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Typhair v. Town of Gouverneur

August 8, 2007


The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge


Plaintiff commenced the instant action pursuant to 42 U.S.C. § 1983 claiming that Defendants deprived her of property without due process of law. Presently before the Court is Defendant's motion for summary judgment pursuant to Fed. R. Civ. P. 56. The Court has accepted Plaintiff's untimely opposition papers.


The following facts are taken from Defendant's Statement of Material Facts submitted pursuant to N.D.N.Y.L.R. 7.1(a)(3) and from Plaintiff's Responsive Statement of Material Facts.

On January 10, 2003, Defendant Town of Gouverneur (the "Town") entered into a loan agreement with Plaintiff Kim Typhair d/b/a Gouverneur Taxi. Under the loan agreement, the Town loaned Plaintiff $45,000 in various installments throughout 2003. Plaintiff also signed a note and security agreement. Under the security agreement, two vehicles were purchased for use in the taxi business. The vehicles were designated as collateral under the loan. The Town took a security interest in the vehicles in the event of a default on the payments of the loan.

Plaintiff commenced operating her taxi business in January 2003. Through October 2003, Plaintiff made interest only loan payments. Plaintiff did not pay any additional loan payments. In June 2004, after eight months of not receiving any payments from Plaintiff, the Town Board voted to foreclose on the loan and repossessed the vehicles. The vehicles were repossessed on June 17, and 21, 2004 by Town officials and a member of the Village of Gouverneur Police Department.

Following the repossession of the vehicles, Plaintiff was provided with a timely notice of public sale. Following the public sale of the vehicles, the Town applied the funds received from the sale to the outstanding balance of the loan. The Town then brought a civil action against Plaintiff for the entire amount owed, plus costs. Judgment was entered against Plaintiff in the amount of $46,432.02.

Plaintiff commenced the instant action claiming that Defendants took her property (the vehicles) without affording her adequate process of law. Specifically, she claims Defendants took her vehicles without affording her prior notice and a prior opportunity to be heard. Currently before the Court is Defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56 seeking dismissal of the Complaint in its entirety.


Rule 56 of the Federal Rules of Civil Procedures governs motions for summary judgment. It is well-settled that on a motion for summary judgment, the Court must construe the evidence in the light most favorable to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999), and may grant summary judgment only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in his pleadings, Rexnord Holdings, Inc. V. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). With this standard in mind, the Court will address Defendants' motion.


Defendant moves to dismiss on the ground that Plaintiff received all process that was due. As a general rule, the Constitution requires notice and a prior hearing before a state can assist a secured creditor in the repossession of a debtor's property. See Barrett v. Harwood, 189 F.3d 297, 301 (2d Cir. 1999). Here, however, to the extent that Plaintiff may have been entitled to notice and a prior hearing, she waived any such right through the execution of the Security Agreement.

The Security Agreement expressly provided that "[i]f I don't repay any amounts I may owe you . . . you can take this property and sell or use it as described below." Plaintiff further agreed that [i]f I am in default you can take possession of the collateral. I will deliver the collateral to you at a time and place you choose. If I don't, or if you wish, you can take possession of the collateral without giving me advance notice. . . . After you have taken possession of the collateral, you can sell it and apply the proceeds to the unpaid balance of our loan. You will give me ten days notice of any public sale. . . . If the sale proceeds are not enough to pay you the unpaid balance of my loan and any interest I owe you . . . I still will have to pay the difference. (emphasis added). Through the Security Agreement, Plaintiff waived any right she may have had to a pre-deprivation notice and/or a pre-deprivation opportunity to be heard.

Although any contractual waiver of constitutional rights must be carefully scrutinized, see Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983 (1972), the Court finds that, for the following reasons and contrary to the factual situation in Fuentes, the contract at issue here constitutes a valid ...

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