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Johnson v. Santander Consumer USA

United States District Court, W.D. Tennessee, Western Division

March 10, 2018

TIA JOHNSON, Plaintiff,
v.
SANTANDER CONSUMER USA, and CFAM FINANCIAL SERVICES, LLC, Defendants.

          ORDER ADOPTING THE CHIEF MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND ORDER OF DISMISSAL

          JOHN T. FOWLKES, JR. UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Santander Consumer USA Inc.'s Rule 12(b)(6) Motion to Dismiss that was filed on March 2, 2018. (ECF No. 19). On March 21, 2018, Johnson proceeding pro se filed a response to which Santander filed a reply on April 4, 2018. (ECF Nos. 20 & 21.) Pursuant to 28 U.S.C. § 1915(e)(2)(B), the matter was referred to the Chief Magistrate Judge for screening and the administration of all pretrial matters. On February 9, 2018, the Chief Magistrate Judge issued a report and recommendation that the Court grant Defendant's Rule 12(b)(2) motion to refer the case back to the U.S. Bankruptcy Court and deny as moot the 12(b)(6) motion to dismiss. (ECF Nos. 7, 10 & 14). After notice by Santander that Plaintiff's bankruptcy case was dismissed on February 16, 2018, the Chief Magistrate Judge issued a second and superseding report and recommendation on April 6, 2018. (ECF Nos. 18 & 18-1.)[1]To date, Plaintiff has not filed any objections within the fourteen days allowed in accordance with Fed.R.Civ.P. 72(b)(2). For the following reasons, the undersigned Court finds that the Chief Magistrate Judge's report and recommendation should be adopted in full and the case dismissed with prejudice.

         II. STANDARD OF REVIEW

         Congress passed 28 U.S.C. § 636(b) “to relieve some of the burden on the federal courts by permitting the assignment of certain district court duties to magistrates.” See e.g. Baker v. Peterson, 67 Fed. App'x. 308, 311, 2003 WL 21321184 (6th Cir. 2003) and Fed.R.Civ.P. 72(a). When a Magistrate Judge “submit[s] to a judge of the [district] court proposed findings of fact and recommendations, ” “any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court.” 28 U.S.C. § 636(b)(1)(B)-(C). Courts are unwilling to abrogate basic pleading standards in pro se actions. Haines v. Kerner, 404 U.S. 519, 521 (1972) (per curiam); Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989), reh'g denied, (Jan. 19. 1990). While pro se litigants are not held to the same standard as licensed attorneys, it is not the role of the court to speculate about the nature of their claims. Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011).

         The Court may accept, reject, or modify, in whole or in part, any findings or recommendations made by a Magistrate Judge. Id. A Court need not review any portion of the recommendation to which a plaintiff does not specifically object and should adopt the findings and rulings of a Magistrate Judge to which a specific objection is not filed. Thomas v. Arn, 474 U.S. 140, 149-52 (1985) and Brown, 47 F.Supp.3d at 674.

         III. FINDINGS OF FACT

         In her report and recommendation, the Chief Magistrate Judge sufficiently summarizes that this action arises from Plaintiff's purchase of a 2007 Chevrolet Tahoe from CarMax on or about September 17, 2012. Plaintiff now attempts to set aside the transaction based on several alleged violations. (ECF 23-1 3-5.) Specifically, Plaintiff asserts that Defendants committed various violations of the Truth in Lending Act (“TILA”), Regulation Z, the Odometer Act, Fraud and Misrepresentation via the “deceptive use of a salesperson.” Plaintiff also asserts that her self-produced promissory note, FTJB00002, discharged the debt. After review, the Court adopts the Chief Magistrate Judge's proposed findings of facts as the factual history of this case. See U.S. v. Raddatz, 447 U.S. 667, 676 (1980) (In applying the de novo standard, Congress afforded the district judge sound discretion to rely on the Magistrate Judge's proposed findings and determinations.)

         IV. ANALYSIS

         A. The Statute of Limitations Bars

         The Chief Magistrate Judge initially recommends dismissal of Counts III, IV, V, VII and IX as barred by the applicable statutes of limitations for these claims. Plaintiff reportedly purchased the automobile on September 17, 2012 and subsequently filed her complaint in this case on December 28, 2017, over five years later. The Chief Magistrate Judge concluded that Plaintiff's TILA and Regulation Z claims are governed by the one year statute of limitations in 15 U.S.C. § 1640(e). Therefore, she recommends dismissal of the TILA and Regulation Z claims in Counts III, V, and VII, as untimely filed. Upon a de novo review, the claims are clearly barred by the §1640(e) provision which indicates that “. . . any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.” Purtle v. Eldridge Auto Sales, Inc., 91 F.3d 797, 800 (6th Cir. 1996).

         Similarly, the Chief Magistrate Judge properly recommends dismissal of Count IV of Plaintiff's complaint based on the three year statute of limitations. The Court liberally construes Count IV as a purported claim of fraud and misrepresentation against Santander for receiving a down payment from Plaintiff for the vehicle and including that amount in the total purchase amount. Pursuant to Tenn. Code Ann. §§ 28-3-105(1) and (2), actions for injuries to persons or real property and an action for the conversion of personal property must be commenced within three years of the accruing event(s). Therefore, Plaintiff's conversion claim is also barred by the statute of limitations.

         In her report and recommendation, the Chief Magistrate Judge correctly concludes that Plaintiff's claim in Count IX, for Defendant's failure to provide a written odometer disclosure is untimely and as such, should also be dismissed. A claim arising under the Odometer Act must be filed no later than 2 years after the claim accrues. See 29 U.S.C. § 32710(b) and Scherber v. Online Auctions, LLC, No.3:13CV530, 2014 WL 3908114 at *2 (N.D. Ohio July 3, 2014). Therefore, this claim is also time barred.

         B. Does Plaintiff's Promissory Note Discharge the Debt?

         The Chief Magistrate Judge recommends dismissal of Plaintiff's assertion that the tender of a non-legal promissory note discharged Plaintiff's debt for the automobile purchase, Counts I and VII, as frivolous. The Court agrees. A borrower may not absolve an obligation by attempting to offer to pay the Defendant in a form other than U.S. currency. Sopp v. Deutsche Bank Nat. Trust Co., No. 2:14-cv-01223, 2015 WL 136239 at *3 (S.D. Ohio 2015) and Marvin v. Capital One, No. 1:15-cv-1310, 2016 WL 4548382 at *4 (W.D. Mich. Aug.16, 2016)(rejecting conspiracy theories that ...


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