Driessen v. Innovate Loan Servicing Corporation et al

Filing 55

ORDER: For the foregoing reasons, Plaintiff's objections (ECF No. 48 ) are OVERRULED, and the FCR (ECF No. 47 ) is ADOPTED as the findings and conclusions of the Court. Accordingly, Plaintiff's Motion for Summary Judgment (ECF No. 41 ) is DENIED in its entirety. (Ordered by Judge Reed C. O'Connor on 6/14/2018) (skg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

ROCHELLE DRIESSEN,
Plaintiff,
v.
INNOVATE LOAN SERVICING, et
al.,
Defendants.

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Civil Action No. 4:16-cv-1066-O

ORDER
The United States Magistrate Judge Hal R. Ray, Jr. made findings, conclusions, and a
recommendation in this case. See Jan. 23, 2018 Findings, Conclusions, and Recommendation
(“FCR”), ECF No. 47. The FCR recommended that this Court DENY Plaintiff’s Motion for
Summary Judgment (ECF No. 41), filed October 27, 2017. Plaintiff Rochelle Driessen filed
objections. See Pl.’s Obj., ECF No. 48. Defendant Innovate Loan Servicing Corporation d/b/a
Innovate Auto Finance (“IAF”) and Defendant Caprock Auto Remarketing (“Caprock”)
(collectively “Defendants”) did not respond to Plaintiff’s objections.
The Court conducts a de novo review of those portions of the FCR to which an objection
was made. Anything that Plaintiff does not specifically object to is subject to plain error review.
For the following reasons, Plaintiff’s objections are OVERRULED, the FCR is ADOPTED by
the Court, and Plaintiff’s Motion for Summary Judgment (ECF No. 41) is hereby DENIED.
I.

BACKGROUND
Plaintiff brings this suit against Defendants for claims of failure to provide due process

pursuant to the terms and conditions of the Simple Interest Retail Installment Contract (the
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“Contract”) in violation of the Federal Truth in Lending Act (the “TILA”). Compl. ¶ 2, ECF No.
1. Plaintiff seeks damages in the amount of $13,562.51 resulting from an alleged illegal
repossession of Plaintiff’s vehicle. Id. ¶ 8.
Plaintiff purchased a 2004 Toyota Corolla (the “Vehicle”) from Florida Cars USA in
Miami, Florida, on January 3, 2014. Id. ¶ 2. Plaintiff entered into the thirty-month Contract with
monthly payments in the amount of $314.45 to begin on February 17, 2014. Id. ¶ 9, ECF No. 1;
Compl. Ex. A (Contract), ECF No. 1-A. Plaintiff began making the monthly payments to
Defendant IAF when Florida Cars USA sold the car loan to Defendant IAF in June 2014. Id. ¶ 2.
On August 3, 2016, Plaintiff paid Defendant IAF for the last time in the amount of $258.74. Id.
¶ 3.
Plaintiff contacted Defendant IAF and explained that after she paid $258.74 on August 3,
2016, the account balance was $0.00 and the online payment system would not accept any more
payments. Id. On September 7, 2016, Plaintiff sent a letter to Defendant IAF explaining the online
payment system issue. Id. ¶ 13. Defendant IAF mailed Plaintiff a billing statement for $390.51
with a due date of October 17, 2016, upon receipt of the letter. Id. ¶ 14.
On October 25, 2016, Par North America, a repossessing agent, repossessed the Vehicle
after Defendant IAF placed a repossession order due to Plaintiff’s allegedly delinquent account.
Id. ¶ 2. The repossession agent informed Plaintiff when she tried to recover property from the
Vehicle that the last payment Defendant IAF received from her was on August 3, 2016 in the
amount of $258.74 and she had an outstanding balance of $390.51 due on the car loan. Id. ¶ 3.
Defendant IAF also told Plaintiff that she would need to pay a $390.00 repossession fee in addition
to the outstanding balance in order to have her car returned. Id.

