Opinion

CASEY v. HINTON

Court
District Court, N.D. Florida
Filed
Aug 12, 2024
Cited by
0 cases
Authority
More cited than 33.4%

The opinion

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

JOHNNIE LEE CASEY,

Plaintiff,

v. Case No. 5:23-cv-309-MW/MJF

INNOVATION FINANCIAL CREDIT

UNION and JEREMY HINTON,

Defendants.

/

REPORT AND RECOMMENDATION

The undersigned has screened Plaintiff’s second amended

complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. As to his

federal claims—breach of fiduciary duty and a Truth in Lending Act

claim—Plaintiff has failed to state a claim upon which relief can be

granted. The District Court should dismiss Plaintiff’s federal claims and

should dismiss Plaintiff’s state-law claim without prejudice so that

Plaintiff may refile that claim in a Florida court.

I. BACKGROUND

On or about December 9, 2021, Plaintiff completed a loan

application with Innovation Financial Credit Union (“IFCU”) and was

approved for a $3,000 loan.1 Doc. 10 at 9; Doc. 8 at 6. Plaintiff alleges that

that IFCU failed to properly disclose terms of the loan in violation of the

Truth in Lending Act. Doc. 10 at 9.

Plaintiff also asserts that on October 24, 2023, he sought an audit

of his account and his securities held with IFCU. Id. As part of his

request, Plaintiff mailed “a bill of exchange for the offset or tender of

payment for my principal balance on my loan account.” Id. at 10. This

“bill of exchange” was in the form of a “commercial note draft.” Id.

Plaintiff states that Hinton and IFCU dishonored the note/draft by

deliberately ignoring Plaintiff’s claims to the negotiable instruments and

account. Id. at 9–10.

Plaintiff attempts to assert three claims:

• breach of fiduciary duty pursuant to:

-the Employee Retirement Income Security Act of 1974, 29

U.S.C. § 1101, et seq.,

-a federal regulation enacted pursuant to the Federal Credit

Union Act, 12 U.S.C. § 1751, et seq., and

-a provision of the Federal Reserve Act of 1913, 12 U.S.C. §

221, et. seq.

1 The undersigned believes that the first part of Defendant’s name is

“Innovations,” not “Innovation.” But the undersigned employs Plaintiff’s

preferred spelling throughout this R&R.

• failure to make disclosures required by the Truth in Lending Act of

1968; and

• “wrongful dishonor” pursuant to various provisions of the Uniform

Commercial Code.

II. DISCUSSION

Plaintiff is proceeding in forma pauperis. Therefore, the District

Court is required to review Plaintiff’s complaint and dismiss any claim

that is frivolous or fails to state a claim upon which relief can be granted.

28 U.S.C. § 1915(e)(2)(B). Determining whether a complaint states a

claim upon which relief can be granted is governed by the standard set

forth in Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Fed. R.

Civ. P. 12(b)(6); Mitchell v. Farcass, 112 F.3d 1483, 1485 (11th Cir. 1997).

The District Court must accept all well-pleaded factual allegations of the

complaint as true and evaluates all reasonable inferences derived from

those facts in the light most favorable to the Plaintiff. Hunnings v.

Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir. 1994). To survive dismissal,

“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 Atlantic Corp. v. Twombly, 550 U.S.

544, 570 (2007)).

A. Failure to State a Claim of Breach of Fiduciary Duty

Plaintiff first attempts to state a claim of breach of fiduciary duty

pursuant to the Employee Retirement Income Security Act of 1974, 29

U.S.C. § 1101, et seq., a federal regulation enacted pursuant to the

Federal Credit Union Act, 12 U.S.C. § 1751, et seq., and a provision of the

Federal Reserve Act of 1913, 12 U.S.C. § 221, et. seq. Doc. 10 at 9.

1. Failure to State a Claim Under ERISA, 29 U.S.C. § 1109

Plaintiff first attempts to state a claim of breach of fiduciary duty

pursuant to the Employee Retirement Income Security Act of 1974, 29

U.S.C. § 1101, et seq. The ERISA states in relevant part:

Any person who is a fiduciary with respect to a plan who

breaches any of the responsibilities, obligations, or duties

imposed upon fiduciaries by this subchapter shall be

personally liable to make good to such plan any losses to the

plan resulting from each such breach, and to restore to such

plan any profits of such fiduciary which have been made

through use of assets of the plan by the fiduciary, and shall be

subject to such other equitable or remedial relief as the court

may deem appropriate, including removal of such fiduciary.

29 U.S.C. § 1109(a).

To state a claim under this provision, a plaintiff must allege that:

1. plaintiff was a participant in or beneficiary of a “plan;”

2. defendant was a fiduciary with respect to the “plan;”

3. defendant, while acting in his fiduciary capacity, breached a

duty imposed on the defendant by ERISA;

4. the plaintiff suffered a loss; and

5. the defendant’s breach of a duty imposed by ERISA was the

proximate cause of the plaintiff’s loss.

