Mills v. AmeriCredit Fin. Servs.
| Decision Date | 26 March 2020 |
| Docket Number | 8:19CV394 |
| Parties | JON A. MILLS, Plaintiff, v. AMERICREDIT FINANCIAL SERVICES, INC., Defendant. |
| Court | U.S. District Court — District of Nebraska |
This matter is before the Court on defendant GM Financial Services Company, Inc.'s (hereinafter, "AmeriCredit")1 motions to dismiss for failure to state a claim, Filing No. 4, and to strike the plaintiff's responses, Filing Nos. 12 and 14. This is a pro se action for alleged violations of state and federal law in connection with the sale and repossession of a motor vehicle.
In his generally rambling and incoherent eighteen-page pro se complaint, plaintiff Jon A. Mills ostensibly alleges claims for what he characterizes as "[b]reach of contract, constructive fraud, false and misleading statements, holding this debt on my credit, holding me liable for this debt, taking of my property, [and] violation of due process of rights" in connection with the purchase and eventual repossession of a 2015 Chevrolet Impala from Husker Auto Group under an installment credit contract 'approved and purchased by [defendant AmeriCredit Financial Services d/b/a GM].'" Filing No. 1, Complaint at 1, 26-29. He alleges that he tendered payment to the defendant in the formof a Social Security form, "SSA 445" (an Application to Collect a Fee for Payee Services) to satisfy his debt and informed the defendant of his right to so under "the Act of March 9, 1933 H.R. 1491, 48 Stat. 1." He states that AmeriCredit refused to accept the offer of payment and informed him that that the documentation he submitted is "commonly used by persons involved in fraudulent debt elimination schemes." Id. at 2, 33. He acknowledges that AmeriCredit sent him a notice of default, right to cure and intent to repossess, and later repossessed the vehicle. Id. at 3, 17, 31-32. He further alleges his vehicle was sold at a private sale on December 19, 2017. Id. at 3, 30. In addition, he alleges various improprieties in connection with the defendant's "charging off" his debt and failing to document and credit the account in violation of the Fair Debt Collection Practice Act, the Fair Credit Reporting Act, and his Due Process Rights. Id. at 2.
The installment contract, other correspondence and documentation, regulations, and legislative history are attached to the complaint. Id. at 19-53. Correspondence from the defendant shows that the vehicle sold for $12,400.00, which was applied to Plaintiff's outstanding balance—leading to a deficiency of $9,090.88. Id. at 30. Mills seeks damages in the amount of $94,608. Id. at 17. His theory appears to be that a Federal Reserve note (i.e., United States currency) is not legal tender. Id. at 11-16.
The defendant asserts the complaint fails to state a claim on which relief can be granted. In support of the motion, the defendant submits the plaintiff's account payment history, the notice of default, right to cure, and notice of intent to repossess, and the retail installment contract. Filing No. 6, Index of Evid., Exs. 1-3.
Filing No. 8, Response at 3. He relies on the Coinage Act of 1965, citing 31 U.S.C. 5103, entitled "Legal Tender," for the proposition that Id.
Under the Federal Rules, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 n.3. (2007); Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009). "Specific facts are not necessary; the statement need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555). In order to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the plaintiff's obligation to provide the grounds for his entitlement to relief necessitates that the complaint contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555.
In deciding a motion to dismiss under Rule 12(b)(6), a court must accept the allegations contained in the complaint as true and draw reasonable inferences in favor of the nonmoving party. Cole v. Homier Dist. Co., Inc., 599 F.3d 856, 861 (8th Cir. 2010). Determining whether a complaint states a plausible claim for relief is "a context-specific task" that requires the court "to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
When reviewing a pro se complaint, the court must give it the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A "liberal construction" means that if the essence of an allegation is discernible, the district court should construe the plaintiff's complaint in a way that permits his or her claim to be considered within the proper legal framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, even pro se complaints are required to allege facts that, if true, state a claim for relief as a matter of law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980); see also Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004). In addition, affording a pro se complaint the benefit of a liberal construction does not mean that procedural rules in ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).
If matters outside the pleadings are presented the court, a motion to dismiss can be treated as one for summary judgment and disposed of as provided in Federal Rule of Civil Procedure 56. Fed. R. Civ. P. 12(d). Nonetheless, "Rule 12(b)(6) motions are not automatically converted into motions for summary judgment simply because one party submits additional matters in support of or [in] opposition to the motion." Gorog v. Best Buy Co., 760 F.3d 787, 791 (8th Cir. 2014). A district court need not convert a motion to dismiss into a motion for summary judgment when, for example, it does not rely upon matters outside the pleadings in granting the motion. Id.
Further, the documents necessarily embraced by the complaint are not considered matters outside the pleading. Ashanti v. City of Golden Valley, 666 F.3d 1148, 1151 (8th Cir. 2012). A contract on which a claim rests is embraced by the pleadings. Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n. 4 (8th Cir. 2003); see also Stahl v. U.S. Dep't ofAgric., 327 F.3d 697, 700 (8th Cir. 2003) ().
"In order to recover in an action for breach of contract, the plaintiff must plead and prove the existence of a promise, its breach, damage, and compliance with any conditions precedent that activate the defendant's duty." Henriksen v. Gleason, 643 N.W.2d 652, 658 (Neb. 2002). To state a claim for fraudulent misrepresentation, a plaintiff must allege (1) that a representation was made; (2) that the representation was false; (3) that when made, the representation was known to be false or made recklessly without knowledge of its truth and as a positive assertion; (4) that it was made with the intention that the plaintiff should rely upon it; (5) that the plaintiff reasonably did so rely; and (6) that the plaintiff suffered damage as a result. Bott v. Holman, 22 Neb. App. 229, 236-37, 850 N.W.2d 800, 807 (2014). False representations must be the proximate cause of the damage before a party may recover. Huffman v. Poore, 569 N.W.2d 549, 560 (Neb. Ct. App. 1997). A claim for the tort of conversion requires allegations of "an unauthorized assumption and exercise of the right of ownership over goods or chattels belonging to another to the alteration of their condition or the exclusion of the owner's rights." Terra W. Corp. v. Berry & Co., 295 N.W.2d 693, 696 (Neb. 1980).
To state a claim for a violation of the Federal Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., a plaintiff must allege (1) that he or she is a "consumer" as defined by the Act; (2) that the "debt" arises out of transactions that are primarily for personal, family, or household purposes; (3) that the defendant is a "debt collector" as defined by the Act; and (4) that the defendant violated the requirements of the FDCPA. Smith v. Nationstar Mortg., LLC, 756 F. App'x 532, 535-36 (6th Cir. 2018). "[C]reditors are notliable under the FDCPA." Walker v. Nationstar Mortg. LLC, 142 F. Supp. 3d 63, 69 (D.D.C. 2015). A creditor charges off a debt when it treats the debt "as a loss or expense because payment is unlikely." Black's Law Dictionary (11th ed. 2019). Nothing inherent in the process of charging off a debt precludes a claim for statutory interest, and a demand for such interest is not an actionable misrepresentation or unfair or unconscionable collection methods under the FDCPA. Haney v. Portfolio Recovery Assocs., L.L.C., 895 F.3d 974, 985 (8th Cir. 2016)
In order to state a claim under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. ("FCRA"), a plaintiff must show: (1) an inaccuracy in plaintiff's credit report; (2) the plaintiff notified the credit reporting agency; (3) the credit...
To continue reading
Request your trial