UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

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

RESPONSE TO DEFENDANT CARMAX’S MOTION TO DISMISS

            Plaintiff hereby submits the following Brief in Opposition to Defendant Carmax’s Motion to Dismiss Plaintiff’s Complaint. For the reasons set forth below, Plaintiff requests that this Court deny the Motion to Dismiss in its entirety.

INTRODUCTION

            Plaintiff commenced Case No. 8:21-cv-849-CEH-AAS on or about April 9, 2021. In the Complaint, Plaintiff made several allegations, inter alia, that Defendant CarMax caused there to be registered a loan application in place of a credit application in Plaintiff’s name. Plaintiff also claimed a violation of her privacy rights when CarMax disclosed her non-public personal information to non-affiliated third parties.

            On or about June 9, 2021, Defendant CarMax filed a Motion to Dismiss alleging, inter alia, that Plaintiff authorized the disclosure of her information when she applied for credit, that the conversion of her credit application to a loan application was agreed upon by the parties in their financial agreement. Lastly, CarMax alleged that the statutes cited in Plaintiff’s causes of action were criminal statutes and none provides a private case of action.  

ARGUMENT(S)

  1. STADARD OF REVIEW

            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)). In determining whether to grant a motion to dismiss, a court must accept all the factual allegations in the complaint as true and consider all reasonable inferences derived therefrom in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1534 (11th Cir. 1994); Hunnings v. Texaco, Inc., 29 F.3d 1480, 1484 (11th Cir. 1994)       

            Generally, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See In re Johannessen, 76 F.3d 347, 349 (11th Cir. 1996).

            In the instant action, there is no allegation in the Complaint that Plaintiff cannot prove by evidence. Besides, it is incumbent upon this Honorable Court to accet all factual allegations in Plaintiff’s complaint as true, and in the light most favorable to the Plaintiff.

  • THE TRANSACTION INVOLVED A CREDIT APPLICATION AND NOT A LOAN APPLICATION

            According to 15 U.S. Code § 1602(h), the term “credit sale” refers to any sale in which the seller is a creditor. 15 U.S. Code § 1602(g) proceeds to define “Creditor” as “a person who both (1) regularly extends, whether in connection with loans, sales of property or services, or otherwise, consumer credit which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required…” (Emphasis added).

            In the usual sale on credit the seller, a single individual or corporation, simply makes an agreement determining when and how much he will be paid for his product. See G. Lamb C. Shields, Trade Association Law and Practice 129 (rev. ed. 1971). In such credit sales, the consumer provides the disclosures required under the law on a credit application, to open a credit or charge card account. See 12 CFR § 1026.60.

            In the instant action, the Plaintiff contends that the transaction involved a credit transaction as provided under 15 U.S. Code § 1602(h). Notably, 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. It is doubtless that a loan application is completely different from a credit application. Therefore, Defendant CarMax is fully liable for converting Plaintiff’s credit application to a loan application.

  • CARMAX VIOLATED PLAINTIFF’S PRIVACY RIGHTS

            Under the Gramm-Leach-Biley Act (15 U.S.C. §§ 6802-6809), financial institutions are prohibited from “disclos[ing] to a nonaffiliated third party any nonpublic personal information” received by the institution from a consumer, unless the consumer has notice of the disclosure and has been given an opportunity to “opt out” of that disclosure. 15 U.S.C. § 6802(a)-(b) (2002).

            Plaintiff’s claims to her right to privacy are not limited in the Gramm-Leach-Biley Act alone. Notably, Courts have acknowledged the “individual’s constitutional right to privacy” in Sterling v. Borough of Minersville, 232 F.3d 190, 193 (3d Cir. 2000). Besides, the Supreme Court has found certain constitutional “zones of privacy.” C.N. v. Ridgewood Bd. of Educ, 430 F.3d 159, 178 (3d Cir. 2005) (citing Roe v. Wade, 410 U.S. 113, 152-53 (1973)). From these zones of privacy, the U.S. Supreme Court articulated two types of privacy interests rooted in the Fourteenth Amendment. Nunez v. Pachman, 578 F.3d 228, 231 n. 7 (3d Cir. 2009); see also Malleus v. George, 641 F.3d 560, 564 (3d Cir. 2011); C.N., 430 F.3d at 178. The first privacy interest is the “individual interest in avoiding disclosure of personal matters,” C.N., 430 F.3d 159, 178 (3d Cir. 2005). (Emphasis added).

            In the instant action, CarMax violated Plaintiff’s privacy rights when it presented Plaintiff’s credit card details to Capital One. Plaintiff contends that CarMax had a duty to prevent the disclosure of Plaintiff’s sensitive credit card information. It follows; CarMax’s failure to prevent the disclosure of the Plaintiff’s credit card information amounted to a violation of Plaintiff’s rights.

  • PLAINTIFF HAS A VALID CLAIM UNDER THE TRUTH IN LENDING ACT

            The Truth in Lending Act and its regulations must “be absolutely complied with and strictly enforced.” See Handy v. Anchor Mortg. Corp., 464 F.3d 760, 764 (7th Cir.2006) (“Truth in Lending Act does not easily forgive ‘technical’ errors.”) (quotation marks omitted); Smith v. Fid. Consumer Disc. Co., 898 F.2d 896, 898 (3rd Cir.1990) (“Once the court finds a violation, no matter how technical, it has no discretion with respect to liability.”) (quotation omitted); Semar v. Platte Valley Fed. Sav. & Loan Ass’n, 791 F.2d 699, 704 (9th Cir.1986) ( “Technical or minor violations of [Truth in Lending Act] … mpose liability on the creditor and entitle the borrower to rescind.”); Williamson v. Lafferty, 698 F.2d 767, 768–69 (5th Cir.1983) (holding that the failure to fill in rescission expiration date violates the Truth in Lending Act).

            “The [Truth-in-Lending Act] claim does not involve the obligations created by the underlying contract.Rather, the [Truth-in-Lending Act] claim enforces a federal policy regarding disclosure by invoking a penalty.” Maddox v. Kentucky Finance Co., Inc., 736 F.2d at 382 (citing Whigham, 599 F.2d at 1324). It follows; “[T]he Truth in Lending Act provides `detailed remedial machinery’ to redress violations of the Act.” Gerasta v. Hibernia National Bank, 575 F.2d 580, 583 (5th Cir. 1978).

            In light of the foregoing, it is evident that the Truth in Lending Act allows for private right to action, contrary to CarMax’s averments in the Motion to Dismiss. It is Plaintiff’s contention that CarMax wilfully and knowingly provided Plaintiff with false, misleading, inaccurate, and deceptive information, forms and finance.

  • PLAINTIFF IS ENTITLED TO AMEND THE COMPLAINT

            “[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).

            “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)). “While a decision whether to grant leave to amend is clearly within the discretion of the district court, a justifying reason must be apparent for denial of a motion to amend.” Id. “In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.—the leave sought should, as the rules require, be freely given.” Foman v. Davis, 371 U.S 178, 182 (1962).

            Plaintiff contends that she is entitled to the right to amend the Complaint. Notably, in the event this Court finds an issue with a claim in Plaintiff’s complant, a more carefully drafted complaint might state a claim. Besides, it would amount to a furtherance of justice for the Court to grant the leave to amend the Complaint. There is no bad faith in Plaintiff’ contact.

CONCLUSION

            Plaintiff has raised sufficient facts to establish a case against CarMax. Accordingly, Plaintiff asks the Court to deny the defendant’s Motion in its entirety.

DATED:    ______

CERTIFICATE OF MAILING

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

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