McDonald v. Wells Fargo Bank, N.A. (374 F. Supp. 3d 462, 2019)

KEARNEY, J.

An auto lender repossessing a car must comply with a state's commercial code and related debtor protections. These laws define disclosures required in the notices of repossession and deficiency sent to the debtor to further the legislature's mandate of all aspects of the lender's repossession and sale conduct are commercially reasonable. The lender may send the same notice to thousands of defaulted debtors in the same state based on the state's law. The auto lender's compliance is made more complicated when the car is purchased from a car dealer in one state for use by a citizen of a different state. Assessing compliance also becomes more complicated when the debtor dies but someone keeps sending the monthly car payment for years until defaulting shortly before the last payment. What state's notice requirements apply? Is a deceased debtor entitled to proper notice? After our Court of Appeals held the debtor's estate may bring commercial code or conversion claims under Pennsylvania law (if it applies), we today address whether the estate of a Pennsylvania debtor who bought a car in Ohio may pursue claims under Article 9 of the Pennsylvania Commercial Code challenging the repossession and deficiency notices sent to the deceased debtor or for conversion for repossessing the car. If so, may we certify a class of over 300 Pennsylvania debtors who lost a car to repossession after this lender sent a notice (based on the car dealer's home state law) not compliant with Pennsylvania's Commercial Code or under Pennsylvania conversion law?

We find disputed issues of fact requiring a trial on some but not all of the debtor estate's Article 9 challenges to the lender's two pre-sale notices and for conversion. But we cannot certify a class as the individual reasonableness and consent issues predominate over the common issues and a class action is not a superior method of resolving the individual liability questions. Even assuming we could possibly find predominance and superiority, we could not certify this proposed class as the unique defenses to the debtor's estate renders it atypical under class action law. We also deny eight Pennsylvanians' effort to intervene, without prejudice for them to seek their remedies if timely when the estate filed this case.

I. Background

A. Facts adduced in discovery.

Pennsylvania citizen Rick McDonald wanted to buy a GMC Sierra truck in early 2007 but needed his mother Patricia McDonald to assist with payments. Patricia McDonald ended up buying a 2002 GMC Sierra from Performance GMC, a car dealership in New Waterford, Ohio, in April 2007. Neither Patricia McDonald nor Rick McDonald ever set foot in Performance GMC's Ohio dealership. Rick McDonald negotiated the purchase over the phone from Pennsylvania, and Performance GMC delivered the truck to the Pennsylvania ice rink where he worked. Patricia McDonald executed necessary documents at the rink or received, signed, and returned documents by mail.

Patricia McDonald financed the purchase of the five-year-old GMC Sierra. She signed a Retail Installment Sale Contract ("the Contract") with the Ohio dealership, governed by Ohio law, requiring she make sixty-six monthly installments of $ 465.86. Patricia McDonald agreed to make the first of sixty-six payments on May 26, 2017, with her last payment due on October 26, 2012. The parties agreed Patricia McDonald's failure to cure a late payment in under thirty days could result in Wells Fargo "demand[ing] that [she] pay all that [she] owe on th[e] contract." The top portion of the Contract contains several "Federal Truth-In-Lending Disclosures," one of which states the finance charge-the "amount the credit will cost you"-is $ 6,930.86. Another disclosure lists the total amount financed is $ 23,815.90. The bottom portion of the Contract provides "Seller assigns its interest in this contract to Wells Fargo Auto Finance, Inc." Patricia McDonald then became obligated to make her sixty-six monthly payments to Wells Fargo Auto Finance, Inc., a South Dakota company.

Wells Fargo repossesses the GMC Sierra on November 28, 2012.

Patricia McDonald died on December 21, 2009. Someone continued making her monthly payments for well over two years after her passing. Wells Fargo claims it did not know of her passing because Rick McDonald "affirmatively misled Wells Fargo into believing that Patricia was still alive." Patricia McDonald's account fell into default in August 2012. Wells Fargo repossessed the vehicle on November 28, 2012. The parties dispute Patricia McDonald's right to reinstate the loan at the time of repossession, even though Wells Fargo's November 30, 2012 Notice informed Patricia McDonald she could reinstate the loan until December 20, 2012.

Wells Fargo's two Notices of sale for the repossessed 2002 GMC Sierra.

Wells Fargo sent Patricia McDonald a "Notice of Our Plan to Sell Property (Consumer Goods)" on November 30, 2012. The November 30, 2012 Notice informed Patricia McDonald Wells Fargo "will sell" the GMC Sierra "at public sale at a minimum bid of 9,157.00" on Thursday January 3, 2013 at 1:00 P.M. at Manheim Ohio, 3905 Jackson Pike, Grove City, Ohio 43123. The Notice listed a Wells Fargo phone number and address numerous times in the event Patricia McDonald: (i) sought to "get the property back at any time before" the sale, (ii) wanted Wells Fargo "to explain ... in writing how [Wells Fargo] ha[d] figured the amount" she owed, or (iii) "need[ed] more information about the sale." On the second page of the Notice, Wells Fargo informed Patricia McDonald "[p]ayment is due for the months of 08/06/12, THROUGH, 11/06/12." The notice listed a "Total Amount Due" of $ 2,862.75. Wells Fargo informed Patricia McDonald she could "reinstate this default until" December 20, 2012 by paying the $ 2,862.75 due on the account. Reinstatement, the Notice said, would have allowed Patricia McDonald to "continue with the contract as though there had been no default."

Wells Fargo did not sell the GMC Sierra at the January 3, 2013 auction. On January 4, 2013, Wells Fargo sent Patricia McDonald a "Notice of Continued Sale" informing her Wells Fargo Dealer Services "attempted" but "was not able to sell your vehicle" at the originally scheduled auction "and we have scheduled another public sale date":

The January 4, 2013 Notice did not describe a lower minimum bid. Liane McDonald, Patricia McDonald's daughter-in-law, swore she does not remember seeing the January 4, 2013 Notice of Continued Sale, as the McDonalds' employee, Sam Betts, signed for it. But Liane McDonald admits Sam Betts's signature is on the return receipt and she "would like to think" Sam Betts provided them the mail if and when he retrieved it.

Wells Fargo sold the GMC Sierra for $ 3,400 at the January 22, 2013 auction.

Wells Fargo's January 27, 2013 deficiency Notice.

