Brown et al v. CitiMortgage, Inc.

Filing 19

Order denying 6 MOTION to Dismiss filed by CitiMortgage, Inc. The 18 MOTION for Leave to File Sur-Reply filed by Rosemarie Brown, Michael Brown is granted, and the Sur-Reply appended to that motion has been duly considered. Answer due from CitiMortgage, Inc. on 10/21/2011. Signed by Chief Judge William H. Steele on 10/11/2011. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

MICHAEL BROWN, et al.,
Plaintiffs,
v.
CITIMORTGAGE, INC.,
Defendant.

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PUBLISH

CIVIL ACTION 11-0403-WS-B

ORDER
This matter comes before the Court on defendant’s Motion to Dismiss (doc. 6). The
Motion has been briefed and is ripe for disposition.1
I.

Background.
Plaintiffs, Michael and Rosemarie Brown (the “Browns), brought a straightforward,

single-count Complaint (doc. 2) against defendant, CitiMortgage, Inc. (“Citi”), in this District
Court. The Browns allege that they executed a real estate mortgage with nonparty Travelers
Bank & Trust, FSB, in March 2002, and that Travelers assigned beneficial interest in the
mortgage and note to Citi in October 2010. (Doc. 2, ¶¶ 5-6.) Plaintiffs further allege that Citi
1

Also pending is plaintiffs’ Motion for Leave to File Sur-Reply (doc. 18), which
plaintiffs offered for the limited purpose of responding to a new argument in defendant’s Reply
(doc. 15). That Motion is granted, and the Sur-Reply appended to the Motion will be
considered for that limited purpose. Following the close of briefing, defendant sent a letter to the
undersigned which appears to be a supplement to defendant’s Reply. It is not proper to refashion
a memorandum of law as correspondence to the judge because doing so (i) violates the Local
Rules, (ii) circumvents court-ordered briefing schedules, (iii) gives the movant a third
incremental bite at the briefing apple without leave of court, and (iv) effectively moves the
parties’ briefing into a forum outside the confines of the official court file. See Local Rule 5.1(d)
(“Requests for court action may not be submitted in the form of a letter.”). In this District Court,
the rule is (and has long been) that legal memoranda must conform to briefing schedules and
Local Rules, and must be filed with the Clerk of Court. A litigant cannot evade these
requirements by couching a brief as correspondence to the judge. Accordingly, the Court has not
reviewed and will not review that certain letter from defense counsel dated September 21, 2011.
Such correspondence will not be made part of the court file.

failed to provide notice to them of that assignment within 30 days, as required by the Truth-inLending Act. See 15 U.S.C. § 1641(g)(1) (“not later than 30 days after the date on which a
mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the
new owner or assignee of the debt shall notify the borrower in writing of such transfer,”
including identity and contact information for new creditor, date of transfer, and instructions for
how to reach an agent with authority to act on behalf of new creditor). On that basis, the Browns
“demand judgment for statutory damages, costs and attorneys’ fees pursuant to 15 U.S.C.
§ 1640(a).” (Doc. 2, at 3.)2 Plaintiffs neither allege nor demand an award of actual damages
arising from the alleged § 1641(g) violation.
Following service of process, Citi filed a Motion to Dismiss pursuant to Rule 12(b)(6),
for the sole stated ground that claims under § 1641(g) are not actionable absent proof of actual
damages. In defendant’s words, “Plaintiffs cannot assert a claim based on § 1641(g) without
suffering actual damages and, as a result, Plaintiffs’ entire Complaint is due to be dismissed.”
(Doc. 6, at 5.) Because the Complaint does not allege actual damages, and the Browns do not
purport to have suffered actual damages, Citi maintains, their § 1641(g) claim is not cognizable
as a matter of law, and should be dismissed with prejudice. For their part, plaintiffs insist that
their § 1641(g) claim is actionable because the statutory damages they seek are available even in
the absence of actual damages. This narrow, discrete legal issue is the sole battleground on
which Citi’s Rule 12(b)(6) Motion is fought.
II.

