Opinion
C/A 2:22-CV-01748-BHH-KDW
06-21-2023
ANTONIO CELESTER, Plaintiff, v. BAKER BUICK & GMC, SUN TRUST BANK, AND SNATCH MASTERS, LLC, Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
On June 3, 2022, Antonio Celester (“Plaintiff”) filed this action against Defendants, alleging violations of several state and federal laws, including violations of The Fair Debt Collection Practices Act and the Dodd-Frank Act. All three Defendants have filed a Motion to Dismiss Plaintiff's Complaint. ECF Nos. 30; 35; and 40. Plaintiff filed Responses to these Motions to Dismiss. ECF Nos. 47; 48. Defendants each filed Replies. ECF Nos. 56; 57; and 58. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d), this Magistrate Judge is authorized to review pretrial matters in cases involving pro se litigants and submit findings and recommendations to the District Court. This matter is now ripe for review.
I. Factual Background
The following facts are derived from Plaintiff's allegations within his Complaint filed on June 3, 2022. ECF No. 1. As alleged in Plaintiff's Complaint, on or about November 7, 2020, Plaintiff purportedly purchased a 2017 GMC Yukon SLT (the “vehicle”) from Defendant Baker Buick & GMC (“Baker Buick”) after seeing an online advertisement. ECF No. 1 at 3. Defendant Baker Buick is an automobile dealership located in Charleston, South Carolina. ECF No. 1 at 1. Plaintiff alleges that a “defendant Assignee,” later identified as SunTrust Bank a/k/a Truist Bank, was engaged in consumer credit and collection of payments for vehicles, and upon a reading of the Complaint as a whole, Plaintiff appears to be referring to Defendant SunTrust Bank a/k/a Truist Bank. ECF No. 1 at 3.The vehicle purchase was subject to the Consumer Retail Installment Sales Contract (the “Agreement”),with Defendant Truist Bank as assignee for Defendant Baker Buick. Id. Plaintiff contends that on the date of the purchase and the Agreement, Defendant Baker Buick “knowingly engaged in violations of the South Carolina Consumer Protect laws, by Unfair and Deceptive Practices, where the defendant dealership failed to disclose, that the vehicle was not operating, as advertised, which induced the plaintiff to purchase the faulty vehicle.” ECF No. 1 at 4.
Within its Motion to Dismiss, this Defendant notes that it is properly identified as Truist Bank f/k/a Branch Banking and Trust Company and successor by merger with SunTrust Bank (“Truist”). ECF No. 35 at 1. The undersigned will therefore refer to Defendant SunTrust Bank as Defendant Truist for purposes of this Report and Recommendation.
Portions of the Agreement were quoted by Plaintiff within his Complaint. Additionally, both Plaintiff and Defendant Truist attached the Agreement as an exhibit to their respective briefs.
Plaintiff further contends that on the date he purchased the vehicle, the vehicle was subject to a recall notice for a faulty brake pump; however, he alleges Defendant Baker Buick did not let Plaintiff know of the recall or otherwise fix this issue prior to selling the vehicle to Plaintiff. Id. Plaintiff contends Defendant Baker Buick also denied knowing that the vehicle's transmission needed to be replaced. Id. Plaintiff alleges he paid approximately $5,200.00 to replace the vehicle's transmission. Id. Plaintiff further contends Defendant Baker Buick denied knowing that the vehicle's air conditioning unit was damaged and/or did not work at the time Plaintiff purchased the vehicle. Id. Plaintiff alleges he paid approximately $900.000 to repair the air conditioner after Defendant Baker Buick refused to repair or replace the air conditioner part. Id. Plaintiff alleges he made attempts to have Defendant Baker Buick refund him for these costs, and he alleges he notified Defendant Truist of the additional cost incurred by Plaintiff. Id.
While Plaintiff alleges there was a recall for a faulty brake pump issue, Plaintiff does not otherwise contend that he incurred any damages due to this alleged issue, nor does he state any facts regarding how he knew whether Defendant Baker Buick adhered to any instructions related to the recall.
Plaintiff alleges that, pursuant to the Agreement, he continued to pay the monthly agreed upon amount to Defendant Truist, though he was never made aware that Defendant Truist changed business names, nor did Plaintiff consent to the change of Plaintiff's account. Id. Plaintiff further contends he was never notified or provided any correspondence from Defendant Truist that he had any late payments or otherwise violated the Agreement. Id. at 5. Plaintiff does allege that he “was aware of one late payment.” Id. at 5. On April 4, 2022, Plaintiff alleges that Defendant Truist, through its agent Defendant Snatch Masters LLC (“Snatch Masters”) illegally repossessed the vehicle, which was parked on private property in Atlanta, Georgia. Id. Upon realizing that the vehicle was gone, Plaintiff alleges he notified the Atlanta Police Department to inform them that his vehicle was stolen. Id. Plaintiff alleges that the police were able to obtain a still photograph of a tow truck repossessing the vehicle; however, because the tow truck was unmarked and Defendant Snatch Masters failed to notify the police of the repossession of property, Plaintiff was able to file a stolen vehicle report. Id. Plaintiff then contacted Defendant Truist, at which point Plaintiff learned that Defendant Snatch Masters had been hired by Defendant Truist to repossess the vehicle. Id. at 5-6. Plaintiff alleges he demanded the return of the vehicle; however, Defendant Snatch Masters refused to return the vehicle based “on the instructions” of Defendant Truist. Id. at 6. Plaintiff denies defaulting on the vehicle loan contemplated in the Agreement at the time the vehicle was repossessed. Id.
Plaintiff refers to this Defendant as “defendant Repo company,” but it is clear from the pleadings that he is identifying Snatch Masters.
Plaintiff alleges he did not receive any notice from Defendant Truist that he was in default or that he had failed to make any payments. Id. Plaintiff alleges Defendant Truist has used “inaccurate information and faulty banking practices,” thereby causing the unlawful repossession of the vehicle. Id. Plaintiff further alleges that Defendant Truist caused Plaintiff's credit account on the vehicle to change, resulting in delay of payments to Defendant Truist. Id. Plaintiff alleges that because of Defendants Truist and Snatch Masters' conversion of the vehicle, Plaintiff has to pay a fee to access his personal property, including his payment history and other legal papers. Id. Plaintiff further alleges he is being compelled to consent to the repossession of his vehicle. Id. As alleged in the Complaint, Plaintiff brings the following causes of action: (1) unfair and deceptive practices against Defendants Truist and Snatch Masters; (2) unlawful debt collection practices under South Carolina law without due process against Defendants Truist and Snatch Masters; (3) conversion against all Defendants; (4) the failure of Defendant Truist to provide Plaintiff notice of default; and (5) Breach of Contract against Defendants for taking his personal property without just cause. In his requested relief, Plaintiff appears to further allege that Defendants violated the Dodd-Frank Act and violated his due process rights afforded to him under the Constitution. ECF No. 1 at 9.
II. Standard of Review
All three Defendants have filed a Motion to Dismiss in this case. Defendant Baker Buick filed its Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and 9(b). ECF No. 30.Defendant Truist and Defendant Snatch Masters filed their Motions to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 35; 40.
Federal Rule of Civil Procedure 9(b) provides: “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.” Defendant Baker Buick argues that Plaintiff fails to state facts with particularity to maintain a cause of action for fraud. ECF No. 30 at 11. The undersigned will address this argument in this Report & Recommendation.
“A motion filed under Rule 12(b)(6) challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). A motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts that would support his claim and would entitle him to relief. Fed.R.Civ.P. 12(b)(6). The Supreme Court considered the issue of well-pleaded allegations, explaining the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level . . .550 U.S. 544, 555 (2007) (internal citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” (citing Twombly, 550 U.S. at 556); see also Tobey v. Jones, No. 11-2230, 2013 WL 286226, at *3 (4th Cir. Jan. 25, 2013) (affirming district court's denial of Rule 12(b)(6) motion, noting that Twombly reiterated that a plaintiff “was not required to state [] precise magical words” to plausibly plead claim). When ruling on a motion to dismiss, the court “must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court is also to “‘draw all reasonable inferences in favor of the plaintiff.'” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (quoting Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)).
