The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
SEPTEMBA KINNAIRD,
Plaintiff,
v. Case No. 5:24-cv-846-CLM
CAPITAL ONE,
Defendant.
MEMORANDUM OPINION
Septemba Kinnaird sues Capital One, asserting claims pursuant to the
Federal Reserve Act, 12 U.S.C. § 226; the Bill of Exchange Act; 12 U.S.C. §
1431, a provision of the Federal Reserve Act; the Equal Credit Opportunity
Act, 15 U.S.C. § 1691; and the Truth in Lending Act. (Doc. 1 at 3). Kinnaird
proceeds pro se and has filed a motion for leave to proceed in forma pauperis
and receive an attorney. (Doc. 2).
The court GRANTS Kinnaird’s motion to proceed in forma pauperis but
DENIES her motion for appointment of an attorney. As explained, the court
also DISMISSES this action WITH PREJUDICE for failing to state a claim
on which relief can be granted.
—
1. Motion for Leave to Proceed in forma pauperis and receive an
attorney
An applicant may proceed in forma pauperis if, “because of his poverty, [she]
is unable to pay for the court fees and costs, and to support and provide
necessities for himself and his dependents.” Martinez v. Kristi Kleaners, Inc.,
364 F.3d 1305, 1307 (11th Cir. 2004). When considering a motion filed
pursuant to § 1915(a), “[t]he only determination to be made by the court ... is
whether the statements in the affidavit satisfy the requirement of poverty.” Id.
(quoting Watson v. Ault, 525 F.2d 886, 891 (11th Cir.1976)). The court
considers the motion for authority to commence an action without prepayment
of fees, costs, or security valid because Kinnaird has provided sufficient
information to support her status as indigent, including—but not limited to—
her fixed income. (Doc. 2).
Regarding a motion for appointment of an attorney, “[a] plaintiff in a
civil case has no constitutional right to counsel.” Bass v. Perrin, 170 F.3d 1312,
1320 (11th Cir. 1999). The Eleventh Circuit, however, has admonished that
“[t]he appointment of counsel is . . . a privilege that is justified only by
exceptional circumstances, such as where the facts and legal issues are so novel
or complex as to require the assistance of a trained practitioner.” Poole v.
Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987) (emphasis added). Kinnaird has
made no effort to retain an attorney, and the court has carefully considered
Kinnaird’s motion for appointment of an attorney and determines that she has
failed to raise “exceptional circumstances” justifying court-appointed counsel.
(See Doc. 1; Doc. 2).
2. Relevant Law
Federal law requires the court screen in forma pauperis complaints.
Relevant here, Title 28 U.S.C. § 1915 requires the court “dismiss the case at
any time if the court determines that the action or appeal is frivolous or
malicious; [or] fails to state a claim on which relief may be granted.”
In conducting its review of Kinnaird’s Complaint, the court is mindful
that complaints by pro se litigants are held to a less stringent standard than
pleadings drafted by attorneys and subject to liberal construction. Taveras v.
Bank of Am., N.A., 89 F.4th 1279, 1285 (11th Cir. 2024) (citing Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998)). However, the court may
not “act as de facto counsel or rewrite an otherwise deficient pleading to sustain
an action.” Bilal v. Geo Care, LLC, 981 F.3d 903, 911 (11th Cir. 2020) (citing
GJR Invs., Inc. v. Cnty. of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998),
overruled on other grounds by Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
3. Relevant Facts
Kinnaird asserts:
On May 16, 2024, defendant received [a] package from plaintiff
containing the payment for one account. Enclosed in the package
was the bill in which the plaintiff indorsed [sic], the tender of
payment instructing the Chief Financial Officer Andrew Young to
transfer the principal balance (interest) to the principal account
each billing cycle for set-off, and a Power of Attorney validating
ownership rights (the plaintiff has Power of Attorney over the
principal) and provided for security of the transaction . . . .
