Wyche v. Tsarouhis
Wyche v. Tsarouhis
Opinion of the Court
A borrower on a defaulted car loan is suing a company which, as part of its alleged principal business purpose, purchased a deficiency judgment against the borrower and then, through its lawyers, sued the borrower to collect. The borrower does not challenge the accuracy of the debt plead in the state court complaint; he does not today dispute owing the deficiency judgment. He instead claims the company suing him in state court and its lawyers did not have the legal right to collect this debt and thus, the state court lawsuit misrepresents the nature of the debt. If so, the borrower argues the lawsuit violates the Fair Debt Collection Practices Act. The parties agree the company suing him in state court is not licensed under the Pennsylvania Consumer Credit Code. Under this Credit Code, a car buyer's obligation under an installment sale contract is not enforceable by a holder of the debt not licensed under Pennsylvania law.
After careful parsing of the Pennsylvania Consumer Credit Code and persuaded by the remedial purposes of the Fair Debt Collection Practices Act and the reasoning *394of several courts in other Districts facing the same issue under their state licensing laws, we agree with the defaulted borrower as to the company's inability to file a lawsuit to collect this deficiency judgment. As it lacked a license, the company could not sue on the deficiency judgment in its own name and its state court lawsuit misrepresents this fact in collecting the debt.
I. Alleged facts.
Keystone Acceptance Portfolio, LLC purchased Barry Wyche's obligation to pay back a car loan to American Credit Acceptance for a car purchased from Arrow Motors, Inc.
But Mr. Wyche sued Keystone and its attorneys here for violating the Fair Debt Collection Practices Act by filing suit in state court without the required license under Pennsylvania law. He specifically alleges Keystone's failure to hold a Pennsylvania license to collect this deficiency judgment renders it unable to collect the debt. He curiously failed to answer the motion to dismiss his complaint. We granted Defendants' unopposed motions to dismiss the complaint but granted Mr. Wyche leave to amend to plead a cognizable claim.
II. Analysis.
Keystone and its lawyers move to dismiss the Amended Complaint arguing nothing in their state court collection lawsuit is misleading or violates the Act.
A. Keystone is a debt collector.
We readily reject Defendants' first argument. As alleged, Keystone is a debt collector under the Act as Mr. Wyche alleges its principal purpose is collecting debts.
B. Keystone's failure to hold a license voids its debt collection authority.
Keystone, through its attorneys, sued in state court to collect the deficiency judgment admittedly owed by Mr. Wyche to the lender on an installment sales contract for a car purchase. Mr. Wyche argues the collection action violates the Act because Keystone did not hold a license under Pennsylvania law to collect this debt. While the Pennsylvania General Assembly has defined several terms and pronounced the obligation unenforceable as to a person attempting to collect without a license, we cannot find courts addressing whether this licensing requirement applies to persons collecting deficiency judgments on car loans. Defendants cite one common pleas opinion from over eighteen years ago which exempts the licensing requirement without addressing the "acquiring" language in Pennsylvania law. The parties did not offer more helpful authority under Pennsylvania law but Mr. Wyche cites our colleagues in the District of New Jersey and other Districts finding the lack of the similar license states a claim against a debt collector seeking to collect a debt under the Act. After studying the Pennsylvania licensing scheme, we agree with Mr. Wyche and find he states a claim Keystone and its attorneys violated the Act by filing suit without legal authority to do so in Pennsylvania.
C. The Pennsylvania licensing requirement applies to Keystone.
The parties agree the Pennsylvania Consumer Credit Code applies and provides:
(a) "When obligation unenforceable. - An obligation of the buyer of a motor vehicle under an installment sale contract that was consummated in this Commonwealth is not enforceable in this Commonwealth if:
....
(2) the holder was not licensed under this chapter when the holder acquired the contract."10
*396The Credit Code further requires an installment seller, sales finance company or a collector-repossessor must hold the license.
Keystone's state court complaint, attached to the Amended Complaint before us, admits the car seller "assigned, transferred and sent over all of its rights, title and interest in the Contract to [Keystone]."
In a second step, we must examine whether a holder acquired an installment sale contract. The General Assembly defines "installment sale contract" as:
(1) A contract for the retail sale of a motor vehicle, or a contract that has a similar purpose or effect, whether or not the installment seller has retained a security interest in the motor vehicle or has taken collateral security for a buyer's obligation, if:
(i) all or part of the purchase price is payable in two or more scheduled payments subsequent to the making of the contract; or
(ii) a buyer undertakes to make two or more scheduled payments or deposits that may be used to pay all or part of the purchase price.16
Keystone seemingly admits Mr. Wyche's underlying debt to American Credit from the car purchase from Arrow Motors constitutes an installment sale contract but now argues this obligation ceased to be an installment sale contract after Mr. Wyche defaulted and the original lender obtained a deficiency judgment. This argument lacks authority.
The General Assembly addressed this concern in section 6261(a) of the Credit Code:
"If the proceeds of a resale under section 6260 (relating to sale of motor vehicle after repossession) are not sufficient to defray the expenses regarding the repossessed motor vehicle, including the costs under section 6256 (relating to buyer's liability for costs), the net balance due on the installment sale contract and the amount of accrued later charges authorized by this chapter, the installment seller or holder may recover the deficiency from the buyer or from any person who has succeeded to the obligations of the buyer."17
Keystone's purchase of the debt is an acquisition of an installment sale contract.
*397Keystone is a sales finance company under section 6202 of the Credit Code. Under the law, Keystone must be licensed at the time of acquiring this obligation or Mr. Wyche's obligation is unenforceable as a matter of law under section 6236(a)(2).
Keystone and its attorneys rely upon a 2001 opinion from the Court of Common Pleas of Chester County in Action Management Inc. v. Gross .
