United States District Court, E.D. Michigan, Southern Division
Matthew F. Leitman United States District Judge
REPORT AND RECOMMENDATION: PLAINTIFF'S MOTIONS
FOR PRELIMINARY INJUNCTION (DKTS. 13, 14, 16, 17, 18, 25, 26,
STEPHANIE DAWKINS DAVIS UNITED STATES MAGISTRATE JUDGE
filed this complaint against Credit Acceptance Corporation
(CAC) and a number of individual defendants on September 8,
2017 relating to a car loan. (Dkt. 1). Plaintiff filed an
amended complaint on March 5, 2018. (Dkt. 40). The amended
complaint alleges claims under the Fair Credit Reporting Act
(FCRA), the Truth in Lending Act (TILA), the Fair Credit
Billing Act (which is an amendment to TILA), the Fair Debt
Collection Practices Act (FDCPA), and the Magnuson-Moss
Warranty Act (MMWA), along with a common-law fraud claim.
(Dkt. 40, Amended Complaint). District Judge Matthew F.
Leitman referred this matter to the undersigned for all
pretrial proceedings. (Dkt. 8).
filed a number of motions before service of the summons and
complaint, including nine motions for “injunctive
relief.” (Dkts. 13, 14, 16-18, 25-28). Some, though not
all, of the motions include certificates of service,
indicating that the particular motions in which they appear
were sent to counsel for CAC via email, U.S. mail or both.
(Dkts. 13, 14, 25-28). On February 13, 2018, the Court held a
telephone conference with plaintiff and defense counsel for
the CAC defendants addressing, amongst other things, the
briefing schedule for plaintiff's motions for injunctive
relief and setting a hearing date. With the Court's
permission, plaintiff filed exhibits in support of her
motions prior to the hearing. (Dkts. 30, 31). CAC and the
individual CAC employee defendants filed a combined response
to these motions on February 21, 2018. (Dkt. 32). Plaintiff
also filed two motions for summary judgment (Dkts. 9, 12),
which she subsequently indicated she would like to withdraw.
(Dkt. 16). On February 23, 2018, pursuant to notice,
the Court conducted a telephonic hearing on plaintiff's
various motions for injunctive relief referenced above. (Dkt.
29). These matters are now ready for report and
reasons set forth below, the undersigned
RECOMMENDS denying plaintiff's motions
for injunctive relief and that plaintiff be required to
withdraw two of her motions for summary judgment or withdraw
one and seek leave to file the additional motion for summary
judgment that she seeks to have heard. (See Dkt. 16
and note 4, supra).
FACTUAL AND PROCEDURAL BACKGROUND
January 7, 2014, plaintiff entered into a Retail Installment
Contract (RIC) with 1 Stop Auto Sales (the Dealership) for
the purchase of a 2007 Chevrolet Trailblazer, which included
a service warranty. (Dkt. 32, Ex. 1-A). The RIC provided that
plaintiff was to make 48 monthly installment payments of
$361.13 each. Id. The RIC explicitly designated CAC
as “Assignee” on the contract. Id.
Plaintiff says that both the Dealership and CAC told her that
she could use the service warranty at any dealership or
repair shop. Id. However, she alleges that she
repeatedly tried to use the service warranty without success.
(Dkt. 40, p. 3). Plaintiff says she told CAC that the
warranty was not honored at multiple locations, but CAC
refused to remove the warranty from the installment loan. She
also sought assistance from the Better Business Bureau,
before finally, in July 2016, CAC cancelled the warranty and
stated that it would adjust the loan accordingly. (Dkt. 40,
p. 4). Plaintiff states that she continued to pay the loan
until January 2017. Id. In the meantime, according
to the amended complaint, CAC never sent plaintiff any other
statements relating to her loan. Id. At some point
however, plaintiff reviewed her credit report and noticed
that it showed the original balance on her RIC was $10,
889.24 with a past due amount reported by CAC of $5, 624.24.
Id. Plaintiff maintains that payments from February
2014 to August 2014 were not reported on her credit report,
an omission that caused her credit report (presumably
referring to the rating) to be low. Id. The amended
complaint also details plaintiff's claim that that her
vehicle was wrongfully repossessed on February 4, 2018. (Dkt.
40, p. 4).
asserts that CAC's actions in this matter violate the
TILA. (Dkt. 40, p. 5). She alleges that CAC provides dealers
with an incentive to sell warranties on vehicles that have
been previously damaged, but the warranties are not honored
and later cannot be located. Id. Further, plaintiff
complains that CAC continued to demand payment for the
warranty, while at the same time disclaiming any
responsibility for performing on the warranty. Plaintiff
contends that CAC also violated TILA and the MMWA in applying
the pro-rated rebate amount of $157.36 because their
calculation is wrong. Id. She avers that CAC's
actions constitute common law fraud.
previously filed a similar lawsuit against CAC in 2016
arising out of the same RIC, which was dismissed without
prejudice based on the parties' arbitration agreement.
(See No. 16-13144, Dkts. 26, 27). As explained in
the Report and Recommendation issued by the undersigned in
the 2016 case, the RIC contains an agreement to arbitrate,
which the undersigned concluded encompassed all claims
asserted by plaintiff in that lawsuit. (No. 16-13144, Dkt.