(Doc. 1 at 9). Capital One closed Kinnaird’s accounts and rejected Kinnaird’s
attempt at payment, stating “the method of payment provided violated the
terms of the agreement set in place.” (Id.). Kinnaird attempted to persuade
Capital One to reverse that action, but Capital One refused. In addition,
Capital One “continues to disclose plaintiff[’]s security information with credit
agencies.” (Id.). As a result of Capital One’s closure of her accounts, Kinnaird
lacks access to vital funds. (Id.).
4. The Lawsuit
According to Kinnaird:
The nature of this suit is breach of contract due to nonperformance.
The plaintiff is not receiving valuable consideration in this
contract which is extremely crucial in any contract. The
consideration the plaintiff/principal is due is the interest on all
three accounts, in which plaintiff has had no access to since May
24th, 2024. Defendant continues to withhold plaintiff of the given
rights to credit. Defendant continues to move in greed and bad
faith and overplay their legal role as the acting creditors, not the
original creditors.
(Id. at 10). Kinnaird claims that Capital One violate several statutes.
She asserts that Capital One violated the Equal Credit Opportunity Act
by treating her as a minor and discriminating against her on the basis of age.
(Id.). She also asserts that Capital One violated 12 U.S.C. § 1431:
Plaintiff came forth to claim all titles, rights, interest, and equity
owed to the principal. Defendant fails to uphold their duties to
borrow [securities], give security, and pay interest. Plaintiff
exchanged the bill directing defendant to transfer the interest to
the principal account. Defendant failed to transfer the interest
which is due to the principal. Defendant in bad faith continues to
oppress plaintiff, demanding unearned interest instead of
transferring the interest as instructed. Defendant is under
regulation of the Federal Reserve and the Securities and Exchange
Commission and must abide by the laws of these foundations.
(Doc. 1 at 11 (alteration in original)). She asserts Capital One violated the Bill
of Exchange Act:
Defendant issues bills each and every month. A bill is a bill of
exchange. Plaintiff indorsed [sic] without recourse each bill for
three accounts, and exchanged them back to defendant for
transfer. This act states a bill is to be paid with interest. The
defendant is to pay the interest under the Federal Reserve Act
Section Part 5 where it states “such bank shall be charged with the
amount of the notes issued to it and shall pay such rate of interest
as may be established by the Board of Governors of the Federal
Reserve System on only that amount of such notes.” Plaintiff has
ownership rights of the principal whom is [sic] a member of the
Federal Reserve System. Plaintiff is being damaged by the
defendants lack [sic] of legal standing to interpret lawful legal
tender sent to them.
(Id.). She also claims Capital One violated the “Federal Reserve Act Section
16 Part 1 and Part 2”:
Upon application of the plaintiff with the defendant, plaintiff made
advance in federal reserve notes to defendant, in which the
defendant redeemed in lawful money on demand to the United
States Treasury Department/Federal Reserve Bank. Plaintiff
gave collateral security to defendant. In no event shall such
collateral security be less than the amount of Federal Reserve
notes applied for under this act. Plaintiff utilized collateral
security upon admission with defendant in which plaintiff is now
coming forth to claim all unearned interest dated back to July of
2008. Plaintiff requests from defendant to utilize the interest in
the way instructed, to transfer the principal balance to the
principal account for set-off each billing cycle for all three accounts.
(Id.). Finally, she claims Capital One violated the Truth in Lending Act by
exercising “tactics that have been determined overly unjust, leading plaintiff
to question the morals and intent of defendant,” by “not conducting business
with plaintiff i[n] an honest manner,” by withholding pertinent information,
and by “actively and persistently committing security fraud . . . .” (Id. at 11-
12).
Kinnaird asks the court to order Capital One to follow her instructions
for her three accounts “to prevent further damage to the accounts,” and to
“release all unearned interest on all three accounts of the plaintiff to the
plaintiff along with any determined damages awarded for the breach that this
Court deems just.” (Id. at 12).