In a January 27, 2013 deficiency Notice, Wells Fargo informed Patricia McDonald of the January 22, 2013 sale and a deficiency balance of $ 292.89 after applying the sale's proceeds. The notice contained a detailed accounting:

Over a month after the sale, Erik Sobkiewicz, Esq. wrote to Wells Fargo on behalf of the deceased Patricia McDonald. Despite her 2009 death, Attorney Sobkiewicz stated he "represent[s] Patricia A. McDonald" and "Ms. McDonald provided me with the [deficiency] notice." This is false. Attorney Sobkiewicz requested Wells Fargo "explain why, despite committing to sell the vehicle for not less than $ 9,157.00, you nonetheless sold it for $ 3,400." Attorney Sobkiewicz also requested "an accounting substantiating the $ 2,238.10 that you claim was due as of November 28, 2012," because "[t]he individual who repossessed the vehicle indicated that his paperwork showed that only between $ 300 and $ 400 was outstanding on the note." Liane McDonald swore either she or her husband Rick authorized Attorney Sobkiewicz, a family friend, to send Wells Fargo the letter.

B. The Estate sues Wells Fargo.

On December 31, 2015, Liane McDonald obtained Letters of Administration for her mother-in-law Patricia McDonald's estate ("the Estate"). In January 2016, Liane McDonald, acting in her capacity as Administratrix of Patricia A. McDonald's Estate, sued Wells Fargo. She alleged violations of Pennsylvania's Commercial Code and the now-repealed Motor Vehicle Sales Finance Act ("MVSFA"). The Estate sought to represent a class of similarly situated individuals. The Estate then filed an Amended Class Action Complaint- the operative complaint in this action-adding additional theories of liability. The Estate alleges breach of contract, violations of Pennsylvania's protections for defaulting debtors in Article 9 of the Pennsylvania Commercial Code and the MVSFA, and conversion (premised on Wells Fargo's repossession and sale of the GMC Sierra with insufficient notice).

The Estate focuses its claims on Wells Fargo's November 30, 2012, January 4, 2013, and January 27, 2013 Notices. The Estate alleges Wells Fargo's conduct violated Commercial Code section 9610, which requires "[e]very aspect of a disposition of collateral ... be commercially reasonable," and Commercial Code sections 9614 and 9616, which require pre-sale and deficiency notices contain certain minimally necessary information to allow debtors to protect their interests in the collateral. The Estate claims Wells Fargo's Notices fall short of Article 9's requirements in several ways. The Estate alleges Wells Fargo's November 30, 2012 and January 4, 2013 pre-sale Notices "merely advised the borrower that the vehicle would be sold at a 'public sale' without describing the nature of that sale," and failed to "tell the borrower what [it] would charge the borrower if the borrower sought an accounting of the loan history." The Estate alleges Wells Fargo "routinely sold vehicles at public auction on a date that was different than the sale date that the Defendant originally provided to its borrower," and ultimately "accepted less than the minimum bid that it had committed to its borrower that it would accept." The Estate alleges Wells Fargo failed to provide in its January 27, 2013 deficiency Notice "a telephone number or mailing address from which additional information regarding the transactions disposing of such members' vehicles was available."

Invoking (but not specifically alleging claims under) the MVSFA's notice requirements applicable to motor vehicle repossessions, the Estate alleges Wells Fargo "did not set forth the amount that the borrower must pay to redeem the repossessed vehicle[,] contained conflicting information as to the borrower's reinstatement and redemption rights[,] and failed to notify the borrower of the borrower's right to reclaim personal property that was in the vehicle at the time it was repossessed." The Estate also claims Wells Fargo's failure to recant the minimum bid term in the second pre-sale notice rendered the notice and sale commercially unreasonable.

C. Following our dismissal of the Estate's Amended Complaint based on Ohio and Pennsylvania's survival action laws, our Court of Appeals remands for a choice of law analysis.

Wells Fargo moved to dismiss the Amended Complaint arguing, among other things, Liane McDonald did not state a claim under Pennsylvania law because Ohio law applies under the Contract and the Estate's breach of contract "claim fails because this cause of action had not accrued prior to the death of Patricia McDonald." We held the Estate could not state a claim under the Pennsylvania or Ohio survival action statutes because the claims accrued almost three years after her death.

The Estate appealed. Our Court of Appeals held Liane McDonald could not bring claims under the Pennsylvania survival action statute ( 42 Pa.C.S. § 8302 ) but found she could bring her claims under another Pennsylvania statute ( 20 Pa.C.S. § 3311(a) ). Our Court of Appeals held Liane McDonald could not bring claims on behalf of the Estate under Ohio law. Our Court of Appeals affirmed our dismissal of Liane McDonald's breach of contract claim "because McDonald concedes that her breach of contract claim must be evaluated under Ohio law" but remanded for a choice of law analysis as to the other claims remaining in the case.

Following issuance of our Court of Appeals' mandate, we set a schedule for trial of either the individual or class claims. We denied Wells Fargo's renewed motion to dismiss. We allowed discovery on the Estate's claim as well as its hope to certify a class. The parties each moved for summary judgment in their favor on the Estate's claims. The Estate moved for class certification.

D. Eight Pennsylvanians seek to intervene to bring different class claims.

While we reviewed the summary judgment and class certification motions, eight Pennsylvanians moved to intervene "to protect their rights and the rights of the putative class." The intervenors-Joseph Yerty, Tammy Yerty, James Zaronsky, Linda Zaronsky, Vincent Sorace, Paul Besnecker, Ashley Yates, and Viktor Stevenson-are Pennsylvania residents who purchased vehicles, and had them repossessed, in Pennsylvania. While their individual claims are tolled pending a final decision on class certification, they seek to nevertheless intervene to preserve their claims through their chosen counsel. They argue the Estate's counsel and the Estate are not adequate to serve in fiduciary roles and issues of typicality, commonality, and choice of law "weaken" the likelihood of certification. They also challenge Wells Fargo's Notices for failing to disclose the ability to reinstate the loan or ability to access personal possessions in their cars before sale. But they also challenge Wells Fargo charging third-party fees and selling the cars at a public auction when the Notice described selling the cars at a private sale. They ask us to allow them to intervene and then sever their claims so they can take advantage of the tolling provided by class actions and begin a new case.