Pizarro v. Home Depot, Inc., ___ F.4th ___, 2024 WL 3633379, at *4 (11th

Cir. Aug. 2, 2024); Delker v. MasterCard Int’l, Inc., 21 F.4th 1019, 1025

(8th Cir. 2022); Bator v. Dist. Council 4, 972 F.3d 924, 929 (7th Cir. 2020);

Willett v. Blue Cross & Blue Shield of Alabama, 953 F.2d 1335, 1343

(11th Cir. 1992). For purposes of ERISA, the term “plan” means “an

employee welfare benefit plan or an employee pension benefit plan or a

plan which is both an employee welfare benefit plan and an employee

pension benefit plan.” 29 U.S.C. § 1002(3).

Here, Plaintiff has failed to state a claim of breach of an ERISA

fiduciary duty in multiple ways. Specifically, Plaintiff has failed to allege

that:

• Plaintiff was a participant in or beneficiary of an ERISA plan;

• Defendants were fiduciaries with respect to a plan governed by

ERISA;

• Defendants, while acting in their fiduciary capacities, breached a

duty imposed by ERISA;

• Plaintiff suffered a loss; and

• the Defendant’s breach of a duty imposed by ERISA was the

proximate cause of Plaintiff’s loss.

Accordingly, Plaintiff has failed to state an ERISA breach of fiduciary

duty claim upon which relief can be granted.

2. 12 C.F.R. § 701.4 Does Not Create a Cause of Action

Plaintiff next attempts to state a claim of breach of fiduciary duty

pursuant to a federal regulation enacted pursuant to the Federal Credit

Union Act, 12 U.S.C. § 1751, et seq. Specifically, Plaintiff cites 12 C.F.R.

§ 701.4.

Section 701.4 merely sets forth the duties of directors of federal

credit unions. It does not, however, explicitly create a private cause of

action for enforcement of breaches of those duties. Plaintiff essentially

invites the District Court to imply a private cause of action. The “power

to create a cause of action is in every meaningful sense the power to enact

a new law that assigns new rights and new legally enforceable duties.

And our Constitution generally assigns that power to Congress,” not to

the federal courts. Nestle USA, Inc. v. Doe, 593 U.S. 628, 643–44 (2021)

(Gorsuch, J., concurring). Thus, “private rights of action to enforce federal

law must be created by Congress.” Alexander v. Sandoval, 532 U.S. 275,

286 (2001). Courts demand “clear evidence of congressional intent as a

prerequisite to a private right of action.” In re Wild, 994 F.3d 1244, 1255

(11th Cir. 2021) (en banc).

Plaintiff cites no statute, and the undersigned has found no statute,

that creates a private cause of action for breach of the duties imposed by

§ 701.4. Rather, at least two courts have indicated that regulations such

as § 701.4 and its enabling statute do not create a private cause of action.

See Smith v. Dearborn Fin. Servs., Inc., 982 F.2d 976, 979 (6th Cir. 1993);

Acciard v. Whitney, 2010 WL 6813952, at *4 (M.D. Fla. Sep. 17, 2010);

National Temple Non–Profit Corp. v. Nat’l Temple Comm. Fed’l Credit

Union, 603 F. Supp. 807, 808 (E.D. Pa. 1985). Accordingly, Plaintiff has

failed to state a claim upon which relief can be granted.

3. 12 U.S.C. § 504 Does Not Create a Cause of Action

Plaintiff next attempts to state a claim of breach of fiduciary duty

pursuant to a provision of the Federal Reserve Act of 1913, 12 U.S.C.

§ 221, et. seq. Specifically, Plaintiff cites 12 U.S.C. § 504.

“12 U.S.C. § 504 provides for the imposition of civil money penalties

on member banks of the Federal Reserve system for violations of certain

federal banking laws.” Woodley v. Baltimore Gas & Elec., 2024 WL

3691880, at *3 (D. Md. Aug. 6, 2024). Plaintiff does not allege that IFCU

is a bank. Rather, he alleges that it is a credit union. Regardless, the

“imposition of civil penalties under 12 U.S.C. § 504 is carried out by

federal officials, and private individuals do not have a private right of

action to enforce 12 U.S.C. § 504.” Griffin v. Phila. Fed. Credit Union,

2024 WL 3403127, at *2 (E.D. Pa. July 11, 2024); see McNeil v.

Bridgecrest Acceptance Corp., 2024 WL 3534109, at *1 (M.D. Fla. July 25,

2024) (same); see also 12 U.S.C. § 1 (establishing the Office of the

Comptroller of Currency to enforce the compliance with laws and

regulations by financial institutions). Accordingly, with respect to 12

U.S.C. § 504, Plaintiff has failed to state a claim upon which relief can be

granted.

