Ealey v. Benjigates Estates, LLC et al

Filing 23

ORDER GRANTING 10 Defendants' Motion to Dismiss. Signed by District Judge Terrence G. Berg. (Chubb, A)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRENDA EALEY,
Plaintiff,

v.

Case No. 13-10723

BENJIGATES ESTATES, LLC, et al.
Defendant.

HON. TERRENCE G. BERG
HON. MONA K. MAJZOUB
/

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
This matter is before the Court on Defendants’ April 19, 2013 motion to dismiss
for failure to state a claim upon which relief can be granted. The parties have fully
briefed the motion, and oral argument was heard on June 3, 2013.
For the reasons set forth below, it is ORDERED that Defendant’s motion to
dismiss (Dkt. 10) is GRANTED.
The federal claims, Counts II and VII, are DISMISSED WITH PREJUDICE,
while the state claims, Counts I and III–VI are DISMISSED WITHOUT
PREJUDICE.1 Therefore, the entire complaint is DISMISSED.
I.

FACTUAL BACKGROUND

On February 17, 2011, Plaintiff Brenda Ealey executed a commitment letter
with Defendants, agreeing to purchase real property, a home located at 19686
Mitchell Street, Detroit, Michigan. (Dkt. 1-1.) The commitment letter provided that

In the absence of any viable federal claims, the Court declines to retain jurisdiction over the state
claims, 28 U.S.C. § 1367(c), therefore if Plaintiff desires to refile her state claims she must do so in
state court.
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Plaintiff would purchase the property for $4,500, with a down payment of $1,500
paid in three installments before the March 11, 2011 closing date. (Dkt. 1-1.)
On the scheduled closing date of March 11, 2011, Plaintiff entered into and
executed an Agreement to Purchase and Sell Real Estate for $4,500 consistent with
the Commitment letter. (Dkt. 1-2.) Plaintiff elected the method of payment as “Land
Contract.” (Id.)
The payment terms were set forth in a “Land Contract Addendum” (Dkt. 1-2.)
The addendum was executed by Plaintiff on the closing date. (Id.) Plaintiff executed
the addendum and agreed to pay the principle balance of $3,000 in twelve monthly
payments of $250 (Id.) Plaintiff also agreed through the addendum to pay a “finance
charge,” an additional $175 each month that a balance was due “for the time to
complete the purchase.” (Id.) Defendants are allegedly not lenders regulated by the
state of Michigan or the federal government. (Dkt. 1 at ¶ 46.) Additionally, Plaintiff
agreed to a one-time payment of $100 and $30 per month for hazard insurance, and
a one-time payment of $250 and $7 per month for title-monitoring services. (Id.)
The Addendum further provided, and Plaintiff confirmed, that she: “unequivocally
express[ed] FULL and COMPLETE understanding of all terms and conditions
herein contained”; would “adhere with and conform to contract requirements”; and
“hereby acknowledges that ample time has been allotted for contract review and
consultation by qualified legal counsel.” (Id. at ¶ 9.)
Plaintiff made all payments when due, and received on or around March 30,
2012, a quit claim deed for the property in accordance with the terms of the

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agreement and addendum. (Dkt. 1 at ¶¶ 23–24.) Plaintiff does not claim that the
ownership of the property is currently in question. On February 20, 2013, Plaintiff
filed her complaint and initiated this suit, claiming fraud, unjust enrichment, civil
RICO, civil conspiracy, concert of action, violations of the Michigan Consumer
Protection Act, and violations of the federal Truth in Lending and Consumer
Protection Acts. For the reasons set out below, the Complaint must be dismissed
because Plaintiff fails to state a plausible claim. (Dkt. 1.)
II.

LEGAL STANDARD

A Rule 12(b)(6) motion tests whether a legally sufficient claim has been pleaded
in a complaint, and provides for dismissal when a plaintiff fails to state a claim
upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A claim is
facially plausible when a plaintiff pleads factual content that permits a court to
reasonably infer that the defendant is liable for the alleged misconduct. Id. (citing
Twombly, 550 U.S. at 556). When assessing whether a plaintiff has set forth a
“plausible” claim, the district court must accept all of the complaint’s factual
allegations as true. See Ziegler v IBP Hog Mkt., Inc., 249 F.3d 509, 512 (6th Cir.
2001). “Mere conclusions,” however, “are not entitled to the assumption of truth.
While legal conclusions can provide the complaint’s framework, they must be
supported by factual allegations.” Iqbal, 556 U.S. at 664. A plaintiff must provide
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“more than labels and conclusions,” or “a formulaic recitation of the elements of a
cause of action.” Twombly, 550 U.S. at 556. Therefore, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678.
In ruling on a motion to dismiss, the Court may consider the complaint as well
as (1) documents that are referenced in the plaintiff’s complaint or that are central
to plaintiff’s claims, (2) matters of which a court may take judicial notice, and (3)
documents that are a matter of public record. See Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007); see also Greenberg v. Life Ins. Co. of Virginia,
177 F.3d 507, 514 (6th Cir. 1999) (finding that documents attached to a motion to
dismiss that are referred to in the complaint and central to the claim are deemed to
form a part of the pleadings).
III.