II. Analysis

The parties now cross-move for summary judgment on the Estate's Article 9 and conversion claims. The Estate also moves for class certification, which Wells Fargo opposes on numerous grounds. The eight putative members of the Class move to intervene arguing the Estate is not properly representing the Class and they would like to take over the case as a class action with new theories or sever their new claims into a successive class action tolled by the Estate's filing of this case.

We find the Estate fails to show Wells Fargo's Notices violated sections 9614 or 9616, but a jury must determine whether Wells Fargo's failure to recant the minimum bid price in the January 4, 2013 Notice and non-compliance with the MVSFA rendered the sale unreasonable under section 9610. A jury must also determine whether Wells Fargo had consent to repossess and dispose of the GMC Sierra, a necessary element of the Estate's conversion claim we cannot resolve absent credibility findings. The Estate has not shown the typicality, predominance, and superiority elements needed for class certification. As we cannot certify this class as a matter of law, the intervenors have not shown a basis to intervene with a separate class to the extent they raise the same claims and we will not exercise discretion to add new liability theories which may not apply to the Estate. The Intervenors may attempt to pursue their individual timely claims. But we will proceed to trial on the Estate's claims under section 9610 and conversion alone.

A. Disputed facts require a trial on the Estate's claims under section 9610 and for conversion but the Estate fails to show Wells Fargo violated sections 9614 and 9616 as a matter of law.

The Estate challenges Wells Fargo's November 30, 2012 and January 4, 2013 pre-sale Notices. The Estate argues summary judgment in its favor is appropriate because violations of Article 9 of the Pennsylvania Commercial Code and the incorporated MVSFA are apparent on the face of the Notices. These statutory violations, the Estate argues, stripped Wells Fargo of a lawful justification to dispose of the GMC Sierra. Wells Fargo argues the Estate cannot bring the statutory claims because they are governed by Ohio law, and the claims fail on the merits. Wells Fargo argues the Estate's conversion claim is barred by the statute of limitations or the gist of the action doctrine and fails on the merits because the parties' Contract provided the consent and lawful justification to repossess and sell the GMC Sierra at auction.

1. We apply Pennsylvania law to the Article 9 claims.

The parties again dispute whether Pennsylvania or Ohio law governs the Estate's Commercial Code claims. As a federal court sitting in diversity, "we apply the choice-of law-rules of the forum state, Pennsylvania." Wells Fargo argues Ohio law applies based on the Contract, even though we are today reviewing a Pennsylvania citizen's claim against a South Dakota citizen relating to conduct entirely in Pennsylvania. The Estate argues Pennsylvania law applies. We must apply Pennsylvania law because the parties' choice of law provision does not encompass the Article 9 claims and Pennsylvania maintains the greatest interest in applying its consumer protections to resident debtors.

a. The Contract's chosen Ohio law does not govern the Article 9 claims.

Pennsylvania courts generally honor and enforce contractual choice of law provisions, so our analysis must begin with the language of the parties' Contract. It provides "[f]ederal law and the law of the state of our address shown on the front of this contract apply to this contract." Choice of law provisions are creatures of contract. The parties retain wide latitude to draft choice of law provisions as broadly, or as narrowly, as they wish. To effectuate the parties' agreement, we must therefore assess whether the parties manifested an intent to subject all or merely certain claims to Ohio law. If the choice of law provision is "[n]arrow"-i.e., if the provision "stat[es] that a contract's terms or enforcement are to be governed, or construed, by the laws of another state"-Pennsylvania courts construe such a provision "to relate only to the construction and interpretation of the contract at issue." If, by contrast, "the fair import of the provision embraces all aspects of the legal relationship," Pennsylvania courts interpret the choice of law provision to broadly encompass non-contractual claims as well. Applying these standards, we find, as we did in our September 19, 2018 Memorandum, the parties' choice of law provision is narrow, encompassing only claims relating to the interpretation of the contract. Such an interpretation flows from the parties' chosen language. They agreed Ohio law would "apply to this contract ," not "all aspects of the[ir] legal relationship." Consistent with this logic, Wells Fargo reasonably acknowledges Pennsylvania law governs the Estate's conversion claim, and the Estate reasonably concedes Ohio law governs its breach of contract claim. But the parties clash about the Commercial Code claims, a much closer question.

Wells Fargo argues even a narrow interpretation of the Contract's choice of law provision encompasses the Article 9 claims, which are more like contract claims than freestanding statutory or common law tort claims. Wells Fargo argues "the UCC requirements effectuate the rights and obligations created by the Contract," distinguishing them from other freestanding statutory causes of action. The Estate frames the Article 9 claims differently. It argues the statutory provisions-protections relating to the reasonableness of, and the notice accompanying, disposition of collateral following default-operate not merely as default contractual provisions but as "consumer borrowers' protections" which "cannot be waived or modified by agreement."

Wells Fargo's argument has some logical appeal, as the Pennsylvania Commercial Code may generally supply default contract terms and supplant common law causes of action. In the context of Article 2, for example, the Commercial Code "only applies to contracts for the sale of goods." Here, however, the text and purpose of the Pennsylvania Commercial Code provide compelling support for the Estate's characterization of the relevant provisions as freestanding consumer protections untethered to our interpretation of the Contract. The Pennsylvania General Assembly found the Article 9 rights so important debtors or obligors "may not waive or vary the rules." The Official Comment explains, "in the context of rights and duties after default, our legal system traditionally has looked with suspicion on agreements that limit the debtor's rights and free the secured party of its duties." It further cautions "[t]he context of default offers great opportunity for overreaching."

Prohibiting modification or waiver of such rules prevents such overreaching where the balance of power is so often tilted in favor of the secured creditor. Other provisions of the Commercial Code involving willing buyers and sellers may not have such protective effect. But in the context of Article 9, such provisions appear to operate wholly independent of the parties' contractual obligations; they are more like a consumer protection statute than a traditional contract claim. We find the Contract's choice of law provision does not govern the Estate's Article 9 claims.

b. Pennsylvania maintains a greater interest in applying its consumer protections to this dispute.

