De Minimis Property Marks and Non-Objection During Driveway Repossession Do Not Constitute a Florida “Breach of the Peace”

Case: Corey L. McClain v. Rapid Recovery Agency, Inc.

Court: United States Court of Appeals for the Eleventh Circuit

Date: 2026-04-01 (Not for Publication)

1. Introduction

This appeal arose from a self-help vehicle repossession in Florida. Rapid Recovery Agency, Inc. (“Rapid Recovery”)—acting for Ally Bank—repossessed Corey L. McClain’s vehicle from a driveway at his girlfriend’s grandparents’ home. McClain confronted the tow-truck driver, stated he had made a payment, retrieved personal items from the vehicle, and surrendered the keys. After the repossession, McClain claimed the tow truck caused damage to the driveway pavers, grass, and decorative rocks.

McClain sued Ally Bank and Rapid Recovery. After settling with Ally Bank, he proceeded to trial against Rapid Recovery. At the close of McClain’s case, the district court granted Rapid Recovery judgment as a matter of law under Federal Rule of Civil Procedure 50 and later denied reconsideration under Rules 59 and 60. On appeal, McClain primarily argued that the repossession involved a “breach of the peace” under Florida law, which in turn would support liability theories under federal and state debt-collection statutes and Florida’s repossession framework.

The core issues were:

  • Whether the repossession constituted a “breach of the peace” under Florida law, given (i) McClain’s statement that he had paid and (ii) the alleged property damage.
  • Whether Rapid Recovery could be treated as a “debt collector” under the FDCPA and FCCPA on these facts.
  • Whether McClain preserved (and properly developed) any argument that the FCCPA’s “debt collector” concept is broader than the FDCPA’s.

2. Summary of the Opinion

The Eleventh Circuit affirmed. It held that no reasonable jury could find a Florida “breach of the peace” on the evidence presented: the repossession occurred from a driveway, there was no altercation or disorder, McClain did not meaningfully object in a way that halted or contested the repossession (indeed, he surrendered the keys), and the alleged physical damage shown in the photos was “superficial” and “de minimis.”

Because McClain’s claims depended on establishing a breach of the peace, the absence of one defeated his theories. The court also rejected McClain’s FCCPA argument because he failed to raise below the contention that the FCCPA is broader than the FDCPA; to the contrary, he had argued the two were identical for his purposes.

3. Analysis

3.1. Precedents Cited

A. Standards of review and procedural posture

  • St. Louis Condo. Ass'n, Inc. v. Rockhill Ins. Co., 5 F.4th 1235 (11th Cir. 2021): Cited for de novo review of a Rule 50 judgment as a matter of law. This framing mattered because the appellate court independently evaluated whether the trial evidence could legally support a verdict for McClain on a material element (breach of peace).
  • Williams v. First Advantage LNS Screening Sols. Inc., 947 F.3d 735 (11th Cir. 2020): Cited for the Rule 50 standard—judgment as a matter of law is appropriate when there is no legally sufficient evidentiary basis for a reasonable jury to find for the non-movant on a material element.
  • Stansell v. Revolutionary Armed Forces of Colom., 771 F.3d 713 (11th Cir. 2014): Cited for abuse-of-discretion review of Rule 59(e) and Rule 60(b) denials. The court’s affirmance indicates it saw no serious procedural or evidentiary misstep warranting reconsideration.

B. Determining Florida law in federal court

  • CSX Transp., Inc. v. Trism Specialized Carriers, Inc., 182 F.3d 788 (11th Cir. 1999): Cited for the Erie-style obligation to predict how the Florida Supreme Court would decide issues of Florida law absent controlling authority.
  • Bravo v. United States, 577 F.3d 1324 (11th Cir. 2009): Cited for the principle that federal courts follow intermediate state appellate decisions unless persuasive evidence shows the state supreme court would rule otherwise.

