Opinion
C/A 6:23-cv-05842-JD-KFM
02-14-2024
Kijanai Thomas; Plaintiff; v. Credit Acceptance Corp.; Autorama, Inc.; Carolina Pro Recovery, LLC; Dezba Asset Recovery, Inc.; J. M. Tankersley; E. R. Long; J. S. Blevins; Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
This is a civil action filed by a non-prisoner. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court. The plaintiff's complaint was entered on the docket on November 15, 2023 (doc. 1). By orders filed December 6, 2023, and January 19, 2024, the plaintiff was given a specific time frame in which to bring her case into proper form for judicial screening (docs. 7; 12). The plaintiff complied with the court's orders, bringing her case into proper form. However, for the reasons that follow, it is recommended that this matter be summarily dismissed.
ALLEGATIONS
The plaintiff, proceeding pro se, filed this action seeking damages from the defendants (doc. 1). The plaintiff alleges fraud, breach of contract, identity theft, grand larceny, negligence, defamation, discrimination, law enforcement misconduct, and assault and battery, and violations of the Truth in Lending Act (“TILA”), Fair Credit Reporting Act (“FCRA”), and the Fair Debt Collection Practices Act (“FDCPA”) (id. at 3, 6). She contends that she was discriminated against based on her race, age, and gender by all of the defendants (id. at 7). The plaintiff contends that she went to buy a car from Autorama and Credit Acceptance and that the price of the car was raised from $15,490 to $19,900 before unspecified other finance charges were added (id. at 3-4, 6). She contends that she was not provided a notice of right to rescind and was induced into buying the car (id. at 4, 6). The plaintiff further contends that she rescinded the contract with Autorama and Credit Acceptance in April 2023 because of the fraud that occurred in 2019 and a breach of contract that occurred in March 2023 (id.).
The plaintiff contends that the vehicle was then illegally repossessed by Credit Acceptance and Dezba because she rescinded the contract (id. at 4, 5-7). The repossession was also grand larceny by Credit Acceptance and Carolina Pro Recovery (id.). She further contends identity theft because her identity was shared with Carolina Pro Recovery and Dezba for purposes of the repossession (id.). The plaintiff further alleges defamation because Credit Acceptance reported her account as in default to the credit reporting agency (id. at 7). The plaintiff also alleges that Officers Tankersley, Long, and Blevins violated her rights by allowing the illegal repossession and threatening to arrest her when she tried to prevent the illegal repossession (id. at 8). For relief, the plaintiff seeks to have negative information removed from her credit report, and money damages (id. at 8-9).
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
As noted above, the plaintiff filed the instant action seeking damages and injunctive relief from the defendants for events surrounding the purchase and repossession of a vehicle. “The Federal Rules of Civil Procedure recognize that courts must have the authority to control litigation before them.” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (citing Fed.R.Civ.P. 41(b)). Federal courts are courts of limited jurisdiction, “constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Since federal courts have limited subject matter jurisdiction, there is no presumption that the court has jurisdiction. Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999) (citing Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 337 (1895)). Accordingly, a federal court is required, sua sponte, to determine if a valid basis for its jurisdiction exists, “and to dismiss the action if no such ground appears.” Bulldog Trucking, 147 F.3d at 352; see also Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
There are two types of federal jurisdiction: federal question jurisdiction and diversity jurisdiction. Federal question jurisdiction arises when the case arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. Diversity jurisdiction, on the other hand, is conferred upon the Court when a suit is between citizens of different states and the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332(a). Here, the plaintiff alleges federal question jurisdiction (and supplemental jurisdiction over her state law claims) (doc. 1 at 2). However, as set forth in more detail below, the plaintiff's complaint is subject to summary dismissal.
Because the plaintiff shares citizenship (South Carolina) with at least one defendant, diversity jurisdiction does not exist in this case (see doc. 1 at 2-3).
Truth in Lending Act Claims
TILA was enacted to “‘assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to [her] and avoid the uninformed use of credit.'” Mourning v. Fam. Publ'ns Serv., Inc., 411 U.S. 356, 364-65 (1973) (quoting 15 U.S.C. § 1601(a)). The statute “requires creditors to provide borrowers with clear and accurate disclosures of terms,” and imposes criminal penalties and civil liability on creditors who fail to do so. Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412 (1998) (internal citation omitted). The plaintiff's complaint appears to seek damages based on TILA because at least one of the defendants failed to provide her with notice of her right to rescind and did not disclose unspecified finance charges when she purchased the vehicle in question in 2019 (doc. 1 at 2-4). However, the plaintiff's TILA claim is barred by the applicable statute of limitations because TILA requires that any TILA claim be brought “within one year from the date of the occurrence of the [TILA] violation.” 15 U.S.C. § 1640(e). Here, the purported TILA violation at issue - the failure to provide certain disclosures - occurred on the purchase date of March 20, 2019 (doc. 1 at 2). Thus, because the plaintiff filed her TILA claim on November 15, 2023, more than four years after that date, she did not comply with TILA's one-year statute of limitations. As such, the plaintiff's TILA claims appear untimely and the plaintiff has provided no basis for tolling the statute of limitations with respect to her TILA claim.