But then what law should apply to the Article 9 claims? "When a choice of law provision in a contract does not apply to particular claims, as is the case here, the claims not covered by the provision must be analyzed under the factors set forth by the United States Court of Appeals for the Third Circuit in Hammersmith v. TIG Insur. Co. , 480 F.3d 220 (3d Cir.2007)." "In Pennsylvania, 'the first part of the choice of law inquiry is best understood as determining if there is an actual or real conflict between the potentially applicable laws.' " The parties do not offer a side-by-side comparison of the relevant Ohio and Pennsylvania commercial code, but one is not needed here; notwithstanding any overlap or difference in the commercial code provisions between the neighboring states, there is an actual conflict between Ohio and Pennsylvania law because, as our Court of Appeals held, Liane McDonald (on behalf of the Estate) "cannot bring her claims as survival actions under Ohio law, and unlike Pennsylvania law, Ohio law does not have any other statutes under which McDonald can maintain her claims."

We must then "classify the conflict as a 'true,' 'false,' or an 'unprovided-for' situation." "A 'false conflict' exists when only one state's interests would be impaired by the application of the other state's law." "An 'unprovided-for' case is one in which neither state's interests would be impaired if its laws were not applied." And a "true conflict" exists, our Court of Appeals instructs, "if both jurisdictions' interests would be impaired by the application of the other's laws." This case appears to present a true conflict. Pennsylvania's interest in protecting resident debtors from the "overreaching" or otherwise unscrupulous conduct of secured creditors would be substantially impaired by the application of Ohio law, which contains no "statutes under which McDonald can maintain her claims." Ohio arguably has some interest in applying its law to this dispute. As we found in our September 19, 2018 Memorandum, Ohio does not permit Liane McDonald to vindicate these claims through a survival action (or any other statutory provision), reflecting a policy of protecting businesses from any such claims. As we describe further below, however, we question the extent of Ohio's interest in this dispute between a South Dakota citizen (Wells Fargo) and a Pennsylvania citizen (Liane McDonald) over a car located at all relevant times in Pennsylvania.

A true conflict necessitates "[a] 'deeper [choice of law] analysis' " to "determine which state has the 'greater interest in the application of its law.' " We must do "more than a 'mere counting of contacts.' " "[W]e must weigh the contacts on a qualitative scale according to their relation to the policies and interests underlying the [particular] issue." This qualitative analysis compels application of Pennsylvania law, because the Commonwealth has a paramount interest in applying its consumer protection provisions to protect resident debtors. In In re Actiq Sales & Marketing Practices Litigation , Judge Tucker "agree[d] with the outcome of several Pennsylvania cases where, in the context of class action suits involving state consumer protection laws, the courts have determined that 'under Pennsylvania choice of law principles, each class member would be subject to the consumer fraud statutes of the member's home state because that state would have the paramount interest in applying its laws to protect its consumers.' " This analysis applies with equal force to the Estate seeking the protection of Article 9 and the MVSFA.

Although we construe the Estate's Article 9 claims as standalone consumer protection claims, we would reach the same result assessing "the contacts listed in § 188(2) of the Restatement (Second) of Conflict of Laws to determine which state has greater contacts with the contract at issue," which the parties apply in their briefing. Section 188(2) "directs us to take the following contacts into account: (1) the place of contracting; (2) the place of negotiation of the contract; (3) the place of performance; (4) the location of the subject matter of the contract; and (5) the domicile, residence, nationality, place of incorporation and place of business of the parties." We held in our September 19, 2018 Memorandum the limited facts in the amended complaint required we apply Pennsylvania law. The extensive fact record before us compels the same conclusion, and Wells Fargo is not entitled to summary judgment on choice of law grounds.

The first factor, the place of contracting, points to Pennsylvania. As we found on September 19, 2018, this factor weighs in favor of Ohio because the Estate did not allege where the parties signed the contract, but we "dr[e]w the reasonable inference they signed at the Ohio dealership." Discovery confirmed our inference is wrong. Rick McDonald swore, and Wells Fargo has no evidence to the contrary, the parties executed the contract in Pennsylvania. Representatives of Performance GMC delivered the vehicle to the Pennsylvania ice rink at which Rick McDonald worked, and Patricia McDonald signed the necessary documents in Pennsylvania.

The second factor, the place of negotiation, is indeterminate. Rick McDonald swore he negotiated the contract with the Ohio dealership over the phone; he conducted the negotiations from Pennsylvania and never set foot in Ohio. There is no evidence the parties concluded negotiations in person at the Pennsylvania ice rink. This factor therefore does not point conclusively to Pennsylvania or Ohio.

The third factor, the place of performance, points more towards Pennsylvania than Ohio. Rick McDonald swore he used the GMC Sierra for work in Pennsylvania. There is no evidence he drove the vehicle in Ohio. It is not apparent what, if any, performance touched Ohio. Under the Contract, Performance GMC assigned its rights to Wells Fargo, which, in turn, instructed Patricia McDonald to send payments to California.

The fourth factor, the location of the subject matter of the contract, points to Pennsylvania. It is not disputed Rick McDonald used the vehicle in Pennsylvania at all relevant times until its repossession in Pennsylvania.

The fifth factor-the domicile, residence, nationality, place of incorporation and place of business of the parties-points to Pennsylvania. As in September 2018, we still know little about Performance GMC, other than it conducted business in Ohio and assigned its rights under the contract to Wells Fargo. Wells Fargo, however, is a South Dakota citizen which directed Patricia McDonald to send payments to California. Ohio's interest is outweighed by Pennsylvania's interest on this factor, as the McDonalds remained in Pennsylvania at all relevant times.

We apply Pennsylvania law to the Article 9 claims.

2. Wells Fargo's November 30, 2012 and January 4, 2013 pre-sale Notices satisfy section 9614.

The Estate argues Wells Fargo's November 30, 2012 Notice and January 4, 2013 Notice of Continued Sale lacked information required by section 9614 of the Pennsylvania Commercial Code, governing the "[c]ontents and form" of pre-disposition notification in consumer-goods transactions. Upon careful examination, we find the Notices satisfy Section 9614.

Section 9614(1)"sets forth the information required for a reasonable notification in a consumer-goods transaction." Section 9614(1)(i) contains no requirements of its own; it incorporates the notice requirements in 13 Pa.C.S.A. § 9613(1). Section 9613(1) provides "[t]he contents of a notification of disposition are sufficient if the notification:

(i) describes the debtor and the secured party;

(ii) describes the collateral which is the subject of the intended disposition;

(iii) states the method of intended disposition;

(iv) states that the debtor is entitled to an accounting of the unpaid indebtedness and states the charge, if any, for an accounting; and

(v) states the time and place of a public disposition or the time after which any other disposition is to be made."