Although a court must accept all facts alleged in the complaint as true, this is inapplicable to legal conclusions, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). While legal conclusions can provide the framework of a complaint, factual allegations must support the complaint for it to survive a motion to dismiss. Id. at 679. Therefore, a pleading that provides only “labels and conclusions” or “naked assertion[s]” lacking “some further factual enhancement” will not satisfy the requisite pleading standard. Twombly, 550 U.S. at 555, 557. Further, the court need not accept as true “unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., Inc. v. J.D. Assocs., Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Pro se complaints are to be construed liberally. King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)). While the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 322 (1972), court is not required to recognize “obscure or extravagant claims.” Weller v. Dep't of Soc.Servs., 901 F.2d 387, 391 (4th Cir. 1990). Furthermore, in analyzing a Rule 12(b)(6) motion to dismiss, a court may consider “documents incorporated into the complaint by reference and matters of which a court may take judicial notice.” Tellabs. Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
III. Analysis
The undersigned acknowledges the observation made by Defendants that Plaintiff's Complaint does not clearly delineate what claims he seeks to assert against which Defendants and the legal basis for such claims. However, keeping in mind the liberal construction afforded pro se plaintiffs, the undersigned has considered the arguments made in each of the Motions to Dismiss, as well as any response thereto. The undersigned notes that many of Plaintiff's claims appear to be state law claims related to his Fair Debt Collection Practices Act claims. See Shanaghan v. Cahill, 58 F.3d 106, 109 (4th Cir. 1995) (explaining that district courts have supplemental jurisdiction over claims that are so related to any claims in the action where the district court has original jurisdiction pursuant to 28 U.S.C. § 1367(a) or in diversity cases pursuant to § 1367(b)). At the outset, the court is mindful of the fact that Plaintiff appears to raise new causes of action, and allege new or different facts, in his Responses to the Motions to Dismiss. However, a complaint cannot be amended by an oppositional brief in response to a motion to dismiss. See Mylan Labs., Inc. v. Akzo, N.V., 770 F.Supp. 1053, 1068 (D. Md. 1991) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101 (7th Cir. 1984)); see also Eleazu v. Bernard, No. 3:20-CV-02706-JMC, 2021 WL 4398511, at *7 (D.S.C. Sept. 27, 2021).
Further, in this case, there are several additional documents that have been attached to the briefings of the parties. Defendant Truist attaches the Agreement to its Motion to Dismiss. See ECF No. 35-1 at 2. This document has also been incorporated into the Complaint by reference-Plaintiff quotes several of the provisions with his Complaint. Accordingly, the undersigned has considered the Agreement, as it is explicitly referenced and quoted within the Complaint and is integral to the Complaint. In addition to attaching the Agreement to his Response to Baker Buick's Motion to Dismiss, Plaintiff attaches a repair order from Bonded Transmission, ECF No. 47-2; an Order Confirmation Form from AM Used Auto Parts, ECF No. 47-3; a receipt from Randy Service Solutions, LLC, ECF No. 47-4; the Atlanta Police Department Incident Report related to the repossession of the vehicle, ECF No. 47-5; a website printout from the Atlanta Police Department providing information on Impound/Repossession Company Services, ECF No. 47-6; a purported Product Safety Recall from General Motors, ECF No. 47-7; and a purported copy of an e-mail from Truist Bank regarding Plaintiff's change in account number, ECF No. 47-8. The court may consider a document or exhibit “integral the complaint” on a motion to dismiss; provided there is no dispute about the authenticity. Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (noting that a court may consider documents attached to a complaint, as well as documents attached to a motion to dismiss, provided they are integral to the complaint and authentic). Aside from the Agreement, Defendant Baker Buick disputes the authenticity of the additional exhibits. The undersigned considers these documents to be outside of the pleadings, and accordingly, at this stage of the litigation, is excluding them for the purposes of analyzing the Motions to Dismiss. Because the other documents are not integral to the allegations within the Complaint, the undersigned will only consider the Agreement in this case.
These same exhibits were also attached to Plaintiff's Response filed at ECF No. 48.
a. Defendant Baker Buick's Motion to Dismiss
Defendant Baker Buick argues that Plaintiff fails to state a claim for relief in his Complaint against it based on any of Plaintiff's alleged causes of action. Specifically, Defendant Baker Buick alleges that Plaintiff fails to state a claim for: (1) breach of contract; (2) revocation/rescission of a contract; (3) negligent misrepresentation; (4) fraud; (5) conversion; (6) violations of the South Carolina Consumer Protection Code; (7) violations of the Fair Debt Collection Practices Act; (8) violations of the Unfair Trade Practices Act; (9) violations of the Dodd-Frank Act; and (10) due process violations. ECF No. 30. Plaintiff responds that he has sufficiently pled all elements of his claims.
1. Breach of Contract
Defendant Baker Buick argues that Plaintiff fails to sufficiently plead a breach of contract claim. In order to establish a breach of contract under South Carolina law, one must show: (1) a binding contract entered into by the parties; (2) a breach or unjustifiable failure to perform; and (3) damages as a direct and proximate result of the breach. King v. Carolina First Bank, 26 F.Supp.3d 510, 517 (D.S.C. June 6, 2014). Alternatively, to recover for breach of contract accompanied by a fraudulent act under South Carolina law (and recover punitive damages), the elements to prove are: (1) breach of contract; (2) fraudulent intent relating to the breach; and (3) a fraudulent act accompanying the breach. Edens v. Goodyear Tire & Rubber Co., 858 F.2d 198, 202 (4th Cir. 1988) (citing Harper v. Ethridge, 348 S.E.2d 374, 378, 290 S.C. 112 (S.C. Ct. App. 1986)). Defendant Baker Buick argues it is unclear which theory Plaintiff intended to plead; however, Defendant Baker Buick argues that Plaintiff has failed to state of cause of action under either theory.
Plaintiff alleges in his Complaint that he agreed to purchase the vehicle after seeing an advertisement on Defendant Baker Buick's website. In his Response, he adds that in addition to the advertisement, an agent of Defendant assured him the vehicle was “running condition,” and the agent “reiterated the features” found in the online advertisement. ECF No. 47 at 2, 4. Additionally, in his Response, Plaintiff states that he drove from Massachusetts to South Carolina to pick up the vehicle and “close [the] deal.” Id.Plaintiff further argues that the Contract is “unbalanced” because it has an arbitration provision, and further argues that his breach of contract claim is based upon Defendant's “uneven assertions,” where if Plaintiff had to arbitrate, his ability to demonstrate a valid dispute would be limited. Id. at 5. Plaintiff also asserts that both Defendant Baker Buick and Truist “ignored” the arbitration agreement. Id. at 6. The undersigned finds this argument untenable. First, the mere existence of an arbitration agreement in a contract does not per se render the agreement unbalanced. See generally Adkins v. Lab. Ready, Inc., 303 F.3d 496, 500 (4th Cir. 2002) (noting that the FAA reflects “a liberal federal policy favoring arbitration agreements.”) (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)). Further, it is Plaintiff who sued Defendants in federal court, rather than enforce arbitration, and there has been no allegation that any of the Defendants sought either to compel arbitration or sought to prevent arbitration. Accordingly, the undersigned recommends dismissing Plaintiff's breach of contract claim upon this theory.
Interestingly, Plaintiff's address provided for by Plaintiff on the Agreement is listed as 104 Sydneys Loop, Kingstree, South Carolina. See ECF No. 47-1 at 2. In his Complaint, he alleges that “at all times relevant to this matter,” he was a citizen of South Carolina, Williamsburg County. ECF No. 1 at 1.