Analysis.
Citi’s Motion to Dismiss hinges on the text of 15 U.S.C. § 1640(a), which, inter alia,

provides for civil liability for certain TILA violations. In particular, that section states that any
creditor that fails to comply with § 1641(g)’s notice requirement “is liable to such person in an
amount equal to the sum of –
“(1) any actual damage sustained by such person as a result of such failure; [and]
“(2)(A)(i) in the case of an individual action twice the amount of any finance
charge in connection with the transaction, … or (iv) in the case of an individual

2

The Complaint makes reference to “the class described below.” (Doc. 2, ¶ 9.)
That reference is erroneous, inasmuch as no such class allegations or definition appear in the
Complaint, which has been brought solely by the Browns on their own behalf.

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action relating to a credit transaction not under an open end credit plan that is
secured by real property or a dwelling, not less than $400 or greater than $4,000.”
15 U.S.C. § 1640(a). On its face, the statute provides that if a creditor violates the § 1641(g)
notice requirement as to a mortgage loan, it is liable to the consumer in the amount equal to the
sum of the consumer’s actual damages (pursuant to § 1640(a)(1)) and statutory damages of
double the finance charge, subject to lower and upper limits of $400 and $4,000 (pursuant to
§ 1640(a)(2)). See, e.g., Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 55-56, 125 S.Ct.
460, 160 L.Ed.2d 389 (2004) (tracing amendment history of § 1640(a), and explaining that since
1974 it has allowed “for the recovery of actual damages in addition to statutory damages”).3
Costs and reasonable attorney’s fees may also be awarded to a successful TILA plaintiff. See 15
U.S.C. § 1640(a)(3).
The thrust of Citi’s Rule 12(b)(6) Motion, as initially postured, was that actual damages
are a necessary element of proof in any TILA claim alleging violation of the § 1641(g) disclosure
requirement.4 Without allegations of actual damages, Citi maintained, the Browns’ Complaint
fails to state a cognizable claim as a matter of law. This stance is demonstrably incorrect. As
noted supra, the plain statutory text creates liability for a creditor that fails to comply with
§ 1641(g) in the form of the sum of actual and statutory damages. The right of a TILA plaintiff
to recover statutory damages, irrespective of the presence or absence of actual damages, is firmly
3

See also Christ v. Beneficial Corp., 547 F.3d 1292, 1297 (11th Cir. 2008) (“The
parameters of relief available to private litigants, delineated in 15 U.S.C. § 1640(a), include
actual damages, statutory damages, and attorney’s fees and costs.”) (footnote omitted); Anders v.
Hometown Mortg. Services, Inc., 346 F.3d 1024, 1027 (11th Cir. 2003) (“TILA entitles
successful plaintiffs to statutory damages as well as any actual damages.”); Turner v. Beneficial
Corp., 242 F.3d 1023, 1025 (11th Cir. 2001) (“TILA creates a private cause of action for
statutory damages, which may be assessed in addition to any actual damages awarded.”); Vallies
v. Sky Bank, 591 F.3d 152, 157 (3rd Cir. 2009) (“The Act, therefore, provides for different forms
of compensatory damages – actual damages under § 1640(a)(1), and statutory damages for
individuals under § 1640(a)(2)(A)”).
4

For example, Citi wrote that “Plaintiffs’ Complaint is devoid of any mention of
actual damages that they may have suffered …. As a result, Plaintiffs’ entire Complaint is due to
be dismissed, with prejudice.” (Doc. 6, at 2.) Elsewhere, defendant asserted that “Plaintiffs’
entire Complaint is due to be dismissed because they have not alleged – and cannot allege – that
they suffered actual damages ….” (Id. at 4.) Defendant left no doubt that the sole basis for its
Rule 12(b)(6) Motion was that “Plaintiffs’ Complaint contains absolutely no reference to any
actual damages suffered as a result of the alleged violation of § 1641(g).” (Id. at 7.)