Wells Fargo's November 30, 2012 Notice contains this information. It describes the debtor ("Patricia A. McDonald"), the secured party ("Wells Fargo Bank, N.A. DBA Wells Fargo Dealer Services"), and the collateral to be sold ("2002 GMC Sierra 1GTHK29182E291423"). It also states the method of intended disposition ("public sale"), as well as the date ("01/03/13"), time ("1:00 PM"), and location ("Manheim Ohio 3905 Jackson Pike Grove City OH 43123") of the public sale.

Wells Fargo also complied with Section 9613(1)(iv)'s requirement the notice "state[ ] that the debtor is entitled to an accounting of the unpaid indebtedness and state[ ] the charge, if any, for an accounting." The first page of the November 30, 2012 Notice provides "[i]f you want us to explain to you in writing how we have figured the amount that you owe us , you may call us at 888-937-9992 (or write us at REINSTATEMENTS E2578-021, Wells Fargo Dealer Services, P.O. Box 3599, Rancho Cucamonga, CA 91729 ) and request a written explanation ." The Estate does not identify how Wells Fargo's offer to "explain to you in writing how we have figured the amount that you owe us" refers to anything other than section 9613(1)(iv)'s requirement to offer an "accounting of the unpaid indebtedness." The Notice states in plain understandable language Wells Fargo will provide an accounting if the debtor requests it. And the statute itself, which emphasizes substance over form, permits Wells Fargo to speak in language its customers can understand.

The Estate argues Wells Fargo's accounting reference is deficient in any event because Wells Fargo does not "state[ ] the charge , if any, for an accounting." The Estate, however, does not identify what accounting it could have requested (or what Wells Fargo would have charged for), given Wells Fargo provided on the second page of the November 30, 2012 Notice a summary of the overdue charges:

The Estate does not adduce evidence Wells Fargo charged Patricia McDonald or any other debtors for a first requested accounting. And the statute-which requires the lender "state[ ] the charge, if any , for an accounting" -does not compel the lender to state a zero-dollar accounting fee. If it did, the statute's actual phrasing would make little sense, as the Pennsylvania General Assembly could have simply required the lender "state the charge for an accounting." It did not. We decline to adopt a construction rendering the words "if any" mere surplusage.

The Estate's additional arguments do not show Wells Fargo violated section 9614(1)'s remaining requirements. Section 9614(1)(ii) requires the Notice describe "any liability for a deficiency of the person to which the notification is sent." The Notice describes the liability, informing Patricia McDonald "[w]e have your [vehicle] because you broke promises in our agreement ," and "[a]s a result of your default under the terms of your Contract/Security Agreement ... we obtained possession of the motor vehicle." Section 9614(1)(iii) requires the notice provide "a telephone number from which the amount which must be paid to the secured party to redeem the collateral ... is available."

Wells Fargo provides this information on the Notice's first page: "[y]ou can get the property back at any time before we sell it by paying us the full amount you owe (not just the past due payments), including our expenses. To learn the exact amount you must pay, call us at 888-937-9992."

Section 9614(1)(iv) requires the Notice provide "a telephone number or mailing address from which additional information concerning the disposition and the obligation secured is available." The Notice provides this, too, in clear terms: "[i]f you need more information about the sale, call us at 888-937-9992 or write us at REINSTATEMENTS E2578-021, Wells Fargo Dealer Services, P.O. Box 3599, Rancho Cucamonga, CA 91729." The Notice provides the same telephone number three times on the first page, negating any claim a consumer would not know what number to call with a question, concern, or request for more information.

Nor does the January 4, 2013 Notice informing the debtor of the continued sale date run afoul of section 9614's requirements. The November 30, 2012 Notice contains a variety of lengthy disclosures, Wells Fargo's contract information, and a complimentary accounting, as we describe above. The January 4, 2013 Notice merely informs Patricia McDonald of the rescheduled public sale date, time, and location.

3. A jury must resolve the material questions of fact surrounding the reasonableness of the November 30, 2012 and January 4, 2013 pre-sale Notices under section 9610.

Separate from its claim Wells Fargo's Notices failed to comply with section 9614's detailed requirements, the Estate argues deficiencies in Well Fargo's pre-sale November 30, 2012 and January 4, 2013 Notices rendered the sale commercially unreasonable under section 9610. This statute broadly requires reasonable notice and a commercially reasonable disposition of collateral. Section 9610 mandates "[e]very aspect of a disposition of collateral, including the method, manner, time, place and other terms, must be commercially reasonable."

While not specifically suing under section 9611, the Estate invokes Wells Fargo's obligations under section 9611, which mandates "a secured party that disposes of collateral under § 9610 (relating to disposition after default) shall send ... a reasonable authenticated notification of disposition." Section 9610 focuses on commercially reasonable dispositions and section 9611 focuses on the reasonable notice. Reasonableness under sections 9610 and 9611 is a fact-intensive inquiry.

a. A jury must decide whether Wells Fargo's failure to recant its minimum bid price in the January 4, 2013 Notice rendered the sale unreasonable.

The Estate argues Wells Fargo's January 4, 2013 Notice of Continued Sale, which failed to affirmatively recant or address the minimum price term contained in the November 30, 2012 Notice, rendered the sale commercially unreasonable. Wells Fargo counters it "attempted to sell the vehicle on January 3, 2013, but it was unable to do so," a reasonable basis for omitting any such minimum bid term in the January 4, 2013 Notice. Wells Fargo argues it conducted a commercially reasonable sale. A jury, not this Court, must determine the commercial reasonableness of the January 22, 2013 sale.

Article 9 emphasizes a secured creditor may send a revised notice of sale, but the revised notice, like all notice, must be reasonable. In its Comment to section 9611, the General Assembly directs "[n]othing in this Article ... prevent[s] a secured party from electing to send a revised notification if its plans for disposition change." But it emphasizes: "[t]his assumes, however, that the secured party acts in good faith, the revised notification is reasonable, and the revised plan for disposition and any attendant delay are commercially reasonable ."

Wells Fargo's lengthy November 30, 2012 Notice advised Patricia McDonald, "[w]e will sell [your vehicle] at public sale at a minimum bid of 9,157.00." Wells Fargo's January 4, 2013 Notice of Continued Sale disclosed an unsuccessful attempt "to sell your [vehicle] on 01/03/13, at MANHEIM OHIO Auto Auction" and informed Patricia McDonald "we have scheduled another public sale" to take place on January 22, 2013 at noon at the same auction facility. But context matters in a reasonableness inquiry. Unlike the lengthy November 30, 2012 Notice, the January 4, 2013 Notice is substantially shorter than the first.

