Summary
In Shoup v. Illiana Recovery Sys., Inc., No. 5:00-cv-104, 2002 U.S. Dist. LEXIS 674 (W.D. Mich. January 8, 2002), the court awarded $12,500 to a plaintiff who was "nearly killed or maimed by Defendant's towing truck," and was "stopped wrongfully and treated in a threatening manner on a dark country road..."
Summary of this case from Hett v. Bryant Lafayette and Assocs.Opinion
No: 5:00-CV-104
January 8, 2002
OPINION
By Motion of September 12, 2001, Plaintiffs Jeffrey Shoup, Charlotte Shoup and Rich Shoup sought default judgment against Defendants Illiana Recovery Systems, Inc., Ken McKenzie and Steven Markel. The was unopposed.
By Order of November 15, 2001, the Motion was granted to the extent that the Court ordered the Clerk to enter the defaults of those Defendants and ordered references pursuant to Federal Rule of Civil Procedure 55(b)(2) to determine amount of the partial to be entered against those Defendants.
In compliance the Court's order for references, Plaintiffs have filed documentary evidence and, which the bases for their requests for damages and the which those requests. The request for those has not been opposed.
FACTUAL FINDINGS
For the purposes of determining the amount of damages, the Court gives full credence to the accounts of the affiants and accepts their statements relating to the events of Friday, August 27, 1999 as wholly true. The filed demonstrates the following: On the date of the incident, the Plaintiff Jeffrey Shoup was the title of a 1996 Ford Mustang, which used vehicle had been purchased by him on May 27, 1999 for $14,203.00 expenses and financing). He was also current in his financing payments. At that time, the fair market of the vehicle was $13,500.
At about 1:30 a.m. on that date, Defendants McKenzie and Markel (acting for Illiana Recovery Service, Inc. and dressed in officer garb) approached the home shared by Plaintiffs Jeffrey Shoup, Richard Shoup Charlotte Shoup. Defendant McKenzie knocked loudly on the door and was met by Plaintiff Charlotte Shoup. informed Shoup that he was an officer of Onyx Acceptance Corporation and that he was there to pick the vehicle of Jeffrey Shoup. Charlotte Shoup informed him that Jeffrey Shoup was not at home and that he in error because she knew that her son was current in his payments (since she had assisted him in making the payment). Charlotte Shoup then asked Markel whether he was an officer of Clinton County and he responded "yes" to her question. The Defendants then told Charlotte Shoup that she should not believe her son because he falsified his address on his loan application. Charlotte Shoup knew this information to be false and asked to see Defendants the loan paperwork, which they did not provide. The Defendants then told Charlotte Shoup to instruct her son to leave the car in the driveway for repossession. These events, as well as the events of the later, caused her great emotional distress. (Affidavit of Charlotte Shoup at ¶¶ 21-22.)
Defendants then left the driveway and intercepted Plaintiff Jeffrey Shoup as he was driving toward his residence on a dark country road. They signaled him to pull off the road. When he stopped, the Defendant ordered him to leave the vehicle so that it could be repossessed despite his that he was not in default on his payments. At the time of the order, one of the Defendants was holding a large multiple battery flashlight his hand as if it were a club. Jeffrey Shoup then returned home in his vehicle and was followed by the Defendant. (Affidavit of Jeffrey Shoup at ¶¶ 1-9.)
Once at his home, at about 2:00 a.m., Jeffrey Shoup left his vehicle and met by his father, Richard Shoup, who had been awakend by Charlotte Shoup. Richard Shoup and Jeffrey Shoup were approached by the and asked the men to provide identification and documentation of the loan default. Defendants responded by using profanity and shouting that they were not required to provide and Defendants threatened "physical violence" if Richard and Jeffrey Shoup did not move out the of the way of the Mustang so as to allow its repossession. (Affidavit Richard Shoup at ¶ 9.) The driver of the towing truck (one of Defendants) then backed the towing truck toward the Mustang without regard to Richard and Shoup's presence in front of the . This caused Richard Shoup to jump out of their path, while Shoup out of their path and while narrowly avoiding being by the towing truck. (Affidavit of Shoup at ¶¶ 10-12.)
Defendants then started to tow the car away. While they did so, Jeffrey and Richard Shoup continued to documentation and identification and the Defendants continued to shout profanities back at them. Jeffrey Richard Shoup then demanded Jeffrey Shoup's personal property from the car. Defendants refused to release personal property unless Jeffrey Shoup surrendered his keys to the vehicle. When he did, the personal property released to Jeffrey Shoup. During this time, the Defendants continued to use profanity and threatened Jeffrey and Richard Shoup with prosecution if they attempted to "assert their rights or ask the police for assistance." (Affidavit of Richard Shoup at ¶ 22.) The repossession in the middle of the night and the conduct of the Defendants, including the assault by movement of the towing truck, caused Richard and Jeffrey Shoup great fear and emotional distress. (Affidavit of Richard Shoup at ¶ 24; Affidavit of Jeffrey Shoup at ¶ 26.)