Nevertheless, assuming, arguendo, that the plaintiff's rescission claim under TILA were timely, the plaintiff's TILA claims still fail. The plaintiff is correct that TILA provides a right to rescission, however, her claim fails because the right to rescind applies only to credit transactions where the security interest is the individual's principal dwelling. 15 U.S.C. § 1635(a). Here, the plaintiff's TILA claims involve the purchase of a vehicle (doc. 1 at 2-3), not her principal dwelling. As such, this TILA provision does not apply and the plaintiff's claim is subject to dismissal. Even liberally construing the plaintiff's complaint as asserting a timely TILA violation for illegal finance charges, this claim is subject to summary dismissal as well. Among other required material disclosures, TILA and Regulation Z require lenders to disclose the finance charge, the amount financed, and the annual percentage rate. See 15 U.S.C. § 1638(a); 12 C.F.R. § 226.18. The “finance charge” refers to the “sum of all charges, payable directly or indirectly by the person to whom the credit is extended, and imposed directly or indirectly by the creditor as an incident to the extension of credit.” 15 U.S.C. § 1605(a); see 12 C.F.R. § 226.4(a). “TILA is only a disclosure statute and does not substantively regulate consumer credit but rather requires disclosure of certain terms and conditions of credit before consummation of a consumer credit transaction.” Willis v. Bank of Am. Corp., et al., C/A No. ELH-13-02615, 2014 WL 3829520, at *17 (D. Md. Aug. 1,2014) (quoting Hauk v. J.P. Morgan Chase Bank USA, 552 F.3d 1114, 1120 (9th Cir.2009) (internal quotation marks omitted)); see Coulibaly v. J.P. Morgan Chase Bank, N.A., et al., C/A No. DKC 10-3517, 2011 WL 3476994, at *10 (D. Md. Aug. 8, 2011), aff'd 526 Fed.Appx. 255 (4th Cir. 2013) (“TILA does not prevent a lender from charging a higher rate of interest; it simply requires lenders to disclose accurately the actual rate of interest charged.”). With respect to this TILA claim, the plaintiff's complaint is contradictory - alleging both that she was taken advantage of by the defendants and the price on the vehicle in question was increased, but also vaguely and conclusorily asserting that the defendants did not include all finance charges on the vehicle purchase paperwork (doc. 1 at 3-4). These contradictory and conclusory allegations fail to rise to the level of a plausible TILA claim. See Griffith v. State Farm Fire and Cas. Co., C/A No. 2:12-cv-00239-DCN, 2012 WL 2048200, at *1 (D.S.C. June 6, 2012) (finding that the plausibility standard requires more than “‘an unadorned, the-defendant-unlawfully-harmed-me accusation.'” (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))). Thus, the plaintiff's TILA claims fail, even if considered timely.
Fair Debt Collection Practices Act Claim
The plaintiff asserts in passing that the defendants violated her rights pursuant to the FDCPA (see doc. 1). To state a claim under the FDCPA, a plaintiff must plausibly allege that (1) she was the object of collection activity arising from consumer debt as defined in the FDCPA; (2) the defendant is a debt collector as defined in the FDCPA; and (3) the defendant engaged in an act or omission prohibited by the FDCPA. See e.g., Boosahda v. Providence Dane LLC, 462 Fed.Appx. 331, 333 n.3 (4th Cir. 2012) (per curiam unpublished decision); Johnson v. BAC Home Loans Servicing, LP, 867 F.Supp.2d 766, 776 (E.D. N.C. 2011). Here, the plaintiff's claim fails because she has failed to make any allegations in support of her FDCPA claim. Further, the defendants in this action are not debt collectors under the FDCPA, as they include the original lienholder and companies hired by the lienholder to repossess the vehicle. See 15 U.S.C. § 1692a(6) (defining debt collector as any person “who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another”); see also Barber v. Rushmore Loan Mgmt. Servs., LLC, C/A No. 3:17-cv-00982-TLW-SVH, 2018 WL 4957409, at *4 (D.S.C. Feb. 21, 2018) (noting that “creditors collecting their own debts are not ‘debt collectors' for purposes of the FDCPA and are exempt from the FDCPA's provisions” (internal quotation marks and citations omitted)), Report and Recommendation adopted by 2018 WL 4489290 (D.S.C. Sept. 19, 2018), aff'd 769 Fed.Appx. 106 (4th Cir. 2019). As such, the plaintiff's FDCPA claim is also subject to summary dismissal.
