11, 2013. Pl.’s
Mem. Supp. Mot. Summ. J. [95] 12-15; Pl.’s Reply [143] 11-12. Given the Court’s rulings supra, it
need not address these supplemental arguments.
6

17

Northwest’s Resp. Pl.’s Mot. Summ. J. [128] 13. According to Northwest, “Austin
Credit never cancelled its repossession order with Northwest. As such, Northwest
had no reason to believe it should not proceed with the repossession ordered by
Austin Credit.” Id. (citation omitted). Northwest’s arguments are unavailing.
A debt collector may not be held liable under the FDCPA if the debt collector
shows “that the violation was not intentional and resulted from a bona fide error
notwithstanding the maintenance of procedures reasonably adapted to avoid any
such error.”

15 U.S.C. § 1692k(c).

To qualify for the bona fide error defense,

Northwest must show that: (1) the presumed FDCPA violation was not intentional;
(2) the presumed FDCPA violation resulted from a bona fide error; and (3) it
maintained procedures reasonably adapted to avoid any such error.

Kort v.

Diversified Collection Servs., Inc., 394 F.3d 530, 537 (7th Cir. 2005).
Regarding the first prong, a debt collector “need only show that its FDCPA
violation was unintentional, not that its actions were unintentional.” Id. (citing
Nielsen v. Dickerson, 307 F.3d 623, 641 (7th Cir. 2002) (debt collector “may avail
itself of the bona fide error defense because it had no intent to violate the FDCPA,
although its actions were deliberate”); Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389,
402 (6th Cir. 1998) (“The debt collector must only show that the violation was
unintentional, not that the communication itself was unintentional.

To hold

otherwise would effectively negate the bona fide error defense.”)).
Regarding the second prong, a “bona fide error” is “an error made in good
faith; a genuine mistake, as opposed to a contrived mistake.” Id. at 538.

18

As to the third prong, the “mere assertion of good intent, absent a factual
showing of actual safeguards reasonably adopted to avoid violations of the FDCPA,
is insufficient to sustain the [bona fide error] defense.” Jenkins v. Union Corp., 999
F. Supp. 1120, 1141 (N.D. Ill. 1998) (internal quotations omitted). Other circuits
have adopted a “two-step inquiry” for this procedural component. “The first step is
whether the debt collector maintained—i.e., actually employed or implemented—
procedures to avoid errors.

The second step is whether the procedures were

reasonably adapted to avoid the specific error at issue.” Owen v. I.C. Sys., Inc., 629
F.3d 1263, 1274 (11th Cir. 2011) (citing Reichert v. Nat’l Credit Sys. Inc., 531 F.3d
1002, 1006 (9th Cir .2008); Johnson v. Riddle, 443 F.3d 723, 729 (10th Cir. 2006))
(internal quotations omitted). Whether a debt collector’s procedures are reasonably
adapted to avoid certain errors “depends upon the particular facts and
circumstances of each case.” Id. Section 1692k(c) “does not require debt collectors
to take every conceivable precaution to avoid errors; rather, it only requires
reasonable precaution.” Kort, 394 F.3d. at 539; Hyman v. Tate, 362 F.3d 965, 968
(7th Cir. 2004) (“Although [the debt collector] could have done more . . . § 1692k(c)
only requires collectors to adopt reasonable procedures.”).
Here, Northwest fails to show implemented procedures reasonably designed
to avoid the mistake made in this case: repossession of a vehicle without a valid
security interest.

To the contrary, the evidence before the Court evinces

Northwest’s proverbial “head in the sand” tendencies. The entirety of Northwest’s

19

procedure for accepting repossession orders consists of only five steps contained on a
single piece of paper:
PROCEDURES FOR
REPOSSESSED