B. Failure to State a Claim Under The TILA

Plaintiff next attempts to state a claim under the Truth in Lending

Act of 1968, 15 U.S.C. § 1601, et seq. Doc. 10 at 9–10. Specifically, Plaintiff

contends that Defendants violated the Act’s disclosure requirements.

The Truth in Lending Act and regulations enacted pursuant to the

Act require lenders to make certain disclosures to borrowers concerning

the terms of loans and credit agreements. In re Fifth Third Early Access

Cash Advance Litig., 925 F.3d 265, 274 (6th Cir. 2019); Clark v. Troy &

Nichols, Inc., 864 F.2d 1261, 1264 (5th Cir. 1989). Specifically, the Act

“requires creditors to provide borrowers with clear and accurate

disclosures of terms dealing with things like finance charges, annual

percentage rates of interest, and the borrower’s rights.” Beach v. Ocwen

Fed. Bank, 523 U.S. 410, 412 (1998). “If a lender fails to make a required

disclosure, TILA provides a borrower a private cause of action against a

lender.” Lavis v. Reverse Mortg. Sols., Inc., 40 F.4th 181, 183 (4th Cir.

2022) (citing 15 U.S.C. § 1640(a)). A plaintiff, however, must initiate any

lawsuit for a violation of the Act “within one year of the date of the

occurrence of the violation.” 15 U.S.C. § 1640(e); In re Smith, 737 F.2d

1549, 1552 (11th Cir. 1984).

Here, Plaintiff alleges that he “entered into a credit card/loan

agreement with Innovation Financial Credit Union” in December 2021.

Doc. 8 at 6, 9; Doc. 10 at 9. A “failure to disclose” violation “occurs when

the transaction is consummated, and nondisclosure is not a continuing

violation for the purposes of the statute of limitations.” Brown v.

Santander Bank, 848 F. App’x 400, 401 (11th Cir. 2021); In re Smith, 737

F.2d at 1552. Thus, IFCU’s alleged failure to make the requisite

disclosures occurred in or around December 2021. To comply with

§ 1640(e), therefore, Plaintiff had to file this civil action in or around

December 2022. Plaintiff, however, did not file this civil action until

November 30, 2023, almost one year too late. Doc. 1. Furthermore, the

failure of a bank to make the requisite disclosures does not give rise to

equitable tolling. Hubbard v. Fid. Fed. Bank, 91 F.3d 75, 79 (9th Cir.

1996), as amended on denial of reh’g (Oct. 2, 1996). Plaintiff, therefore,

failed to state a claim upon which relief can be granted. United States v.

Henco Holding Corp., 985 F.3d 1290, 1296 (11th Cir. 2021); United States

ex rel. Hunt v. Cochise Consultancy, Inc., 887 F.3d 1081, 1085 (11th Cir.

2018), aff’d, 587 U.S. 262 (2019).

C. The District Court Should Decline to Exercise Supplemental

Jurisdiction Over Plaintiff’s UCC Claim

Finally, Plaintiff attempts to assert a state-law claim under various

provisions of the Uniform Commercial Code. Doc. 10 at 10.

When all federal claims have been dismissed prior to trial, the

Eleventh Circuit has “encouraged district courts to dismiss any

remaining state claims.” Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088–

89 (11th Cir. 2004). The District Court, therefore, should decline to

exercise jurisdiction over Plaintiff’s state-law UCC claim and dismiss the

claim without prejudice so that Plaintiff may pursue the claim in state

court if he so elects. See 28 U.S.C. § 1367(c)(3).

III. CONCLUSION

For the reasons set forth above, the undersigned respectfully

RECOMMENDS that the District Court:

1. DISMISS Plaintiff’s breach of fiduciary duty claim and

Plaintiff’s TILA claim for failure to state a claim upon which relief can be

granted pursuant to 28 U.S.C. § 1915(e)(2)(B).

2. DISMISS without prejudice Plaintiff’s state-law UCC claim.

3. DIRECT the clerk of the court to close the case file.

At Pensacola, Florida, this 12th day of August, 2024.

/s/ Michael J. Frank

Michael J. Frank

United States Magistrate Judge

NOTICE TO THE PARTIES

The District Court referred this case to the

undersigned to address preliminary matters and to

make recommendations regarding dispositive matters.

See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C.

§ 636(b)(1)(B), (C); Fed. R. Civ. P. 72(b). Objections to

these proposed findings and recommendations must be

filed within fourteen (14) days of the date of the report

and recommendation. Any different deadline that may

appear on the electronic docket is for the court’s

internal use only and does not control. An objecting

party must serve a copy of the objections on all other

parties. A party who fails to object to the magistrate

judge’s findings or recommendations contained in a

report and recommendation waives the right to

challenge on appeal the district court’s order based on

unobjected-to factual and legal conclusions. See 11th

Cir. R. 3-1; 28 U.S.C. § 636.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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