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Hayes v. Find Track Locate, Inc.

United States District Court, D. Kansas

October 12, 2014

GINGER A. HAYES, RICHARD W. HAYES, and RICHARD L HAYES, Plaintiffs,
v.
FIND TRACK LOCATE, INC.; and MARLENE NEELEY, Defendants

Decided October 9, 2014

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[Copyrighted Material Omitted]

Page 1146

For Ginger A. Hayes, Richard W. Hayes, Richard L. Hayes, Plaintiffs: Ashley Scott Waddell, LEAD ATTORNEY, The Waddell Law Firm, LLC, Kansas City, MO.

For Find Track Locate, Inc., Marlene Neeley, Defendants: Hal D. Meltzer, LEAD ATTORNEY, Baker, Sterchi, Cowden & Rice, LLC - OP, Overland Park, KS.

For Find Track Locate, Inc., Cross Defendant: Hal D. Meltzer, LEAD ATTORNEY, Baker, Sterchi, Cowden & Rice, LLC - OP, Overland Park, KS.

For Repo Remarketing, Inc., Third Party Defendant: Hal D. Meltzer, LEAD ATTORNEY, Baker, Sterchi, Cowden & Rice, LLC - OP, Overland Park, KS.

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MEMORANDUM AND ORDER

Richard D. Rogers, United States District Judge.

This matter is presently before the court upon defendant Find Track Locate (FTL), Inc.'s motion to dismiss or, in the alternative, for summary judgment. Having carefully reviewed the arguments of the parties, the court is now prepared to rule.

I.

Plaintiffs' second amended complaint contains two causes of action against defendants FTL, Marlene Neeley and American Credit Acceptance (ACA), LLC: (a) a claim for damages under the Kansas Consumer Protection Act (KCPA), K.S.A. § 50-623 et seq.; and (b) a claim for damages under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. In Count 1, plaintiffs allege that ACA, FTL and Neeley engaged in deceptive acts and practices and unconscionable acts and practices under the KCPA when Neeley, who was employed by FTL, repeatedly telephoned Richard W. Hayes and Ginger Hayes concerning the whereabouts of a truck purchased by Richard L. Hayes and financed by ACA. In Count 2, plaintiffs allege the aforementioned conduct also violated the FDCPA.

The procedural background shows that Ginger Hayes and Richard W. Hayes, mother and son, filed suit against ACA and FTL in Johnson County, Kansas District Court on June 26, 2013. Thereafter, on August 8, 2013, Ginger Hayes and Richard L. Hayes, husband and wife, filed a Chapter 13 bankruptcy petition with the United States Bankruptcy Court for the District of Kansas. The petition made no mention of Ginger's lawsuit against ACA and FTL. The lawsuit of Ginger Hayes and Richard W. Hayes was removed to this court on October 16, 2013, and designated as Case No. 13-2413. Richard L. Hayes filed suit in Johnson County, Kansas District Court on October 16, 2013, raising claims similar to those raised by his wife and son. This case was removed to this court on November 15, 2013, and designated as Case No. 13-2590. ACA then sought to either consolidate the cases or join Richard L. Hayes as a party plaintiff to the case filed by his wife and son. On January 15, 2014, the court granted ACA's motion to join Richard L. Hayes as a party plaintiff to this action. As a result, Richard L. Hayes' separate action was dismissed without prejudice on February 25, 2014. The bankruptcy petition was amended in February 2014 to include the plaintiffs' claims against the defendants. On August 22, 2014, plaintiffs dismissed their claims against ACA.

In the motion for dismissal, FTL contends that plaintiffs have failed to state a claim in Count 1 under the KCPA because they did not allege that Ginger Hayes or Richard W. Hayes were " consumers" as required by the KCPA. FTL also argues that plaintiffs have failed to allege any facts showing that it is a " supplier" under the KCPA. In its motion for summary judgment, FTL asserts that the uncontroverted facts show that Ginger Hayes and Richard W. Hayes were not " consumers" under the KCPA. FTL further argues that Ginger Hayes and Richard W. Hayes were not part of a " consumer transaction" under

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the KCPA because they never bought or acquired the truck. FTL also argues that there is not a genuine issue of material fact that it is a tracking and locating company that arranges for repossession and not a " supplier" under the KCPA. Finally, FTL contends that it is entitled to summary judgment on any claims made by Richard L. Smith under the KCPA because Richard L. Hayes never entered into any transaction with it.

In their motion to dismiss Count 2, FTL contends that plaintiffs have not adequately alleged that it is a " debt collector" under the FDCPA. FTL also argues that plaintiffs have not alleged sufficient facts showing that plaintiff Richard W. Hayes is a " consumer" under the FDCPA. Finally, FTL asserts that plaintiffs have failed to allege any set of facts under which section 1692f of the FDCPA would afford them relief under the alleged circumstances.

In it motion for summary judgment on Count 2, FTL contends that the uncontroverted facts demonstrate that it was not a " debt collector" and was not attempting to collect a debt. FLT further argues that there is no genuine issue of material fact that Richard W. Hayes was not a " consumer" under the FDCPA. Finally, the FTL contends that the only section of the FDCPA, 15 U.S.C. 1692f, that could apply to it does not apply here.

FTL has also contended that Richard L. Hayes and Ginger Hayes are not the real parties in interest in this case and lack standing to pursue it because their claims precede their bankruptcy filing. FTL suggests that these claims belong to the bankruptcy trustee, not plaintiffs.

II.

The court shall begin with the final argument raised by FTL concerning the filing of the bankruptcy petition since this contention potentially has subject matter jurisdiction issues. FTL contends that Richard L. Hayes and Ginger Hayes are not the real parties in interest to this lawsuit and do not have standing to pursue this action because their claims precede their Chapter 13 bankruptcy filing. FTL notes that Ginger Hayes failed to indicate in the bankruptcy schedules her action against ACA and FTL. FTL also contends that Richard L. Hayes should have noted the potential lawsuit in the bankruptcy petition because the conduct giving rise to the lawsuit arose before the filing of bankruptcy. FTL argues that only the bankruptcy trustee has standing to assert these claims because they are part of the bankruptcy estate. FTL asserts that the court can consider matters outside the pleadings concerning the bankruptcy case in order to resolve a challenge to subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1).

Richard L. Hayes and Ginger Hayes filed a Chapter 13 bankruptcy in the United States Bankruptcy Court for the District of Kansas. The bankruptcy petition was filed after Ginger Hayes filed her claims in this case in the Johnson County District Court on June 28, 2013, but before Richard L. Hayes filed his lawsuit on October 16, 2013. The conduct of which plaintiffs' complain in this action allegedly occurred in the spring of 2013.

Based upon the nature of the argument raised by FTL, it appears that they are contending that the court lacks subject matter jurisdiction over the claims of Ginger Hayes and Richard L. Hayes because they lack standing. FTL confuses standing, which may impact subject matter jurisdiction, with real party in interest principles, which do not impact subject matter jurisdiction. Smith v. United Parcel Service, 578 F.App'x 755, ...


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