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entrenched in the case law. See, e.g., Turner v. Beneficial Corp., 242 F.3d 1023, 1026 (11th Cir.
2001) (“statutory damages provide at least a partial remedy for all material TILA violations”); In
re Whitley, 772 F.2d 815, 817 (11th Cir. 1985) (for TILA violations, “statutory civil penalties
must be imposed … regardless of the district court’s belief that no actual damages resulted or
that the violation is de minimis”) (citation omitted).5 Thus, the mere fact that the Browns’
Complaint does not allege actual damages in no way impairs their right to hold Citi liable for a
§ 1641(g) violation, as long as they are eligible for statutory damages. The Browns plainly
invoke the statutory damages provision, as the ad damnum clause of their Complaint demands
“judgment for statutory damages … pursuant to 15 U.S.C. § 1640(a).” (Doc. 2, at 3.) As
originally formulated, then, defendant’s Motion to Dismiss is not meritorious, because it is
predicated on a legal theory – namely, that proof of actual damages is necessary to assert a claim
for violation of § 1641(g) – that flatly contradicts abundant decisional and statutory authorities.
Citi’s principal brief omitted discussion of statutory damages. In that filing, Citi neither
addressed the statutory damages prong of § 1640(a), nor presented argument or authority that the
Browns were ineligible for statutory damages on the strength of their Complaint as pleaded.
Instead, defendant’s principal brief focused exclusively on actual damages, which the Browns
were not requesting and which § 1640(a) does not require as a prerequisite for recovery. Perhaps
5

See also Purtle v. Eldridge Auto Sales, Inc., 91 F.3d 797, 800 (6th Cir. 1996) (“A
plaintiff in a TILA case need not prove that he or she suffered actual monetary damages in order
to recover the statutory damages and attorney’s fees.”); In re Merriman, 329 B.R. 710, 715 (D.
Kan. 2005) (“The consumer-borrower can prevail in a TILA suit without showing that he or she
suffered any actual damage as a result of the creditor’s violation.”); In re Mourer, 313 B.R. 701,
705 (Bankr. W.D. Mich. 2004) (“A plaintiff in a TILA case need not prove that he or she
suffered actual monetary damage in order to recover the statutory damages and attorney’s
fees.”); Kurz v. Chase Manhattan Bank, 273 F. Supp.2d 474, 478 (S.D.N.Y. 2003) (“it is not
necessary for a TILA plaintiff to establish that he incurred actual damages as a result of a
technical violation of TILA in order to seek statutory damages”); Szczubelek v. Cendant
Mortgage Corp., 215 F.R.D. 107, 128 (D.N.J. 2003) (“a plaintiff may not need to show actual
harm, since the TILA provides for statutory damages for certain violations, in addition to actual
damages”); Basnight v. Diamond Developers, Inc., 146 F. Supp.2d 754, 769 (M.D.N.C. 2001)
(“because … Plaintiff has not presented any set of facts establishing that she is entitled to actual
damages, Plaintiff may only recover the statutory penalty as a result of Diamond Developers’
TILA violation”); Krajci v. Mt. Vernon Consumer Discount Co., 16 B.R. 464, 466 (E.D. Pa.
1981) (“These statutory damages are to be awarded regardless of whether the debtor has suffered
any actual damages.”).

