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Abbott-Pope v. Texas Recovery Bureau, Inc.

United States District Court, E.D. Texas, Sherman Division

April 12, 2017

JENNIFER K. ABBOTT-POPE, Plaintiff,
v.
TEXAS RECOVERY BUREAU, INC, HSBC FINANCIAL CORPORATION, PRA RECEIVABLES MANAGEMENT, LLC, as agent of PORTFOLIO RECOVERY ASSOCIATES, LLC, and BECK & MASTEN PONTIAC. INC., Defendants.

          MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE.

         Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636. On February 2, 2017, the report of the Magistrate Judge (Dkt. #225) was entered containing proposed findings of fact and recommendations that Defendants Beck & Masten Pontiac-GMC, Inc.'s Motion for Summary Judgment (Dkt. #177), HSBC's Motion for Summary Judgment on Limitations (Dkt. #198), and Defendants PRA Receivables Management, LLC and Portfolio Recovery Associates, LLC's Motion for Summary Judgment (Dkt. #214) be granted. The Magistrate Judge recommended Plaintiff's claims against Beck & Masten Pontiac-GMC, Inc.; HSBC Finance Corporation and HSBC Auto Finance, Inc.; PRA Receivables Management, LLC as agent of Portfolio Recovery Associates, LLC and Portfolio Recovery Associates be dismissed (Dkt. #225).

         BACKGROUND

         On October 27, 2014, Jennifer K. Abbott-Pope (“Plaintiff”) filed suit pro se in the Northern District of Texas (Dkt. #3). The case was transferred to the Eastern District of Texas on November 5, 2014 (Dkt. #9). On January 30, 2015, Plaintiff filed a First Amended Complaint (Dkt. #38), and on March 10, 2015, Plaintiff filed a Second Amended Complaint (Dkt. #58).

         Plaintiff asserted claims related to her purchase of a Pontiac GMC and issues related to financing and the contract to receive payments on the vehicle (the “Vehicle Contract”) (Dkt. #58). Plaintiff asserted claims against Beck & Masten Pontiac-GMC, Inc. (“Beck & Masten”); HSBC Finance Corporation and HSBC Auto Finance, Inc. (together, “HSBC”); PRA Receivables Management, LLC as agent of Portfolio Recovery Associates, LLC and Portfolio Recovery Associates (together, “PRA Defendants”); Santander Consumer USA, Inc., Santander Holding USA, Inc., and Santander Consumer USA Holding Inc. (together, “Santander”); and Texas Recovery Bureau, Inc. (“Texas Recovery”) (collectively, “Defendants”) (Dkt. #58).

         On August 5, 2016, the District Court dismissed the Santander Defendants (Dkt. #169). On October 7, 2016, HSBC filed a Motion for Summary Judgment on Limitations (Dkt. #198). On October 27, 2016, Plaintiff filed a response (Dkt. #208). On November 1, 2016, HSBC filed a reply (Dkt. #209).

         On August 30, 2016, Beck & Masten filed a Motion for Summary Judgment (Dkt. #177). On September 19, 2016, Plaintiff filed a response (Dkt. #192). On September 26, 2016, Beck & Masten filed a reply (Dkt. #194).

         On November 10, 2016, PRA Defendants filed a Motion for Summary Judgment (Dkt. #214). On December 6, 2016, Plaintiff filed a response (Dkt. #215). On December 12, 2016, PRA Defendants filed a reply (Dkt. #216).

         On February 2, 2017, the Magistrate Judge issued the Report and Recommendation before the Court (Dkt. #225). Plaintiff filed objections to the report on February 21, 2017 (Dkt. #228). The Court has made a de novo review of the objections raised by Plaintiff and is of the opinion that the findings and conclusions in the Report and Recommendation are correct and the objections are without merit as to the ultimate findings of the Magistrate Judge.

         ANALYSIS

         Plaintiff argues she did not give her expressed consent to “any form for a sua sponte amendment on behalf of Beck and Masten, HSBC Companies and Portfolio Companies” and “did not receive actual notice of a planned sua sponte amendment prior to filling the Findings.” (Dkt. #228 at p. 5). Plaintiff's objections reflect a confusion regarding the Magistrate Judge's role in this case. This case was referred to the Magistrate Judge pursuant to 28 U.S.C. §636 (Dkt. #10). On November 24, 2014, Plaintiff filed ex parte a form of Consent to Jurisdiction of Magistrate Judge (Dkt. #11). None of Defendants have given consent to proceed before the Magistrate Judge. Thus, the Magistrate Judge's authority in this matter stems, not from consent, but from referral by the Court to handle pretrial matters in this case. Accordingly, the Magistrate Judge in this case issues report and recommendations to the Court on all dispositive motions.

         Plaintiff argues she did not “receive action notice of sua sponte and did not receive the opportunity to cure surprise and did not give an expressed or implied consent to try unpled issues” (Dkt. #228 at p. 10). The Magistrate Judge did not issue its Report and Recommendation (Dkt. #225) sua sponte, meaning “on its own accord.” On October 7, 2016, HSBC filed a Motion for Summary Judgment on Limitations (Dkt. #198). On August 30, 2016, Beck & Masten filed a Motion for Summary Judgment (Dkt. #177). On November 10, 2016, PRA Defendants filed a Motion for Summary Judgment (Dkt. #214). The Magistrate Judge's Report and Recommendation addresses the substance of these motions.

         Plaintiff contends neither Beck & Masten nor HSBC established an accrual date in order to prove a statute of limitations defense (Dkt. #228 at p. 11). The Court disagrees. Defendants presented evidence of an accrual date of July 2008, at the latest. Defendants submitted a motor vehicle retail installment sales contract Dated: June 4, 2008, memorializing Plaintiff's purchase of a 2006 Pontiac Grand Prix (the “Vehicle”) (Dkt. #145, Ex. 1; Dkt. #177, Ex. 1). Evidence included a signed Application for Texas Certificate of Title and a signed GAP Application and Declarations Page (Dkt. #177, Ex. 1 at pp. 9-11). Additionally, Plaintiff notes in her Second Amended Complaint that “[o]n June 04, 2008, Plaintiff and Beck & Masten entered into a Contract for in-house GMAC auto financing for a 2006 Pontiac Grand Prix, used car, VIN# . . . for the Plaintiff's personal, family or household use.” (Dkt. #58 at p. 23). The Contract lists “HSBC” as an assignee (Dkt. #177, Ex. 1).

         Plaintiff alleges that she received a letter from HSBC stating that Beck & Masten had assigned her Contract to HSBC and directed her to make payments to HSBC (Dkt. #58 at pp. 15, 23-24). She contends she contacted Beck & Masten in June of 2008, regarding the letter and that Beck & Masten directed her to contact HSBC for account inquiries, but would not discuss the validity of the assignment (Dkt. #58 at p. 15). Plaintiff notes she was told by Beck & Masten that it had the right to sell the Contract at any point due to the language of the Contract (Dkt. #192 at pp. 2-3). The Court, therefore, finds that Defendants did not ...


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