Additionally, as noted by Defendant Baker Buick, Plaintiff does not allege a duty owed that was breached by Defendant Baker Buick. Construed liberally, Plaintiff alleges the vehicle did not operate as advertised and suggests that there was an issue with the air conditioner, the transmission, and was subject to a recall. Plaintiff alleges Defendant Baker Buick did not disclose that the vehicle was not in working condition, but Plaintiff does not allege how soon after the purchase of the vehicle that he made the alleged repairs to the vehicle. Plaintiff simply alleges “the vehicle was not operating as advertised.” ECF No. 1 at 4. As pointed out by Defendant Baker Buick, under South Carolina law, usually an advertisement is a “mere invitation to the public to contact the advertiser and request its services.” Trotter v. State Farm Mut. Auto. Ins. Co., 377 S.E.2d 343, 347, 297 S.C. 465 (S.C. Ct. App. 1988). Further, Plaintiff does not specify any details about the advertisement. Finally, the alleged issues on the day of the sale that Plaintiff noted were his allegations that the vehicle was “under a recall” for a faulty brake pump and that the air conditioner did not work. However, Plaintiff does not allege how this recall translates to a breach on the part of the contract with Defendant Baker Buick, which was then assigned to Defendant Truist, or how these issues resulted in an inoperable vehicle. Indeed, Plaintiff does not allege any facts regarding the recall other than Defendant Baker Buick did not make Plaintiff aware or “fix the issue,” though Plaintiff does not provide any allegations that this recall resulted in any damages incurred by Plaintiff. While Plaintiff generally alleges that he had to repair the transmission and the air conditioner, Plaintiff does not allege the date or any general allegation regarding when these issues arose. In his Response, he argues that the transmission issues arose on or about December 5, 2020, approximately one month after he purchased the vehicle. ECF No. 47 at 9. Plaintiff contends that when he notified Defendant Baker Buick, they informed him that there was no warranty on the vehicle, which Plaintiff disputes. However, in reviewing the Agreement, there is a provision on the first page explaining that the “seller makes no warranties, express or implied, on the vehicle, and there will be no implied warranties of merchantability or of fitness for a particular purpose.” See Agreement, ECF No. 47-1 at 2. Viewing the Complaint in a light most favorable to Plaintiff and considering the Agreement, the undersigned recommends dismissing this cause of action against Defendant Baker Buick.
2. Revocation/Recission of Contract
Defendant Baker Buick argues that Plaintiff failed to state a claim for revocation or recission of the Contract. Plaintiff argues that approximately four weeks after he purchased the vehicle, he had to tow the vehicle to an auto mechanic because the transmission stopped working. Within his Complaint, Plaintiff does not allege that he attempted to revoke or rescind the contract. Revocation of acceptance requires return of goods and the cancellation of the terms of the contract. White v. Holiday Kamper & Boats, No. 7:06-02362-HFF, 2008 WL 4155663, at *3 (D.S.C. Sept. 9, 2008) (citing Herring v. Home Depot, Inc., 565 S.E.2d 773, 776, 350 S.C. 373 (S.C. Ct. App. 2002)). Here, Plaintiff does not allege any set of facts within his Complaint that he attempted to return the vehicle. Plaintiff argues in his Response that he called to tell Defendant Baker Buick that the transmission was being repaired due to transmission issues; however, Plaintiff does not otherwise allege that he attempted to revoke acceptance of the Agreement. Similarly, Plaintiff makes no allegations that he attempted to rescind the Agreement. Instead, Plaintiff implies that he contacted Defendant Baker Buick to repair or replace the alleged faulty parts. Finally, as noted by Defendant in its Reply, Plaintiff does not make any argument in his Response or otherwise oppose Defendant's Motion to Dismiss with respect to the rescission claim. Accordingly, to the extent Plaintiff seeks to assert revocation or recission of the contract, the undersigned recommends finding he failed to adequately plead any set of facts to support these causes of action.
3. Negligent Misrepresentation
Defendant Baker Buick argues Plaintiff failed to adequately plead a cause of action for negligent misrepresentation. To state a claim for negligent misrepresentation, a plaintiff must allege that: (1) the defendant made a false representation to the plaintiff; (2) the defendant had a pecuniary interest in making the statement; (3) the defendant owed a duty of care to see that he communicated truthful information to the plaintiff; (4) the defendant breached that duty by failing to exercise due care; (5) the plaintiff justifiably relied on the representation; and (6) the plaintiff suffered a pecuniary loss as the proximate result of his reliance upon the representation. Hand v. SunTrust Bank, Inc., No. 6:11-CV-00501-JMC, 2012 WL 3834859, at *3 (D.S.C. Sept. 4, 2012) (citing Redwend Ltd. P'ship v. Edwards, 581 S.E.2d 496, 504, 354 S.C. 459 (S.C. Ct. App. 2003)). In South Carolina, to state a claim for negligent misrepresentation, one must show that a defendant owed a duty of care to communicate truthful information. Pitten v. Jacobs, 903 F.Supp. 937, 951 (D.S.C. 1995). Plaintiff alleges within his Complaint that Defendant Baker Buick failed to disclose that the vehicle was not operating as advertised, resulting in Plaintiff purchasing the vehicle. ECF No. 1. at 4. Plaintiff alleges that Defendant Baker Buick denied knowing about the transmission issues, and Plaintiff ultimately paid approximately $5,200.00 to replace the transmission. ECF No. 1 at 4.
Defendant Baker Buick argues Plaintiff failed to identify a false representation, how Defendant breached a duty of care, or how Plaintiff justifiably relied upon the representation. Plaintiff alleges that Defendant Baker Buick purportedly told him that the vehicle was in working shape to induce Plaintiff into purchasing the vehicle from the dealership See ECF No. 47 at 2. Plaintiff further alleges that the vehicle had a transmission issue (as well as an air conditioner issue and was subject to a recall), that rendered the vehicle undrivable at some point in time after he purchased the vehicle. Plaintiff alleges that when he informed Defendant Baker Buick, they did not assist him and denied knowing that the vehicle had a transmission issue. Plaintiff alleges that he relied upon the information that the vehicle was working as advertised, and as a result, had to pay to repair the transmission and air conditioner. However, it is clear from Plaintiff's Complaint that the vehicle was running at the time he purchased the vehicle. At some point in time after the purchase but prior to the filing of this lawsuit, the vehicle apparently had an issue with the transmission. Indeed, in reviewing Plaintiff's Complaint, it is clear the vehicle was working in April 2022 because he was in Atlanta, Georgia with the vehicle on the day it was towed. In his Response, Plaintiff indicates that approximately four weeks after the purchase of the vehicle, it became inoperable. ECF No. 47 at 9. Thus, even considering the liberal pleading standard afforded to pro se plaintiffs, Plaintiff's allegations fail to demonstrate any alleged false statement made by Defendant Baker Buick to Plaintiff. Therefore, the undersigned recommends dismissing this cause of action against Defendant Baker Buick.