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in recognition of that fact, Citi dramatically altered its angle of attack in its reply brief. As the
centerpiece of its Reply (doc. 15), Citi propounds a brand new argument that plaintiffs cannot
recover statutory damages unless the alleged § 1641(g) violation involved the levying of a
finance charge. Because the Browns did not allege in their pleading that “a finance charge was
levied related to the alleged § 1641(g) violation,” defendant argues, the Complaint must be
dismissed with prejudice. (Doc. 15, at 10.)
As a threshold matter, it is improper for a litigant to present new arguments in a reply
brief, as Citi has done here. After saying nothing about finance charges or statutory damages in
its principal brief, defendant devoted virtually its entire reply to that issue. New arguments
presented in reply briefs are generally not considered by federal courts. See, e.g., Herring v.
Secretary, Dep’t of Corrections, 397 F.3d 1338, 1342 (11th Cir. 2005) (“As we repeatedly have
admonished, arguments raised for the first time in a reply brief are not properly before a
reviewing court.”) (internal quotes omitted); Sharpe v. Global Sec. Int’l, 766 F. Supp.2d 1272,
1294 n.26 (S.D. Ala. 2011) (“Because it is improper for defendant to raise this new argument in
its reply brief, that argument will not be considered.”); Abrams v. Ciba Specialty Chemicals
Corp., 663 F. Supp.2d 1220, 1232 n.16 (S.D. Ala. 2009) (“new arguments are impermissible in
reply briefs”).6 Defendant could have raised the statutory damages argument in its principal
brief; indeed, it was clear from the plain language of the Complaint that the Browns were
predicating their § 1641(g) claim on a theory of statutory damages, not actual damages. Citi
could not have been surprised or caught unawares in that regard. Movant’s election not to
advance in its principal brief readily available arguments concerning the obvious statutory
damages issue precludes it from being heard as to same in its Reply.
Even if the statutory damages issue were considered on the merits, defendant’s position
that statutory damages are unavailable under TILA in the absence of related finance charges is
6

The undersigned has outlined the purposes and virtues of this convention as
follows: “In order to avoid a scenario in which endless sur-reply briefs are filed, or the Court is
forced to perform a litigant’s research for it on a key legal issue because that party has not had an
opportunity to be heard, or a movant is incentivized to save his best arguments for his reply brief
so as to secure a tactical advantage based on the nonmovant’s lack of opportunity to rebut them,
this Court does not consider arguments raised for the first time in a reply brief.” Hardy v. Jim
Walter Homes, Inc., 2008 WL 906455, *8 (S.D. Ala. Apr. 1, 2008). Those considerations loom
large here.

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unavailing for no fewer than five reasons. First, it conflicts with binding precedent. In
interpreting a previous iteration of § 1640, the Supreme Court held as follows: “We are also
unable to accept respondent’s argument that [§ 1640] does not allow imposition of a civil penalty
in cases where no finance charge is involved but where a regulation requiring disclosure has
been violated. … [W]e cannot conclude that Congress intended those who failed to comply with
regulations to be subject to no penalty or to criminal penalties alone. As the District Court
concluded, imposition of the minimum sanction is proper in cases such as this, where the
finance charge is nonexistent or undetermined.” Mourning v. Family Publications Service,
Inc., 411 U.S. 356, 367, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973) (emphasis added).7 Defendant’s
filings make no attempt to distinguish or explain away this language in Mourning, on which
plaintiffs expressly relied in their opposition brief and which runs diametrically opposite to Citi’s
position. Instead, Citi simply ignores the Browns’ citation to Mourning by inaccurately stating
(in bold-face, underlined type) that “[i]n fact, Plaintiffs have failed to cite to a single case that
permits recovery of a statutory penalty that is unconnected to the levying of a finance charge.”
(Doc. 15, at 7 (emphasis omitted).)8 This Court does not have the luxury of waving aside
Supreme Court precedent that appears to be on-point.
Second, careful reading of the statutory language itself undermines defendant’s position.
Recall that the relevant provision allows for recovery of statutory damages for § 1641(g)
7

A number of courts in other jurisdictions have likewise concluded that minimum
statutory damages are available for TILA disclosure violations even in the absence of finance
charges. See, e.g., Murphy v. Household Finance Corp., 560 F.2d 206, 210 (6th Cir. 1977) (“the
penalty assessed shall be twice the amount of the finance charge imposed, but not less than
$100”) (citation omitted); In re Wright, 133 B.R. 704, 708 (E.D. Pa. 1991) (“Damages [for a
TILA violation] include actual damages incurred by the debtor plus a civil penalty equal to a
minimum of $100.00, or double the finance charge up to a maximum of $1,000.00….”); Manley
v. Wichita Business College, 701 P.2d 893, 902 (Kan. 1985) (in TILA violation context, if
finance charge cannot be determined, then consumer is entitled to recover statutory minimum
penalty); Corn v. Culpepper Sales, 257 S.E.2d 324, 326 (Ga. App. 1979) (“Any creditor who
fails to comply with any requirement imposed by the Truth in Lending Act is subject to a civil
penalty even though no finance charge is involved.”).
8