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On November 3, 2016, Plaintiff made a final payment to Defendant AIF in the amount of
$780.51 for the outstanding balance of $390.51 and the $390.00 repossession fee. Id. ¶ 7.
Defendant IAF confirmed receipt of the funds and informed Plaintiff that the Vehicle was
scheduled to be auctioned by Manheim St. Pete, an automobile auction. Id. ¶¶ 7, 16. Caprock
submitted a vehicle release form that explained that Plaintiff was responsible for all auction fees.
Id. ¶ 17. Plaintiff paid $558.02 in auction fees and the Vehicle was released after she signed the
Vehicle Redemption Receipt and Release form. Id. ¶¶ 17, 19.
On November 9, 2016, Plaintiff received a letter from Defendant IAF dated October 26,
2016, that stated the intent to sell Plaintiff’s Vehicle on November 5, 2016. Id. ¶ 20. The letter
listed $395.63 as the “Amount Due to Redeem Vehicle” and $390.51 as the “Amount Due to
Reinstate Contract.” Id.
Plaintiff brings this suit to enforce the Contract between the parties. Plaintiff subsequently
filed a motion for summary judgment, which the Magistrate Judge recommended the Court deny.
Plaintiff filed objections and the Court now reviews the objected-to portions of the FCR de novo.
II.

LEGAL STANDARD
Summary judgment is proper when the pleadings and evidence on file show “that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a). “[T]he substantive law will identify which facts are material.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute as to any material
fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. The movant makes a showing that there is no genuine dispute as to any material fact by
informing the court of the basis of its motion and by identifying the portions of the record which

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reveal there are no genuine material fact issues. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
FED. R. CIV. P. 56(c).
When reviewing the evidence on a motion for summary judgment, the court must decide
all reasonable doubts and inferences in the light most favorable to the non-movant. See Walker v.
Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir. 1988). The court cannot make a credibility
determination in light of conflicting evidence or competing inferences. Anderson, 477 U.S. at 255.
As long as there appears to be some support for the disputed allegations such that “reasonable
minds could differ as to the import of the evidence,” the motion for summary judgment must be
denied. Id. at 250.
III.

ANALYSIS
The Court will conduct a de novo review of the objections raised by Plaintiff to the FCR

recommending denial of her motion for summary judgment. Plaintiff brings five objections to the
FCR, arguing that the Magistrate Judge: (1) improperly failed to consider the Contract in analyzing
her motion for summary judgment; (2) improperly held that she failed to bring a claim under TILA;
(3) improperly found that she failed to negate the Defendants’ defense of release; (4) improperly
found that she failed to support her claim for damages; and (5) improperly found that she failed to
file the claim within the statute of limitations under TILA. For the reasons below, Plaintiff’s
objections are OVERRULED.
A.

Inadequate Introduction of the Contract

Plaintiff first objects that the Magistrate Judge misrepresented the facts by stating that the
Contract at issue had not been properly introduced as competent summary judgment evidence.
Pl.’s Obj. ¶¶ 4–5, ECF No. 48. Essentially, Plaintiff objects to the Magistrate Judge declining to
consider the Contract as evidence in support of Plaintiff’s motion for summary judgment.

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On de novo review, the Court finds that the Magistrate Judge did commit error in relying
on two cases to deny consideration of the Contract in analyzing Plaintiff's motion. The Magistrate
Judge cited two Fifth Circuit opinions, Skennion and Geiserman, to describe the principle that
pleadings are not evidentiary in nature. See FCR 6, ECF No. 47 (citing Skennion v. Godinez, 159
Fed. App’x 598, 601 n.1 (5th Cir. 2005); Geiserman v. MacDonald, 893 F.2d 787, 794 (5th Cir.
1990)). Here, the Contract is not a pleading, but rather a “proper attachment” to the First Amended
Complaint (ECF No. 10). Cf. Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th
Cir. 2011) (discussing how courts should consider complaints and their “proper attachments” in
the context of a motion to dismiss).
The Magistrate Judge was correct in not considering the Contract in analyzing Plaintiff’s
motion for summary judgment because Plaintiff did not comply with the Local Rules in submitting
her appendix. See L.R. 56.6 (“A party who relies on materials in the record . . . to support or oppose
a motion for summary judgment must include the materials in an appendix.”). Accordingly, the
Contract should not have been considered as support for the motion for summary judgment, and
Plaintiff’s objection is OVERRULED.
B.

