IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Edrick Fuller §

§

Plaintiff, §

§ 3-22CV1289-D

v. §

§

CIG Financial, LLC, a California Limited §

Liability Company; The Car Source, LLC, §

d/b/a Hide And Seek Recovery, §

Individually, and as Agent, Apparent Agent, §

Servant,and/or Employee of CIG Financial with §

Julius Sims The Repossession Agent, §

as Agent, Apparent Agent, Servant §

and/or Employee Of Hide And Seek Recovery, §

§

Defendants, §

PLAINTIFF’S MEMORANDUM OF LAW

IN OPPOSITION TO MOTION TO DISMISS

Plaintiff Edrick Fuller (Plaintiff) respectfully submits this

Memorandum of Law in opposition to the motion to dismiss (“Motion”) filed by

defendant The Car Source, LLC dba Hide and Seek (“Defendant”).

PRELIMINARY STATEMENT

Pro-se Plaintiff filed his complaint June 24, 2022 unaware that the FDCPA

had a statute of limitation of one year from the time the violation occurred. Plaintiff

did not realize the FDCPA had a one year statute of limitation until The Defendant,

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The Car Source filed its Motion to Dismiss. Plaintiff was under the belief that the

statute of limitations for debt suits was four years. Even now knowing differently,

Plaintiff has been trying to get this matter heard since April 21, 2020, as saved

emails to and from former attorney John Hubbard would show. See (Exhibit 1) It is

now apparent from The Car Sources motion to dismiss for claims being time

barred, that CIG Financial, The Defendant and Plaintiffs former Attorney

purposely conspired to toll the FDCPA one year statute of limitations that Plaintiff

was unaware of at the time. Therefore, under the Equitable Doctrine, Defendants

should be Equitably Estopped from asserting the Statute of Limitations as a

defense,

STATEMENT OF FACTS

Plaintiff first contacted Consumer Rights Attorney John Hubbard early April

by phone, first email communication was sent April 19, 2020 after agreement to

accept the case. By April 23, 2020, the Attorney had all of the details needed to file

the claim, Plaintiff even researched cases where a tow truck driver drove off with

someone in the car (Smith-v-AFS-Acceptance-LLC happened in 2012) and sent it to

him to refer to. April 27, 2020, Plaintiff emailed him asking where they are at on

the claim, figuring it has been filed. On May 5, Plaintiff emailed again asking for

an update since he had not replied. On May 6, he replied and said he could get it

filed in the next few days, then proceeded to ask “Who was the Lender”? Plaintiff

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had told him over and over again who the lender was, and he even repeated to

Plaintiff “CIG Financial Correct” when he was taking notes. (He asked Plaintiff

who the lender was when Plaintiff was thinking the case had already been filed ).

He also said he would get it filed in the next few days. (See Exhibit 1). On June 3,

2020, Plaintiff asked again where they were at in the process, after the attorney

called and asked did Plaintiff have a copy of the Arbitration agreement which

plaintiff provided. See (Exhibit 10). On June 15, the attorney sent a 40 percent

retainer agreement which Plaintiff thought he should have been sent if it was

needed. This caused another delay because of the 40 percent, which started to

make the plaintiff wonder. See (Exhibit 2). On August 4, the Attorney sent an

email saying that he is having a hard time getting Arbitration to accept the case

without full Arbitration agreement and that he would file in Dallas County District

Court See (Exhibit 3). On August 31, Plaintiff asked again if he filed. He replied

that same day that he had received the Arbitration agreement from CIG and was

going to file in Arbitration instead. (See Exhibit 3). Another delay. On Sep 1, the

attorney then emails Plaintiff with the Idea on not to file suit against CIG and only

file against The Defendant. This is when Plaintiffs eyebrows and ears went up,

because what Attorney says lets not sue the Finance company when there is a very

good reason to do so? It was at that point that the plaintiff figured that maybe CIG

had befriended the attorney and he was now working with them as well, which

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could be causing the delay in the simple case for a Lawyer as to not being filed

already. See (Exhibit 4) Plaintiff disagreed and told him to file against both. On

Sep 21, Plaintiff asked again for an update, with no reply from the attorney for a

month. See (Exhibit 4). On Oct 26, 2020 Plaintiff asked again if the case had been

filed and to let the plaintiff know something. The attorney replied with an

attachment showing he had filed for Arbitration October 15, 2020. See (Exhibit 5).