5. Discussion
In essence, Kinnaird received statements from Capital One regarding
balances on three credit card accounts she maintained with it; wrote on each
statement words conveying that the balance due comprised funds she endorsed
into her “account”; sent letters to Capital One instructing it to apply the funds
in her “accounts” to the balances due on her credit card accounts; and filed the
instant action when Capital One declined to follow her instructions. (Doc. 1-2;
Doc. 1-3). Neither these facts, nor Kinnaird’s pleaded claims, presents a viable
cause of action. Rather, Kinnaird’s Complaint
is similar to several others filed by pro se litigants filled with
frivolous and nonsensical quasi-legal assertions and baseless
theories in an attempt to avoid paying their debts and the
consequences of their failure to pay their debts, in particular by
alleging that they have satisfied their obligations through their
own manufactured documents rather than legal forms of payment.
White v. AT&T, No. 123CV04308VMCJCF, 2023 WL 8821311, at *2 (N.D. Ga.
Oct. 25, 2023). As numerous other district courts have recognized, the cited
federal statutes do not provide relief for such a scheme. See Thomas v. Fam.
Sec. Credit Union, No. CV 23-00222-TFM-B, 2024 WL 478070, at *5-6 (S.D.
Ala. Jan. 17, 2024), report and recommendation adopted, No. 1:23-CV-222-
TFM-B, 2024 WL 474837 (S.D. Ala. Feb. 7, 2024) (collecting cases).
As other courts have recognized, section 16 of the Federal Reserve Act
does not create a private right of action. Jd. at *5. The Bill of Exchange Act
does not provide a viable cause of action because no such federal statute exists.
See id. at *6 (collecting cases). District courts consistently recognize the
inapplicability of 12 U.S.C. § 1431 to claims such as Kinnaird’s. Id. at *6
(collecting cases). Title 12 U.S.C. § 1431 sets forth the powers and duties of
Federal Home Loan Banks. According to Capital One’s website, it no longer
services residential mortgage loans, and Kinnaird’s accounts with Capital One
involve consumer credit cards, not home loans. (Doc. 1-1; Doc. 1-3); see also
Home loans, CAPITAL ONE, https://www.capitalone.com/help-center/contact-
us/home-loans/. Kinnaird did not specify the provision of the Truth in Lending
Act under which she proceeds, yet the court can discern no possible violation
of that statute based on Capital One’s alleged actions in this case. Finally, the
Equal Credit Opportunity Act prohibits a creditor from discriminating against
an applicant “with respect to any aspect of a credit transaction” on the basis of
factors including age. 15 U.S.C. § 1691(a)(1). Other district courts have
declined to extend the Equal Credit Opportunity Act’s protections to
allegations, like Kinnaird’s, that a plaintiff “applied for credit, obtained credit,
and the account was eventually closed.” Murray v. Cap. One N.A., No. CV 21-
1190, 2021 WL 5802471, at *4 (W.D. Pa. Dec. 7, 2021).
To the extent Kinnaird asserts a state law claim for breach of contract,
she must validly allege that a valid contract existed; she performed under the
contract; Capital One failed to perform under the contract; and she suffered
damages as a result. Childs v. Pommer, 348 So. 3d 379, 387 (Ala. 2021). As
other district courts have concluded under similar circumstances, Kinnaird’s
allegations demonstrate neither her performance under the contract nor
Capital One’s non-performance. See Thomas, 2024 WL 478070, at *8 (citations
omitted) (“[T]lo the extent Thomas suggests that handwriting financial
buzzwords on loan-related correspondence and _ repeatedly sending
‘instructions to set off the principal’s balance’ amounted to legitimate
performance under a contract, Thomas’ assertion is highly implausible and,
indeed, frivolous. Also highly implausible is Thomas’ suggestion that Family
Security’s refusal to accept or comply with his nonsensical demands amounted
to nonperformance under a contract between the parties.”).
CONCLUSION
Because Kinnaird has asserted no viable basis for relief, the court will
DISMISS this action WITH PREJUDICE. See 28 U.S.C. § 1915(e)(2)(B).
The court will enter a separate Final Judgment.
The Clerk of Court is DIRECTED to send a copy of this Memorandum
Opinion to Kinnaird at her address of record.
DONE and ORDERED on July 22, 2024.
Leveutl ay a
COREY L. MAZE”
UNITED STATES DISTRICT JUDGE