ANALYSIS

For the reasons explained below, Plaintiff’s complaint fails to state a claim upon
which relief can be granted. All seven counts of her complaint, and thus the entire
matter, must therefore be dismissed.2

Plaintiff’s first argument in her response, that the motion should not be considered as a Rule
12(b)(6) motion because it was, according to Plaintiff, filed after the Answer, is meritless for several
reasons: (1) the motion to dismiss appears on the docket before the answer, which is to say that in
the eyes of the Court it was filed before the answer; (2) even if the motion were restyled as one
brought under Rule 12(c), when a “Rule 12(b)(6) defense is raised by a Rule 12(c) motion . . . we must
apply the standard for a Rule 12(b)(6) motion . . . .” Morgan v. Church’s Fried Chicken, 829 F.2d 10,
11 (6th Cir. 1987); and (3) Plaintiff’s argument that a 12(c) motion cannot be brought at this time
because the pleadings are not “closed” is without merit—the complaint and answer have both been
filed and neither party has suggested a further pleading will be made in this case.

2

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A.

Count I: “Fraud and Statutory Violations.”
Plaintiff alleges in Count I that Defendants committed fraud and violated

certain of Michigan’s usury laws by entering into a real estate transaction requiring
allegedly usurious interest rates. (Dkt. 1 ¶¶ 41–58.) Defendants contend that
Plaintiff has failed to allege facts sufficient so support her claim of fraud, and that
the usury laws that Plaintiff alleges Defendants violated do not themselves provide
a cause of action. (Dkt. 10 at 8–11.)
For most claims, Federal Rule of Civil Procedure 8(a) requires that a plaintiff
satisfy her pleading burden by drafting a “short and plain statement of the claim.”
Rule 9, however, requires that claims of fraud be supported with a statement,
detailing “with particularity,” “the circumstances constituting fraud or mistake.”
In Michigan,
“[t]he general rule is that to constitute actionable fraud it must appear:
(1) [t]hat defendant made a material representation; (2) that it was
false; (3) that when he made it he knew that it was false, or made it
recklessly, without any knowledge of its truth, and as a positive
assertion; (4) that he made it with the intention that it should be acted
upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6)
that he thereby suffered injury. Each of these facts must be proved
with a reasonable degree of certainty, and all of them must be found to
exist; the absence of any one of them is fatal to a recovery.”
Hi-Way Motor Co. v. Int’l Harvester Co., 247 N.W.2d 813, 816 (Mich. 1976) (quoting
Candler v. Heigho, 175 N.W. 141, 143 (1919)). Plaintiff must also plead facts
sufficient to meet the plausibility standard from Iqbal: “a claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.
1. Plaintiff has failed to plead facts establishing fraud.
Although Count I contains numerous allegations, it fails to satisfy the six
pleading requirements for fraud noted above.3
The Complaint alleges that certain Defendants—though it is entirely unclear
which ones—“made a material representation” “with the intention that it should be
acted upon by plaintiff,” and that “plaintiff acted in reliance upon it.” Significantly,
however, the Complaint fails to specify exactly which “material representation” was
false, or triggered the alleged fraud. Because the Complaint fails to allege all the
necessary elements of fraud, this claim fails. To the extent the alleged
“misrepresentation” was a failure by Defendants to inform the Plaintiff of the
allegedly usurious rate of interest, that is a claim for silent fraud.
To make a claim of silent fraud, a plaintiff must also show that the defendants
have a “legal or equitable duty of disclosure.” United States Fidelity & Guaranty Co.
v. Black, 313 N.W.2d 77, 88 (Mich. 1981) (citing 37 Am. Jur. 2d Fraud and Deceit §
146). Plaintiff has not made such an allegation here, nor has she offered facts in
support of such an allegation. Thus Plaintiff’s claim of “silent fraud” would also fail.
Plaintiff has alleged, essentially: (1) that the parties entered into an agreement;
(2) the agreement required Plaintiff to pay a usurious amount of interest; (3)

