Harris v. Ally Fin., Inc.
| Decision Date | 25 November 2015 |
| Docket Number | Civil No. 2:15-cv-02501-JPM-dkv |
| Court | U.S. District Court — Western District of Tennessee |
| Parties | HEATHER P. HOGROBROOKS HARRIS, Plaintiff, v. ALLY FINANCIAL, INC., Defendant. |
Before the Court is Defendant Ally Financial, Inc.'s ("Defendant") Motion to Dismiss, filed August 4, 2015. (ECF No. 5.) Plaintiff Heather P. Hogrobrooks Harris ("Plaintiff") timely responded in opposition on August 20, 2015. (ECF No. 10.) Defendant filed a Reply on August 28, 2015. (ECF No. 11.) The Court held a telephonic hearing on the Motion to Dismiss on September 1, 2015. (Min. Entry, ECF No. 14.) Plaintiff filed a Supplemental Response to the Motion to Dismiss on September 3, 2015. (ECF No. 17.) On October 23, 2015, Plaintiff filed an Amended Complaint. (ECF No. 19.) Defendant filed a Motion to Strike Amended Complaint on November 4, 2015. (ECF No. 22.) The Court granted Defendant's Motion to Strike on November 25, 2015. (ECF No. 24.)
For the reasons stated below, Defendant's Motion to Dismiss is GRANTED in part and DENIED in part.
Plaintiff Heather P. Hogrobrooks Harris is a citizen of Tennessee. (Compl. ¶ 1, ECF No. 1-1 at PageID 11.) Defendant is a citizen of Michigan. (Id. ¶ 2.) Plaintiff and a co-buyer entered into a lease with Defendant on October 13, 2012, for a 2012 GMC Acadia sport utility vehicle.1 (Id. ¶ 3; ECF No. 5-2.) Plaintiff asserts that she and the co-buyer attempted to extend the lease by paying a $200.00 fee, but the lease was not extended, and Defendant reported Plaintiff and the co-buyer as late on their payment. (Compl. ¶ 5.)
Plaintiff asserts that on November 21, 2014, she mailed a $22,454.10 cashier's check to Defendant, which was deposited on December 1, 2014. (Id. ¶ 9-10.) The amount was not sufficient for purchase of the vehicle. (See ECF No. 1-1 at PageID 23.) On December 11, 2014, Defendant notified Plaintiff by letter that the purchase price was $25,043.36 and that the shortage of $2,589.26 was due by December 20, 2014, to execute the sale of the vehicle. (Id.) Plaintiff alleges that Defendant hasretained the $22,454.10 that was paid, but has not transferred title to the vehicle. (Compl. ¶ 19.)
Plaintiff also alleges that Defendant reported negative information about Plaintiff and/or the co-buyer to credit agencies, which resulted in the co-buyer's inability to secure a loan to support Plaintiff after the co-buyer's death.2 (Id. ¶¶ 13-15.)
Plaintiff initially brought suit in the Circuit Court of Tennessee for the Thirtieth Judicial District against Defendant on May 21, 2015. (Compl., ECF No. 1-1 at PageID 11.) Defendant removed the case to federal district court in the Western District of Tennessee on July 29, 2015. (Notice of Removal, ECF No. 1.)
On August 4, 2015, Defendant filed the instant motion to dismiss. (ECF No. 5.) Plaintiff responded in opposition on August 20, 2015. (ECF No. 10.) Defendant filed a Reply on August 28, 2015. (ECF No. 11.) The Court held a telephonic scheduling conference and hearing on the instant motion on September 1, 2015. (ECF No. 14.) Plaintiff filed a Supplemental Response to the instant motion on September 3, 2015. (ECF No. 17.) Plaintiff filed an Amended Complaint onOctober 23, 2015. (ECF No. 19.) The Court granted Defendant's Motion to Strike the amended complaint (ECF No. 22) on November 25, 2015. (ECF No. 24.)
A court may dismiss a claim for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. . . . A claim is facially plausible when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. . . . [T]he court need not accept as true allegations that are conclusory or require unwarranted inferences based on the alleged facts."
Newberry v. Silverman, 789 F.3d 636, 640 (6th Cir. 2015) (citations and internal quotation marks omitted). A court must "construe[] the complaint in a light most favorable to the plaintiff . . . ." HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 611 (6th Cir. 2012).
When a court is presented with a Rule 12(b)(6) motion, it may consider the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they arereferred to in the Complaint and are central to the claims contained therein.
Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008).