Elsewhere in its reply brief, defendant offers a variation of this statement, again in
bold, underlined type, as follows: “Plaintiffs have submitted not a single case finding that a
borrower may proceed with a § 1641(g) claim absent an allegation of actual damages or the
levying of a finance charge.” (Doc. 15, at 6 (emphasis omitted).)

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violations of “twice the amount of any finance charge in connection with the transaction, … or
… in the case of an individual action relating to a credit transaction not under an open end credit
plan that is secured by real property or a dwelling, not less than $400 or greater than $4,000.”
15 U.S.C. § 1640(a)(2)(A)(i), (iv) (emphasis added). Applicable authorities demonstrate that the
measure of statutory damages under § 1640(a)(2)(A) is twice the finance charge, and that this is
true under each subsection of that provision. See Koons, 543 U.S. at 62 (noting that the various
subsections “contain[] no other measure of damages” and reasoning that “[t]he specification of
statutory damages in clause (i) of twice the finance charge continues to apply to loans secured by
real property as it does to loans secured by personal property”). But to say that twice-thefinance-charge is the measure of damages under § 1640(a)(2)(A) is not to say that statutory
damages are zero if there is no finance charge. After all, subsection (iv) sets a floor of $400 in
statutory damages for an action relating to a credit transaction not under an open end credit plan
that is secured by a dwelling. That $400 amount is a statutory minimum penalty, even if the
doubled finance charge is a lesser figure. See Christ v. Beneficial Corp., 547 F.3d 1292, 1297
n.9 (11th Cir. 2008) (“Statutory penalties of twice the amount of any finance charge in connection
with the transaction range from $100 to $1,000 (or $400 to $4,000 for loans secured by real
property).”) (citations and internal quotation marks omitted). So assuming defendant is correct
and the applicable finance charge is zero, the Browns would nonetheless be eligible to recover
the $400 floor in statutory damages for a violation of § 1641(g). Citi’s argument to the contrary
would effectively read the $400 minimum penalty out of § 1640(a)(2)(A), in contravention of the
language of the statute.9
9

Another way to think about it is as follows: Citi concedes that where a doubled
finance charge is less than the minimum, then that minimum penalty applies. See doc. 15, at 9
(reciting example in which “double-the-finance-charge liability was $54.27, entitling the plaintiff
to the $100 minimum”). Under defendant’s reading, a plaintiff who incurred a $0.01 finance
charge would be eligible for the $400 minimum statutory damages under subsection
(a)(2)(A)(iv), but a plaintiff who incurred a $0.00 finance charge would be ineligible for
statutory damages. Nothing in the text of § 1640(a)(2)(A), much less common sense, would
support such an arbitrary distinction. Rather, the statutory language supports a conclusion that,
just like the one-penny example, a plaintiff who had incurred a finance charge of $0 would be
entitled to statutory damages of double that amount, subject to a $400 floor. The Court therefore
declines defendant’s implicit invitation to rewrite § 1640(a)(2)(A) by adding a clause to state that
the minimum statutory damage amounts prescribed therein are inapplicable unless a positive
value finance charge is actually levied against the plaintiff in connection with the underlying
(Continued)
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Third, defendant’s position that statutory damages are never available for TILA
violations that do not involve imposition of a finance charge is irreconcilable with the remedial
purposes of that statute. The Eleventh Circuit has emphasized “the strong remedial purpose of
TILA” and has heeded “continual admonitions that we construe TILA … liberally in the
consumer’s favor.” Bragg v. Bill Heard Chevrolet, Inc., 374 F.3d 1060, 1068 (11th Cir. 2004);
see also McGowan v. King, Inc., 569 F.2d 845, 848 (5th Cir. 1978) (“The scheme of the statute is
to create a system of private attorneys general to aid its enforcement, and its language should be
construed liberally in light of its remedial purpose.”). The statutory damages remedy prescribed
by § 1640(a)(2)(A) is an integral part of that statutory scheme and enforcement mechanism. See
generally Turner, 242 F.3d at 1028 (“Congress provided for statutory damages because actual
damages in most cases would be nonexistent or extremely difficult to prove.”) (citation omitted);
Purtle v. Eldridge Auto Sales, Inc., 91 F.3d 797, 800 (6th Cir. 1996) (“The purpose of the
statutory recovery is to encourage lawsuits by individual consumers as a means of enforcing
creditor compliance with the Act.”) (citation and internal quotation marks omitted); Williams v.
Countrywide Home Loans, Inc., 504 F. Supp.2d 176, 186-86 & n.3 (S.D. Tex. 2007) (“statutory
damages are explicitly a bonus for the plaintiff, designed to encourage private enforcement of”
TILA, and “are reserved for cases in which the damages caused by a violation are small or
difficult to ascertain”) (citations omitted). It would be antithetical to those admonitions and to
TILA’s remedial purposes to read § 1640(a) so narrowly as to bar TILA causes of action by
plaintiffs who have neither suffered actual damages nor incurred a finance charge in the alleged
§ 1641(g) violation. This is particularly true given that the text of the statute provides for an
award of statutory damages with a minimum floor, even in the absence of actual damages.
Fourth, defendant candidly admits that a natural implication of its position is that
statutory damages are never available for § 1641(g) violations. After all, § 1641(g) imposes a
notice requirement on a new owner or assignee of a mortgage loan to apprise the borrower of