ENTERING

IN

A

VEHICLE

TO

BE

[1] FINANCE COMPANY WILL EITHER FAX/EMAIL A COPY OF
THE DOCUMENTS AND INFORMATION FOR THE DEBTOR AND
VEHICLE THAT HAS NOT BEEN PAID FOR.
[2] WE THEN ENTER THE INFORMATION INTO OUR RECOVERY
DATABASE SYSTEM
[3] ONCE IT IS ENTERED INTO OUR SYSTEM WE THEN RUN
THE DEBTOR THRU OUR SKIP TRACING SYSTEM TO MAKE
SURE THAT THEY ARE NOT IN BANKRUPCY.
[4] ANY OTHER ADDITIONAL ADDRESSES THAT WE FIND ON
THE SKIP TRACING SYSTEM [ARE] ENTERED INTO OUR
RECOVERY DATABASE SYSTEM.
[5] AT THIS TIME THE REPOSSESSION AGENT WILL START TO
RECOVER THE VEHICLE AND WILL NOT STOP UNTIL THE
FINANCE COMPANY NOTIFIES US THAT THE DEBTOR HAS
PAID CURRENT ON THEIR LOAN.
PSOF [96] Ex. R at 7 (emphasis added). None of the above efforts can be reasonably
expected to avoid the error committed here.

Although the procedures describe

“documents and information for the debtor” to be supplied by the finance company,
they do not delineate what those documents must encompass, nor demand that
proof of a valid security interest be included, or other relevant procedure. Warren
Crum (“Crum”), the owner of Northwest, testified that Northwest’s standard
practice is to ask the creditor for a copy of the bill of sale and title to the vehicle.
NSOF [92] Ex. J at 213:12-19. His assertion, however, is betrayed by Northwest’s
admission that it did not possess a copy of the title for Plaintiff’s vehicle at any
20

point prior to its repossession. PSOF [96] ¶ 33. Rather, Northwest only received a
copy of the Final Notice sent to Plaintiff on January 3, 2013. PSOF [96] Ex. R. at 9.
This notice, however, does not provide evidence of a valid security interest, let alone
one valid at the time of Northwest’s repossession over three months later.
Furthermore, although Northwest conducts its own “skip tracing,” its own
expert acknowledged that such a search—as conducted by Northwest—does not by
itself reveal the presence (or absence) of a security interest:
Q. May I ask you how skip tracing is meant to double-check the
existence of a lien?
A. It is not.
Q. Are you sure of that?
A. Well, the way—the way I understand the word is to locate a person.
...
Q. All right. So when we’re talking about skip tracing, skip tracing is
actually to locate a person, not to—as distinct from an asset search of a
person. Is that correct?
A. That’s how I view it as.
Indeed, Northwest admits that, ultimately, its procedure for confirming the
existence of a security interest on collateral is merely to “rely on Austin Car
Credit[.]” PSOF [96] ¶ 56. Crum testified at his deposition:
Q. . . . What procedures do you have in place that are designed to
ensure that you are not taking action to repossess a vehicle where that
vehicle has been paid off, or otherwise had the lien released
subsequent to it being assigned to your company?
A. There is no possible way for us to do so, so we have no policy as such.

21

NSOF [92] Ex. J at 228:7-13.
Admittedly, the Seventh Circuit has previously held that “the FDCPA does
not require collectors to independently verify the validity of the debt to qualify for
the ‘bona fide error’ defense.” Hyman v. Tate, 362 F.3d 965, 968 (7th Cir. 2004). In
Hyman, the plaintiff incurred a credit card debt she subsequently listed in a
Chapter 13 bankruptcy petition.

Id. at 966.

Subsequently, the creditor bank

referred the plaintiff’s debt to a debt collector. Id. The collector, ignorant of the
plaintiff’s bankruptcy filing, sent a collection letter to the plaintiff.

Id.

Upon

receipt, the plaintiff telephoned the collection agency and informed them of her
pending bankruptcy. Id. The agency immediately closed the plaintiff’s account and
ceased further collection attempts. Id. Nevertheless, the plaintiff filed suit against
the collection agency alleging violations of the FDCPA. At trial, the district court
concluded that the agency’s letter, even if in technical violation of the FDCPA,
constituted a bona fide error. Id. The Seventh Circuit affirmed that the district
court’s findings were not clear error. Id. at 969.
Several factors present in Hyman, however, do not exist in the case before
this Court. First, Hyman applied a clear error test, a deferential standard of review
not present at this stage of the proceedings.