4. Fraud
Defendant Baker Buick next argues that Plaintiff has failed to state a claim for fraud. As a preliminary matter, in reviewing the Complaint, there is no mention of the word fraud, either in the statement of facts, or as one of the counts related to the causes of action brought by Plaintiff. Nevertheless, much like the negligent misrepresentation claim, Plaintiff's allegations of fraud, as described in his Response, center around the fact that he contends Defendant did not divulge any issues with the vehicle. Plaintiff responds that his claim is premised upon the fact that Defendant Baker Buick “used the arbitration provision, in the sales agreement to comfort and induce the plaintiff in purchasing the vehicle,” and further alleges Defendant misrepresented the condition of the vehicle. ECF No. 47 at 13. Under South Carolina law, to establish fraud in the inducement to enter into a contract, one must show:
(1) a representation; (2) its falsity; (3) its materiality; (4) knowledge of the falsity or a reckless disregard of its truth or falsity; (5) intent that the representation be acted upon; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance upon the truth; (8) the hearer's right to rely thereon; and (9) the hearer's consequent and proximate injury.Anthony v. Atl. Grp., Inc., 909 F.Supp.2d 455, 483 (D.S.C. 2012) (citing Redwend Ltd. P'ship v. Edwards, 581 S.E.2d 496, 503-04, 354 S.C. 459 (S.C. Ct. App 2003)). Additionally, a plaintiff must show that: (1) the false representation made by the alleged person related to a present or preexisting fact; (2) the alleged fraudfeasor did so with the intent to deceive; and (3) the plaintiff had a right to rely on the representation made to him. Id. at 483. Fraud may not be presumed; rather it must be shown by “clear, cogent, and convincing evidence.” Brown v. Stewart, 557 S.E.2d 676, 680, 348 S.C. 33 (S.C. Ct. App. 2001). Defendant Baker Buick points out that Federal Rule of Procedure 9(b) requires a heightened pleading standard for claims of fraud. Pursuant to this Rule, a party must “state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). Here, Plaintiff argues that he alleged in his Complaint that Defendant Baker Buick used the arbitration provision to induce Plaintiff into the vehicle purchase. ECF No. 47 at 14. He further argues generally that Defendant Baker Buick “misrepresented” the condition of the vehicle. ECF No. 47 at 14. Plaintiff alleges that the “fraud” lies in the Defendant Truist's arbitration agreement and explains the behavior by Defendant Truist that Plaintiff believes constitutes fraud. The undersigned agrees with Defendant Baker Buick that any alleged conduct on the part of Defendant Truist does not support an allegation of fraud against Defendant Baker Buick. In his Response, Plaintiff outlines what “falsities” he believes were represented to him. See ECF No. 47 at 15. Plaintiff alleges these representations were made to him by Defendant Baker Buick, they were material to the sale in that Plaintiff claims he relied upon these representations in his purchase of the vehicle, that impliedly Defendant Baker Buick intended for Plaintiff to rely upon the advertisement and representation of the vehicle, that Plaintiff was unaware the vehicle was not “road ready,” that Defendant Baker Buick was a GMC dealer and, therefore, would have superior knowledge about the particular vehicle purchased, and that as a result of these misrepresentations, Plaintiff had to pay more than $4,000.00 in repairs. See ECF No. 47 at 15.
Aside from the fact that Plaintiff did not provide this specificity in his Complaint, Plaintiff fails to allege that Defendant Baker Buick conveyed a known falsity to Plaintiff regarding the vehicle. In other words, while Plaintiff includes statements such as the fact that Defendant Baker Buick could have discovered issues with the vehicle by “simply checking the transmission fluids,” Plaintiff does not allege in his Complaint that Defendant Baker Buick intended to deceive Plaintiff, or that Defendant Baker Buick knowingly conveyed false information. See Brown, 557 S.E.2d at 681 (noting “a key difference between fraud and negligent misrepresentation is that fraud requires the conveyance of a known falsity, while negligent misrepresentation is predicated upon transmission of a negligently made false statement.”). Nor does Plaintiff allege any facts upon which a reader of his Complaint could conclude that Defendant Baker Buick deliberately misled Plaintiff concerning the condition of the vehicle. Accordingly, for these reasons, the undersigned recommends granting Defendant Baker Buick's Motion to Dismiss as to any perceived cause of action for “fraud.”
5. Conversion
Defendant Baker Buick argues that any conversion claims against it must be dismissed as a matter of law. Plaintiff agrees that Defendant Baker Buick, did not convert his vehicle and states that he is not bringing this cause of action against Defendant Baker Buick. Accordingly, the undersigned recommends dismissing any conversion claim against Defendant Baker Buick.
6. South Carolina Consumer Protection Code
Defendant Baker Buick argues that any cause of action against it in violation of the South Carolina Consumer Protection Code should be dismissed. Plaintiff agrees. Accordingly, the undersigned recommends dismissing any claim pursuant to the South Carolina Consumer Protection Code against Defendant Baker Buick.
7. Fair Debt Collection Practices Act
Defendant Baker Buick argues that any cause of action against it in violation of the Fair Debt Collection Practices Act should be dismissed. Plaintiff agrees. Accordingly, the undersigned recommends dismissing any claim pursuant to the Fair Debt Collection Practices Act against Defendant Baker Buick.
8. Unfair Trade Practices Act
Defendant Baker Buick argues that any cause of action against it in violation of the Unfair Trade Practices Act should be dismissed. Defendant Baker Buick argues that while it is difficult to tell which Defendant it is that Plaintiff identifies is in violation of this Act, and further, which provision specifically applies, Plaintiff has failed to adequately allege any violation of this Act against Defendant Baker Buick. In reviewing Plaintiff's Response, it appears that he alleges violations under the South Carolina Unfair Trade Practices Act (the “SCUTPA”). An action for damages may be brought under this Act for “unfair methods of competition and unfair or deceptive acts or practices” in the conduct of trade or commerce. S.C. Code Ann. § 39-5-20. South Carolina courts require a plaintiff bringing a private cause of action under the SCUTPA to allege and prove a defendant's actions adversely affected the public interest. Singleton v. Stokes Motors, Inc. 595 S.E.2d 461, 466, 358 S.C. 369 (S.C. 2004). Further, “an impact on the public interest may be shown if the acts or practices have the potential for repetition.” Id.
In reviewing Plaintiff's Complaint, the undersigned agrees with Defendant Baker Buick that Plaintiff fails to allege that any action on the part of Defendant Baker Buick impacted the public interest or otherwise allege the actions complained of were capable of repetition. Indeed, Plaintiff now alleges that Defendant Baker Buick violated federal law by selling a vehicle under recall. In his Response, Plaintiff argues that because there is no “lemon law” in South Carolina, “this fact” leaves open the potential for repetition. However, while Plaintiff alleges that Defendant Baker Buick did not make Plaintiff aware of a recall, and that he had to get his transmission and the air conditioner fixed, he does not otherwise allege what practices Defendant Baker Buick engaged in that were deceptive. Nor does Plaintiff allege the recall was in any way related to the undriveable condition of the vehicle, or the ability to use the vehicle. Accordingly, the undersigned recommends dismissing this cause of action against Defendant Baker Buick.
9. Dodd-Frank Act
Defendant Baker Buick argues that any cause of action against it in violation of the Dodd-Frank Act should be dismissed. Plaintiff argues he has sufficiently pled such a claim against Defendant Baker Buick. The Dodd-Frank Actis a federal statute intended to root out corporate fraud. Digital Realty Trust, Inc. v. Somers, 138 S.Ct. 767, 772 (2018). Within his Complaint, Plaintiff cites to sections 1031(d) and 1036 of this Act. The Dodd-Frank Act provides that the Consumer Federal Protection Bureau (the “CFPB”) may take “any action” to prevent a “covered person or service provider from committing or engaging in an unfair, deceptive, or abusive act or practice under Federal law in connection with . . . the offering of a consumer financial product or service.” 18 U.S.C. § 5531(a). Further, the Dodd-Frank Act prohibits “any covered persons or service provider to offer or provide to a consumer any financial product or service not in conformity with Federal consumer financial law . . . or to engage in any unfair, deceptive, or abusive act or practice.” 12 U.S.C. § 5536(a). A “covered person” is “any person that engages in offering or providing a consumer financial product or service; and any affiliate of a person . . . if such affiliate acts as a service provider to such person.” 12 U.S.C. § 5481(6)(A)-(B). A service provider is defined as “any person that provides a material service to a covered person in connection with the offering or provision by such covered person of a consumer financial product or service.” 12 U.S.C. § 5481(26)(A).
The Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) became effective July 21, 2010. See 12 U.S.C. §§ 5531 et al.
