Brenda Parker v. Capital One Auto Finance, Inc.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 22, 2018*
Decided July 5, 2018
Before
FRANK H. EASTERBROOK, Circuit Judge
AMY C. BARRETT, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
Nos. 17‐2123 & 17‐3101
BRENDA PARKER,
Plaintiff‐Appellant,
v.
CAPITAL ONE AUTO FINANCE, INC.,
et al.,
Defendants‐Appellees.
Appeals from the United States District
Court for the Southern District of Indiana,
Indianapolis Division.
No. 1:15‐cv‐00826‐JMS‐TAB
Jane Magnus‐Stinson,
Chief Judge.
O R D E R
Brenda Parker called the police after chasing down a tow‐truck driver who had
repossessed her car. She then sued the police officers, tow‐truck driver, and the City of
Indianapolis for taking her car without due process, and sued companies associated
* Defendant Mark Senesac was not served in the district court and is not participating in this
appeal. We have agreed to decide this case without oral argument because the record and the
participating parties’ briefs adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. F ED . R. APP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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Nos. 17‐2123 & 17‐3101 Page 2
with her auto loan for violating federal consumer‐protection statutes. The district judge
dismissed most of Parker’s claims and later entered summary judgment against Parker
on her due‐process claim. We affirm.
A tow‐truck driver repossessed Parker’s 2006 Ford Explorer on behalf of Capital
One Auto Finance, the holder of her delinquent car loan. When Parker left her
apartment and saw that her car was gone, she called 911 to report it stolen. While on the
phone, she sprinted around the corner and saw the tow truck pulling away with her
car. She started yelling for the driver, Mark Senesac, to stop, but he continued driving.
Senesac did stop, however, when two Indianapolis police officers, David Loyal and
Nikole Pilkington, arrived. Senesac showed the officers a document, supposedly an
order from Capital One authorizing the repossession. In response, Parker raced back to
her apartment to retrieve a document—a copy of her credit report that listed an
automobile debt as “charged off”—that she said (erroneously, we should note) meant
that she owed nothing.
According to the allegations in Parker’s verified amended complaint, the officers
then told her that Senesac had a “right” to take the car, but also that repossession was a
“civil matter” in which they could not get involved. Parker asked to speak to a
supervisor, so Sergeant Andrew Rolinson arrived and reiterated what Officers Loyal
and Pilkington had already said—that Senesac had “a right to repossess the vehicle.”
And the officers and the sergeant each stated that Senesac’s document was more recent
than Parker’s. Senesac then left with Parker’s car.
After screening Parker’s original and amended complaints, see 28 U.S.C. § 1915A,
the district judge allowed her to proceed on the theories that (1) the three police officers
violated her right to due process by assisting with an illegal repossession, (2) Senesac,
by conspiring with the officers, also violated Parker’s due‐process rights, (3) the City of
Indianapolis was liable for the officers’ conduct under Monell v. Department of Social
Services, 436 U.S. 658 (1978), and (4) Capital One and its affiliated entity Onyx
Acceptance Corporation violated consumer‐protection laws, including the Fair Debt
Collection Practices Act, 15 U.S.C. §§ 1692–1692p. Senesac was never served, and so we
do not discuss further Parker’s arguments about his liability.
The district judge then entered a partial final judgment dismissing the claims
against Capital One and Onyx, see FED. R. CIV. P. 54(b). The judge explained that the Fair
Debt Collection Practices Act—which applies to “debt collectors” and not
“creditors”—did not apply to the defendants because Parker had alleged that Capital
One was her “creditor,” which had referred her debt to a different entity for collection.