Second, in Hyman, the collection

agency’s General Manager testified that, as a general practice, no creditor “would
send them bankruptcy accounts because that is just not good business to do that.”
Id. at 967. Northwest offers no such testimony here. Third, the General Manager
in Hyman testified that if the creditor received information that a previously

22

referred account was in bankruptcy, “the bank would promptly notify” the collection
agency. Id. The opposite is true in this case. Thompson, an Austin employee,
testified that if a debtor obtains clear title to a vehicle after an order for
repossession has been placed, Austin does not proactively contact Northwest. R.
PSOAF [142] Ex. G. at 27:12-29:16. Rather, Austin waits until Northwest sends
them a list of pending repossession orders, at which point Austin removes those for
which it no longer maintains a present right to possess. Id. Bob Soltani (“Soltani”),
Austin’s owner, however, testified that Northwest would only send such a list “every
month,” NSOF [92] Ex. C at 40:1-4, a far cry from the “prompt notification” ratified
in Hyman. Finally, the collection agency in Hyman presented evidence that, of the
accounts referred to it for collection, only .01 percent were later found to have been
in bankruptcy. Id. Here, Crum testified that, in his experience, “less than five
percent” of repossessions involved a vehicle with a satisfied loan, NSOF [92] Ex. J
at 260:2-9, a figure approximately 500 times greater. In short, the circumstances
supporting the Seventh Circuit’s decision in Hyman are missing in the present
controversy.
A sister court in this district has distinguished Hyman on similar grounds.
In Turner v. J.V.D.B. & Associates, Inc., the plaintiff’s debt to a phone service
company was discharged through a Chapter 7 bankruptcy petition. 318 F. Supp. 2d
681, 682 (N.D. Ill. 2004).

Nevertheless, as in Hyman, the creditor mistakenly

turned the debt over to a debt collector, who then sent a collection letter to the
plaintiff. Id. The plaintiff filed suit under the FDCPA. Id. at 683. At trial, the

23

district court distinguished Hyman on many of the grounds listed supra and
dismissed the collection agency’s bona fide error defense at the summary judgment
phase. Id. at 687. According to the court:
In Hyman, unlike here, the debt collector had a written contract with
the creditor and an understanding with the creditor that the creditor
would not send over bankruptcy accounts . . . [The collection agency]
has not even alleged, let alone offered any evidence, that it had a
written agreement or any type of understanding with its creditorclients that clients would not send [the collection agency] accounts on
debts which were subject to bankruptcy petitions. Moreover, [the
collection agency] has not shown that its creditor-clients would
immediately contact [the collection agency] if an account subject to
bankruptcy erroneously slipped through the process (and [the
collection agency] has proffered no evidence of very infrequent
reference of bankruptcy accounts to [the collection agency] for
collection). In these circumstances, [the collection agency’s] selfproclaimed but baseless “reliance” on its creditor-clients not to send
accounts on debts which were subject to bankruptcy petitions was not
reasonable, nor was it a procedure reasonably adapted to avoid
violating the FDCPA.
Id.; see also Reichert v. Nat’l Credit Sys., Inc., 531 F.3d 1002, 1006 (9th Cir. 2008);
Eide v. Colltech, Inc., 987 F. Supp. 2d 951, 967 (D. Minn. 2013) (“Although reliance
on a creditor to report to the debt collector which accounts have been discharged in
bankruptcy may constitute a reasonable procedure ‘the bona fide error defense does
not protect a debt collector whose reliance on a creditor’s representation is
unreasonable.’”) (quoting Bacelli v. MFP, Inc., 729 F. Supp. 2d 1328, 1334 (M.D.
Fla. 2010)).
Rather than the wholly distinguishable circumstances in Hyman, the Court
finds this case more akin to Buzzell v. Citizens Auto. Fin., Inc., 802 F. Supp. 2d 1014
(D. Minn. 2011). In Buzzell, the plaintiff financed a vehicle purchase with a loan

24

from an automobile finance company. Id. at 1016. The plaintiff made a series of
late payments and eventually fell behind on his account.

Id. at 1017.

Subsequently, the plaintiff’s creditor sent the plaintiff a final notice demanding that
plaintiff make his account current. Id. Though the creditor continued to accept late
and partial payments, the plaintiff remained at least one month behind.

Id.