Within Plaintiff's Complaint, in the section entitled, “Relief,” Plaintiff alleges that the court should find Defendants “individually and collectively, violated sections 1031(d) and 1036 of the Dodd-Frank Act, [and its] prohibition on engaging in unfair and deceptive or abusive acts of practices” in repossessing the vehicle. ECF No. 1 at 9. Plaintiff further alleges a violation due to Defendants interfering with the Plaintiff's ability to “understand terms and conditions” and the Defendants taking an “unreasonable advantage” of market imbalances. ECF No. 1 at 9. Plaintiff does not allege Defendant Baker Buick is a “covered person.” Further, Defendant Baker Buick did not repossess Plaintiff's vehicle according to his Complaint. Nor does Plaintiff specify how Defendant Baker Buick allegedly interfered with his ability to understand certain “terms and conditions” or took advantage of a market imbalance.
Plaintiff argues in his Response that the Consumer Federal Protection Bureau (the “CFPB”) is a government agency that works to ensure the fair treatment of consumers by lenders and financial institutions, and that a car dealer who provides lending services must be compliant. ECF No. 47 at 21. Plaintiff further argues that Defendant Baker Buick and Defendant Truist were engaged in providing a consumer financial product covered under the CFPB regulations and enforcement. However, Defendant Baker Buick contends the Dodd-Frank Act excludes automobile dealers from the CFPB's authority. 12 U.S.C. § 5519(a); see Calderone v. Sonic Houston JLR, L.P., 879 F.3d 577, 579 (5th Cir. 2018) (agreeing with a district court that an automobile dealer is excluded from the CFPB's jurisdiction where that dealer was predominantly engaged in the sale, leasing and servicing of motor vehicles but did not approve or deny financing or provide financing or leasing directly to customers). Here, Plaintiff does not allege that Defendant Baker Buick provided him a financial product or service; instead, he alleges he purchased a vehicle from this Defendant, and thereafter the Agreement was assigned to Defendant Truist. Even liberally construing the Complaint, Plaintiff summarily cites to the Dodd-Frank Act in his request for relief but does not specify any action on the part of Defendant Baker Buick prohibited under the Act. Accordingly, the undersigned recommends dismissing any claim against Defendant Baker Buick pursuant to the Dodd-Frank Act.
10. Due Process Violations
Defendant Baker Buick argues that that any alleged due process violations fail as a matter of law as it is not a state actor. See Doe v. Rosa, 795 F.3d 429, 436-37 (4th Cir. 2015) (explaining that section 1983 imposes liability on state actors who cause the deprivation of rights secured by the Constitution, including the Fourteenth Amendment). Plaintiff agrees that none of the Defendants are state actors and agrees to dismiss any due process claims against them. Accordingly, the undersigned recommends dismissing any claims alleging due process violations against all Defendants, including Defendant Baker Buick.
b. Defendant Truist's Motion to Dismiss
Defendant Truist argues that Plaintiff fails to state a claim for relief in his Complaint against it based on any of Plaintiff's alleged causes of action. In Plaintiff's Complaint, he asserts that Defendant Truist is the “assignee” of the Agreement made between Plaintiff and Defendant Baker Buick. ECF No. 1 at 3. Plaintiff asserts he made the agreed upon payments contemplated in the Agreement on a monthly basis to Defendant Truist. ECF No. 1 at 4. Plaintiff alleges that, at some point, Defendant Truist changed business names and made changes to Plaintiff's account, without his consent. ECF No. 1 at 4. Plaintiff alleges he never received any information of any kind or any correspondence from Defendant Truist regarding any late payments or the failure to make any payments in violation of the Agreement. ECF No. 1 at 5. Plaintiff alleges he had been making payments and was aware of one late payment prior to repossession. ECF No. 1 at 5. Elsewhere Plaintiff contends he was unaware of any deficiencies or default of any payments prior to his vehicle being repossessed. ECF No. 1 at 5. Plaintiff alleges he contacted Defendant Truist when his car was repossessed to find out whether it was Defendant Truist who hired the repossession company. ECF No. 1 at 5. Within his Complaint, Plaintiff denies the “miscalculation” made by Truist that he has failed to pay as contemplated under the Agreement since December 2021. ECF No. 1 at 6. Plaintiff alleges Defendant Truist's “faulty banking practices” caused the unlawful repossession of his vehicle. ECF No. 1 at 6.
Defendant Truist argues that the five counts of relief asserted by Plaintiff against it: (1) Unfair and Deceptive Practices; (2) Unlawful Debt Collection under South Carolina laws; (3) Conversion; (4) Breach of Contract; and (5) violation of Federal Due Process claims should all be dismissed. Defendant Truist further considers any other potential arguments made in Plaintiff's Complaint.
1. Unfair Trade Practices Act (Unfair/Deceptive Acts)
Defendant Truist first argues that this court should dismiss any claim brought against it pursuant to the South Carolina Unfair Trade Practices Act (“SCUPTA”). An action for damages may be brought under this Act for “unfair methods of competition and unfair or deceptive acts or practices” in the conduct of trade or commerce. S.C. Code Ann. § 39-5-20. As previously stated, South Carolina courts require a plaintiff bringing a private cause of action under the SCUTPA to allege and prove a defendant's actions adversely affected the public interest. Singleton v. Stokes Motors, Inc. 595 S.E.2d 461, 466, 358 S.C. 369 (2004). Further, “an impact on the public interest may be shown if the acts or practices have the potential for repetition. Id.
In Plaintiff's Complaint, he fails to allege that any action on the part of Defendant Truist impacted the public interest or otherwise allege the actions complained of were capable of repetition. In other words, Plaintiff failed to show how the alleged conduct of Truist has an impact on the public interest. In his Response, Plaintiff states that “only after discovery can Plaintiff demonstrate defendant, Truist, prior acts.” ECF No. 48 at 8. However, while Plaintiff need not flesh out in his Complaint all the ways in which the public may be impacted, Plaintiff's Complaint is void of any reference to the public interest, or that the conduct is capable of repetition. See Williams v. Quest Diagnostics, Inc., 353 F.Supp.3d 432, 450-52 (D.S.C. Oct. 18, 2018). Accordingly, the undersigned recommends dismissing any alleged cause of action pursuant to SCUPTA against Defendant Truist.
2. Unlawful Debt Collection Under South Carolina Law
Defendant Truist next argues that any cause of action brought against it for violation of the South Carolina Consumer Protection Code must also be dismissed for failure to exhaust his administrative remedies. As a prerequisite to bringing a lawsuit for unlawful debt collection practices, South Carolina law requires a person to first file notice of the alleged misconduct with the South Carolina Department of Consumer Affairs. See S.C. Code Ann. § 37-5-108(6) (“[n]o action at law claiming unconscionable debt collection may be commenced in any court until at least thirty days after the facts and circumstances of any claim of unconscionable conduct in collecting a debt arising out of a consumer credit transaction has been filed in writing with the administration of the Department of Consumer Affairs.”). In response, Plaintiff argues that Defendant Truist cannot complain that Plaintiff failed to follow this prerequisite because Defendant Truist already took steps to have Plaintiff's vehicle repossessed, thereby making this notice of filing requirement moot. ECF No. 48 at 8. Plaintiff therefore argues that this prerequisite is not actually mandatory. Plaintiff does not cite to any law to support his contention that he is not required to give this notice. Indeed, the very language of the statute provides that the notice to the administration is related to the “unconscionable conduct in collecting a debt.” See S.C. Code Ann. § 37-5-108(6)(emphasis added). Plaintiff's alleged unconscionable conduct of the debt collection conduct is the unlawful repossession of his vehicle. Upon review of his Complaint, Plaintiff fails to demonstrate that he has administratively exhausted his claim with the administrator or the Department of Consumer Affairs concerning any allegation of unconscionable debt collection activity. Because it appears this is a prerequisite to filing suit, the undersigned recommends dismissing Plaintiff's claim under the South Carolina Consumer Protection Code against Defendant Truist.