violation. Judicial revision of statutes is impermissible, even if done under the guise of judicial
interpretation. See, e.g., Nguyen v. United States, 556 F.3d 1244, 1256 (11th Cir. 2009) (“We are
not authorized to rewrite, revise, modify, or amend statutory language in the guise of interpreting
it.”); Harris v. Garner, 216 F.3d 970, 976 (11th Cir. 2000) (“We will not do to the statutory
language what Congress did not do with it, because the role of the judicial branch is to apply
statutory language, not to rewrite it.”).

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such a transfer in writing. It is difficult to imagine a circumstance where a finance charge would
be “levied related to the alleged § 1641(g) violation,” which is the legal standard advocated by
Citi for statutory damages. (Doc. 15, at 10.) Thus, according to defendant, “[a] violation of
§ 1641(g) will never involve the imposition of a finance charge and, thus, the statutory penalty
under § 1640(a)(1)(A)(i) is unavailable.” (Id. at 7-8.) This absolutist stance does not withstand
scrutiny of the text of the statute. Had Congress wished to render statutory damages
categorically unavailable for the entire class of § 1641(g) claims, surely it would have listed that
section among the other disclosure provisions recited in the “carve-out” paragraph at the end of
§ 1640(a), which curtails access to statutory damages for certain disclosure violations. But
§ 1641(g) is not enumerated in that carve-out paragraph. Instead, § 1641(g) is specifically listed
in the first paragraph of § 1640(a) as a section whose requirements expose violators to liability in
an amount equal to the sum of actual damages plus statutory damages. See 15 U.S.C. § 1640(a)
(“any creditor who fails to comply with any requirement imposed under … subsection (f) or (g)
of section 1641 of this title … with respect to any person is liable to such person in an amount
equal to the sum of” actual and statutory damages). In order to embrace Citi’s position that
Congress intended to prohibit statutory damages in cases involving § 1641(g) violations, one
would likewise have to accept that Congress eschewed a very direct, simple method of making
its intentions clear and somehow expected federal courts to discern that, even though Congress
said that § 1641(g) violations are punishable by actual plus statutory damages, it really meant
that § 1641(g) violations are punishable only by actual damages. Such a strained interpretation
stretches the limits of common sense beyond the breaking point to reach a finding of
Congressional intent that the statutory language does not support. This the Court will not do.
See, e.g., United States v. Ballinger, 395 F.3d 1218, 1237 (11th Cir. 2005) (“As in all cases of
statutory construction, our task is to interpret the words of these statutes in light of the purposes
Congress sought to serve. … [N]othing is better settled than that statutes should receive a
sensible construction, such as will effectuate the legislative intention, and, if possible, so as to
avoid an unjust or absurd conclusion.”) (citations omitted).
Fifth, at a more fundamental level, defendant’s argument is problematic because it,
without explanation or elaboration, equates the phrase “any finance charge in connection with
the transaction” in the statutory damages clause of § 1640(a)(2)(A) with “a finance charge …
levied related to the alleged § 1641(g) violation.” It is not immediately obvious why a finance