Eventually, the creditor repossessed the vehicle. Id. In response, the plaintiff made
additional payments and regained possession of the automobile, but after further
late and partial payments, the creditor repossessed the vehicle a second time. Id.
The plaintiff sued, alleging violations of the FDCPA.
At trial, the district court held that the creditor’s “acceptance of late, partial
payments . . . necessitated further notice before it had a right to repossess the
vehicle.” Id. at 1022. The creditor’s violation notwithstanding, the repossession
contractor and agent argued that they “had the right to rely on the so-called
‘repossession order’ they received from [the creditor] as a representation of its
present right to possession.” Id. at 1023. Rejecting the defendants’ claim as a
matter of law, the court found that, in reality, the creditor “made no representation
about its right to possess the vehicle.” Id. Rather, the “only information provided to
[the repossession contractor] was the ‘repossession order,’ a one-page document
prepared by [the creditor] . . . which contained vehicle information and [the
plaintiff’s] name and last known address.” Id. The court further noted that the
FDCPA “is a broad remedial statute that imposes strict liability on debt collectors”
and that “its terms are to be applied in a liberal manner.” Id. (internal quotation

25

omitted). The court found that “it is inconsistent with the broad remedial purposes
of the FDCPA to allow a repossession company to escape liability under § 1692f(6)
simply because it received a repossession order from a creditor, which it blindly
followed without any assurance of the creditor’s present right to possess.” Id. On
these facts, the Court agrees. Therefore, Plaintiff’s motion for partial summary
judgment on the issue of liability as to Count I [94] is granted.
B.

Count II: Violations of the Illinois Uniform Commercial Code

In Count II, Plaintiff seeks damages from Northwest for violations of § 9-609
of the Illinois Commercial Code. That section, however, only provides for liability
against secured parties. Purkett v. Key Bank USA, Inc., No. 01-CV-162, 2001 WL
503050, at *4 (N.D. Ill. May 10, 2001).

There is no evidence that Northwest

possessed a secured interest in Plaintiff’s Buick. As a result, § 9-609 is inapplicable.
In Purkett, the plaintiff entered into a vehicle finance agreement. Id. at *1.
Although the plaintiff was current on his account, the bank in possession of the
plaintiff’s loan agreement hired a repossession company to repossess the plaintiff’s
vehicle. Id. The repossession company broke into the plaintiff’s locked garage, took
his vehicle, and charged the plaintiff a $140 storage fee before relinquishing the
vehicle back to the plaintiff. Id. The plaintiff filed suit against the repossession
company, alleging violations of the precursor to § 9-609. The court dismissed the
claim because the repossession company was not a secured party, and thus the
relevant section of the Uniform Commercial Code did not apply. Id. at *4.

26

The comments to the current § 9-609 are consistent with Purkett: “courts
should hold the secured party responsible for the actions of others taken on the
secured party’s behalf, including independent contractors engaged by the secured
party to take possession of collateral.” 810 ILCS 5/9-609.
Because Northwest is not, and never was, a secured party in this case, § 9609 does not apply. Therefore, Northwest’s motion [90] as it relates to Count II is
granted. 7
C.
Count III: Violations of the Illinois Consumer Fraud and
Deceptive Business Practices Act
In Count III, Plaintiff claims Northwest violated § 2 of the Illinois Consumer
Fraud and Deceptive Business Practices Act (“ICFA”). The ICFA is a “regulatory
and remedial statute intended to protect consumers, borrowers, and business
persons against fraud, unfair methods of competition, and other unfair and
deceptive business practices.” Siegel v. Shell Oil Co., 612 F.3d 932, 934 (7th Cir.
2010) (quoting Robinson v. Toyota Motor Credit Corp., 775 N.E.2d 951, 960 (Ill.
2002)). The statute “provides redress for deceptive business practices and also for
business practices that, while not deceptive, are unfair.” See id.
Northwest claims it is entitled to summary judgment on Count III because
Plaintiff does not qualify as a “consumer” under the ICFA. Northwest’s Mem. Supp.
Mot. Summ. J. [91] 9-11. Plaintiff failed to respond to this argument. By failing to
respond, Plaintiff concedes that Northwest is entitled to summary judgment. See

The Court notes that, aside from the above analysis, Plaintiff failed to respond to Northwest’s
motion as it relates to Count II. Therefore, as with Count III, Plaintiff concedes that Northwest is
entitled to summary judgment.