LEGAL FINDINGS
Defendants have defaulted and failed to contest liability on the following federal and state causes of action:
(1) violation of the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.;
(2) violation of portions of the state Occupational Code which forbids certain wrongful collection, see Mich. Comp. Laws §§ 339.915-.916.
(3) the state law tort of;
(4) violation of the state conversion statute, Mich. Comp. Laws § 600.29 19a;
(5) violation of the state Consumer Protection Act, Mich. Comp. Laws § 445.90 1 et seq.;
(6) the state law tort of assault;
(7) the state law tort of intentional infliction of emotional distress;
(8) the state law tort of invasion of privacy;
(9) the state law tort of defamation; and
(10) the state law tort of negligence.
Given that liability under these several statutes and state law torts is based on joint conduct of the and given the usual rules of tort, the Court that the Defendants will be jointly and liable for the determined below.
Given that all ten categories apply to the various aspects of Plaintiffs' damages, the Court will organize this discussion of damages based upon the kind of damage suffered and the person who suffered it rather than the of liability.
1.Value of the Vehicle
According to the allegations and affidavits, Defendants essentially stole Plaintiff Jeffrey Shoup's automobile after having received notice that they were not entitled to repossess the vehicle. This conduct both conversion and violation of the state conversion statute, which forbids the "receipt" and of converted property. See Mich. Comp. Laws § 600.2919a. Given the manner of the conversion by threats, profanity, assaults and false statements as to the Plaintiffs legal rights and the Defendants' legal authority), Plaintiff Jeffrey Shoup is also entitled to damages for loss of the vehicle under the Debt Collection Practices Act, the Occupational Code, and the Michigan Consumer Protection Act. Since the conversion statute provides the greatest measure of relief as to the lost vehicle, the Court will utilize its treble provision to set this item of damage. Trebled damages of $13,500 equal $40, 500. Defendants are jointly severally liable to pay this amount to Plaintiff Jeffrey Shoup. While the Court recognizes that it also has to order additional "statutory damages" under the Fair Debt Collection Practices Act, the Court elects to assess these additional amounts given the generous nature of the treble damages award.
Michigan's conversion statute has not been extensively used or interpreted by the Michigan courts. Its could language could be interpreted as limited to cases wherein a person receives or conceals property stolen by . However, since the Defendants have defaulted as to liability, they have missed the opportunity to make arguments. Furthermore, this Court is more persuaded that a consumer protection statute like this one should given a reading that best protects the interests of consumers. The alternative construction would create a false between thieves and their assistants, which dichotomy is not in the interests of justice nor in the of consumers.
2. Mental Distress
The remainder of the damages are essentially mental distress damages for the fear and mental distress which accompanied the wrongful conduct of the Defendants. In making these calculations, the Court includes its calculations all of the above legal violations even though some of of damages, assault, loss of privacy, etc.) include a of which are different in character mental . The reason this characterization is that the damage suffered by is mental distress. Other interests (such as loss of or loss of privacy) are in comparison and in event are adequately compensated by the damages determined below. The Court determines the damages for distress are as follows: $5,000 for Charlotte Shoup; $10,000 for Richard Shoup; and $12,500 for Jeffrey . The damages for Charlotte Shoup are smaller because, while her harassment was severe and unjustified, it not as severe as the harassment suffered by her husband and son, which included being nearly killed or by Defendant's towing truck. Jeffrey Shoup is also entitled to greater damages than his father because he additionally stopped wrongfully and treated in a threatening manner on a dark country road and because the statements and defamation related to his automobile and his consumer rights. Defendants are each jointly severally liable for these damages.
CONCLUSION
Accordingly, a partial default judgment shall enter which awards Jeffrey Shoup $53,000, Richard Shoup 10,000, and Charlotte Shoup $5,000. The Partial Judgment shall be certified as final for the purposes of appeal under Federal Rule of Civil Procedure 54(b), there being no just reasons for delay doing .
In accordance with the Opinion of this date;
IT IS HEREBY ORDERED that Plaintiffs' Request for Damages (Dkt. No. 83) is GRANTED.
IT IS FURTHER ORDERED that judgment is entered in favor of Plaintiff Jeffrey Shoup for $53,000, for Plaintiff Richard Shoup for $10,000, and for Plaintiff Shoup for $5,000 and against Defendants Illiana Recovery Systems, Inc., Ken McKenzie and Steven Markel, jointly and severally. These amounts shall bear interest in accordance with 28 U.S.C. § 1961. Costs may be billed in accordance with Local Civil Rule 54.1.
IT IS FURTHER ORDERED that this Partial Default Judgment is certified as final pursuant to Federal Rule of Civil Procedure 54(b), there being no just reason for.