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Gay v. Alliant Credit Union

United States District Court, E.D. Missouri, Eastern Division

January 4, 2017

ANDREW GAY, Plaintiff,



         This matter is before the Court on the motion (Doc. No. 8) of Defendant Alliant Credit Union to dismiss Plaintiff's complaint, for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the Court will grant Defendant's motion.


         Plaintiff's complaint seeks relief for the sinking of his boat. According to the complaint, on July 20, 2000, Plaintiff executed a “Preferred Mortgage of Vessel” (the “mortgage”) with respect to his boat in the amount of $145, 000 in favor of Defendant, and on November 25, 2002, Plaintiff executed a line of credit in the amount of $177, 000, secured by the boat, also in favor of Defendant.[1] The terms of the mortgage provide that Plaintiff must maintain insurance for the boat.[2] (Doc. No. 4-1 at 5.)

         On September 2, 2014, after Plaintiff failed to make payments on his loan, Defendant issued an “Order to Repossess, ” directing its agents, PAR North America and Atlas Creditor Services, to repossess the boat and, upon repossession, to upload photographs of the boat to the PAR website. However, three days later, before Defendant took possession of the boat, Plaintiff declared bankruptcy. In a September 5, 2014 Statement of Financial Affairs filed in the bankruptcy court, Plaintiff declared that none of his property had been repossessed by a creditor within the preceding year. In re Andrew Gay, Case No. 14-47084-705, Doc. No. 1 at 34 (Bankr. E.D. Mo. Nov. 7, 2014).

         On September 8, 2014, Defendant sent Plaintiff a letter stating that Defendant took possession of the boat on September 4, 2014, that Defendant intended to dispose of the boat at a private sale after September 18, 2014, and that the boat was currently located at the office of Defendant's agent, Atlas Creditor Services in Joplin, Missouri. But this letter was plainly inaccurate, as Plaintiff admits in his complaint that the boat remained, at all relevant times, at Plaintiff's residence in St. Charles, Missouri, docked on the water. Plaintiff alleges that Defendant spoke with Plaintiff by telephone on an unspecified date and indicated that “it would take possession of the boat at [Plaintiff's] residence, ” and that in September 2014, Defendant dispatched an agent to secure possession of the boat but did not ultimately remove the boat from Plaintiff's residence. (Doc. No. 4 at 2.)

         On October 9, 2014, Defendant filed a motion for relief from the automatic bankruptcy stay in the bankruptcy court, in order to allow it to enforce its right to repossess the boat. The bankruptcy court granted Defendant's motion on November 7, 2014, holding that Defendant “may enforce its rights against [the boat].” In re Andrew Gay, Case No. 14-47084-705, Doc. No. 16.

         Plaintiff did not take actions to winterize the boat and did not renew his insurance policy for the boat[3] because Defendant “represented that it took possession of the boat on September 4, 2014 and because [Plaintiff] believed that Defendant was going to remove [the boat] from [Plaintiff's] property in September 2014.” (Doc. No. 4 at 4.) At some point “during the winter of 2014-2015, ” the boat began to take on water. Plaintiff notified Defendant that the boat was taking on water and that Defendant “needed to remove the boat from [Plaintiff's] residence, ”[4] but Defendant failed to remove the boat, and the boat eventually sank in March 2015. Id. at 3.

         On or about August 11, 2015, Defendant issued to Plaintiff a “Satisfaction of Mortgage” and a letter certifying that Defendant “has no security interest in the boat.” (Doc. No. 4-5.) The boat is currently underwater at Plaintiff's residence.

         Plaintiff filed his complaint in state court on August 3, 2016, asserting promissory estoppel, violation of the Uniform Commercial Code (“UCC”), negligent misrepresentation, and trespass claims, all arising out of Defendant's statements that it would repossess the boat, Plaintiff's failure thereafter to winterize or insure the boat, and Defendant's failure to remove the boat from Plaintiff's residence before the boat took on water and sank. Plaintiff seeks compensatory and punitive damages, attorney's fees, and specific performance by Defendant to raise and remove the boat.

         Defendant removed the case to this Court, invoking the Court's diversity jurisdiction on the basis that the parties are citizens of different states, and that the amount in controversy exceeds the jurisdictional minimum because the boat was worth “at least $55, 850” prior to sinking, the cost to raise and remove the boat is unknown but likely high, and Plaintiff also seeks punitive damages and attorneys' fees.

         In its motion to dismiss, Defendant argues that Plaintiff has not adequately alleged the elements of his claims. Specifically, Defendant contends that Plaintiff's promissory estoppel (Count I) and negligent misrepresentation (Count III) claims fail for lack of a sufficiently definite promise or representation, and reasonable reliance thereon; that the UCC (Count II) does not apply in this case; and that Plaintiff has failed to plead a physical interference with his property, as required to state a trespass claim (Count IV). In response, Plaintiff argues that he has sufficiently pleaded each element of his claims.


         To survive a motion to dismiss for failure to state a claim, a plaintiff's allegations must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The reviewing court must accept the plaintiff's factual allegations as true and construe them in plaintiff's favor, but it is not required to accept the legal conclusions the plaintiff draws from the facts alleged. Id. at 678; Retro Television Network, Inc. v. Luken Commc'ns, LLC, 696 F.3d 766, 768-69 (8th Cir. 2012). A court must “draw on its judicial experience and common sense, ” and consider the plausibility ...

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