Plaintiff correctly noted in her response that these elements need not be proven at this time (Dkt.
17 at 8), but Plaintiff must still allege facts “that allow[] the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
3

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Defendants either knew or should have known that the interest rate was usurious;
(4) Plaintiff did not know the interest was usurious; and (5) Defendants did not
inform Plaintiff that the interest rate was usurious. This falls far short of pleading
a claim of fraud, silent or otherwise. The Complaint does not allege that Defendants
made a false statement, nor does it contend that Defendants had an obligation to
inform Plaintiff of the status of the interest, 4 or that Plaintiff suffered any injury as
a result of the conduct. Plaintiff’s broad claim that Defendants “pull[ed] off” an
“overwhelmingly fraudulent scam on innocent victims,” (Dkt. 17 at 7), offers a
conclusory description that sounds illegal, but the complaint is devoid of specific
factual allegations of what the defendants did that meet the elements of an action
for fraud.
2. Plaintiff has not brought an independent claim for alleged violations of
Michigan’s usury laws.
Although Count I is titled as “Fraud and Statutory Violations,” and states that
Defendants have allegedly violated Michigan’s usury laws, Plaintiff argues that she
is not in fact bringing an independent claim for violation of the usury laws but
rather refers to those violations only to support her claim of fraud. (Dkt. 17 at 5.)

Even if Plaintiff had alleged that Defendants had an affirmative duty to inform Plaintiff of the
status of the “interest,” the question remains whether, as a matter of law, the transaction was not in
violation of Michigan’s usury laws because it was not an extension of credit or a loan, and there was
no “interest” involved but rather merely a credit sale involving a time-price differential. See Thelen v.
Ducharme, 390 N.W.2d 264, 267 (Mich. Ct. App. 1986); In re Skyland, Inc., 31 B.R. 920, 922–23
(Bankr. W.D. Mich. 1983); Silver v. Int’l Paper Co., 192 N.W.2d 535 (Mich. Ct. App. 1971); 9
Williston on Contracts § 20:13 (4th ed.) (“[A]lthough [Thelen] recognize[ed] a distinction between the
time-price differential and usurious interest, when a time-price differential was payable along with
interest at the highest rate permissible, and the statute required that all charges that would be
considered finance charges under the Federal Truth in Lending Act be considered in determining
interest, the transaction was usurious.”) (emphasis added). The Court need not, and does not, make a
finding as to whether the land contract at issue was covered by Michigan’s usury laws, but rather
only notes that such an argument by Defendant would not have been frivolous.
4

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Because Plaintiff does not allege any independent claim of any violation of
Michigan’s usury laws, the only question is whether the complaint states facts
sufficient to make out a cause of action for fraud. Plaintiff has failed to do so.
Count I of the complaint therefore fails to state a claim.
B.

Count II: The Racketeer Influenced and Corrupt Organizations Act,
18 U.S.C. § 1962(c) and (d).
Count II of Plaintiff’s complaint alleges that Defendants violated both 18 U.S.C.