C. Florida “breach of the peace” in self-help repossession

  • Fla. Stat. Ann. § 679.609(2)(b): The governing self-help rule—repossession is permitted after default only if it proceeds “without breach of the peace.” The statute’s silence on definition forced reliance on case law.
  • Quest v. Barnett Bank of Pensacola, 397 So. 2d 1020 (Fla. Dist. Ct. App. 1981): Central Florida authority used to supply the operative test and examples. The Eleventh Circuit quoted Quest’s two-part framing: “(1) whether there was entry by the creditor upon the debtor's premises, and (2) whether the debtor or one acting in his behalf consented to the entry and repossession.” Quest also contains language suggesting a breach of peace can occur if the secured party damages property during repossession, and that creditors may be liable for negligence resulting in damage.
  • Northside Motors of Fla., Inc. v. Brinkley, 282 So. 2d 617 (Fla. 1973): Florida Supreme Court guidance emphasizing that taking a car from a driveway is generally permissible and that a driveway repossession (absent other circumstances, such as the debtor’s objection) typically is not a breach of peace. This provided the opinion’s doctrinal anchor: driveway repossessions start from a presumption of permissibility unless escalated by objection, confrontation, or other aggravating circumstances.
  • Whisenhunt v. Allen Parker Co., 119 Ga.App. 813, 168 S.E.2d 827 (1969): Used in Quest for the proposition that property damage during repossession can contribute to a breach of peace. The Eleventh Circuit distinguished Whisenhunt factually, emphasizing the severe damage there (demolition of a building, scattering/removal of business records).
  • Southern Industrial Savings Bank v. Greene, 224 So.2d 416 (Fla.3d DCA 1969): Also cited in Quest for the proposition that a creditor is liable for negligence resulting in damage to collateral. The Eleventh Circuit treated this line as not matching McClain’s trial theory and, in any event, as addressing a different magnitude/type of harm than the minor markings shown in the photos.
  • Daniel v. Morris, 181 So.3d 1195 (Fla. 5th DCA 2015) and Nixon v. Halpin, 620 So. 2d 796 (Fla. 4th DCA 1993): Cited by McClain to support the general proposition that creditors may be liable when repossession results in a breach of peace. The Eleventh Circuit did not read them to establish that minor, superficial property marks alone convert an otherwise peaceful driveway repossession into a breach of the peace.
  • Seibel v. Society Lease, Inc., 969 F. Supp. 713 (M.D. Fla. 1997): Invoked by McClain for the idea that refusal to delay repossession after notice can support a breach-of-peace finding, relying in turn on Quest. The Eleventh Circuit distinguished the facts: McClain did not testify he demanded the driver wait while he contacted the bank; instead he relinquished the keys and allowed the repossession to proceed.

D. FDCPA/FCCPA and repossession agencies

  • Wright v. Santander Consumer USA, Inc., 2018 WL 2095171 (M.D. Fla. May 1, 2018): Cited for the proposition (held by some courts) that a repossession agency may incur FDCPA liability if it breaches the peace during repossession.
  • Westbrook v. NASA Fed. Credit Union, 799 F. App'x 722 (11th Cir. 2020): The Eleventh Circuit noted it had not adopted that theory, but had previously assumed it arguendo and found no breach of peace. The same approach was used here: the court assumed arguendo that breach-of-peace conduct could bring a repossession agent into FDCPA “debt collector” territory, but held the predicate breach was missing.

3.2. Legal Reasoning

A. The opinion’s operational rule: “de minimis damage + no meaningful objection = no breach”

The court treated “breach of the peace” as a fact-sensitive, circumstance-dependent limitation on self-help repossession under Fla. Stat. Ann. § 679.609(2)(b). It emphasized two features:

  • Location/entry context: repossession from a driveway generally does not constitute a breach (drawing from Northside Motors of Fla., Inc. v. Brinkley).
  • Debtor interaction/consent dynamics: absence of commotion, altercation, disorderly conduct, or meaningful refusal; McClain retrieved items, surrendered keys, and the repossession continued without escalation.

Against that baseline, the court evaluated McClain’s principal escalators—(i) alleged property damage, and (ii) notice that a payment had been made—and found neither sufficient to create a jury question.

B. Property damage as “breach of the peace”: distinguishing Quest

McClain relied heavily on language in Quest v. Barnett Bank of Pensacola suggesting that a breach of peace “can occur” when a secured party damages the debtor’s property during repossession. The Eleventh Circuit did not reject that proposition in the abstract; instead, it limited it through factual comparison:

  • In Quest (and the Georgia case Whisenhunt v. Allen Parker Co. on which Quest relied), the repossession involved severe disruption and significant damage (scattered records, contents removed, and in Whisenhunt, demolition of a building).
  • Here, the photos and testimony supported (at most) superficial markings—characterized as a “light mark,” “scuff marks,” and “really superficial”—which the court deemed “de minimis.”

