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Diane Messer, A/K/A Diane M. Mccutcheon, and Charles Messer v. First Financial Federal Credit Union of Maryland

July 30, 2012

DIANE MESSER, A/K/A DIANE M. MCCUTCHEON, AND CHARLES MESSER, PLAINTIFFS,
v.
FIRST FINANCIAL FEDERAL CREDIT UNION OF MARYLAND, DEFENDANT.



The opinion of the court was delivered by: Rufe, J.

MEMORANDUM OPINION

Plaintiffs Diane Messer and Charles Messer bring claims against Defendant First Financial Federal Credit Union of Maryland ("First Financial") for willful violation of a bankruptcy discharge injunction, violations of the Pennsylvania Fair Credit Extension Uniformity Act and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, conversion, intentional infliction of emotional distress, and loss of consortium. Before the Court is Defendant's motion to dismiss Plaintiff's Second Amended Complaint.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND

In 2004 and 2005, Plaintiff Diane Messer *fn1 entered into five separate loan agreements with Defendant First Financial, including a six-year financing agreement to purchase a Toyota Prius (the "Vehicle Loan Agreement" or "Vehicle Debt"). On April 5, 2005, Plaintiff and her former husband, Michael McCutcheon, filed a bankruptcy petition in the United States Bankruptcy Court for the District of Maryland. *fn2 Plaintiff's Vehicle Debt was listed therein as secured debt, *fn3 and three other First Financial loans-in the amounts of $4,821.23, $409.34, and $883.08-were listed under "Unsecured Non-priority Claims." *fn4 In October 2005, Plaintiff and her former husband were granted a bankruptcy discharge, and the bankruptcy proceeding was closed in April 2006. *fn5

Plaintiff alleges that she continued to make monthly payments on her Vehicle Debt, and made the final payment on or about May 5, 2011. Nonetheless, on May 17, 2011, her car was towed and repossessed by First Financial. The following day, Plaintiff called First Financial and spoke to loan repayment officer Donald Stewart, who agreed that Plaintiff had satisfied the Vehicle Debt, but told her that the car had been repossessed pursuant to a "cross-collateralization clause" in the Vehicle Loan Agreement which provided that the vehicle was to serve as collateral in the event Plaintiff defaulted on her other First Financial loans. In response to Plaintiff's questions, First Financial sent her a copy of a "Promissory Note and [Security] Agreement," which First Financial stated was an addendum to the Vehicle Loan Agreement. The Promissory Note contained a clause reading, in part, "Property given as security for this loan or for any other loan will secure all amounts I owe the Credit Union now and in the future." Plaintiff also received a letter dated May 17, 2011, stating she had until June 3, 2011, to redeem the car by paying First Financial $6,308.84. *fn6 After the redemption period passed, First Financial sold Plaintiff's car and its contents to satisfy her alleged remaining debt.

Plaintiff asserts, however, that she never saw the Promissory Note or its cross-collateralization clause before the repossession, that the unsigned Promissory Note was fabricated by First Financial in a fraudulent attempt to justify the repossession, that no such addendum was attached to or integrated into either the Vehicle Loan Agreement or her other debt agreements at the time they were executed, *fn7 and finally, that any debt remaining under her other loan agreements with First Financial was unsecured debt properly discharged in bankruptcy before her car was repossessed. Accordingly, she alleges, First Financial had no right to repossess or sell the vehicle.

Both Plaintiff and her current spouse, Charles Messer, allege that they suffered severe emotional and physical distress as a result of First Financial's repossession of Plaintiff's car. Specifically, Plaintiffs allege that the wrongful repossession, in addition to causing stress, required them to lease a new vehicle. They allege that the presence of a new car in the parking lot of the church where Charles Messer is a clergyman caused gossip and speculation among the parishioners and an investigation into Mr. Messer's management of church funds. They further allege that anxiety resulting from this gossip and investigation caused Mr. Messer, who had suffered a stroke in December 2007, to experience bleeding of the brain on August 7, 2011, which required his hospitalization.

In the Second Amended Complaint, *fn8 Plaintiff Diane Messer asserts claims against First Financial for willful violation of the 2005 bankruptcy discharge injunction, pursuant to 11 U.S.C. § 524 (Count I); violations of the Pennsylvania Fair Credit Extension Uniformity Act ("FCEUA"), 73 Pa. Stat. §§ 2270.1, et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 73 Pa. Stat. §§ 201-1 to 201-7 (Count II); and conversion (Count III). Both Mr. and Mrs. Messer bring claims for intentional infliction of emotional distress (Count IV), and Diane Messer brings a claim for loss of consortium as a result of her husband's injuries (Count V).

II. S TANDARD OF R REVIEW

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged" *fn9 and "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element" of a claim. *fn10

Specifically, "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact) . . . ." *fn11 The question is not whether the plaintiff ultimately will prevail but whether the complaint is "sufficient to cross the federal court's threshold." *fn12

In evaluating a challenged complaint, a court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." *fn13 Although the Court must draw all reasonable inferences from the allegations in favor of the plaintiff, *fn14 it "need not accept as true 'unsupported conclusions and unwarranted inferences,'" *fn15 or the plaintiff's "bald assertions" or "legal conclusions." *fn16

III. D ISCUSSION

A. Violation of Bankruptcy Discharge Injunction; Violation of the FEUCA and the ...


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