§ 1962(c) and (d) (“the RICO claim”). Section 1962(c) provides that:
[i]t shall be unlawful for any person employed by or associated with
any enterprise engaged in, or the activities of which affect, interstate
or foreign commerce, to conduct or participate, directly or indirectly, in
the conduct of such enterprise’s affairs through a pattern of
racketeering activity or collection of unlawful debt.
Section 1962(d) makes it unlawful for persons to conspire to violate any of the other
subsections of Section 1962, including 1962(c).
Thus, to “state a claim to relief that is plausible on its face,” Twombly, 550 U.S.
at 555, Plaintiff must allege “sufficient factual matter, accepted as true,” Iqbal, 556
U.S. at 678, that alleges Defendants were: (1) “employed by or associated with an[]
enterprise” that was “engaged in” or “affect[ed]” interstate or foreign commerce, and
(2) conducting or participating in the enterprise’s affairs “through a pattern of
racketeering activity or collection of unlawful debt,” 18 U.S.C. § 1962(c); or (3)
conspiring to do so, 18 U.S.C. § 1862(d).
Plaintiff has not alleged that the “enterprise” was “engaged in” or “affect[ed]”
interstate or foreign commerce. Failure to plead this element requires Count II to be
dismissed for failure to state a claim. See Iqbal, 556 U.S. at 678; Sterling v.
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Ourisman Chevrolet of Bowie, Inc., No. PWG-12-3193, 2013 WL 1870781, *5 (D. Md.
May 2, 2013); cf. Hall Am. Center Assocs. Ltd. P’ship v. Dick, 726 F. Supp. 1083,
1091–92 (E.D. Mich. 1989) (discussing the requirement of pleading an effect on
interstate commerce).
Further, even if the allegation of the enterprise’s effect on interstate commerce
had been made, Plaintiff has not adequately alleged that any particular person
conducted or participated in the enterprise’s affairs “through a pattern of
racketeering activity or collection of unlawful debt” as required by § 1962(c). The
Complaint speaks primarily to Defendants’ “racketeering activity” as the source of
the RICO claim, but Plaintiff has not identified which activities of the Defendants
are “racketeering activities” under RICO. In response to the motion to dismiss,
Plaintiff has shifted tack and now focuses on Defendants’ alleged “collection of
unlawful debt,” (Dkt. 17 at 9), but the Complaint is devoid of any factual allegations
about the Defendants’ involvement in the collection of unlawful debt.
While the complaint does allege that Defendant Antoine Benjamin was involved
in establishing a land contract under which “finance charges” were paid that
Plaintiff alleges are usurious, it fails to make any allegations entitled to the
presumption of truth that the debt was incurred in connection with “the business of
lending money,” as required by 18 U.S.C. § 1961(6). The complaint as a whole
makes it clear that Defendants are or were in the business of selling houses, which
they allegedly did by, at least on some occasions, offering buyers the option to
purchase those homes on credit. These allegations are not sufficient for the Court to

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plausibly conclude that Defendants were actually in the business of lending money.
See, e.,g., Cannarozzi v. Fiumara, 371 F.3d 1, 4 (1st Cir. 2004); Durante Bros. and
Sons, Inc. v. Flushing Nat’l Bank, 755 F.2d 239, 250 (2d Cir. 1985).
Because Plaintiff fails to allege that the enterprise affected interstate commerce
and also fails to specify the nature of the racketeering activity or the collection of an
unlawful debt, Count II fails to state a claim under the RICO statute.
C.

Count III: Unjust Enrichment.
Count III is a claim of unjust enrichment. (Dkt. 1 ¶¶ 70–72.) The elements of a

claim for unjust enrichment are “(1) receipt of a benefit by the defendant from the
plaintiff[,] and (2) an inequity resulting to plaintiff because of the retention of the
benefit by defendant. In such instances, the law operates to imply a contract . . . to
prevent unjust enrichment.” Barber v. SMH (US), Inc, 509 N.W.2d 791, 796 (Mich.
1993). But “a contract will be implied only if there is no express contract covering
the same subject matter.” Id.
Plaintiff apparently concedes that the above is the current state of the law, and
that it is potentially fatal to her claim of unjust enrichment, noting that she pleaded
this count “in the alternative” in the event that “the contract is deemed invalid by
law.” (Dkt. 17 at 10.)
Count III must be dismissed for failure to state a claim upon which relief can be
granted because the complained of transaction was covered by an express contract,
and therefore no relief is available under unjust enrichment. (Dkt. 1 ¶¶ 17–23, Exs.
A, B.)
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D.

Counts IV and V: Civil Conspiracy and Concert of Action.
Count IV is a claim of Civil Conspiracy. (Dkt. 1 ¶¶ 73–79.) The elements of a

