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Shanee N. Pollitt v. Drs Towing

April 15, 2011

SHANEE N. POLLITT,
PLAINTIFF,
v.
DRS TOWING, LLC, D/B/A ADVANCED FINANCIAL SERVICES; WACHOVIA DEALER SERVICES, INC., D/B/A WDS, INC.; WFS FINANCIAL, INC., STATE LINE AUTO AUCTION, INC.; AND JOHN DOES 1 TO 10,
DEFENDANTS.



The opinion of the court was delivered by: Thompson, U.S.D.J.

NOT FOR PUBLICATION

OPINION & ORDER

I. INTRODUCTION

This matter has come before the Court upon Defendant State Line Auto Auction, Inc.'s Rule 12(b)(6) Motion to Dismiss [docket # 34]; Defendant Wachovia Dealer Services, Inc.'s Rule 12(c) Motion for Judgment on the Pleadings with respect to Plaintiff's Consumer Fraud Act claims [39]; and Defendant Wachovia Dealer Services, Inc.'s Rule 12(c) Motion for Judgment on the Pleadings with respect to Plaintiff's N.J.S.A. 12A:9-513 claim [44]. Plaintiff has opposed these respective motions [37, 46, 49]. The Court has decided the motions upon the submissions of the parties and without oral argument, pursuant to Fed. R. Civ. P. 78(b). For the reasons stated below, the motions to dismiss the Consumer Fraud Act claims are denied, and the motion for judgment on the pleadings as to the N.J.S.A. 12A:9-513 claim is granted.

II. BACKGROUND

This action arises out of expenses charged to Plaintiff and other similarly situated individuals as a result of the repossession of their vehicles. Plaintiff entered into a retail installment sales contract (RISC) with the Toyota of Runnemede dealership in order to finance her purchase of a 2002 Toyota Camry. (Am. Compl. ¶ 15) [26]. The dealership assigned the RISC to Wachovia. (Id.) Under the RISC, the creditor can require the debtor to pay "actual necessary and reasonable costs of retaking and storing the Goods which are authorized by law." (Id. at ¶ 16.) Moreover, the creditor may "take any other things founds [sic] in the Goods but will return these things to you if you ask," and, if the vehicle is going to be sold, the creditor must give "10 days reasonable notice of the time and, if a public sale, also the place of sale." (Id.) On September 10, 2009, Defendant DRS Towing, LLC ("DRS"), allegedly acting as Wachovia's agent, took possession of and towed Plaintiff's car to its facilities in Sicklerville, New Jersey, where DRS removed Plaintiff's personal possessions.*fn1 (Id. at ¶¶ 25, 27.) The following day, Wachovia sent a Notice to Plaintiff stating its intent to sell the vehicle and indicating that she could redeem the vehicle by paying off the full amount owed. (Id. at ¶¶ 31, 32.) In response to Plaintiff's telephonic inquiry regarding the payment amount, a Wachovia representative informed Plaintiff that she would have to pay $9,534.26*fn2 to redeem the vehicle, but failed to disclose various additional fees. (Id. at ¶¶ 34--42.) After receiving Plaintiff's $9,534.26 check, Wachovia informed Plaintiff that her vehicle was being stored at Defendant State Line Auto Auction, Inc.'s ("State Line") facility in Waverly, New York. (Id. at ¶ 54.) Plaintiff subsequently learned, upon contacting State Line, that she would have to pay State Line an additional $644 in cash*fn3 in order to redeem the vehicle. (Id. at ¶¶ 59--61, 70--72.) Plaintiff was subjected to these additional charges because State Line allegedly does not bill Wachovia for services unless and until State Line sells the repossessed vehicle. (See id. at ¶ 44.) Plaintiff also incurred travel costs of $107.55 to travel from her home in Lawnside, New Jersey to Waverly, New York and back. (Id. at ¶ 138.)

Plaintiff initially filed a complaint against Wachovia, DRS, and State Line in New Jersey Superior Court on behalf of herself and a class of other similarly situated individuals. On March 10, 2010, Wachovia removed the case based on original jurisdiction under 28 U.S.C. § 1332(d)(2)(A) over class actions for which the amount in controversy exceeds $5,000,000 and a member of the class is a citizen of a state different from any defendant. (Notice of Removal ¶ 3)

[2]. Plaintiff claims in her Amended Complaint that the Defendants violated New Jersey Uniform Commercial Code ("NJUCC") sections N.J.S.A. 12A:9-623, 12A:9-614, 12A:9-102(a)(43), 12A:9-625(e)(4), and 12A:9-513(a); the Consumer Fraud Act ("CFA"), N.J.S.A. 56:8-1, et seq.; and the Truth-in-Consumer Contract, Warranty and Notice Act ("TCCWNA"), N.J.S.A 56:12-14, et seq. (Am. Compl. ¶ 165--180, 181--203, 204--215.) On December 23, 2010, State Line moved to dismiss the CFA claim against it [34]. Wachovia then filed a cross-motion for judgment on the pleadings as to Plaintiff's CFA claim on January 24, 2011 [38]. Wachovia has also moved for judgment on the pleadings as to Plaintiff's N.J.S.A. 12A:9-513 claim on February 11 [44].

III. ANALYSIS

A. Legal Standard for Rule 12(b)(6) Motion to Dismiss

Under Federal Rule of Civil Procedure 12(b)(6), the defendant bears the burden of showing that no claim has been presented. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). A district court must accept as true all of a plaintiff's factual allegations, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim that is facially plausible. Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (citing Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1949 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Facial plausibility exists where the facts pled allow the court reasonably to infer that "the defendant is liable for the misconduct alleged." Id. (quoting Iqbal, 129 S. Ct. at 1949). Facts suggesting the "mere possibility of misconduct" fail to show that the plaintiff is entitled to relief. Id. (quoting Iqbal, 129 S. Ct. at 1950).

B.Legal Standard for Rule 12(c) Motion for Judgment on the Pleadings

Under Federal Rule of Civil Procedure 12(c), a court will grant judgment on the pleadings if, on the basis of the pleadings, no material issue of fact remains and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 12(c); DiCarlo v. St. Mary Hosp., 530 F.3d 255, 259 (3d Cir. 2008). The standard governing a Rule 12(c) motion is the same as the one governing motions to dismiss under Rule 12(b)(6). Spruill v. Gillis, 372 F.3d 218, 223 n.2 (3d Cir. 2004). The Court must accept the nonmoving party's well-pleaded factual allegations as true and construe those ...


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