Fair Credit Reporting Act Claim
The plaintiff also seeks damages from the defendants based upon alleged false information reported on her credit report (doc. 1 at 7). The FCRA governs consumer credit reporting practices. 15 U.S.C. § 1601, et seq.. The FCRA delineates requirements for three types of actors, including “(1) consumer reporting agencies, (2) users of consumer reports, and (3) the furnishers of information to consumer reporting agencies.” See Martin v. Sallie Mae, Inc., et al., C/A No. 5:07-cv-00123, 2007 WL 4305607, at *9 (S.D. W.Va. Dec. 7, 2007) (citing Gibbs v. SLM Corp., 336 F.Supp.2d 1, 11 (D. Mass. 2004)). These requirements are either enforced by appropriate government officials or private entities. See 15 U.S.C. § 1681s-2. For example, § 1681s-2(a), which requires that furnishers of credit information provide consumer reporting agencies with accurate information, may only be enforced by government officials. See 15 U.S.C. § 1681s-2(d) (emphasis added). The plaintiff's claim in this action is that the defendant furnished false information to the credit bureaus; thus, her claim falls within this category (see doc. 1 at 7). However, because only the government can enforce FCRA claims under 15 U.S.C. § 1681s-2(d), the plaintiff's FCRA claim is subject to dismissal. See 15 U.S.C. § 1681s-2(d).
The plaintiff purports to reference 15 U.S.C. § 1692(f); however, there is no such titled subsection in 15 U.S.C. § 1692.
Federal Statutes
The plaintiff's complaint references a litany of federal statutes under which she seeks damages: 10 U.S.C. § 921 (grand larceny in the Uniform Code of Military Justice), 18 U.S.C. § 2312 (federal criminal statute regarding transportation of stolen vehicles), 18 U.S.C. § 1028 (federal criminal statute regarding fraud and identity theft), 15 U.S.C. § 6802 (commerce and trade statute regarding disclosures of personal information by financial institutions), 15 U.S.C. § 6803(a)(1) (commerce and trade statute regarding disclosure of institution privacy policy), 15 U.S.C. § 16922 (commerce and trade statute setting out the congressional findings and purposes of the FDCPA), 18 U.S.C. § 242 (federal criminal statute regarding deprivation of rights under color of law) (see generally doc. 1). The plaintiff, as a private citizen, may not enforce federal criminal law. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). Further, the Supreme Court has made clear that “the fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person.” Cannon v. Univ. of Chi., 441 U.S. 677, 688 (1979). Federal rights of action, like substantive federal law, “must be created by Congress.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (citing Touche Ross & Co. v. Redington, 442 U.S. 560, 578 (1979)). “To create a private right of action, Congress must speak[ ] with a clear voice and the statute must unambiguously express the intent to create not just a private right but also a private remedy.” Clear Sky Car Wash LLC v. City of Chesapeake, 743 F.3d 438, 444 (4th Cir. 2014) (internal citation, quotation marks, and emphasis omitted). Where “Congress is silent or ambiguous, courts may not find a cause of action ‘no matter how desirable that might be as a policy matter.'” Planned Parenthood S. At. v. Baker, 941 F.3d 687, 695 (4th Cir. 2019) (partially quoting Alexander, 532 U.S. at 286-87). This holds true for federal criminal statutes. See Doe v. Broderick, 225 F.3d 440, 448 (4th Cir. 2000); Fed. Sav. & Loan Ins. Co. v. Reeves, 816 F.2d 130, 138 (4th Cir. 1987). The section of Title 10 and sections of Title 18 cited by the plaintiff neither create a private right of action nor unambiguously provide the plaintiff with either a private right or remedy. See Pinckney v. U.S. Gov't, C/A No. 2:19-cv-00939-BHH-BM, 2019 WL 4171117, at *2 (D.S.C. June 20, 2019), Report and Recommendation adopted by 2019 WL 4168753 (D.S.C. Sept. 3, 2019). Moreover, the plaintiff has no standing to pursue this matter criminally because private citizens lack a judicially cognizable interest in the prosecution or nonprosecution of another. Linda R.S., 410 U.S. at 619. Accordingly, because the plaintiff may not assert claims based upon alleged violations of federal criminal statutes, such claims are subject to summary dismissal.