claim for civil conspiracy are: (1) “some concerted action,” (2) by “a combination of
two or more persons,” (3) “to accomplish a criminal or unlawful purpose, or to
accomplish a purpose not unlawful by criminal or unlawful means.” Cousineau v.
Ford Motor Co., 363 N.W.2d 721, 730 (1985) (quoting Fenestra, Inc. v. Gulf
American Land Corp., 141 N.W.2d 36, 48 (1966)). Defendants argue that Plaintiff’s
claim of civil conspiracy should fail because the Count “does not have a valid
underlying tort against Defendants.” (Dkt. 10 at 14–15.)
Defendants are correct that Plaintiff has not alleged a “valid underlying tort.”
The only tort claim Plaintiff has made is the fraud claim in Count I, but as
discussed above that claim must be dismissed for failure to state a claim. That does
not end the inquiry, however.
While Defendants have accurately cited cases that hold that a claim for civil
conspiracy cannot survive without a valid underlying tort, (Dkt. 10 at 14), the use of
the term “tort” in those cases is likely a consequence of the facts of those cases.
More generally stated, what is necessary for a civil conspiracy claim to stand is an
adequately alleged “wrongful act[] causing . . . damages.” Fenestra, 141 N.W.2d at
49. While Plaintiff’s allegations are insufficient to support her claim of fraud, it is
possible that they could be sufficient to provide the “wrongful act” necessary for her
claim of civil conspiracy to survive. But the Court need not make that
determination because Count IV fails for a completely different reason.
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Plaintiff’s claim of civil conspiracy fails to state a claim upon which relief can be
granted because she fails to adequately allege that Defendants performed or took
part in a “concerted action”—in other words, she has failed to allege that the
Defendants actually conspired with one another. A claim of conspiracy cannot stand
without an agreement between two or more persons with an unlawful object—that
is, without an allegation that an actual conspiracy existed.
Plaintiff has not made any specific allegations of conduct by any of the
Defendants other than Antoine Benjamin, except to note their names and positions
within the Defendant companies. The generalized, conclusory allegations such as
those in paragraphs 60 through 86, to the effect that “Defendants” jointly undertook
certain conduct, are not sufficient to “state a claim to relief that is plausible on its
face,” Twombly, 550 U.S. at 555, because they do not plead factual content that
permits the Court to reasonably infer that the defendants are liable for the alleged
misconduct. See Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556
U.S. at 678.
The Court cannot find that the claim of civil conspiracy is plausible when
Plaintiff has not alleged even that the Defendants other than Benjamin were aware
of the allegedly usurious finance charges, or occupied roles or took actions that
would have given them knowledge of the allegedly nefarious business operations.
Plaintiff’s Count V for concert of action fails to state a claim for the same reason
as Count IV. In her response, Plaintiff notes: (1) that a concert of action claim does

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not require “‘[e]xpress agreement’ . . . all that is required is that there be a tacit
understanding”; (2) that Plaintiff need not “be []able to identify the specific
defendant who caused [her] injury”; and (3) “[t]o state a cause of action . . . Plaintiff
need only allege that the defendants were jointly engaged in tortious activity as a
result of which the plaintiff was harmed.” (Dkt. 17 at 12.) This may be a correct
statement of the law, but it does not save her claim for concert of action, because, as
with civil conspiracy, she has not adequately alleged that “defendants were jointly
engaged in tortious activity as a result of which the plaintiff was harmed.” As stated
above, there are no allegations in the Complaint entitled to the presumption of
truth that explain what role, knowledge, or participation, if any, anyone other than
Benjamin had regarding Plaintiff’s, or anyone else’s, land contract. There is
consequently no jointly engaged in tortious activity alleged in the Complaint. For
this reason, both Counts IV and V fail to state a claim upon which relief can be
granted.
E.

Count VI: Michigan Consumer Protection Act.
Count VI is a claim of violations of the Michigan Consumer Protection Act. (Dkt.

1 ¶¶ 87–101.) The elements of a claim for violating the Act are: (1) the defendant is
engaged in trade or commerce, Michigan Compiled Laws 445.902(1)(g); (2) the
conduct by the defendant is prohibited under Michigan Compiled Laws 445.903(1);
(3) if requesting declaratory or injunctive relief, the plaintiff is a person as defined
in the Act, Michigan Compiled Laws 445.911(1); and (4) if requesting individual or

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class damage relief, the plaintiff is a “person who suffers loss,” Michigan Compiled
Laws 445.911(2), (3).
Defendants argue that this count should be dismissed because Benjamin’s status
as a licensed real estate broker exempted his actions from the application of the Act.
Dkt. 10 at 15–16.) As Plaintiff points out, this is plainly wrong. Benjamin’s status a
as a real estate broker does not exempt him from actions he takes as a creditor.
But, nevertheless, Plaintiff’s Count VI fails to state a claim upon which relief
can be granted.
Plaintiff has not established how the charging of usurious interest, alone,
violates the Act. Plaintiff specifically notes that Defendants violated the Act by
“misrepresenting the advantages, benefits, terms[,] and conditions of the sale on
land contract . . . .” (Dkt. 1 ¶ 95.) But there is no allegation entitled to the
presumption of truth that any Defendant misrepresented anything—there is no
allegation that any Defendant actually told or otherwise communicated to Plaintiff
that the “interest rate” charged was not usurious. Plaintiff has not pleaded facts
setting out conduct by the defendant that is prohibited under Michigan Compiled
Laws 445.903(1). As to the specific allegations made by Plaintiff in paragraph 95 (A)
through (K): (A) Plaintiff has not established that Defendants caused “the
probability of confusion and misunderstanding as to the legal rights, obligations, or
remedies” Plaintiff had regarding the transaction; (B) Plaintiff has not established
that Defendants “represent[ed]” or implied that the rate of interest was . . . legal”5;