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charge “in connection with the transaction” for statutory damages purposes would have to be a
finance charge “related to the alleged § 1641(g) violation” in order to be compensable as
statutory damages under § 1640(a)(2)(A). As plaintiffs point out, there were finance charges
imposed in the underlying mortgage transaction. Which “transaction” is the relevant one for
statutory damages purposes? Although its position is evidently that the mortgage transfer is the
applicable transaction and that previous finance charges do not “count” for § 1640(a)(2)(A)
purposes, Citi does not explain its logic. The Court will not develop this argument for movant.
See, e.g., Harris v. Hancock Bank, 2011 WL 1435500, *2 n.4 (S.D. Ala. Apr. 14, 2011)
(“Federal courts generally do not develop arguments that the parties could have presented but did
not.”); Pears v. Mobile County, 645 F. Supp.2d 1062, 1081 n.27 (S.D. Ala. 2009) (“The parties
… cannot be heard to balk if the undersigned does not perform their research and develop their
arguments for them.”).
To counter the foregoing arguments, Citi relies on a trio of unpublished district court
decisions that it contends supports its position.10 However, the Court finds none of these
authorities persuasive and declines to follow them. In particular, the three opinions shed
precious little light on the issue presented because they do not offer meaningful reasoning or
discussion to justify their determinations that § 1641(g) violations are not actionable in the
absence of actual damages or finance charges. Certainly, nothing in those unpublished district
court opinions would cast doubt on the rationale set forth supra for allowing the Browns to
proceed with their claim for statutory damages under TILA.
III.

Conclusion.
For all of the foregoing reasons, the Court concludes that defendant has not met its

burden of demonstrating entitlement to dismissal of this action under Rule 12(b)(6).11 The
10

Those decisions are Turner v. AmericaHomeKey Inc., 2011 WL 3606688, *3
(N.D. Tex. Aug. 16, 2011); Boroweic v. Deutsche Bank Nat’l Trust Co., 2011 WL 2940489, *3
(D. Haw. July 19, 2011); and Beall v. Quality Loan Serv. Corp., 2011 WL 1044148, *6 (S.D.
Cal. Mar. 21, 2011).
11

See, e.g., Coventry First, LLC v. McCarthy, 605 F.3d 865, 869 (11th Cir. 2010)
(recognizing that movant bears burden on Rule 12(b)(6) motion); Gulf Offshore Logistics, LLC v.
Bender, 2010 WL 500448, *2 (S.D. Ala. Feb. 9, 2010) (“Because the defendant presented a Rule
12(b)(6) motion …, he at all times bore the burden of demonstrating entitlement to dismissal.”);
Superior Energy Services, LLC v. Boconco, Inc., 2010 WL 1267173, *5 (S.D. Ala. Mar. 29,
(Continued)
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Motion to Dismiss (doc. 6) is denied. Plaintiffs’ Motion for Leave to File Sur-Reply (doc. 18) is
granted, and the Sur-Reply appended to that motion has been duly considered herein.
Defendant is ordered to file its answer to the Complaint on or before October 21, 2011.

DONE and ORDERED this 11th day of October, 2011.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

2010) (“When attacking a complaint in a motion filed pursuant to Rule 12(b)(6), the moving
party bears the burden to show that the complaint should be dismissed for failure to state a claim
upon which relief may be granted.”).

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