Compared with the lengthy disclosures in the November 30, 2012 Notice, the brief January 4, 2013 Notice could leave a reasonable recipient with the impression Wells Fargo changed only the date and time of the auction since the November 30, 2012 Notice. Given Wells Fargo's failure to recant or address the minimum bid provision in the second Notice, it would not be per se unreasonable for a recipient to perceive the minimum bid provision as still operative. A jury could find commercial reasonableness required Wells Fargo affirmatively address all information or terms no longer accurate or in effect when it sent the January 4, 2013 Notice. We deny the parties' motions for summary judgment on this issue.

b. A jury must also decide whether Wells Fargo's failure to provide the Notices required by the MVSFA rendered the repossession and sale commercially unreasonable under section 9610.

The Estate argues Wells Fargo's failure to comply with the then-operative MVSFA rendered the sale commercially unreasonable under section 9610. The Estate argues Wells Fargo's November 30, 2012 and January 4, 2013 pre-disposition Notices failed to "set forth the buyer's right as to reinstatement," "disclose the place at which the motor vehicle is stored," or to inform the buyer "any personal property left in the repossessed vehicle will be held for thirty (30) days from the date of the notice's mailing," despite section 623(D) of the MVSFA mandating such disclosures. The Estate does not allege a freestanding claim under the MVSFA. It instead argues these defects prove Wells Fargo failed to comply with section 9610, which requires "[e]very aspect of a disposition of collateral, including the method, manner, time, place and other terms, must be commercially reasonable."

Although the Pennsylvania General Assembly repealed the MVSFA effective December 1, 2014, we apply the version in effect during Wells Fargo's repossession and sale of the GMC Sierra in 2012-13. The MVSFA in effect in 2012-13 permits repossession by self-help or legal process. The MVSFA ensures debtors subject to self-help repossessions receive adequate notice and an opportunity to protect available interests in the property. The MVSFA, for example, prohibits a secured creditor from effecting a self-help repossession in "breach of the peace" or in "violation of the criminal law." The MVSFA also restricts the persons or entities which may conduct self-help repossessions. But there is no private right of action in the MVSFA. So the Estate must argue through section 9610.

The Estate invokes section 623(D) of the MVSFA, which requires the secured creditor in a self-help repossession provide the debtor, among other things, notice, disclosure of an opportunity to reinstate the contract (if available under the contract), information describing the location where the vehicle is stored, and notice of an opportunity to obtain personal belongings in the vehicle:

When repossession of a motor vehicle, which is the subject of an installment sale contract, is effected otherwise than by legal process, the holder shall immediately furnish the buyer with a written "notice of repossession" delivered in person, or sent by registered or certified mail directed to the last known address of the buyer. Such notice shall set forth the buyer's right as to reinstatement of the contract, if the holder extends the privilege of reinstatement and redemption of the motor vehicle, shall contain an itemized statement of the total amount required to redeem the motor vehicle by reinstatement or payment of the contract in full, shall give notice to the buyer of the holder's intent to re-sell the motor vehicle at the expiration of fifteen (15) days from the date of mailing such notice, shall disclose the place at which the motor vehicle is stored, and shall designate the name and address of the person to whom the buyer shall make payment, or upon whom he may serve notice. The holder's notice shall also state that any personal property left in the repossessed vehicle will be held for thirty (30) days from the date of the notice's mailing. The personal property may be reclaimed within the thirty (30) day time period. Thereafter the property may be disposed of in the same manner as the motor vehicle and other collateral.

The Estate argues Wells Fargo's November 30, 2012 and January 4, 2013 pre-sale Notices violated three specific protections in section 623(D) by failing to "set forth the buyer's right as to reinstatement"; "disclose the place at which the motor vehicle is stored"; and, inform the debtor "any personal property left in the repossessed vehicle will be held for thirty (30) days from the date of the notice's mailing." Wells Fargo defends its omissions by arguing the MVSFA "is a regulatory enforcement statute that does not authorize or creat[e] any civil cause of action," "any purported notice obligation would run only to the 'buyer' of the motor vehicle, Patricia," "there is no allegation (or evidence) that any of [Patricia McDonald's] personal property was in the Sierra when it was repossessed," and there was no right to reinstate the contract.

We need not resolve Wells Fargo's argument the MVSFA contains no private cause of action. The Estate does not allege a standalone claim under the MVSFA. It instead argues Wells Fargo's failure to comply with the MVSFA section 623(D)'s requirements governing the repossession of motor vehicles violated section 9610's requirement "every aspect of the disposition of collateral must be commercially reasonable."

Courts applying Pennsylvania law endorse the Estate's theory of liability. In Nawrocki v. Faulkner Ciocca Ford of Souderton , Judge Dalzell explained "[m]ost of the provisions of the [Finance Act] that an individual buyer can enforce supply elements of another cause of action." And in Cosgrove v. Citizens Automobile Finance, Inc. , Judge Schiller approved a class action settlement in which plaintiffs sought damages under Article 9 for failure to provide reasonable notice based on violations of Section 623(D) of the MVSFA. "The Pennsylvania Uniform Commercial Code," Judge Schiller explained, "does not define 'reasonable' notice, but Pennsylvania courts define the term by looking to statutes governing vehicle finance and repossession," including section 623(D) of the MVSFA.

After careful review of Wells Fargo's November 30, 2012 and January 4, 2013 Notices, the Estate adduced evidence of a MVSFA violation to proceed to a jury, but we cannot resolve the question of liability as a matter of law. It cannot reasonably be disputed Wells Fargo's Notices do not describe the place at which it stored the GMC Sierra before the auction or the right to obtain personal property left in the repossessed GMC Sierra. And although the November 30, 2012 Notice informed Patricia McDonald she could "reinstate this default until" December 20, 2012 by paying the $ 2,862.75 due on the account, Wells Fargo argues "all Patricia's payments were past due and there were no future payments under the installment contract to be made," so "there was nothing to reinstate." This fact, if true, could render the reinstatement language in the November 30, 2012 Notice incorrect or misleading under the circumstances.