We are not persuaded by Keystone's reliance on the 2001 court of common pleas' decision in Action Management Inc. For undisclosed reasons, the state court found the company acquiring the contract did not need to be licensed because it was not in the business of financing or soliciting a financing installment sales contract.
Keystone argues the licensing requirement does not apply because it is collecting a deficiency judgment. This distinction does not make sense considering the protections afforded by the licensure requirements. Nothing in the General Assembly's mandate excludes deficiency judgments. Under Keystone's argument, a party acquiring the deficiency judgment does not need to be licensed even though a lender who could otherwise sue on a deficiency judgment must be. We cannot read this distinction into the General Assembly's mandate. Nothing in the Pennsylvania law excludes licensing of holders of deficiency judgments. To the contrary, as Keystone's state court complaint admits, a party acquiring a deficiency judgment stands in the same shoes as those from whom it acquired the judgment or otherwise it would not be able to collect, pursue attorneys' fees or enforce the remedies in the underlying installment sales contract. We cannot think of a reason to allow a purchaser of a deficiency judgment to somehow have different obligations than the lender who sold the obligation allowing it the right to collect. Keystone admits as much in seeking to collect attorney's fees in state court under the loan contract.
Keystone acquired this debt arising from a default in the purchase and finance of a car. This is an installment sale contract under Pennsylvania law. Pennsylvania requires those persons acquiring this type of debt to be licensed. An unlicensed *398purchaser cannot enforce the obligation. Absent a license at the time it acquired the debt from American Credit, Keystone could not collect on this debt.
D. Keystone misrepresenting its right to collect violates the Act.
Keystone argues even if it is not licensed, there is no reason to extend the Act to it because Mr. Wyche does not allege the state court collection action is misleading. This argument is facially attractive. Mr. Wyche apparently does not dispute (at least not in this case) his obligation under the deficiency judgment. The Act is often applied to challenge misleading representations of the amount of debt owed. We have no reason to find the amount of debt plead in the state court complaint is false or misleading. The issue is Keystone's right to collect this debt.
We agree with our colleagues in the District of New Jersey who, when reviewing this claim under New Jersey's licensing regiment, repeatedly hold a defaulted borrower can state a claim under the Act for misrepresenting the nature of the debt because the debt collector is not licensed under New Jersey law.
We similarly hold Keystone's failure to obtain a license under Pennsylvania law allows a claim under the Act challenging a state court complaint alleging Keystone held this right. As Judge Kugler observed: "it would strain logic to conclude that if a debt collector is prohibited from engaging in debt collection activity in a state, he avoids the risk of liability under the [Act] so long as he conceals this fact and does not make any representation that he actually has debt collection authority."
We are not persuaded by earlier cases holding a debt collector engaging in collection activities without obtaining required state debt collection licenses do not violate the Act. For example, in Wade v. Regional Credit Ass'n
We are also not persuaded by the magistrate judge's 2001 holding following the Wade reasoning in Ferguson v. Credit Management Control, Inc.
Having found Keystone failed to obtain a license acquiring Mr. Wyche's debt from American Credit and thus lacked the authority to collect this debt from Mr. Wyche, we find Keystone's conduct attempted to enforce a legally unenforceable debt. Given the least sophisticated debtor standard, Keystone's and its attorneys' conduct could mislead by attempting to claim Keystone's ability to enforce a debt in Court. Mr. Wyche specifically and plausibly pleads Keystone's and its attorneys' state court complaint attempting to collect the debt for which they had no legal right to do so constitutes a false, deceptive, or misleading representation in connection with collection of the debt. He states a claim under the Act.
III. Conclusion
Mr. Wyche states a claim under the Fair Debt Collection Practices Act against Keystone and its attorneys. We deny the motion to dismiss in the accompanying Order.
ECF Doc. No. 8, ¶ 32 and Ex. A., p. 12 of 14.
Id. ¶ 31.
Id. ¶ 37.
Id. ¶ 40.
ECF Doc. No. 6.
Our review today is limited to Mr. Wyche's allegations. When considering a motion to dismiss "[w]e accept as true all allegations in the plaintiff's complaint as well as all reasonable inferences that can be drawn from them, and we construe them in a light most favorable to the non-movant." Tatis v. Allied Interstate, LLC ,
15 U.S.C. § 1692a(6) ; ECF Doc. No. 8, ¶¶ 12, 13, 16.
Tepper v. Amos Fin., LLC ,
Mr. Wyche specifically pleads: "Defendants regularly collect or attempt to collect past-due and defaulted debts of natural persons allegedly owed to others which were incurred primarily for personal, family or household purposes. The principal purpose of Defendants is the purchase and collection of debts. Keystone's principal purpose is to purchase defaulted consumer debts to collect them from consumers." ECF Doc. No. 8, ¶¶ 12, 13, 16.
12 Pa. C.S.A. § 6236(a)(2).
ECF Doc. No. 8, Ex. A.
12 Pa.C.S.A. § 6202.
No. 99-54,
The Court of Common Pleas in Action Management cited an apparently earlier version of the Pennsylvania Consumer Credit Code at 69 P.S. § 603 defining a sales finance company as "a person engaged as principal, agent or broker in the business of financing or soliciting the financing of installment sale contracts made between other parties, including but not thereby limiting the generality of the foregoing, the business of acquiring, investing in or lending money or credit on the security of such contracts or any interest therein whether by discount, purchase or assignment thereof, or otherwise."
Action Management Inc. ,
Veras v. LVNV Funding, LLC , No. 13-1745,
Veras ,
Veras ,
See Tompkins v. Selip & Stylianou, LLP , No. 18-12524,
Reference
- Full Case Name
- Barry WYCHE v. Demetrius TSAROUHIS
- Cited By
- 1 case
- Status
- Published