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Nos. 17‐2123 & 17‐3101 Page 3
See Schlosser v. Fairbanks Capital Corp., 323 F.3d 534, 536 (7th Cir. 2003). Parker later
moved to vacate the dismissal and to amend her complaint to reinstate a claim under
the Act, arguing that she now knew that Capital One was not her “legal creditor.” The
judge rejected that argument.
As relevant here, the judge then entered summary judgment in favor of the
police officers and the City of Indianapolis on Parker’s due‐process and related Monell
claims. The only way the officers could be liable for a private repossession, the judge
explained, was if they had actively assisted or intervened in it. But the judge rejected
Parker’s view that the officers had actively assisted Senesac with the repossession. This
also meant that the officers were entitled to qualified immunity, the judge concluded;
the officers had not violated any clearly established constitutional or statutory rules
against failing to stop a private repossession. Further, without any constitutional
violation, the City also could not be liable under Monell.
Parker’s arguments on appeal are confusing and often not supported by legal
authority, but we construe pro se filings liberally and address her discernable
arguments. Parker v. Four Seasons Hotels, Ltd., 845 F.3d 807, 811 (7th Cir. 2017) (citing
Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001)).
Parker argues that the police officers did not merely stand by during the
repossession, but in fact “ordered” her to “relinquish ownership of her vehicle.” There
is a factual dispute, unacknowledged in the district court, concerning the extent of the
officers’ involvement in the repossession. Parker’s amended complaint was verified
under oath and thus constituted evidence that should have been construed in her favor
at the summary‐judgment stage. See Beal v. Beller, 847 F.3d 897, 901 (7th Cir. 2017). In it,
Parker alleged that Officers Loyal and Pilkington told her “that the tow truck driver
ha[d] a right to the vehicle,” and that the driver could “take the vehicle.” And, Parker
said, Sergeant Rolinson reiterated that the tow‐truck driver “ha[d] a right to repossess
the vehicle.”
But even taking these facts as true, we conclude that summary judgment in favor
of the officers was appropriate. Although the defendants have raised qualified
immunity as a defense, we do not resolve the appeal on that ground, as the officers did
not violate Parker’s due‐process rights. See Plumhoff v. Rickard, 134 S. Ct. 2012, 2020
(2014). A constitutional violation does not occur through the mere presence of a state
actor. See DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196–97 (1989)
(“Nothing in the language of the Due Process clause … requires the State to protect the
life, liberty, and property of its citizens against invasion by private actors.”). Rather, the

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Nos. 17‐2123 & 17‐3101 Page 4
injury must be caused by the state action. Rossi v. City of Chicago, 790 F.3d 729, 735
(7th Cir. 2015) (“[M]ere inactivity by police does not give rise to a constitutional
claim.”); Greco v. Guss, 775 F.2d 161, 165 n.2, 167 (7th Cir. 1985) (defining “state
causation” as “that the deprivation be caused by something attributable to the state or
by someone for whom the state is responsible”).
Here, Parker seeks to hold the officers liable for doing nothing beyond refusing
to help her retrieve her car. The officers arrived because Parker called them, not Senesac.
When they arrived, Senesac had already attached Parker’s car to the tow truck and
driven some distance away from her apartment. Thus, when the officers explained to
Parker that Senesac had a “right” to take the car and that repossession was a “civil
matter,” they were not intervening; they instead were merely explaining why they
could do nothing to help her. Under similar circumstances, the Eighth Circuit has found
the “state causation” requirement lacking. See Moore v. Carpenter, 404 F.3d 1043, 1046
(8th Cir. 2005); see also Meyers v. Redwood City, 400 F.3d 765, 771–72 (9th Cir. 2005) (no
constitutional injury where officers arrived to resolve breach of peace and explained
debtor’s choice of relinquishing car or being subject to citizen’s arrest by repossessor).
And the facts of this case are far from those in which a causal connection was found to
exist. See Hensley v. Gassman, 693 F.3d 681, 691–92 (6th Cir. 2012) (officers intervened
into repossession by ordering debtor away from car, breaking car window, and
physically removing debtor); Marcus v. McCollum, 394 F.3d 813, 816–18, 821 (10th Cir.
2004) (jury could find intervention where officers told debtor to allow repossessor to
take car, threatened arrest, and may have poked debtor in chest).
Parker next argues that the City is liable for the repossession under Monell. But,
as the district court pointed out, “a municipality cannot be liable under Monell when
there is no underlying constitutional violation by a municipal employee.” Sallenger
v. City of Springfield, 630 F.3d 499, 504 (7th Cir. 2010). Since the police officers did not
violate Parker’s constitutional rights, there can be no Monell claim against the City.
Parker also contests the dismissal of her claim under the Fair Debt Collection
Practices Act, as well as the district judge’s refusal to allow her to later amend her
complaint to reinstate it. But, whether or not Capital One or Onyx is her “legal
creditor,” Parker did not plausibly allege that either company was a collector of debts
“owed or due another.” 15 U.S.C. § 1692a(6). Thus as the district court correctly
concluded, Parker failed to state a claim under the Act, see Henson v. Santander Consumer
USA Inc., 137 S. Ct. 1718, 1724 (2017), and amending her complaint to reassert such a
claim would be futile, see Hukic v. Aurora Loan Servs., 588 F.3d 420, 432 (7th Cir. 2009).

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We have considered Parker’s additional arguments and none merits further
discussion. The judgment of the district court is AFFIRMED.

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