To the extent Wells Fargo argues the Estate failed to demonstrate Patricia McDonald had any property in the vehicle at time of repossession, Wells Fargo is free to argue this evidence to a jury as evidence of commercial reasonableness under the circumstances and/or a lack of actual damages. For although we find the Estate has sufficiently alleged an injury for purposes of Article III standing, "Pennsylvania law makes clear that the question of whether [the plaintiff] suffered a compensable injury and, if so, the extent of that injury, is for a jury to decide." Wells Fargo's defense relating to the identity of the debtor is also a fact question suited for trial, as we discuss below.

c. We cannot resolve as a matter of law Wells Fargo's fact-intensive defense under section 9628.

Wells Fargo argues it cannot be held liable under Article 9 because there existed no debtor at the time it repossessed and sold the GMC Sierra, and, even if there were a debtor, it did not know the debtor's identity or how to communicate with the debtor. Wells Fargo first argues section 9625 limits recovery to "a person that was a debtor or a secondary obligor at the time a secured party failed to comply with this chapter." Wells Fargo argues "only [Patricia McDonald] had an interest in the collateral," but "[b]ecause Patricia had died and no estate was established at the time Wells Fargo allegedly failed to comply with the UCC's notice requirements, no borrower/debtor existed who can recover damages." The Estate counters Patricia McDonald's husband Richard McDonald "became both the debtor and the obligor under the [Contract] and he occupied that dual role when Wells Fargo sent its defective notices" because "[i]t is a venerable principal of Pennsylvania law that when an individual passes away, the beneficial interest in his/her personalty immediately vests in his/her heirs."

The Estate reaches this conclusion citing Pennsylvania cases discussing intestate succession, despite numerous witnesses swearing Patricia McDonald had a Will. Patricia McDonald's Will, however, is not in the record. We also question Wells Fargo's aggressive reading of Article 9, which would appear to leave secured creditors free to commit any number of repossession violations with impunity so long as they do so before grieving family members open an Estate. We lack a basis to find the Pennsylvania General Assembly drafted Article 9 to permit such conduct. And we further doubt Wells Fargo would be so generous in its statutory interpretation were it attempting to collect a debt from Patricia McDonald.

But we need not explore the perimeters of Pennsylvania estate law to conclude, as we believe our Court of Appeals did, at least one debtor existed at the time Wells Fargo repossessed and sold the GMC Sierra. Pennsylvania statute provides "[n]othing in this title shall be construed as impairing any lien or charge on real or personal estate of the decedent which existed at his death." As Judge Young described the obligation, "[t]he laws as written treat all alike, and mandate that each person shall pay his or her legal debts before permitting any distribution to beneficiaries."

Wells Fargo also invokes section 9628 providing "[a] secured party is not liable because of its status as secured party to ... [a] person that is a debtor or obligor unless the secured party knows: (i) that the person is a debtor or obligor; (ii) the identity of the person; and (iii) how to communicate with the person." Wells Fargo argues even if Rick McDonald (Patricia's son) or Richard McDonald (Patricia's husband) became the debtor by operation of estate law, Wells Fargo "did not know at the time that [Rick McDonald or Richard McDonald] were debtors, their identities, or how to communicate with them."

As we found in our September 19, 2018 Memorandum, "[d]etermining Wells Fargo's knowledge-or lack thereof-of the debtor's identity would require resolving a factual dispute, which we cannot do at this stage of the litigation." The same reasoning applies today. Summary judgment is not a vehicle to probe Wells Fargo's knowledge, particularly given the issues surrounding Rick McDonald's numerous alleged misrepresentations to Wells Fargo representatives and whether a public database search did (or could) put Wells Fargo on notice of Patricia McDonald's death. A jury must assess and resolve the parties' differing accounts of Wells Fargo's knowledge.

4. We grant summary judgment to Wells Fargo on the Estate's section 9616 claims challenging the January 27, 2013 deficiency Notice.

The Estate moves for summary judgment on its claims seeking actual damages for Wells Fargo's alleged failure to explain "its calculation of any surplus or deficiency" and "failed to include in its notice ... 'a telephone number or mailing address from which additional information concerning the transaction is available.' " We identify no such omissions.

Wells Fargo's January 27, 2013 deficiency Notice is governed by section 9616, which requires the secured party "[s]end an explanation to the debtor or consumer obligor" providing:

(1) The aggregate amount of obligations secured by the security interest under which the disposition was made and, if the amount reflects a rebate of unearned interest or credit service charge, an indication of that fact, calculated as of a specified date ...

(2) The amount of proceeds of the disposition.

(3) The aggregate amount of the obligations after deducting the amount of proceeds.

(4) The amount, in the aggregate or by type, and types of expenses, including expenses of retaking, holding, preparing for disposition, processing and disposing of the collateral and attorney fees secured by the collateral which are known to the secured party and relate to the current disposition.

(5) The amount, in the aggregate or by type and types of credits, including rebates of interest or credit service charges, to which the obligor is known to be entitled and which are not reflected in the amount in paragraph (1).

(6) The amount of the surplus or deficiency.

The deficiency notice Wells Fargo sent Patricia McDonald contains a detailed accounting which tracks section 9616's requirements:

Using language directly from section 9616, Wells Fargo's January 27, 2013 Notice provides an "[a]ggregate amount of obligations secured" ($ 2,238.10). It further provides the "[g]ross [p]roceeds" from the disposition ("$ 3,400"), as required by 13 Pa.C.S.A. § 9616(c)(2). The Notice discloses the "[a]ggregate amount of obligations secured," complying with section 9616(c)(3). It also provides the aggregate amount "of expenses, including expenses of retaking, holding, preparing for disposition, processing and disposing of the collateral and attorney fees secured by the collateral which are known to the secured party and relate to the current disposition," in a row labeled "Subtotal of Costs of Repossession and Sale." In a separate row labeled "[c]redits not included in 'A,' including insurance and other rebates, if any," the Notice complies with section 9616(c)(5)'s requirement to provide the debtor such information. And in bolded font, the January 27, 2013 Notice informs the reader the total amount of deficiency is $ 292.89, as required by section 9616(c)(6). Wells Fargo's detailed breakdown complies in both form and substance with the section 9616 requirements governing explanations.

The Estate also argues Wells Fargo's January 27, 2013 Notice failed to include "a telephone number or mailing address from which additional information concerning the transaction is available." The Estate acknowledges the deficiency Notice identifies a telephone number but argues "Wells Fargo did not even hint that the phone number in its [Deficiency] Notice existed for any purpose other than to make a payment upon the deficiency that had resulted from its commercially unreasonable sale of the Vehicle."