7

27

Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 n. 2 (7th Cir. 1996)
(holding that plaintiff abandons a claim after failing to respond to arguments on
that claim in defendant’s motion for summary judgment); Kowalczyk v. Walgreen
Co., No. 03-CV-8335, 2005 WL 1176599, at *11 (N.D. Ill. May 17, 2005); Liviak v.
Gary Little Nissan, Inc., No. 97-CV-6679, 1998 WL 378427, at *9 (N.D. Ill. July 1,
1998); Brown v. N. Trust Bank, No. 95-CV-7559, 1997 WL 543098, at *3 (N.D. Ill.
Sept. 2, 1997); Oak Brook Hotel Co. v. Teachers Ins. & Annuity Ass’n of Am., 846 F.
Supp. 634, 641 (N.D. Ill. 1994). Therefore, Northwest’s motion [90] as it relates to
Count III is granted.
D.

Count IV: Trespass to Chattel

In Count IV, Plaintiff alleges that Northwest’s repossession constituted an
unlawful trespass to chattel. First Am. Compl. [70] ¶¶ 146-51. The common law
tort “provides redress for unauthorized use of or intermeddling with another’s
physical property.” Fidlar Techs. v. LPS Real Estate Data Sols., Inc., 82 F. Supp. 3d
844, 859 (C.D. Ill. 2015), aff’d, 810 F.3d 1075 (7th Cir. 2016). Under Illinois law,
“an injury to or interference with possession, with or without physical force,
constitutes a trespass to personal property.” Smith v. City of Chicago, 143 F. Supp.
3d 741, 761 (N.D. Ill. 2015) (quoting Sotelo v. DirectRevenue, LLC, 384 F. Supp. 2d
1219, 1229 (N.D. Ill. 2005)).

A trespass to a chattel “may be committed by

intentionally (a) dispossessing another of the chattel, or (b) using or intermeddling
with a chattel in the possession of another.” Frazier v. U.S. Bank Nat. Ass’n, No.
11-CV-8775, 2013 WL 1337263, at *11 (N.D. Ill. Mar. 29, 2013); Restatement

28

(Second) of Torts § 217 (1965). In other words, “harm to the personal property or
diminution of its quality, condition, or value as a result of a defendant’s use can
result in liability.” Smith, 143 F. Supp. 3d at 761.
In support of its summary judgment motion, Northwest first argues that
Plaintiff’s claim fails because “trespass to chattels is an intentional tort,” and
“Northwest had no knowledge that Austin Credit had tendered title to the [Buick]
to a third party.” Northwest’s Mem. Supp. Mot. Summ. J. [91] 14. Northwest’s
interpretation of the tort’s intent requirement misses the mark. While is true that
the tort “has come to be limited to intentional interferences,” such an intention “is
present when an act is done for the purpose of using or otherwise intermeddling
with a chattel or with knowledge that such an intermeddling will, to a substantial
certainty, result from the act.” Restatement (Second) of Torts § 217, cmts. b, c
(1965). It is not necessary, however, “that the actor should know or have reason to
know that such intermeddling is a violation of the possessory rights of another.” Id.
at cmt. c. It “is immaterial that the actor intermeddles with the chattel under a
mistake of law or fact which has led him to believe that he is the possessor of it or
that the possessor has consented to his dealing with it.” Id.; Madison Capital Co.,
LLC v. S & S Salvage, LLC, 765 F. Supp. 2d 923, 936 (W.D. Ky. 2011) (“[A] claim
for trespass only requires that the defendant intend to use the chattel. The
necessary intent is present even when a defendant interferes with a possessory
right under a mistake of law or fact which leads him to believe his action is
privileged.”).

29

Alternatively, Northwest claims that, its intent notwithstanding, Austin
continued to maintain an enforceable security interest in the Buick at the time of
Northwest’s repossession. Northwest’s Mem. Supp. Mot. Summ. J. [91] 14. For the
reasons discussed supra, as a matter of law, Northwest is incorrect. Therefore,
Northwest’s motion [90] as it relates to Count IV is denied.
IV.

Conclusion
Northwest’s Motion for Summary Judgment [90] is granted as it relates to

Counts II and III, but denied as it relates to Counts I and IV. Plaintiff’s motion for
partial summary judgment on the issue of liability as to Count I [94] is granted.

IT IS SO ORDERED
Dated: September 26, 2016

Entered:

____________________________
John Robert Blakey
United States District Judge

30