May 24, 2023




IASIA OWENS,                    Plaintiff,   v.   CAPITAL ONE AUTO FINANCE, and CAR MAX AUTO SUPERSTORES, LLC,                   Defendants     Case No.: 8:21-cv-849-CEH-AAS


Pursuant to Fed. R. Civ. P. 72(b) and Local Rule 6.02, Plaintiff objects to the Magistrate

Judge’s Report and Recommendation filed June 29, 2021.

            The learned Magistrate Judge erred by:

  1. Denying Plaintiff’s request to proceed in forma pauperis.
  2. Holding that Plaintiff’s Complaint fails to state a plausible cause of action against the Defendants.
  3. Denying Plaintiff any leave to amend the Complaint.

Accordingly, the Court should decline to adopt the R&R, sustain plaintiffs’ objections, and grant Plaintiff’s prayers under Plaintiff’s Complaint.

  1. Plaintiff’s action states a plausible cause of action

A complaint must contain sufficient factual allegations that “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). (Emphasis applied). A claim is plausible on its face when the factual allegations allow the court to infer the defendant’s liability based on the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The factual allegations must present more than “the mere possibility of misconduct.” Id. at 678.

“[D]etermining whether a complaint states a plausible claim is context-specific, requiring the … court to draw on its experience and common sense.” Id. at 663–64, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

To warrant dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, it must be “clear that no relief could be granted under any set of facts that could be proved consistent with the allegations”; Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994) (quoting Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)).

Plaintiff’s complaint contains sufficient factual allegations against Defendants. Most notably, Defendants’ liabilities can be inferred from the outline of facts in Plaintiff’s complaint. Plaintiff provided CarMax with her credit card to obtain an extension of credit by a credit application for the purchase of the motor vehicle. Instead, CarMax submitted a loan application to Capital One, contrary to Plaintiff’s intention. These facts clearly raise legal liability on Defendants. They present more than a mere possibility of misconduct. Accordingly, Plaintiff is entitled to relief in that regard.

  • Capital One is a Debt Collector

A debt collector for purposes of the FDCPA does not include the consumer’s creditors. Ladouceur v. Wells Fargo, 682 F. App’x 649, 652 (10th Cir. 2017).

“[A] debt collector does not include the consumer’s creditors, a mortgage servicing company, or an assignee of a debt, as long as the debt was not in default at the time it was assigned.” CA Partners v. Spears, 274 S.W.3d 51, 78-79 (Tex. App. 2008, pet. denied); see also DeFranceschi v. Wells Fargo Bank, N.A., _ F.Supp.2d _, 2011 WL 3875338, at *5 (N.D. Tex. Aug. 31, 2011).

The Magistrate Judge erroneously held that Capital One is not a debt collector and is therefore not liable under the FDCPA. It is worth noting that Plaintiff approached CarMax with her credit card to obtain an extension of credit by a credit application for the purchase of the motor vehicle. Therefore, as much as Plaintiff is concerned, CarMax is the creditor in the instant action. Accordingly, Plaintiff is not privy of any alleged arrangement between CarMax and Capital One. It follows, Capital One contacted Plaintiff informing her of the debt, as a debt collector.

  • Plaintiff’s action is not frivolous

According to the Court in Neitzke v. Williams, 490 U.S. 319 (1989), a court may dismiss a claim as frivolous if the facts alleged are baseless. Neitzke, 490 U.S., at 327. A baseless allegation encompasses allegations that are “fanciful”, “fantastic”, and “delusional”. Id. Therefore, a finding of frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible. Denton v. Hernandez, 504 U.S. 25.

In the instant action, the facts alleged in Plaintiff’s complaint are in no way frivolous. Besides, Plaintiff filed sufficient exhibits to support her allegations in her complaint. Therefore, the factual allegations thereat are not baseless. Accordingly, the Magistrate Judge erred when he held that Plaintiff’s action is frivolous.

  • Plaintiff is entitled to an amendment of the Complaint

If the complaint is dismissed, leave to amend should be granted unless the court “determines that the pleading could not possibly be cured by the allegation of other facts.” Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995).

“[A] district court’s discretion to dismiss a complaint without leave to amend is severely restricted by Fed. R. Civ. P. 15(a)).” To be sure, “[w]here a more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice”; Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). Besides, leave to amend a complaint shall be freely given when justice so requires”; Moore v. Baker, 989 F.2d 1129, 1131 (11th Cir. 1993) (citing Fed. R. Civ. P. 15(a)).

“District courts should frequently provide leave to amend before dismissing a pro se complaint.” Reed v. Friedman Mgt. Corp., 541 F. App’x 40, 41 (2d Cir. 2013) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). It follows; this Honorable Court should hold Plaintiff’s complaint, which is a pro se action, to less stringent pleading standards.

In the instant action, the Magistrate Judge erred when it failed to allow Plaintiff amend the complaint, instead of dismissing the case. As Plaintiff has already alleged hereinabove, Plaintiff’s case raises a plausible cause of action. Therefore, it would be in the interest of justice for the Court to grant the leave to amend the Complaint, so Plaintiff corrects any errors in the pleading that are pointed out by the Magistrate Judge. For example, Plaintiff avers that her privacy rights are not limited to 15 U.S. Code § 6802. Plaintiff is therefore entitled to issue a privacy violation claim under her Constitutional rights, to wit, the Fourteenth Amendment rights.


For the foregoing reasons, the Court should decline to adopt the Magistrate Judge’s , Plaintiff prays this Honorable Court to disregard the Hon Magistrate Judge’s Report and Recommendation. In the alternative, Plaintiff prays this Court grant Plaintiff leave to amend the Complaint.

DATED:    ______


I, [ENTER NAME], certified on this                                      day of                           .2021, I deposited a true copy of the above to the Defendants by placing the document with prepaid postage in the United States mailbox address to each person.

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