24). The Report and Recommendation was adopted by the
District Court and plaintiff's 2016 complaint was
dismissed in favor of the arbitration agreement. (No. 16-
13144, Dkts. 26, 27). Plaintiff's motion for
reconsideration of the dismissal was denied. (Dkt. 31).
principle areas of contention in the instant case mirror
those from the 2016 case. Defendants contend that plaintiff
did not make all of her monthly installment payments and as a
result, her vehicle was repossessed in February 2018. (Dkt.
32, p. 1). Plaintiff maintains that her vehicle should not
have been repossessed. More particularly, she posits that had
CAC properly credited her the full amount of the warranty
($1, 380), plus accrued interest, her vehicle loan would have
been paid off. But instead, CAC only credited her account
$157.67 as a partial rebate for the cost of the warranty.
(Dkt. 32, Ex. 1-A, Pg ID 230; Dkt. 32, Ex. 1-B, Pg ID 237).
February 6, 2018, the undersigned recommended that
plaintiff's ex parte motion for TRO be denied
based on her failure to comply with Rule 65. (Dkt. 21).
Plaintiff filed objections (Dkt. 22) and those objections
were overruled by Judge Leitman, noting the following
developments in this matter:
The procedural posture of this case has changed significantly
in the two weeks since Rajapakse filed the Objections. First,
on February 8, 2018, Rajapakse filed new motions seeking the
return of her vehicle. (See ECF ## 25-27.) Second,
counsel for CAC has appeared in this action. Third, on
February 13, 2018, the Magistrate Judge held a telephonic
status conference with Rajapakse and counsel for CAC.
(See Dkt.) During that call, CAC's counsel
“indicated that [Rajapakse's] vehicle will be held
and will not be sold before [her] motions for injunctive
relief are resolved.” (Id.) Finally, the
Magistrate Judge entered a briefing schedule with respect to
Rajapakse's motions. (See ECF #29.) CAC filed a
response brief on February 21, 2018 (see ECF #32),
and a telephonic hearing on Rajapakse's motions is
scheduled for February 23, 2018.
The Magistrate Judge has established a fair and an
appropriate process for hearing and resolving Rajapakse's
motions. Given this new framework for resolving
Rajapakse's motions, the Court concludes that it would
not be appropriate to grant Rajapakse the extraordinary
relief of a temporary restraining order based on the previous
ex parte proceedings. Instead, the relief Rajapakse seeks
should be granted, if at all, only after consideration of the
full record currently before the Magistrate Judge.
(Dkt. 33, pp. 2-3).
SUMMARY OF MOTIONS
first motion for injunctive relief, the specific injunctive
relief plaintiff is seeking is not entirely clear. She avers
that CAC is retaliating against her for bringing attention to
her lawsuit via social media and for her submission of a
report by OnSite. Plaintiff says she is “seeking equal
protection of this court to keep her from being under duress
as she awaits for the court to review the complaint and
evidence submitted and being submitted against CAC.”
(Dkt. 13, p. 1). Plaintiff requests that an “immediate
injunctive order be granted against Credit Acceptance
Corporation in the dispute of the warranty.”
Id. at 2. In the next motion for immediate
injunctive relief against CAC, plaintiff repeats the same
allegations, but attaches a memorandum with evidence for the
court's consideration. (Dkt. 14). Plaintiff describes the
attached evidence as follows:
• “The letter submitted by Sandy Pollack letter to
the Michigan Attorney General stated that the previous case
filed No. 16-13144 before this court was
dismiss due to lack of merits. Ms. Rajapakse case was
dismissed WITHOUT PREJUDICE due to Ms.
Rajapakse and Credit Acceptance Corporation agreed to
arbitrate the matter. Credit Acceptance Corporation refused
to arbitrate and Ms. Rajapakse refiled her complaint
(Evidence/ Exhibit (A-1). The next letter [sic]”
• “The second letter from the Attorney General
cites they will keep the information Ms. Rajapakse submitted
for any other customer who wanted to file a claim against
Credit Acceptance Corporation to show a pattern of practice.
(Exhibit/ Evidence A-2)”
• “The third documentation shows that after Ms.
Rajapakse submitted the report again to Attorney General and
he submitted the letter, Credit Acceptance Corporation sent
Ms. Rajapakse a letter of payment for the amount of the
allege vehicle which is the amount of the warranty. Ms.
Rajapakse had requested on several time [sic] to cancel the
next motion for injunctive relief and to “show cause,
” plaintiff first discusses some service issues in her
case, which appear unrelated to her request for injunctive
relief. (Dkt. 16). In this motion, she maintains that she
does not owe any further money to CAC, and that CAC has
refused to remove the warranty plus interest to reflect the
true balance paid on the loan. Plaintiff also indicates that
the vehicle was repossessed on February 4, 2018. (Dkt. 16).
She asserts that CAC's conduct violated her rights under
the Fourth and Fourteenth Amendments to the United States
Constitution and the Fair Debt Collection Practices Act. She
asks for an injunction returning the vehicle to her ...