Section 1983 Claim
The plaintiff's claims against defendants Officer Tankersley, Officer Long, and Officer Blevins are brought pursuant to 42 U.S.C. § 1983 because they are state actors. Section 1983 “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Here, the plaintiff claims that these defendants engaged in law enforcement misconduct because they allowed the alleged illegal repossession and threatened to arrest her if she tried to prevent the repossession (doc. 1 at 8). As an initial matter, to the extent the plaintiff's complaint could be construed as asserting a deprivation of personal property because her car was illegally repossessed, her claim fails. An intentional deprivation of property by a governmental employee, even if unauthorized, does not violate an individual's rights so long as a meaningful post-deprivation remedy for the loss is available. Hudson v. Palmer, 468 U.S. 517, 533 (1984); see also Mora v. City of Gaithersburg, Md., 519 F.3d 216, 230-31 (4th Cir. 2008) (concerning the intentional taking of guns and ammunition from individual). South Carolina has such remedial procedures in place; thus, the plaintiff's claim fails. See Hudson, 468 U.S. at 530-36. Additionally, to the extent the plaintiff seeks damages based on threats by these defendants to arrest her if she continued preventing the repossession, her claim fails because “mere threats or verbal abuse, without more, do not state a cognizable claim under § 1983.” Wilson v. McKeller, 254 Fed.Appx. 960, 961 (4th Cir. 2007). Further, to the extent the plaintiff seeks relief under § 1983 for these defendants' alleged negligence, such a claim fails because negligence is not actionable under § 1983. See, e.g., Pink v. Lester, 52 F.3d 73 (4th Cir. 1995) (recognizing that “negligent deprivations of life, liberty, or property are not actionable under 42 U.S.C. § 1983.”). As such, the plaintiff's § 1983 claims against these defendants are also subject to summary dismissal.
Discrimination Claim
The plaintiff's complaint also contains a section entitled “discrimination” asserting that the defendants (at various times during the incidents at question in this action) discriminated against her based on her race, age, and gender (doc. 1 at 7). This claim by the plaintiff is comprised of vague and conclusory allegations without reference to the legal basis for her discrimination claim. See Turner v. Thomas, 930 F.3d 640, 644 (4th Cir. 2019) (noting that in evaluating a complaint's allegations, the court “need not accept legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or arguments” (internal citations and quotation marks omitted)). The vague and conclusory allegations provided as to the alleged discrimination thus fall short of the plausibility pleading standard. See Griffith, 2012 WL 2048200, at *1 (finding that the plausibility standard requires more than “‘an unadorned, the-defendant-unlawfully-harmed-me accusation.'” (quoting Iqbal, 556 U.S. at 678)). As such, the plaintiff's discrimination claim is also subject to summary dismissal.
Frivolousness
The plaintiff's complaint is also subject to summary dismissal as frivolous. See Feurtado v. McNair, C/A No. 3:05-cv-1933-SB, 2006 WL 1663792, at *2 (D.S.C. Jun. 15, 2006) (noting that frivolousness encompasses inarguable legal conclusions and fanciful factual allegations), aff'd, 227 Fed.Appx. 303 (4th Cir. 2007), petition for cert. dismissed, 553 U.S. 1029 (2008). For example, the plaintiff's assertions that she was entitled to rescind the contract to purchase her vehicle after three years and was entitled to retain possession of her vehicle despite ceasing payments on the vehicle loan are clearly legally and factually frivolous. Similarly, the plaintiff's claims that Officer Tankersley, Officer Long, and Officer Blevins violated her rights by allowing the repossession of her vehicle or that the repossession constituted grand larceny are clearly frivolous and lack a basis in the law. As such, the plaintiff's complaint is also subject to summary dismissal as frivolous.
Supplemental Jurisdiction
To the extent the plaintiff seeks damages based on state law causes of action - including fraud, assault and battery, negligence, and breach of contract, to name a few - the court should abstain from exercising jurisdiction over such claims. Such claims can be considered by this court through the exercise of “supplemental jurisdiction,” which allows federal courts to hear and decide state law claims along with federal claims. Wis. Dep't of Corrs. v. Schacht, 524 U.S. 381, 387 (1998); 28 U.S.C. § 1367. However, federal courts are permitted to decline supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3) if “the district court has dismissed all claims over which it has original jurisdiction.” Here, as noted, the plaintiff's complaint fails to state a federal claim for relief, as outlined in more detail above. Thus, this court should decline to exercise supplemental jurisdiction over the plaintiff's state law claims under 28 U.S.C. § 1367(c)(3). See Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999) (“[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among non-diverse litigants.”).
RECOMMENDATION
The undersigned is of the opinion that the plaintiff cannot cure the defects identified above by amending her complaint. Therefore, the undersigned recommends that the district court dismiss this action with prejudice, without leave to amend, and without issuance and service of process. See Britt v. DeJoy, 45 F.4th 790, 791 (4th Cir. 2022) (published) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend . . . the order dismissing the complaint is final and appealable”). It is further recommended that the United States District Judge assigned to this case warn the plaintiff regarding the entry of sanctions in the future should the plaintiff continue to file frivolous litigation in this court. The attention of the parties is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
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
250 East North Street, Room 2300
Greenville, South Carolina 29601
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).