After Plaintiffs repeated messages asking him if he filed, the attorney did not notify

plaintiff that the case had been filed until 11 days after the filing and not until

Plaintiff asked if he had filed. This was the last straw for Plaintiff with the

Attorney. On Oct 27, Plaintiff let the attorney know that if Arbitration was not

accepted by said date that something was going on besides honest representation,

and that the Attorney need to remove himself from the case because it was

becoming apparent that after he contacted CIG and The Defendant that he changed

his stance and was causing unneeded delays. See (Exhibit 5). CIG Financial and

The Defendant had until October 29, 2020 and November 13, 2020 to respond to

Arbitration honoring their Contract where it is agreed to arbitrate any disputes,

which they both ultimately failed to do. See (Exhibit 6). Looking back after now

realizing that the FDCPA had a one year Statute of limitations, it is apparent that

The Defendant and CIG, purposely, with the help and though Plaintiffs former

attorney tried to toll the Federal Statute of limitations to escape Federal Liability.

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Plaintiff could tell something fishy was amiss, but did not know what more it was

then. Plaintiff was never once informed by the former attorney that the FDCPA

limitations would run in one year. Being a Consumer Rights Attorney, he should

have known that this was an FDCPA violation case and that the Limitations were

one year. Looking back at the emails stating he would file the case in Dallas

County District Court instead of the Federal U.S. District Court further leads me to

believe former Attorney John Hubbard was breaching his fiduciary duty with his

client for the benefit of the Defendants. To add, instead of sending the documents

showing that CIG Financial and The Defendant did not respond to Arbitration by

email, like the exchange of all of our other documents shared, instead the former

attorney decided to mail them to Plaintiff by mail and not notify Plaintiff they

were mailed. Another delay strategy used to toll the Limitations period on behalf of

the defendants. The letter was not received until November 28,2020. Plaintiff did

not know the letter had come until the first week of December. See (Exhibit 7), See

(Exhibit 8).

Furthermore, during the end of 2020 and early 2021, it was a hard time

getting in Contact with Lawyers and getting them to Return calls. Plaintiff finally

attempted to hire another Consumer Law firm in January of 2021 who received all

the information to file a claim and never returned calls after having Conversations

with CIG Financial who has an inhouse Lawyer who works for their company, who

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has his own extension and office at CIG Financial. After months of delayed

responses, being ignored then finally being advised to file for Bankruptcy, Plaintiff

then realizes that maybe Consumer Lawyers is not the route to go with CIG having

an inhouse Consumer Lawyer who could through being a friend of a friend and

through compensation could sway a Consumer Rights Attorney to help them avoid

liability. Plaintiff then attempted to hire someone who said they were licensed to

practice Internationally, who drew up a complaint but then asked Plaintiff to sign

an agreement for Power of Attorney instead of a retainer agreement and said that

was the only way they would file the case. It was these occurrences that made

Plaintiff realize that in order to bring this suit before the Court that he would have

to do it ProSe because CIG had the compensative power to thwart Plaintiffs

attempts if he hired a Lawyer who had to contact them. Pro se Plaintiff is not well

versed in Law, therefore research on Case Law and and Rules of Civil procedure

had to be conducted before a suit could be drafted and submitted. Unlike a licensed

attorney whose job is drafting suits during work hours, Pro se Plaintiff is not

afforded that luxury and can only do it when he is not working. It would have been

wonderful to hire an attorney who could have done this for the plaintiff, which was

the plaintiff's intentions and because it helps the economy as well. As a Result,

Plaintiff was not able to file suit until June 14, 2022, not aware that the Statute Of

Limitations had run on any.

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STANDARD OF REVIEW

In an ordinary civil action, the Federal Rules of Civil Procedure require a

party to file “a short and plain statement of the grounds for the court’s

jurisdiction....” Fed. R. Civ. P. 8(a)(1). When considering a motion to dismiss a

complaint for failure to state a claim upon which relief can be granted pursuant to

Fed. R. Civ. P. 12(b)(6), a court must accept all allegations in the complaint as true.

Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965. All reasonable inferences

from the complaint must be drawn in favor of the non-moving party.

Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 590 (8th Cir. 2004);

Young v. City of St. Charles, Mo., 244 F.3d 623, 627 (8th Cir. 2001). A district

court, in weighing a motion to dismiss, ask “‘not whether a plaintiff will ultimately

prevail but whether the claimant is entitled to offer evidence to support the

claims.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting

Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)). Under Rule 12, the burden rests

squarely with the movant to demonstrate that no claim has been stated in the

complaint upon which relief can be granted. Larsen v. AirTran Airways, Inc., No.

