## Facts

- Steven J. Russell purchased a vehicle (a 2013 Dodge Journey) under a retail installment contract that was held by Santander Consumer USA, Inc. (Santander).
- After Russell fell behind on payments, Santander obtained a Wisconsin judgment of replevin authorizing repossession of the vehicle.
- Santander hired Patrick Willis to carry out the repossession; Willis hired AssetsBiz-Wisconsin, LLC (AssetsBiz), which used its employee Michael A. Sancinati to repossess the vehicle.
- On October 14, 2018, Sancinati went to Russell’s home to repossess the vehicle and began attempting to disable it (including by accessing the battery).
- Russell came outside, confronted Sancinati, and demanded that he leave the property; Russell also warned Sancinati that he had a gun. The parties disputed whether Russell pointed the gun, but it was undisputed that Russell told Sancinati to leave.
- Sancinati left without taking the vehicle and then called the police.
- About 30 minutes later, police arrived at the home, searched and handcuffed Russell, and detained him in a squad car while they investigated.
- While Russell remained detained, police told Sancinati he could take the vehicle, and Sancinati repossessed it.
- Steven and Nancy Russell sued AssetsBiz and Sancinati under the Fair Debt Collection Practices Act (FDCPA) and sued all defendants, including Santander, under the Wisconsin Consumer Act (WCA), alleging the repossession was unlawful because it continued after an unequivocal objection and was completed with police involvement.
- Santander denied WCA responsibility for AssetsBiz’s and Sancinati’s conduct, arguing it had contracted only with Willis and had no direct contractual relationship with the downstream repossession actors.
- The parties filed cross-motions for summary judgment on liability.

## Issues

1. Whether repossessing a vehicle after the debtor’s unequivocal oral protest—followed by taking the vehicle while the debtor is detained by police—constitutes a “breach of the peace” under Wisconsin law governing self-help repossession.
2. Whether AssetsBiz and Sancinati, as security-interest enforcers, could be liable under the FDCPA for conduct tied to the repossession, including under 15 U.S.C. § 1692f(6).
3. Whether the Wisconsin Consumer Act applied to the defendants’ repossession and collection conduct occurring in Wisconsin, even if the underlying consumer transaction was made outside Wisconsin.
4. Whether the breach-of-the-peace repossession violated WCA provisions governing nonjudicial repossession and prohibited collection practices (including Wis. Stat. §§ 425.206(2) and 427.104(1)(h), (j)).
5. Whether Santander could be held liable under the WCA for the acts of repossession agents hired through an intermediary (Willis), despite no direct contract with AssetsBiz or Sancinati.

## Decision

- The court denied the defendants’ motion for summary judgment.
- The court granted the Russells’ motion for summary judgment on liability.
- The court held the repossession breached the peace as a matter of law because it proceeded in disregard of Russell’s unequivocal oral protest and was completed only after police detained Russell, preventing him from maintaining his objection and possessory control.
- The court held AssetsBiz and Sancinati were liable under the FDCPA for the wrongful repossession conduct, including under the FDCPA’s provisions applicable to security-interest enforcement.
- The court held AssetsBiz, Sancinati, and Santander were liable under the Wisconsin Consumer Act for violations tied to the improper repossession and related collection conduct.
- The court rejected Santander’s argument that it could avoid WCA liability due to the intermediary hiring arrangement and held Santander responsible for the repossession conduct carried out to enforce its rights.
- The ruling resolved liability at summary judgment; remaining issues included damages and further proceedings.

## Legal Principles

- Under Wisconsin’s version of U.C.C. § 9-609, a secured party may take collateral by self-help only if it can do so without a breach of the peace.
- A repossession carried out in disregard of a debtor’s unequivocal oral protest constitutes a breach of the peace; stepping away briefly does not cure the breach when the repossession is then completed as part of the same episode.
- When police involvement results in the debtor being removed, restrained, or otherwise neutralized so the repossession can proceed over the debtor’s objection, the resulting repossession is inconsistent with the “without breach of the peace” requirement.
- Entities whose business involves enforcing security interests (including repossession companies and agents) may fall within the FDCPA’s coverage for purposes of claims arising from nonjudicial dispossession, including 15 U.S.C. § 1692f(6).
- The WCA can apply to enforcement activity in Wisconsin (including replevin-related conduct and repossession activity) under Wis. Stat. § 421.201, even if the consumer credit transaction was made outside the state.
- A creditor seeking to enforce its consumer-credit rights may be held liable under the WCA for improper repossession conduct carried out by agents acting on its behalf, even when the creditor hired an intermediary who then hired the repossession company and its employee.

## Conclusion

The court entered summary judgment for the Russells on liability, concluding that the vehicle was repossessed in breach of the peace because Russell unequivocally objected and the repossession succeeded only while he was detained by police; the court therefore held the repossession agent and company liable under the FDCPA and held those defendants and Santander liable under the Wisconsin Consumer Act despite Santander’s use of an intermediary.


Russell v. Santander Consumer USA, Inc., 2020 WL 3077944 (2020)