Failure to Bring a Claim Under TILA

Plaintiff next objects that the Magistrate Judge improperly found that she failed to bring a
claim under TILA. Pl.’s Obj. ¶¶ 7–8, ECF No. 48. Specifically, Plaintiff states that “pursuant to
15 USC (sic) § 1601 by failing to protect Plaintiff, the consumer, against the inaccurate and fair
credit billing,” the Defendants violated TILA. Id. The provision that Plaintiff cites to is part of the
“Congressional findings and declaration of purpose” section of TILA, and mentions no potential
violations for which a claim could be made. 15 U.S.C. § 1601(a). The Magistrate Judge notes that
Plaintiff alleges facts she believes are part of a claim, but fails to cite a provision from TILA that

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would constitute a claim. See FCR 5, ECF No. 47; Pl.’s Mot. Summ. J. ¶ 4, ECF No. 41. The Court
shall grant summary judgment only where a movant is entitled to judgment as a matter of law.
FED. R. CIV. P. 56(a). Plaintiff has failed to establish a claim under TILA that would entitle her to
relief. Therefore, Plaintiff’s objection is OVERRULED.
C.

Defendants’ Adequate Support for Release

Plaintiff next objects that the Magistrate Judge improperly found that Defendants’ defense
of release was supported by the record. Pl.’s Obj. ¶¶ 10–11, ECF No. 48. Plaintiff does not believe
that Defendants properly supported their defense because she claims they copied the release listed
in the Plaintiff’s Amended Complaint and did not provide an original. Id. The Federal Rules of
Civil Procedure allow for an objection to material cited in support of a fact if there is no way for
that material to be introduced into evidence. FED. R. CIV. P. 56(c)(2). Although Defendants have
yet to introduce the release properly, there is nothing to suggest that they would be prevented from
doing so in the future. Plaintiff has failed to demonstrate that the Release in question would be
inadmissible at trial, and her objection is OVERRULED.
Furthermore, a plaintiff moving for summary judgment must negate each affirmative
defense properly pleaded by the defendant, in a manner sufficient to permit the disposition of the
claim as a matter of law. Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)(emphasis
added). Plaintiff addresses Defendant’s defenses of estoppel, release, waiver, statute of limitations,
lack of liability for assignees, and Caprock not being a party to the Contract in her motion for
summary judgment. See Pl.’s Mot. Summ. J., ECF No. 41. Plaintiff did not address Defendant’s
affirmative defenses of unclean hands, Plaintiff’s own breach of the Contract, or the lack of
detrimental reliance by Plaintiff. Id. Plaintiff has not addressed all affirmative defenses in her

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motion for summary judgment (ECF No. 41) raised by Defendants. Her motion for summary
judgment is therefore DENIED.
D.

Failure to Support Claim for Damages

Plaintiff next objects that the Magistrate Judge improperly found that Plaintiff failed to
provide support for her damages claim. Pl.’s Obj. ¶ 12, ECF No. 48. Plaintiff claims that she is
entitled to recover the full value of the Contract as well as the costs associated with redeeming her
car and provides documentation for her payments and costs in her First Amended Complaint. See
Am. Compl., ECF No. 10. Again, Plaintiff’s claims are unsupported by competent summary
judgment evidence because she failed to properly submit an appendix in support of her motion for
summary judgment in compliance with the Local Rules. See supra Part III.A; L.R. 56.6. As
Plaintiff’s claims for damages are without evidentiary support, this objection is OVERRULED.
E.

Failure to File Claim Within the Limitations Period of TILA

Plaintiff finally objects that her claim was filed within the limitations period and the
Magistrate Judge improperly held that she did not. Pl.’s Obj. ¶ 13, ECF No. 48. Under TILA, an
action may be brought within one year from the date of the violation. 15 U.S.C. § 1640(e). “‘The
violation “occurs” when the transaction is consummated. Nondisclosure is not a continuing
violation for purposes of the statute of limitations.’” Johnson v. HomeBridge Fin. Servs., Inc., CV
H-16-0748, 2017 WL 1403300, at *3 (S.D. Tex. Apr. 18, 2017), aff’d sub nom; Johnson v. Real
Estate Mortg. Network, Inc., 705 Fed. App’x 301 (5th Cir. 2017) (quoting Moor v. Travelers Ins.
Co., 784 F.2d 632, 633 (5th Cir. 1986)). Plaintiff entered into the Contract with Defendants’
predecessor on January 3, 2014 and filed her claim on November 21, 2016, more than two years
after the limitations period began to run. Plaintiff failed to file her claim within the TILA
limitations period of one year, and her objection is OVERRULED.

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IV.

CONCLUSION
For the foregoing reasons, Plaintiff’s objections (ECF No. 48) are OVERRULED, and the

FCR (ECF No. 47) is ADOPTED as the findings and conclusions of the Court. Accordingly,
Plaintiff’s Motion for Summary Judgment (ECF No. 41) is DENIED in its entirety.
SO ORDERED on this 14th day of June, 2018.

_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE

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