8:07-cv-442-T-17TBM, 2007 U.S. Dist. LEXIS 58601, 2007 WL 2320592, at *3

(M.D. Fla. Aug. 10, 2007). “The possible existence Case: 4:18-cv-00346-CDP

Doc. #: 10 Filed: 04/20/18 Page: 3 of 9 PageID #: 28 Page 4 of 9 of a statute of

limitations defense is not ordinarily a ground for a Rule 12(b)(6) dismissal unless

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the complaint itself establishes the defense.” Jessie v. Potter, 516 F.3d 709, 713 n.2

(8th Cir. 2008).

THE FDCPA.

The FDCPA imposes civil liability upon debt collectors who violate its

provisions. 15 U.S.C. §1692k. Section 1692e generally prohibits the use of any

“false, deceptive or misleading representation ... in connection with the collection

of any debt” and then enumerates in sixteen subsections specific practices that fall

within this prohibition. One subsection provides that a debt collector may not

“communicat[e]...to any person credit information which is known or which

should be known to be false, including the failure to communicate that a disputed

debt is disputed.” 15 U.S.C. §1692e(8) (emphasis added). A one-year statute of

limitations applies to actions brought pursuant to the FDCPA. “An action to

enforce any liability created by this title may be brought within one year from the

date on which the violation occurs.” 15 U.S.C. §1692k(d). Therefore, to resolve

this motion, the Court, assuming the facts as presented by the plaintiffs, must

determine when the FDCPA violation accrued. See e.g. Fraenkel v. Messerli &

Kramer, P.A., 2004 U.S. Dist. LEXIS 15196, *11 (D.C.Minn. July 29, 2004).

ARGUMENT

Defendant does not deny that its actions violated the FDCPA. Rather, it

argues that Plaintiffs Complaint is time-barred because he did not file it by

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December 31, of 2020 for the FDCPA and by December 31, of 2021 for the claims

with a 2 years statute of limitations. The Defendant and CIG Financial by the

Doctrine Of Equitable Tolling should be barred from asserting the statute of

limitations defense asking the Courts to honor a statute where the defendant’s

own intentional misconduct prevented the plaintiff from timely filing suit,

when they themselves did not honor their own Contract to dispute this matter in

Arbitration which would have been within the one year Statute of Limitations.

Also by failing to respond to Arbitration, AAA declined to Arbitrate any Future

demands for Arbitration for The Defendant and CIG Financial for not responding.

See (Exhibit 9). Tolling the statute of limitations in the present case ensures

fairness and does not prejudice Defendants. As stated, an underlying policy of a

statute of limitation is to prevent unfair surprise to a defendant. See Burnett, 380

U.S. at 428. The present action presents no surprise to Defendants, The Defendant

and CIG knew the Plaintiff was still in pursuit of filing suit, especially CIG which

is why they have not joined The Car Source in asserting the Statute of Limitations

defense in their motions to dismiss. Both The Car Source and CiG are trying to

loophole out of liability by fooling the courts delaying the matter in scandalous

fashions.

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The equitable doctrine, known as equitable estoppel – or, “equitable

tolling” – is consistent with the principle that a wrongdoer should not be able

to benefit from his own wrong.

A unanimous Supreme Court on April 21, 2022, issued an important ruling

applicable when consumer practitioners have difficulty meeting a limitations

period found in consumer legislation. In Boechler, P.C. v. Commissioner of

Internal Revenue, 2022 WL 1177496 (U.S. April 21, 2022), the Court ruled

that a federal time deadline is jurisdictional only if Congress clearly states

that it is. If a limitations period instead is non jurisdictional, then the

limitations period is presumptively subject to equitable tolling.

Boechler, P.C. v. Commissioner of Internal Revenue thus means that equitable

tolling is an available approach to extend a federal consumer law’s limitations

period, where the facts are sufficient to justify the tolling.

Examples of Equitable Tolling

Boechler, P.C. v. Commissioner of Internal Revenue, 2022 is a good precedent

that equitable tolling is available to extend the limitations period in consumer

legislation. But this is only the first step. Next, the Plaintiff must make a

compelling case that equitable tolling is appropriate in the specific circumstances.

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For example, in Boechler the Supreme Court remanded the case for consideration

whether the facts justify application of equitable tolling to the case.

