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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


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


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.


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).


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


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

First Financial has moved to dismiss Plaintiffs' claims for conversion and violations of the bankruptcy discharge injunction, the FEUCA, and the UPTCPL, arguing that the cross-collateralization clauses in the Vehicle Loan Agreement and the other loan agreements are valid and enforceable under Maryland law, pursuant to Section 9-204(c) of the Uniform Commercial Code and Maryland case law. *fn17 Therefore, Defendant argues, all of Plaintiff's First Financial debts were secured by a lien on her vehicle and were not discharged in the bankruptcy proceeding. *fn18 Consequently, Plaintiffs cannot maintain a claim sounding in unfair debt collection or conversion, because First Financial's repossession of her vehicle was legal. *fn19 However, these arguments depend upon the resolution of disputed issues of fact that the Court cannot reach on a motion to dismiss. Plaintiff does not claim that an existing cross-collateralization clause or lien is unenforceable or that her debt was unsecured despite such a clause; rather, she asserts that a cross-collateralization clause was not included in the Vehicle Loan Agreement, and that the documents First Financial has proffered in support of its Motion are fabrications. Accepting these factual allegations as true for purposes of the motion to dismiss, the existence of the cross-collateralization clauses is in dispute and the allegations are sufficient to state a cause of action for the claims in Counts I-III.

B. Intentional Infliction of Emotional Distress

To bring a claim for intentional infliction of emotional distress, a plaintiff must demonstrate: 1) that the defendant's conduct was extreme and outrageous, 2) that the conduct was intentional or reckless, 3) that the conduct caused emotional distress, and 4) that the resulting emotional distress was severe. *fn20

To satisfy the first element, "[t]he conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." *fn21 "[C]courts have been chary to allow recovery for a claim of intentional infliction of emotional distress." *fn22 It is "not [] enough that the defendant has acted with intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that this conduct has been characterized by 'malice,' or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort." *fn23

The tort is instead "reserved by the courts for only the most clearly desperate and ultra extreme conduct." *fn24

Under Pennsylvania law, "it is for the court to determine in the first instance whether defendant's conduct can be reasonably regarded as so extreme and outrageous to permit recovery." *fn25 Here, Plaintiff alleges that First Financial repossessed and sold her car without legal justification, sent her a single notification letter informing her of the repossession and redemption policy, and thereafter fabricated loan documents to support the repossession. *fn26 If true, such actions are possibly fraudulent and certainly disgraceful; however, the Court does not find the conduct alleged comparable to that found to be sufficiently "extreme and outrageous" as defined by case law. *fn27

Moreover, Plaintiffs' allegations are insufficient to establish the remaining elements of a claim for intentional infliction of emotional distress. The Third Circuit has concluded that, in Pennsylvania, "both intentional and negligent infliction of emotional distress require[] a manifestation of physical impairment resulting from the distress" *fn28 or "some type of resulting physical harm due to the defendant's outrageous conduct." *fn29 As to the severity of the resulting distress, "[t]he Pennsylvania Supreme Court has enunciated an objective standard, permitting recovery only 'where a reasonable person normally constituted would be unable to adequately cope with the mental stress engendered by the circumstances of the event.'" *fn30 A plaintiff must therefore "plead facts that would support an inference that the distress . . . suffered was the kind of unbearable mental anguish that rose to the level of severe emotional distress." *fn31 Here, both Plaintiffs assert simply that they suffered "severe emotional distress." This conclusory allegation is insufficient to state a claim. Similarly, Plaintiffs' allegations that they suffered "extreme stress, anxiety and mental anguish," "embarrassment," "loss of sleep, [and loss of] appetite" are inadequate to support an inference that the emotional distress was severe, or beyond the ordinary. *fn32

While Charles Messer suffered an undoubtedly serious physical injury allegedly induced by emotional distress, Plaintiffs have failed to plead the requisite causal link between First Financial's actions and Mr. Messer's brain bleed, which occurred more than two months after the repossession of Mrs. Messer's car. Plaintiffs have not alleged that any of First Financial's actions were intentionally directed at Charles Messer, who was neither a party to any loan agreement with First Financial nor the owner of the car. Rather, Plaintiffs explain that Mr. Messer's injury was the result of anxiety caused primarily by the malicious gossip of his parishioners and the investigation into his management of church funds. Plaintiffs contend that the gossip and investigation were instigated by the presence of a new car in the church parking lot, which Plaintiffs themselves leased to replace the repossessed Toyota Prius. As alleged, First Financial's actions are insufficiently proximate to Mr. Messer's injuries to establish the requisite elements of intent and causation. *fn33

C. Loss of Consortium

Plaintiff Diane Messer has brought a loss of consortium claim based on the injuries suffered by her husband, Charles Messer. Under Pennsylvania law, a loss of consortium claim is necessarily derivative of a claim by the injured spouse; accordingly, it is "always dependent upon the injured spouse's right to recover." *fn34 Here, the injured spouse, Charles Messer, brings only a claim for intentional infliction of emotional distress. Because the Court has held that First Financial's conduct was not outrageous enough to support that emotional distress claim, and that Plaintiffs cannot plead the elements of intent and causation as to Mr. Messer's injury, Diane Messer's loss of consortium claim must also fail.


For the foregoing reasons, the Court will grant Defendant's Motion to Dismiss Plaintiffs' claims for Intentional Infliction of Emotional Distress (Count IV) and Loss of Consortium (Count V) and deny the Motion to Dismiss in all other respects.

An appropriate Order follows.

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