United States District Court, D. Minnesota
Kelley L. Hendrickson, Plaintiff,
Fifth Third Bank and 11th Hour Recovery, Inc., Defendants. Elizabeth A. Sampson and Tracey A. Lane, Plaintiffs,
Fifth Third Bank, Defendant.
Wilhelmina M. Wright United States District Judge
the Court are three dispositive motions in two related cases:
Hendrickson v. Fifth Third Bank et al., Case No.
18-cv-0086 (the Hendrickson case), and Sampson et al. v.
Fifth Third Bank, Case No. 18-cv-1622 (the Sampson
case). In the first motion, Defendant Fifth Third Bank (Fifth
Third) seeks judgment on the pleadings in the Hendrickson
case. In the second motion, Defendant 11th Hour Recovery,
Inc. (11th Hour), seeks judgment on the pleadings or,
alternatively, summary judgment in the Hendrickson case. In
the third motion, Defendant Fifth Third seeks dismissal of
the Sampson case. For the reasons addressed below, the Court
denies both Fifth Third's and 11th Hour's motions in
the Hendrickson case, and grants Fifth Third's motion to
dismiss the Sampson case.
Kelley L. Hendrickson financed the purchase of a vehicle with
a loan from Fifth Third in August 2016. Fifth Third retained
a security interest in the vehicle. The loan agreement
between Fifth Third and Hendrickson required Hendrickson to
make monthly payments on the loan. In the event of default,
the loan agreement specified that Fifth Third may repossess
change in her financial circumstances, Hendrickson initiated
discussions with Fifth Third about payment plans. Fifth Third
agreed to refrain from repossessing Hendrickson's vehicle
as long as she continued making payments. During the months
of June 2017 through October 2017, Hendrickson made five late
payments on the loan. Fifth Third accepted each late payment,
but later refunded the October payment.
October 2017, Fifth Third secured 11th Hour to repossess
Hendrickson's vehicle. Before the repossession, neither
Fifth Third nor 11th Hour sent Hendrickson a notice advising
her that Fifth Third intended to strictly enforce the terms
of the loan agreement after accepting the late payments.
Elizabeth A. Sampson financed the purchase of a vehicle with
a loan from Fifth Third in August 2014. Sampson's mother,
Plaintiff Tracey A. Lane, co-signed the loan. Fifth Third
retained a security interest in the vehicle. The loan
agreement between Fifth Third and Sampson required Sampson to
make monthly payments on the loan and specified several
remedies in the event of Sampson's default on the
agreement. Those remedies included Fifth Third's right to
“immediately take possession” of the vehicle.
February 2015 through June 2017, Sampson made at least nine
late payments on the loan. Fifth Third repeatedly accepted
these late payments. Fifth Third repossessed Sampson's
vehicle on July 6, 2017. Prior to doing so, Fifth Third did
not send Sampson a notice advising her of Fifth Third's
intent to strictly enforce the terms of the loan agreement.
filed for Chapter 7 bankruptcy protection on March 2, 2017,
and she obtained a bankruptcy discharge on May 31, 2017. The
parties agree that Sampson did not reaffirm her debt with
same legal standard applies to both a motion to dismiss and a
motion for judgment on the pleadings. Ashley Cty., Ark.
v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009).
Judgment on the pleadings or dismissal is appropriate when
the plaintiff fails to plead facts sufficient “to state
a claim to relief that is plausible on its face.”
NanoMech, Inc. v. Suresh, 777 F.3d 1020, 1023 (8th
Cir. 2015) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). As to either motion, a district court
may consider only the pleadings and “materials that are
necessarily embraced by the pleadings.” Greenman v.
Jessen, 787 F.3d 882, 887 (8th Cir. 2015) (quoting
Porous Media Corp. v. Pall Corp., 186 F.3d 1077,
1079 (8th Cir. 1999)).
and Sampson (collectively, Plaintiffs) assert multiple claims
against Defendants founded on the allegation that Fifth Third
failed to send them a “Cobb notice”
before repossessing their vehicles. See Cobb v. Midwest
Recovery Bureau Co., 295 N.W.2d 232, 237 (Minn. 1980)
(holding that, if a creditor repeatedly accepts late
payments, the creditor is required to give the debtor written
notice of the creditor's intent to strictly enforce the
terms of the loan agreement before repossessing collateral).
Fifth Third and 11th Hour move for judgment on the pleadings,
Fed.R.Civ.P. 12(c), against Hendrickson, and Fifth Third
moves to dismiss the Sampson case for failure to state a
claim, Fed.R.Civ.P. 12(b)(6), arguing that, as both actions
are “action[s] on a credit agreement, ” they are
barred by Minn. Stat. § 513.33, subd. 2. As all three
motions before the Court involve the Cobb-notice