Plaintiff also does not provide an explanation for how those facts, even if they are assumed to be
true, constitute a violation of § 445.903(g).
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(C) Plaintiff has not identified any misrepresentations of fact; (D) Plaintiff has not
explained how Defendants “[took] advantage of the consumer’s inability reasonably
to protect . . . her interests”; (E) Plaintiff has not alleged any such discrepancies; (F)
Plaintiff has not alleged that any failure to reveal a material fact by Defendants
“tend[ed] to mislead or deceive”; (G) Plaintiff has not established “that Defendants
entered into a consumer transaction in which the consumer waive[d] or purports to
waive a right, benefit, or immunity”; (H) Plaintiff has not alleged a “gross
discrepancy’ between the oral representations of the seller and the written
agreement”; (I) Plaintiff has not alleged how Defendants made a “representation of
fact or statement of fact material to the transaction such that a person reasonably
believes the represented or suggested state of affairs to be other than it actually is”;
(J) Plaintiff has not established how charging a “title monitoring fee” violates the
Act; and (K) Plaintiff has not established which “representation of fact” was not
properly countered by the revelation of “facts that are material to the transaction.”
(Dkt. 1 ¶¶ 95.) For these reasons, Count VI fails to state a claim upon which relief
can be granted.
F.

Count VII: Truth in Lending Act and Consumer Credit Protection
Act.
Count VI is a claim of violations of Truth in Lending Act and Consumer Credit

Protection Act. Defendants argue that this Count must be dismissed because the
one-year statute of limitations has run, (Dkt. 10 at 16–17.) The Court agrees. 15
U.S.C. § 1640(e). The law requires, for certain claims under the Truth in Lending

15

Act, that suit be brought within one year.6 Id. Plaintiff’s vague pleading does not
identify which sections of the Act Defendants allegedly violated. Plaintiff also fails
to argue in response how Defendants’ conduct violates one of the sections of the Act
that has a longer limitations period. Plaintiff’s obligation to make a plausible claim
includes the responsibility to allege facts that enable the Court and the opposing
parties to determine whether the claim falls within the applicable limitations
period. Despite the need to respond to Defendant’s argument that this claim is timebarred, Plaintiff does not clarify how she is alleging facts that justify a claim under
those provisions of the Act with longer limitations periods. Plaintiff rather offers
conclusory allegations of fraudulent concealment to justify the late filing. This claim
of fraudulent concealment is not supported by any specific factual allegations as to
what was done, and by whom, to fraudulently conceal Plaintiff’s claims of violations
of the Truth in Lending Act and Consumer Credit Protection Act.
As the statute of limitations for this claim had run before Plaintiff brought suit,
Count VII must be dismissed for failure to state a claim.7
IV.

CONCLUSION

For the reasons set forth above, it is ORDERED that Defendant’s motion to
dismiss (Dkt. 10) is GRANTED.

Claims not subject to the one-year limitation are those brought “with respect to any violation of
section 1639, 1639b, or 1639c,” those claims must be brought within three years. 15 U.S.C. § 1640(e).
6

Plaintiff argued in her response that because Defendants did not offer an argument against
Plaintiff’s claim under the Consumer Credit Protection Act, that that claim must stand. (Dkt. 17 at
16.) The Court disagrees. As the Truth in Leading Act was originally Title I of the Consumer Credit
Protection Act, and considering that Plaintiff paired them in a single count, it was more than
reasonable for Defendants to assume that the claim was simply one brought under TILA. Regardless,
Plaintiff’s very vague pleading is insufficient to sustain a separate claim under the Consumer Credit
Protection Act.

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The federal claims, Counts II and VII, are DISMISSED WITH PREJUDICE,
while the state claims, Counts I and III–VI are DISMISSED WITHOUT
PREJUDICE. Therefore, the entire complaint is DISMISSED.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: December 9, 2013
Certificate of Service
I hereby certify that this Order was electronically submitted on December 9, 2013, using
the CM/ECF system, which will send notification to each party.
By: s/A. Chubb
Case Manager

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