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RAMADAN v. CHASE MANHATTAN CORP.

April 29, 1997

SUSANNE H. RAMADAN, on behalf of herself and others similarly situated, Plaintiff,
v.
THE CHASE MANHATTAN CORP. and THE HYUNDAI MOTOR FINANCE CO., Defendants.



The opinion of the court was delivered by: BARRY

 BARRY, District Judge

 Defendants The Chase Manhattan Corporation ("Chase") and The Hyundai Motor Finance Co. ("Hyundai") (or, collectively, "defendants") have moved to dismiss the complaint of plaintiff Susanne H. Ramadan, brought on behalf of herself and all others similarly situated, for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). *fn1" For the following reasons, that motion will be granted.

 I.

 The facts of this case are uncomplicated and undisputed. On May 6, 1993, plaintiff purchased a 1990 Hyundai Excel from Bob Ciasulli Hyundai, Inc. ("Ciasulli") for $ 4,041.04. In conjunction with the purchase of her car, plaintiff also purchased an extended warranty contract for $ 998.00, and financed both the car and the extended warranty through a Retail Installment Contract ("RIC"), which Ciasulli contemporaneously assigned to Hyundai and Chemical Bank, N.A. *fn2"

 Plaintiff appears to have signed three similar, albeit not identical, RICs in connection with her loan. The RICs, each in a slightly different fashion, itemized the amounts financed by plaintiff, including the $ 998.00 for the extended warranty, which was to be paid to a third party on plaintiff's behalf. One RIC indicated that $ 998.00 would be paid "To Transcapital." Another RIC contained a category entitled "OTHER CHARGES (Amounts Paid to Others on Your Behalf)," with another line, within that category, labeled "To Others," on which the words "EXTENDED WARRANTY $ 998.00" were typed. The third RIC was entitled "Other Charges Including Amounts Paid to Others on Your Behalf" and had a subcategory entitled "Service Contract," next to which the amount $ 998.00 was inserted.

 Plaintiff contends that, however presented, only a "portion" of the $ 998.00 was paid to a third party on her behalf for an extended warranty, and that the balance was retained by or paid to Ciasulli as a "commission" or "finder's fee." Complaint at P 11. By failing to disclose accurately and truthfully the amounts paid to third parties on her behalf, plaintiff contends that defendants violated the Truth In Lending Act ("TILA"), 15 U.S.C. § 1638(a)(2)(B)(iii). *fn3" As a result, plaintiff commenced this action on August 12, 1996. The issue before this court is whether it has subject matter jurisdiction over plaintiff's TILA claim. As noted above, it does not.

 II.

 While the facts of this case do not bring a tear to one's eye, the TILA does, in fact, require a lender to disclose the amount of money borrowed "that is or will be paid to third persons by the creditor on the consumer's behalf, together with an identification of or reference to the third person." 15 U.S.C. § 1638(a)(2)(B)(iii). It further states that

 
any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.

 15 U.S.C. § 1640(e) (emphasis added).

 Defendants contend that this court lacks subject matter jurisdiction over plaintiff's TILA claim because plaintiff did not file her complaint "within one year from the date of the occurrence of the [alleged] violation," i.e., within one year of May 6, 1993, as required under § 1640(e). Plaintiff posits that she filed her TILA claim in a timely fashion because the limitations provision contained in § 1640(e) was tolled during the period in which defendants concealed the true cost of the extended warranty.

 While it is well-settled that the doctrine of equitable tolling "is read into every federal statute of limitations," Holmberg v. Armbrecht, 327 U.S. 392, 396-97, 90 L. Ed. 743, 66 S. Ct. 582 (1946) (emphasis added), "it is equally clear . . . that Congress can set jurisdictional time prerequisites to the entertainment of federal claims." Hardin v. City Title & Escrow Co., 254 U.S. App. D.C. 370, 797 F.2d 1037, 1040 (D.C. Cir. 1986). Thus, as described by the court in Fenton v. Citizens Sav. Ass'n, 400 F. Supp. 874 (W.D. Mo. 1975), there is a distinct difference between jurisdictional time limitations and ordinary statutes of limitations:

 
Statutes of Limitations are distinguished from statutes which create a right of action not existing at common law and restrict the time within which action may be brought to enforce the right. A true statute of limitations extinguishes only the right to enforce the remedy and not the substantive right itself. The limitation of time for commencing an action under a statute creating a new right enters into and becomes a part of the right of action itself and is a limitation not only on the remedy but of the right also. The right to recover depends upon the commencement of the action within the ...

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