The Estate's characterization ignores the context of the Notice, in which Wells Fargo twice lists the same phone number: first, to arrange payments, and second, to raise inquiries. The Estate relies on Wells Fargo's first reference to its phone number, which states: "If this letter indicates that you owe a deficiency, please contact our office at 1-800-752-8533 Monday through Friday ... to make satisfactory arrangements to pay the Deficiency Balance You Must Pay." Payments only, the Estate argues. But this argument has force only if the reader declines to look just slightly further down the page, to a section labeled, in bolded font, "Any notice or inquiry should be directed to." The section provides the same phone number (1-800-752-8533), as well as a mailing address.

The January 27, 2013 Notice complies with section 9616's mandate to provide "a telephone number or mailing address from which additional information concerning the transaction is available."

5. We deny the cross-motions on the Estate's conversion claim.

The parties cross-move for summary judgment on the Estate's conversion claim. The Estate argues Wells Fargo's failure to adhere to the MVSFA and Article 9 deprived it of legal justification to "dispose of the [GMC Sierra]," effecting a conversion. Wells Fargo argues the Estate's conversion claim is barred by the statute of limitations as well as the gist of the action doctrine; on the merits, Wells Fargo argues the parties' Contract expressly provides Wells Fargo the right to repossess in the event of default, and "where consent and lawful justification exist at the time of the conversion, a purportedly deficient [Article 9] notice does not retroactively remove that consent and justification."

Wells Fargo first argues we cannot proceed to the merits of the conversion claim because it is barred by Pennsylvania's two-year statute of limitations. Wells Fargo argues it repossessed the GMC Sierra on November 28, 2012, sold it on January 22, 2013, and the Estate, for no apparent reason, waited three years (until January 25, 2016) to file this case. The Estate counters our Court of Appeals foreclosed this argument because it explained "[t]he Pennsylvania Supreme Court has further clarified that statutes of limitations run 'from the grant of administration.' " We again find the Estate's conversion claim is not time barred.

In our Court of Appeals, Wells Fargo argued delay in opening the Estate cannot excuse the untimely conversion claim because "the cause of action accrue[d] upon the taking of the property"; "the Amended Complaint pleads no excuse or explanation why no administrator was appointed for over six years after [Patricia] McDonald's death and three years after the Sierra was repossessed"; and "[t]he Estate should not benefit from the concealment of McDonald's death, and the unexplained years-long delay in obtaining the authorization necessary to administer the estate." Our Court of Appeals found the argument unavailing.

It held "[Liane] McDonald has the power to maintain her causes of action against Wells Fargo should Pennsylvania law be found to apply to them," and "[t]he fact that McDonald was not appointed as administratrix of Patricia McDonald's estate until years after the sale of the vehicle does not change our conclusion ." Our Court of Appeals added, "[a]s the Pennsylvania Supreme Court has explained, '[a] cause of action does not exist unless there be a person in existence capable of suing or of being sued,' " and "[t]he Pennsylvania Supreme Court has further clarified that statutes of limitations run 'from the grant administration.' "

Attempting to overcome our reluctance to relitigate an issue our Court of Appeals already addressed, Wells Fargo now argues we should find the conversion claim time-barred because our Court of Appeals relied on outdated authority. Wells Fargo argues Riner v. Riner , which our Court of Appeals quoted for the proposition "statutes of limitations run 'from the grant administration,' " "predated the Probate Code and specifically tasked the legislature with correcting its decision." Wells Fargo argues 20 Pa.C.S.A. § 3376"did exactly that." The provision states:

Any statute of limitation which would bar any debt or liability owed the estate of a decedent within one year after the decedent's death shall be extended until the end of one year following the decedent's death. Failure or delay in taking out letters testamentary or of administration shall not affect the operation of any statute of limitations applicable to a debt or liability owed the estate of a decedent.

While Wells Fargo emphasizes the second sentence of section 3376 addressing a delay in taking out letters of administration, the Estate's unliquidated conversion claim does not appear to be either a "debt or liability" triggering section 3376. The Pennsylvania Superior Court's decision in Prevish v. Northwest Medical Center supports this conclusion. The court in Prevish held an "unliquidated personal injury tort claim" is not a "debt or liability" triggering section 3376. The court compared section 3376 to section 3383, an analogous provision applying to a "cause of action." The court found the more specific language ("debt or liability") in section 3376 must be given effect because if the General Assembly intended it to cover any "cause of action" as in section 3383, they would "have said so":

[T]he choice of the phrase "debt or liability" and the omission of the terms "claim" and "cause of action" persuades us that the drafters of amended Section 3376 intended the phrase "debt or liability" to mean something other than "claim" or "cause of action." If the drafters had intended to extend statutes of limitation which would otherwise bar not only any debt or liability owed the estate of a decedent but also any cause of action or unliquidated claim belonging to the estate of a decedent, they could easily have said so. Because they did not, we conclude that Section 3376 does not apply to extend the statute of limitation in this case.

The court in Prevish also explained the "general rule" in Pennsylvania "a personal injury tort claim remains unliquidated until it is reduced to a definite amount by a verdict or a settlement." While Wells Fargo argues the Estate's conversion claim "relates to a specific piece of property that has an ascertainable value and the claim is assignable," the claim itself is not reduced to a definite amount by verdict or settlement. If it were, it would not be at issue today. We apply the rule our Court of Appeals instructed: the clock ran from the grant of administration and the conversion claim is timely.

Wells Fargo argues a timely conversion claim cannot be heard on the merits because it is a breach of contract claim disguised as a tort claim and barred by the gist of the action doctrine. We disagree. To effectuate a policy of forbidding litigants from shoehorning breach of contract claims into putative tort claims, Pennsylvania's gist of the action doctrine "forecloses tort claims: '1) arising solely from the contractual relationship between the parties; 2) when the alleged duties breached were grounded in the contract itself; 3) where any liability stems from the contract; and 4) when the tort claim essentially duplicates the breach of contract claim or where the success of the tort claim is dependent on the success of the breach of contract claim.' "

The Estate's conversion claim is not barred by the gist of the action doctrine because it is premised on Wells Fargo's failure to comply with requirements found in the MVSFA and Commercial Code- not a breach of the parties' Contract. "Und