In his Response, Plaintiff includes a section wherein he states, for the first time, that he is entitled to recovery under the Uniform Commercial Code (the “UCC”). He states that pursuant to the UCC, a debtor is entitled to reasonable notification of the time and place of the repossession of a vehicle. See ECF No. 48 at 6. There is no reference to the UCC anywhere in Plaintiff's Complaint. Further, this argument appears to be related to his argument concerning the alleged breach of contract by Defendant Truist. Accordingly, the undersigned recommends finding Plaintiff did not plead any cause of action pursuant to the UCC, and therefore, any alleged claims pursuant to UCC should be dismissed. However, the undersigned has considered Plaintiff's argument regarding lack of notice when discussing Plaintiff's breach of contract claim against Defendant Truist.
3. Fair Debt Collection Practices Act
Defendant Truist next argues that any claim under the Fair Debt Collection Practices Act (“FDCPA”) should be dismissed because Defendant Truist is not a “debt collector” as defined under the FDCPA. Plaintiff does not file any response to this argument. To state a claim for relief under the FDCPA, a plaintiff must allege that: (1) he or she was the object of collection activity arising from a consumer debt as defined in the FDCPA; (2) defendant(s) are the debt collectors, as defined in the FDCPA; and (3) the defendants are engaged in an act or omission prohibited by the FDCPA. See Boosahda v. Providence Dane LLC, 462 Fed.Appx. 331, 333 n.3 (4th Cir. 2012) (citing Ruggia v. Wash. Mut., 719 F.Supp.2d 642, 647 (E.D. Va. 2010)). A “debt collector” as defined under the FDCPA is any person “who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). Plaintiff makes a reference to the FDCPA in his Complaint, but he does not otherwise set forth these allegations specifically. Aside from that fact, as pointed out by Defendant Truist, creditors collecting their own debts are not considered “debt collectors” for the purposes of the FDCPA. Patrick v. PHH Mortg. Corp, 937 F.Supp.2d 773, 789-90 (N.D. W.Va. 2013) (explaining that district courts have found that the FDCPA excludes creditors collecting their own consumer debts, and mortgage loan beneficiaries and servicing companies are not “debt collectors” under the FDCPA; see also Stoudemire v. Ray, No. 3:09-2485-CMC-JRM, 2012 WL 762037, at *3 (D.S.C. Feb. 9, 2012), report and recommendation adopted, No. 3:09-2485-CMC, 2012 WL 762021 (D.S.C. Mar. 8, 2012).
In reviewing Plaintiff's Complaint, he alleges that the vehicle was subject to a consumer retail installment sales contract in favor of Defendant Truist, as the assignee of Defendant Baker Buick “starting on the day of the purchase.” ECF No. 1 at 3. Thus, Defendant Truist is the creditor under this set of facts. Accordingly, upon review of the pleadings and applicable case law, the undersigned recommends dismissing any claim brought pursuant to the FDCPA against Defendant Truist.
4. Breach of Contract Claim
Defendant Truist argues that Plaintiff has failed to adequately plead a claim for breach of contract in his lawsuit. In order to establish a breach of contract under South Carolina law, one must show: (1) a binding contract entered into by the parties; (2) a breach or unjustifiable failure to perform; and (3) damages as a direct and proximate result of the breach. King v. Carolina First Bank, 26 F.Supp.3d 510, 517 (D.S.C. June 6, 2014). Defendant Truist argues that because Plaintiff “concedes” within his Complaint that he failed to make all payments required under the Agreement, his breach of contract claim must fail. ECF No. 35 at 7. In his Response, Plaintiff argues that he brought this breach of contract claim against Defendant Truist for failure to give notice “as required by South Carolina laws and required by the installment sales agreement” which is a breach of the Agreement, and that damages flowed from said breach. ECF No. 48 at 9. Plaintiff refutes that he made any such concession as to failing to make payments in his Complaint. See ECF No. 48 at 3, fn. 3. In its Reply, Defendant Truist argues that Plaintiff attempts to “rewrite the allegations” of his Complaint, which Defendant alleges is improper. ECF No. 56 at 4. In liberally construing Plaintiff's Complaint, the undersigned agrees that Plaintiff indicates he was “aware of one late payment,” but he does not concede he failed to make all payments. Elsewhere in his Complaint, Plaintiff alleges he was unaware of any deficiencies or default of the payments” and that he “continued to pay the agreed amount, monthly” to Defendant Truist. ECF No. 1 at 4-5. Liberally construing Plaintiff's Complaint, the undersigned finds that Plaintiff has alleged a binding agreement with Defendant Truist (indeed it is attached to Defendant's Motion). Further, he alleged a breach of that Agreement by violating the notice provisions within said agreement,and he alleges he was damaged as a result of the breach in that his car was repossessed. Accordingly, the undersigned recommends denying Defendant Truist's Motion to Dismiss on this ground.
Within the Agreement, as referenced in the Complaint, there is a provision which provides, “[i]f you default, we may take (repossess) the vehicle from you after we give you any notice the law requires.” See Agreement, Section 3(d), ECF No. 47-1 at 4.
5. Conversion
Defendant Truist argues Plaintiff has failed to adequately plead a cause of action for conversion in this case. Conversion under South Carolina law is defined as the “unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of the condition or the exclusion of the owner's rights.” King v. Carolina First Bank, 26 F.Supp.3d 510, 518 (D.S.C. 2014). Defendant Truist argues that because Plaintiff concedes he defaulted under the Agreement, the vehicle was properly repossessed. South Carolina law allows a secured party to take possession of collateral securing a loan after default on the part of the borrower; and further, to allow the secured party to do so without judicial process so long as there is no breach of the peace. Mitchell v. Cannon, No. 2:07-CV-3259-PMD-BM, 2009 WL 824202, at *19 (D.S.C. Mar. 26, 2009), aff'd, 367 Fed.Appx. 390 (4th Cir. 2010) (citing S.C. Code Ann. §§ 36-9-603(a)). However, a review of Plaintiff's Complaint reveals that it is his allegation that he did not default on the loan. Indeed, Plaintiff's Complaint alleges that he was never provided any notice that he was in default, and that he had made the required payments on the vehicle. ECF No. 1 at 5, 8. While it is true that Plaintiff indicates he “was aware of one late payment,” he does not “concede” he was in default under the Agreement. As well, Plaintiff alleges he was unaware of any deficiencies or defaults of payment at the time the vehicle was repossessed. ECF No. 1 at 5. Therefore, in liberally construing the Complaint, the undersigned recommends finding that Plaintiff has plausibly stated a claim for relief on the ground of conversion against Defendant Truist.
6. Due Process Violations
Defendant Truist argues that that any alleged due process violations fail as a matter of law as it is not a state actor. See Doe v. Rosa, 795 F.3d 429, 436-37 (4th Cir. 2015) (explaining that section 1983 imposes liability on state actors who cause the deprivation of rights secured by the Constitution, including the Fourteenth Amendment). In his Response to Defendant Baker Buick's Motion to Dismiss, Plaintiff agrees that none of the Defendants are state actors and agrees to dismiss any due process claims against them. Accordingly, the undersigned recommends dismissing any claims alleging due process violations against all Defendants.
7. Dodd-Frank Act
Defendant Truist argues that any cause of action against it in violation of the Dodd-Frank Act should be dismissed. As previously discussed, The Dodd-Frank Act is a federal statute intended to root out corporate fraud. Digital Realty Trust, Inc. v. Somers, 138 S.Ct. 767, 772 (2018). Defendant Truist argues that the Dodd-Frank Act does not create a private right of action for borrowers to bring these types of claims. Plaintiff does not provide any argument in response to this argument. Other courts have held that there is no private right of action for borrowers to bring claims for unfair, deceptive, or abusive acts or practices under this Act. Morgan v. Bayview Loan Servicing, LLC, No. 3:20-cv-304, 2020 WL 6626120, at *2 n.3 (E.D. Va. Nov. 13, 2020). Further, Plaintiff's sole reference to this Act is in his prayer for relief, in which he states the court should find that all Defendants violated certain sections of the Dodd-Frank Act and its prohibition against unfair and deceptive, or abusive acts in the repossession of his vehicle, the interference with Plaintiff's ability to understand the terms and conditions, and for taking unreasonable advantage of unspecified market imbalances. ECF No. 1 at 9. Even liberally construing Plaintiff's Complaint and in considering the holdings of other courts, the undersigned recommends dismissing any claims against Defendant Truist pursuant to the Dodd-Frank Act.
