United States District Court, D. New Mexico
ORDER GRANTING DEFENDANT'S MOTION TO
GREGORY B. WORMUTH, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant's Motion to
Dismiss pursuant to Rule 12(b)(6). Doc. 4. Having reviewed
the subsequent briefing (doc. 12) and being fully advised,
the Court will grant the Motion to Dismiss.
case stems from allegations surrounding Plaintiff's entry
into a secure auto loan contract with Defendant on April 27,
2017. Doc. 1-1 at 7. On September 19, 2018, Plaintiff,
proceeding pro se, initiated suit in the Twelfth
Judicial District Court of New Mexico, asserting a claim
under the Truth in Lending Act (“TILA”) and a
claim for common-law fraud. Id. On November 2, 2018,
Defendant removed the action to this Court pursuant to its
federal question jurisdiction under 28 U.S.C. § 1331.
Doc. 1. On November 9, 2018, Defendant filed its Motion to
Dismiss Plaintiffs' action for failure to state a claim.
Doc. 4. On December 27, 2018, Plaintiff filed an untimely
Response. Doc. 12. The Motion is now before the
Motion to Dismiss
asserts that Plaintiff's Complaint should be dismissed
because Plaintiff's claims are based on a common
sovereign citizen theory, the “vapor money”
theory, which has been repeatedly and flatly rejected by
courts that have addressed the issue. Doc. 4 at 2- 4. In
addition, Defendant contends that Plaintiff's Complaint
fails to state a claim because Plaintiff's TILA claim is
time-barred by the one-year statute of limitations, and
Plaintiff failed to plead his common-law fraud claim with the
particularity required under Fed.R.Civ.P. 9(b). Doc. 4 at
5-10. Finally, Defendant requests that the Court award
sanctions in the form of attorney's fees against
Plaintiff for asserting a frivolous theory and abusing the
judicial process. Doc. 4 at 10-11. Plaintiff responds by
stating legal conclusions and regurgitating legal doctrine,
but his Response wholly lacks factual support. See
Rule of Civil Procedure 12(b)(6) allows a court to dismiss a
complaint for failure to state a claim upon which the court
can grant relief. Fed.R.Civ.P. 12(b)(6). When ruling on a
motion to dismiss, the court must accept as true all of
Plaintiff's well- pleaded factual allegations and must
view them in the light most favorable to the nonmoving party.
Sutton v. Utah State Sch. for the Deaf & Blind,
173 F.3d 1226, 1236 (10th Cir. 1999). To survive a motion to
dismiss, the complaint must include “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). “The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted). “Thus, the mere
metaphysical possibility that some plaintiff could
prove some set of facts in support of the pleaded
claims is insufficient; the complaint must give the court
reason to believe that this plaintiff has a
reasonable likelihood of mustering factual support for
these claims.” Ridge at Red Hawk, LLC v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
court need only evaluate allegations “when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678. “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.” Id.; see also Bixler v.
Foster, 596 F.3d 751, 756 (10th Cir. 2010). Further, the
court is not required to accept conclusions of law or the
asserted application of law to the alleged facts.
Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir.
1994). Following these principles, the Court considers
whether the facts “plausibly give rise to an
entitlement to relief.” Barrett v. Orman, 373
Fed.Appx. 823, 825 (10th Cir. 2010) (quoting Iqbal,
556 U.S. at 677-78). While the Court must liberally construe
the pleadings of pro se plaintiffs, Haines v.
Kerner, 404 U.S. 519, 520-21 (1972), the Court may not
act as the advocate of a pro se individual, and the
plaintiff must nevertheless comply with the fundamental
requirements of the Federal Rules of Civil Procedure.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
Plaintiff fails to state a plausible TILA
Defendant asserts that Plaintiff's TILA claim fails
because it is time-barred by the one-year statute of
limitations, and because Plaintiff fails to allege any facts
to support it. Doc. 4 at 5-6. The Court finds that
Plaintiff's TILA claim is time-barred and therefore does
not address Defendant's other concerns.
TILA cause of action “may be brought…within one
year from the date of the occurrence of the
violation[.]” 15 U.S.C.A. § 1640(e). “It is
well settled that the ‘occurrence of the violation'
means the date the plaintiff enters the loan agreement, or in
the alternative, when the defendant performs by transmitting
the loan funds to the plaintiffs.” Boursiquot v.
Citibank F.S.B., 323 F.Supp.2d 350, 354 (D. Conn. 2004)
(citation omitted). See also Khader v. PNC Bank,
N.A., 577 Fed.Appx. 470, 479 (6th Cir. 2014) (citations
omitted) (“The ‘occurrence of the violation'
was…the day [the plaintiff] entered into the Loan
agreement.”); Betancourt v. Cntrywide Home Loans,
Inc., 344 F.Supp.2d 1253, 1258 (quoting Dryden v.
Lou Budke's Arrow Fin. Co., 630 F.2d 641, 646 (8th
Cir 1980)) (“A violation occurs, and the one year
limitations period begins to run, ‘when credit is
extended through the consummation of the transaction between
the creditor and its customer without the required
disclosures being made.”); Khalsa v. Bank of
America Nat'l Ass'n, 2017 WL 3602045, at *6
(D.N.M. Jan. 18, 2017) (unpublished) (“most courts have
considered the loan consummation date as the ‘date of
occurrence”). Here, Plaintiff alleges in his Complaint
that he executed the relevant auto loan on April 27, 2017.
Doc. 1-1 at 7. As a result, Plaintiff's TILA claim
expired on April 28, 2018. However, Plaintiff did not file
his Complaint until September 19, 2018, almost five months
too late. Accordingly, the Court finds that Plaintiff's
TILA claim is time barred, and this claim will be dismissed
Plaintiff fails to state a claim for ...