The court’s reasoning effectively sets a practical threshold: while property damage may contribute to a breach of peace in extreme circumstances, minor or superficial damage—without confrontation or other aggravating conduct—does not.

C. “I made a payment” as an escalator: not enough without objection/refusal

The court addressed McClain’s argument that telling the driver a payment had been made transformed the event into an altercation or at least into wrongful continuation. It rejected that characterization because:

  • The exchange was brief and non-confrontational; the driver said it was between McClain and the bank.
  • McClain did not testify that he demanded the driver stop, wait, or verify payment before proceeding.
  • McClain voluntarily surrendered the keys, supporting the conclusion that the repossession proceeded peacefully.

The opinion also notes (in a footnote) an attempted appellate reframing: McClain suggested his statement functioned as a “revocation” of the creditor’s right to self-help repossession. The court rejected this as unpreserved—not timely pleaded, not included as a trial issue in the pretrial stipulation, and not raised in response to the Rule 50 motion. This procedural holding reinforces that breach-of-peace litigation is often shaped as much by preservation and trial framing as by the substantive definition.

D. FCCPA argument rejected on waiver/position taken below

McClain argued on appeal that the FCCPA is broader than the FDCPA as to who qualifies as a “debt collector.” The Eleventh Circuit did not reach any merits comparison because it found McClain had taken the opposite position below—explicitly arguing the FCCPA count “mimics” the FDCPA count and that liability under one established liability under the other. Having failed to distinguish the standards in the district court, he could not use appeal to pivot to a broader-FCCPA theory.

3.3. Impact

Although “NOT FOR PUBLICATION,” the opinion is still practically influential for litigants and trial courts as persuasive authority, especially within Florida-based repossession disputes:

  • Clarifies the de minimis boundary: Minor driveway scuffs and superficial lawn/landscaping disturbance—without confrontation—are unlikely to satisfy “breach of the peace” under Florida’s self-help repossession framework.
  • Emphasizes debtor conduct: The debtor’s failure to object meaningfully (and affirmative cooperation such as handing over keys) will be treated as strong evidence of a peaceful repossession.
  • Constricts FDCPA theories premised on breach: Because the Eleventh Circuit again assumed arguendo that breach-of-peace conduct could trigger FDCPA exposure for repossession agents (cf. Westbrook v. NASA Fed. Credit Union), plaintiffs must first clear the breach-of-peace threshold with concrete evidence.
  • Trial framing matters: The decision underscores that litigants must preserve legal theories (e.g., “revocation,” broader FCCPA coverage) through pleadings, pretrial stipulations, and proper argument in response to Rule 50 motions.

4. Complex Concepts Simplified

  • “Self-help repossession”: A creditor (or its agent) can repossess collateral after default without filing a lawsuit—but only if it can do so “without breach of the peace.”
  • “Breach of the peace” (in repossession law): Not limited to criminal “breach of peace.” In this context it generally means repossession conducted with confrontation, threats, force, disorder, or other serious disturbance; Florida cases also consider unauthorized entry and lack of consent. This opinion highlights that minor property marks, by themselves, are not enough.
  • “Judgment as a matter of law” (Rule 50): A mid-trial/post-evidence ruling that the evidence is legally insufficient for a reasonable jury to find for the non-moving party on a required element. Here, the missing element was breach of peace.
  • “Preservation” / “waiver” on appeal: Appellate courts generally will not consider new theories not properly raised in the district court. The FCCPA “broader than FDCPA” argument failed primarily for this reason.

5. Conclusion

The Eleventh Circuit’s decision affirms a pragmatic Florida repossession rule: a peaceful driveway repossession does not become a “breach of the peace” merely because the debtor announces a payment or because the tow process leaves superficial, de minimis marks on the driveway or landscaping—particularly where the debtor does not meaningfully object and even cooperates (retrieving items and surrendering keys). The opinion also serves as a cautionary procedural lesson: debt-collection and repossession claims often turn on preserved theories and the precise issues framed for trial.