8. Revocation of Acceptance
Defendant Truist argues that Plaintiff does not allege in his Complaint that he attempted to revoke the Agreement. Specifically, Defendant Truist argues that Plaintiff admits he purchased the vehicle, but he does not otherwise allege he revoked acceptance before filing this lawsuit. ECF No. 35 at 10. Additionally, Defendant Truist points out that within his Complaint, it is clear from the allegations that he continued to use the vehicle for over a year before the repossession of the vehicle, ECF No. 35 at 10, thus further undermining his revocation of acceptance argument. In his Response, Plaintiff argues that he called Defendant Baker Buick on December 22, 2020 and said he wanted either his transmission repaired or he wanted to rescind the Agreement and return the vehicle. ECF No. 48 at 11. However, Plaintiff does not allege this in his Complaint. In fact, while Plaintiff alleges that the dealership “denied knowing that the transmission on the vehicle . . . needed replacement,” he does not allege he asked to return the vehicle. Instead, he alleges he replaced the transmission and personally paid for the replacement. ECF No. 1 at 4. It is only in his prayer for relief where he requests the court allow him to revoke or void the Agreement. ECF No. 1 at 8. Revocation of acceptance requires return of goods and the cancellation of the terms of the contract. White v. Holiday Kamper & Boats, No. 7:06-02362-HFF, 2008 WL 4155663, at *3 (D.S.C. Sept. 9, 2008) (citing Herring v. Home Depot, Inc., 565 S.E.2d 773, 776, 350 S.C. 373 (S.C. Ct. App. 2002)). Here, Plaintiff does not allege any set of facts in his Complaint to allege he attempted to return the vehicle. Accordingly, to the extent Plaintiff seeks to assert revocation of the Agreement, the undersigned recommends finding he failed to adequately plead this cause of action.
c. Defendant Snatch Master's Motion to Dismiss
Defendant Snatch Masters argues that Plaintiff fails to state a claim for relief in his Complaint against it based on any of Plaintiff's alleged causes of action. In Plaintiff's Complaint, he asserts that on or about April 4, 2022, Defendant Snatch Masters “acting on behalf of Truist,” took possession of Plaintiff's vehicle and towed it from where Plaintiff parked it at a temporary address. ECF No. 1 at 5. Plaintiff also alleges Defendant Snatch Masters failed to properly notify the Atlanta Police that it planned to repossess the vehicle. ECF No. 1. at 5. Finally, Plaintiff alleges that Defendant Snatch Masters refused to return the vehicle to Plaintiff when he demanded its return. ECF No. 1 at 6. Plaintiff alleges he is being compelled to “consent to the repossession” and “turn over the keys” to the vehicle to Defendant Snatch Masters.
Defendant Snatch Masters argues that the five counts of relief asserted by Plaintiff against it: (1) Unfair and Deceptive Practices; (2) Unlawful Debt Collection under South Carolina laws; (3) Conversion; (4) Breach of Contract; and (5) violation of Federal Due Process claims should all be dismissed.
1. South Carolina Unfair Trade Practices Act
Defendant Snatch Masters argues that, assuming Plaintiff attempts to bring any claim pursuant to the South Carolina Unfair Trade Practices Act (“SCUPTA”) against it, such cause of action should be dismissed. Defendant Snatch Masters reads the Complaint to allege that its failure to provide notice to the Atlanta Police Department prior to repossessing the vehicle violated this Act. However, as pointed out by Defendant Snatch Masters, Plaintiff does not provide any law requiring a repossession company to notify a police department prior to repossessing a vehicle. An action for damages may be brought under this Act for “unfair methods of competition and unfair or deceptive acts or practices” in the conduct of trade or commerce. S.C. Code Ann. § 39-5-20. South Carolina courts require a plaintiff bringing a private cause of action under the SCUTPA to allege and prove a defendant's actions adversely affected the public interest. Singleton v. Stokes Motors, Inc. 595 S.E.2d 461, 466, 358 S.C. 369 (2004). Further, “an impact on the public interest may be shown if the acts or practices have the potential for repetition.” Id.
Plaintiff asserts that Defendant Snatch Masters was engaged in “unfair and deceptive practices, as relates to their use and terms of the agreement.” ECF No. 1 at 7. Plaintiff does not identify what conduct he is referring to or what agreement he is referencing to as to Defendant Snatch Masters.
In Plaintiff's Complaint, he fails to allege that any action on the part of Defendant Snatch Masters impacted the public interest or otherwise allege the actions complained of were capable of repetition. Nor does Plaintiff identify what were the potentially “unfair deceptive acts or practices” on the part of Defendant Snatch Masters. In his Response, Plaintiff asserts that Defendant Snatch Masters “ignored the laws of Georgia and South Carolina, leading to liability by negligence and the use of unfair and deceptive practices,” ECF No. 48 at 12, but again, Plaintiff does not specify what laws were ignored. In his Complaint, Plaintiff alleges Defendant Snatch Masters was required to give the Atlanta Police Department notice, as if to suggest that by failing to do so, Defendant Snatch Masters was being deceptive. However, Plaintiff does not provide any support for his contention that this is the law in Georgia. Instead, for the first time in his response, Plaintiff argues that Defendant Snatch Masters violated the Georgia Unfair Trade Practices Act, O.C.G.A. § 10-1-372(1)-(12). Plaintiff argues that Defendant Snatch Masters refused to allow Plaintiff access to retrieve his personal property and instructed Plaintiff to “bring the keys” to the vehicle and pay a fee in order to access the vehicle. ECF No. 48 at 14. Plaintiff argues this is in violation of the “sales agreement clause.” ECF No. 48 at 14.Finally, he argues that without Plaintiff's consent, Defendant Snatch Masters deprived him of his property and acted with “malice, recklessness and total and deliberate disregard for the contractual and personal rights of Plaintiff.” ECF No. 48 at 14.
Section(d) of the Agreement provides: “[i]f you default, we may take (repossess) the vehicle from you after we give you any notice the law requires. We may only take the vehicle if we do so peacefully without entering into a dwelling used as a current residence...If we take the vehicle, any accessories, equipment, and replacement parts will stay with the vehicle. If any personal items are in the vehicle, we may store them for you. If you do not ask for these items back, we may dispose of them as the law allows.” ECF No. 47-1 at 4.
First, Plaintiff's does not allege in his Complaint that Defendant Snatch Masters violated O.C.G.A. § 10-1-372(1)-(12). Second, in reviewing the deceptive trade practices outlined in this code section, Plaintiff does not allege any of this conduct on the part of Snatch Masters. Instead, Plaintiff summarily states in his Response that “a business in Georgia can be found to have violated the Georgia Unfair Trade Practices Act if that business does not meet the formalities required to operate in that jurisdiction and violates any of the provisions” of that code section. Plaintiff's contention that Defendant Snatch Masters required him to bring the keys to his vehicle and pay a fee to access his personal property does not encompass any actionable conduct under this statute. Moreover, while Plaintiff makes a passing reference to a “sales agreement clause” he never alleges, nor do the facts suggest, he is in any sort of contractual agreement with Defendant Snatch Masters. Instead, Snatch Masters was working for Defendant Truist in an attempt to collect a debt allegedly owed to Defendant Truist. The undersigned therefore recommends dismissing any claim under the South Carolina Unfair Trade Practice Act or any claim made in the Complaint related to a deceptive trade practice against Defendant Snatch Masters.