Examples of compelling circumstances for equitable tolling may include, but are

not limited in any way to the following:

• The consumer seeks to bring an action within the limitations period, but the

defendant insists on enforcement of an arbitration requirement, and then

refuses to participate in the arbitration. Even if the limitations period expires

while the consumer was fruitlessly trying to arbitrate the case, equitable

tolling should allow for the action later to be brought in court.

• The consumer files the action within the limitations period, but the case must be

re-filed again for technical reasons. See American Pipe and Construction Co. v.

Utah, 414 U.S. 538 (1974).

• The consumer is a class member in a class action that is later dismissed after the

statute of limitations has expired.

• The consumer has no control over discovery delays, and only after discovery

learns that a new party defendant should be added, equitable tolling should apply

to allow for the addition of that defendant.

• Mental and/or physical illness delays filing of the claim.

• The consumer delayed a lawsuit at the defendant’s inducement.

The Doctrine of Equitable Tolling Applies

The Supreme Court has counseled that ‘limitations periods are customarily

subject to equitable tolling unless tolling would be inconsistent with the text of the

relevant statute.” Stewart v. Bureaus Inv. Grp. No. 1, LLC, 24 F.Supp. 3d 1142,

1159 (M.D.Ala. 2014) (quoting Young v. United States, 535 U.S. 43, 49 (2002)

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“Equitable Case: 4:18-cv-00346-CDP Doc. #: 10 Filed: 04/20/18 Page: 5 of 9

PageID #: 30 Page 6 of 9 tolling is the doctrine under which plaintiffs may sue

after the statutory time period has expired if they have been prevented from doing

so due to inequitable circumstances.” Ohuche v. Bank of Am., N.A.

Finally, "the filing of a Demand for Arbitration itself shows the proper diligence on

the part of the plaintiff which statutes of limitations were intended to insure. Since the

plaintiff exhibited this very diligence before the expiration of one year from the date

of the incident, he cannot be said to have "slept on his rights. See Galligan v. Westfield

Centre Service, Inc. The sole cause of plaintiff's failure to commence an action

properly is his former counsel's breach of fiduciary duties as Plaintiff relied on his

Consumer Rights attorney to know the laws that he practices in order to represent

Plaintiff to the fullest. Supreme Courts have previously noted that "it seems

inequitable that an injured person * * * should be denied his day in court solely

because of his ignorance, if he is otherwise blameless." Lopez, 62 N.J. at 274. When the

ignorance is not the plaintiff's, but that of his previous attorney, it would be even more

unjust to deny him an opportunity to prosecute his cause of action. Accordingly, we

find that there was at least "minimal substantial compliance," Grubb v. J.C. Penney

Co., Inc., 155 N.J. Super. 103 , 106 (App.Div. 1978), with the requirements of the

limitations statute. As a result, The equitable tolling doctrine should be applied in

Plaintiffs case.

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CONCLUSION

Plaintiff Edrick Fuller respectfully requests that this Court adopt The Equitable

Tolling Doctrine in this case and deny Defendant’s The Car Source Motion to

Dismiss in its entirety.

Respectfully Submitted,

/s/Edrick Paul Fuller

Edrick Paul Fuller

1906 Berwick

Dallas, Texas 75203

Telephone: 214-941-1125

Email: edrickfuller@my.untdallas.edu

CERTIFICATE OF SERVICE

I hereby certify on the 29th day of July 2022, I electronically filed this document

with the U.S. District Court for the Northern District of Texas and, through the

electronic filing system, a copy of the foregoing document was served on the

following counsel and parties of record:

Farrah I. Ahmed

State Bar No. 24071934

fahmed@thompsoncoe.com

700 N. Pearl Street, 25th Floor

Plaza of the Americas

Dallas, Texas 75201

Telephone: (214) 871-8200

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Facsimile: (214) 871-8209

Scott H. Palmer, P.C.

Niles Illich

Texas Bar No. 24069969

15455 Dallas Pkwy, Suite 540

Addison, TX 75001

Tel. (214) 891-3382

niles@scottpalmerlaw.com

/s/Edrick Paul Fuller

Edrick Paul Fuller

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(Exhibit 1)

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(Exhibit 2)

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(Exhibit 3)

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(Exhibit 4)

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(Exhibit 5)

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(Exhibit 6)

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(Exhibit 7)

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(Exhibit 8)

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(Exhibit 9)

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(Exhibit 10)

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