"A document filed pro se is 'to be liberally construed,' and 'a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Plaintiffs who "possess[] a greater propensity and aptitude to comprehend the legal proceedings and applicable laws than a non-attorney pro se litigant would," however, are not granted "the leniency afforded to pro se litigants." Johansen v. Presley, 977 F. Supp. 2d 871, 876 (W.D. Tenn. 2013).
Before considering Plaintiff's claims, the Court must first decide whether to treat Plaintiff as an ordinary pro se plaintiff. Defendant asserts that Plaintiff was formerly a licensed attorney in Arkansas and should not be considered an ordinary non-attorney pro se plaintiff. (ECF No. 5-1 at 4 n.2.) Plaintiff does not dispute that she was formerly an attorney. As Defendant correctly notes, "because [the pro se plaintiff] has a law degree and has been licensed to practice law until recently, the Court cannot accord [her] the advantage of aliberal construction of her claims." (Id. (quoting Spano v. Hoffman, No. 08-60238-CIV, 2008 WL 2245853, at *2 (S.D. Fla. May 29, 2008)) (internal quotation marks omitted)) Although Plaintiff is no longer practicing law, she still possesses a "greater propensity" to understand the legal proceedings than a pro se plaintiff with no legal experience. Accordingly, Plaintiff is not entitled to the leniency an ordinary non-attorney pro se plaintiff would receive with respect to construction of the pleadings.
Plaintiff brings claims against Defendant for breach of accord and satisfaction, tortious interference with a contract, conversion, violations of the federal Fair Credit Reporting Act ("FCRA") and the Tennessee Consumer Protection Act ("TCPA"), and attempted wrongful possession. (Compl. ¶¶ 19-24, ECF No. 1-1 at PageID 11.) The Court addresses each of these claims in turn.
Plaintiff asserts that Defendant breached an accord and satisfaction of the vehicle lease with Plaintiff and the co-buyer. (Compl. ¶ 19.) The parties' lease states that there is "an option to buy the vehicle at the end of the lease term for $22,454.10 plus official fees and taxes." (ECF No. 5-2 at 1.) Plaintiff states that she and the co-buyer made a good faith offer of $22,454.10 to Defendant, which Defendant has retained. (Id.) A note had been written on the cashier's checkwhich Plaintiff mailed to Defendant that the $22,454.10 amount was "Full Payment of All monies owed to Ally Financial by [Plaintiff and the co-buyer]." (See ECF No. 1-1 at PageID 20.) Defendant asserts that it never agreed to an accord and satisfaction. (ECF No. 5-1 at 6.)
The Court finds that the facts asserted by Plaintiff support a claim for breach of accord and satisfaction. Under Tennessee law, "[a]n accord is an agreement whereby one of the parties undertakes to give or perform, and the other to accept in satisfaction of a claim . . . something other than or different from what he is or considers himself entitled to; and a satisfaction is the execution of such agreement." Scipio v. Sony Music Entm't, 173 F. App'x 385, 393 (6th Cir. 2006) (quoting Lytle v. Clopton, 261 S.W. 664 (Tenn. 1924)). Plaintiff asserts that Defendant accepted the check offered "and has retained it without sending title." (Compl. ¶ 19.)
The relevant statute specifies that money must be returned to the debtor if the creditor does not discharge the debt:
All receipts, releases, and discharges in writing, whether of a debt of record or a contract under seal, or otherwise, shall have effect according to the intention of the parties thereto. However, the remittance and acceptance of a check or other instrument bearing on its face words that it is payment or satisfaction in full of a debt or obligation shall not be considered conclusive evidence of an intention that the debt or obligation for which the same is given be discharged or released; provided,that the remittee of such instrument tenders back to the remittor the funds represented by such instrument.
Tenn. Code Ann. § 24-7-106 (emphasis added). "The statute protects unwary creditors from the consequences of inadvertently cashing checks designated as payment in full of indebtedness exceeding the amount of the checks." Cookeville Prod. Credit Ass'n v. Goolsby, 840 F.2d 16 (6th Cir. 1988) (per curiam) (unpublished table decision).
In this case, Defendant is not an unwary creditor. The writing on the check signaled Plaintiff's intent for the amount of $22,454.10 to serve as payment in full for the vehicle. (See ECF No. 1-1 at PageID 20.) The letter to which the check was attached included a subject line stating that the check was "to represent full accord and satisfaction of all monies owed to Ally," and the body of the letter specified that "we are sending this check . . . as...
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