2. Unlawful Debt Collection under South Carolina law
Defendant Snatch Masters argues that, liberally construed, Plaintiff appears to assert a claim against it for violating the South Carolina Consumer Protection Codefor unlawful debt collection. First, Defendant Snatch Masters argues that as a prerequisite to bringing a lawsuit for unlawful debt collection practices, South Carolina law requires a person to first file notice of the alleged misconduct with the South Carolina Department of Consumer Affairs. See S.C. Code Ann. § 37-5-108(6) (“[n]o action at law claiming unconscionable debt collection may be commenced in any court until at least thirty days act the facts and circumstances of any claim of unconscionable conduct in collecting a debt arising out of a consumer credit transaction has been filed in writing with the administration of the Department of Consumer Affairs.”). Plaintiff does not respond to this argument in his response to Defendant Snatch Masters. Upon review of his Complaint, Plaintiff fails to demonstrate that he has administratively exhausted his claim with the administrator or the Department of Consumer Affairs concerning any allegation of unconscionable debt collection activity. Because it appears this is a prerequisite to filing suit, Plaintiff's claim under the South Carolina Consumer Protection Code should be dismissed.
It appears Plaintiff argues violations of “unlawful debt collection practices under South Carolina law” but doesn't otherwise cite to a specific statute or code section within the law. ECF No. 1 at 7.
Further, to the extent Plaintiff seeks to bring a claim pursuant to the Fair Debt Collection Practices Act (the “FDCPA”) against Defendant Snatch Masters, Defendant argues this claim must also fail. Plaintiff does not respond to this argument. Defendant Snatch Masters argues that Plaintiff admits in his Complaint that he signed the Agreement, and further, within his Complaint, quotes the provisions within the Agreement that provide for potential repossession of the vehicle if Plaintiff does not make payments. In his Complaint, Plaintiff cites to the provision in the Agreement that states, “[w]e may take the vehicle. If you default, we may take (repossess), the vehicle from you after we give you any notice the law requires . . .” ECF No. 1 at 4. Defendant Snatch Masters argues that while some courts have held that repossession agencies may be subject to the FDCPA, it is only under Section 1692(f)(6) and not the remaining provisions of the statute. Rivera v. Dealer Funding, LLC, 178 F.Supp.3d 272, 277-78 (E.D. Pa. 2016). Under 15 U.S.C. § 1692(f)(6), taking or threatening to take any nonjudicial action in dispossessing property violates the law if there is “no present right to possession of the property claimed as collateral through an enforceable security interest.” Defendant Snatch Masters asserts that because Plaintiff admits he “failed to timely make payments” pursuant to the Agreement, and Snatch Masters' repossession was based on the agreement, Plaintiff's FDCPA claim against it must fail.
In reviewing Plaintiff's Complaint, he alleges that he never received any information “of any kind or any other correspondence” from Defendant Truist about late payment, no payments, or violation of the agreement.” ECF No. 1 at 5. He further alleges that he had been making payments and “was aware of one late payment” prior to the repossession of his vehicle. ECF No. 1 at 5.Plaintiff also alleges that the vehicle was “illegally repossessed” and that “he was unaware of any deficiencies or default of the payments” when he discovered that the vehicle was gone on April 4, 2022. ECF No. 1 at 5. Finally, it appears from the Complaint that Plaintiff is alleging that he never received any notice that he was in default or that he had any late or missed payments. ECF No. 1 at 6. However, these allegations are against Defendant Truist, as Defendant Snatch Masters would not have been aware, nor was it alleged by Plaintiff in his Complaint, that Snatch Masters knew of any alleged failure to provide notice to Plaintiff on the part of Defendant Truist. Thus, it appears to the court, that Plaintiff is alleging that Defendant Snatch Masters did not have the right to repossess his vehicle. Even liberally construing the Complaint at this stage in the litigation, the undersigned recommends finding that Plaintiff has failed to adequately plead a cause of action under the FDCPA against Defendant Snatch Masters.
Though not directly responsive to Defendant Snatch Master's Motion, Plaintiff states elsewhere in his Response that he made all payments up and until the repossession. ECF No. 1. at 2.
3. Conversion
Defendant Snatch Masters argues that Plaintiff has failed to establish a conversion claim against it in this case. Plaintiff does not respond to this argument in his brief. Conversion under South Carolina law is defined as the “unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of the condition or the exclusion of the owner's rights.” King v. Carolina First Bank, 26 F.Supp.3d 510, 518 (D.S.C. 2014). Defendant Snatch Masters argues that because Plaintiff concedes he defaulted under the Agreement, the vehicle was properly repossessed. South Carolina law allows a secured party to take possession of collateral securing a loan after default on the part of the borrower; and further, to allow the secured party to do so without judicial process so long as there is no breach of the peace. Mitchell v. Cannon, No. 2:07-CV-3259-PMD-BM, 2009 WL 824202, at *19 (D.S.C. Mar. 26, 2009), aff'd, 367 Fed.Appx. 390 (4th Cir. 2010) (citing S.C. Code Ann. §§ 36-9-603(a)). However, a review of Plaintiff's Complaint reveals that it is his allegation that he did not default on the loan. Indeed, Plaintiff's Complaint alleges that he was never provided any notice that he was in default and that he had made the payments on the vehicle. ECF No. 1 at 5, 8. While it is true that Plaintiff contends he “was aware of one late payment,” he does not “concede” he was in default under the Agreement. Instead, Plaintiff contends Defendant Snatch Masters “illegally converted” his property and denied him his personal property. ECF No. 1 at 7. As well, Plaintiff alleges he was unaware of any deficiencies or defaults of payment at the time the vehicle was repossessed. ECF No. 1 at 5. Therefore, in liberally construing the Complaint, the undersigned recommends finding that Plaintiff's has plausibly stated a claim for relief on the ground of conversion against this Defendant.
4. Breach of Contract
Defendant Snatch Matchers argues that to the extent Plaintiff asserts a breach of contract against it, the claim must be dismissed as a matter of law. Defendant argues that Plaintiff has not alleged that he had a contract with Defendant Snatch Masters, and as such, the lack of a contractual relationship is fatal to any breach of contract claim against Defendant Snatch Masters. Plaintiff does not respond to this argument. In order to establish a breach of contract under South Carolina law, one must show: (1) a binding contract entered into by the parties; (2) a breach or unjustifiable failure to perform; and (3) damages as a direct and proximate result of the breach. King v. Carolina First Bank, 26 F.Supp.3d 510, 517 (D.S.C. June 6, 2014). The undersigned agrees that Plaintiff does not allege any sort of contractual relationship with Defendant Snatch Masters, and accordingly, recommends dismissing any alleged breach of contract claim against this Defendant.
5. Due Process Violations
Defendant Snatch Masters argues that that any alleged due process violations fail as a matter of law as it is not a state actor. See Doe v. Rosa, 795 F.3d 429, 436-37 (4th Cir. 2015) (explaining that section 1983 imposes liability on state actors who cause the deprivation of rights secured by the Constitution, including the Fourteenth Amendment). As previously mentioned, Plaintiff agrees that none of the Defendants are state actors and agrees to dismiss any due process claims against them. Accordingly, the undersigned recommends dismissing any claims alleging due process violations against all Defendants.
IV. Recommendation
The undersigned has carefully considered the arguments made by all parties in this case. After considering these arguments, it is recommended that Defendant Baker Buick's Motion to Dismiss, ECF No. 30, be granted as to the claims brought against this Defendant by Plaintiff.
It is further recommended that Defendant Truist's Motion to Dismiss, ECF No. 35, be granted in part in denied in part. The undersigned recommends dismissing all of Plaintiff's claims, with the exception of Plaintiff's breach of contract claim and conversion claim against Defendant Truist.
It is further recommended that Defendant Snatch Master's Motion to Dismiss, ECF No. 40, be granted in part and denied in part. The undersigned recommends dismissing all of Plaintiff's claims, with the exception of Plaintiff's conversion claim against Defendant Snatch Masters. If the district judge agrees with this recommendation, the undersigned recommends the court decline to exercise supplemental jurisdiction over the remaining state law claims for relief and remand this action to state court. See 28 U.S.C. § 1367(c)(3).
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. [I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).