Opinion
4:23-cv-284-DPM
04-05-2024
DALE ELLINGTON PLAINTIFF v. WESTLAKE FINANCIAL SERVICES and POSH AUTOMOTIVE LLC DEFENDANTS
ORDER
D .P. Marshall Jr. United States District Judge
The Court dismissed some of Ellington's claims and allowed him to amend others. Doc. 21. Westlake and Posh Automotive now move to dismiss his second amended complaint.
Westlake says that Ellington's Fair Debt Collection Practices Act claim should be dismissed because Ellington didn't allege that the loan was in default when Westlake acquired the debt. 15 U.S.C. § 1692a(6)(F). But Ellington alleged that, at that point, he was refusing to make payments on the loan. Taken as true, that fact creates a reasonable inference at this early stage of the case that the loan was in default. Ellington has stated a plausible FDCPA claim.
The Court ruled before that Ellington's ADTPA claim was preempted and that any attempt to amend it would be futile. Doc. 21 at 2. Nothing has changed.
Posh's Automotive seeks dismissal of all Ellington's claims against it. Doc. 38 at 3. But it makes no argument about why his conversion claim should be dismissed. And the Court held that Ellington's proposed second amended complaint provided more factual context for this claim. Ellington's conversion claim stands.
Posh Automotive argues that Ellington's rescission claim fails because the parties cannot be restored to the positions they were in before the sale of the car. But absolute and literal restoration is not required. Stanford v. Smith, 163 Ark. 583, 260 S.W. 435, 437 (1924). Although the facts on this claim are thin, they can be fleshed out as the case progresses. But to the extent Ellington seeks rescission from Westlake, his claim is not plausibly alleged.
Motions to dismiss, Doc. 26 & 38, partly granted and partly denied. Ellington's ADTPA claim and his rescission claim against Westlake are dismissed. His FDCPA claim against Westlake proceeds, as do his conversion and rescission claims against Posh Automotive.
SO ORDERED.