Polite v. TitleMax of Arizona Incorporated

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Mykhal Lloyd Polite,
Plaintiff,
v.
TitleMax of Arizona Incorporated,
Defendant.
No. CV-25-01574-PHX-JZB
ORDER
Pending before the Court is Defendant’s Motion for Summary Judgment
(“Motion”). (Doc. 48.) For the following reasons, the Court will grant the Motion.
I. SUMMARY OF CONCLUSIONS.
After Plaintiff defaulted on a loan agreement, Defendant repossessed his vehicle.
(Doc. 47 at 1); (doc. 50 at 1.) A third-party repossession company retrieved and stored the
vehicle. (Doc. 47-2 at 2); (doc. 52 at 2.) In July 2024, the Parties entered into a settlement
agreement under which Plaintiff recovered the vehicle. (Doc. 47 at 2); (doc. 50 at 2.)
Plaintiff alleges that the recovered vehicle was damaged. (Doc. 1-1 at 2–4.) Plaintiff sued
Defendant alleging breach of contract, fraud, negligence, and violations of various Arizona
statutes. (Id. at 5–7.)
Plaintiff’s claims are legally and factually insufficient. As an initial matter, Plaintiff
has not presented evidence from which a reasonable factfinder could conclude that the
vehicle was damaged. Even if the vehicle was damaged, the evidence suggests that the
third-party repossession company, not Defendant, would be legally responsible for those
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damages. Moreover, no reasonable factfinder could conclude that Defendant breached the
settlement agreement or violated any of the cited Arizona statutes. Therefore, the Court
will grant Defendant’s Motion.
II. BACKGROUND.
A. Factual Background.
On April 10, 2023, the Parties entered into a loan agreement under which Defendant
gave Plaintiff a loan and took a lien on Plaintiff’s 2011 Chevrolet Camaro. (Doc. 47-1 at
1); (doc. 52 at 6.) After Plaintiff defaulted, Defendant repossessed the vehicle. (Doc. 47 at
1); (doc. 50 at 1.) Defendant gained title to the vehicle after the repossession. (Doc. 47 at
1); (doc. 50 at 1–2.)
A third party, Swift Recovery Group (“Swift”), physically repossessed the vehicle.
(Doc. 47-2 at 2); (doc. 52 at 2.) Defendant claims the repossessed vehicle was stored at a
location owned by IAA Holdings, LLC (“IAA”). (Doc. 47 at 1.) On November 29, 2023,
Plaintiff retrieved his personal belongings from a location associated with Swift. (Doc. 52
at 2–3.)
In December 2023, Plaintiff filed a lawsuit against Defendant. (Doc. 47-1 at 1);
(doc. 52 at 6.) On June 24, 2024, during settlement negotiations, Defendant’s counsel sent
Plaintiff pictures of the vehicle purporting to show that there was no damage during
repossession. (Doc. 47 at 2); (doc. 50 at 2.) Plaintiff claims that additional photographs
later produced by Defendant “show dirt, debris, or diminished appearance not reflected in
the initial photographs.” (Doc. 50 at 2.)
In July 2024, the Parties entered into a settlement agreement (“Agreement”). (Doc.
47 at 2); (doc. 50 at 2.) Under the Agreement, Defendant was required to coordinate the
delivery of the vehicle to Plaintiff.1 (Doc. 47 at 2); (doc. 50 at 2.) Plaintiff agreed to release
Defendant from all claims relating to the original loan agreement except those relating to
1 “Upon [Plaintiff’s] first payment of $500.00 due on July 19, 2024, [Plaintiff] shall take
immediate possession of the Vehicle at its current location, which shall be done no later
than July 26, 2024. [Defendant] agrees to coordinate the release of the Vehicle to
[Plaintiff].” (Doc. 47-1 at 2.)
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property damage to the vehicle.2 (Doc. 47 at 2); (doc. 50 at 2.) The Agreement contained
an integration clause.3 (Doc. 47-1 at 5.)
On July 25, 2024, Plaintiff recovered the vehicle. (Doc. 47 at 2); (doc. 50 at 2.)
Defendant delivered a certificate of title to Plaintiff and assigned it to him. (Doc. 47 at 2);
(doc. 50 at 3.) Plaintiff alleges the delivery was untimely4 and that the title contained
various inconsistencies.5 (Doc. 50 at 3.)
Plaintiff claims that upon retrieving the vehicle he “noticed significant cosmetic and
mechanical damage to the car” requiring more than $25,000 to repair. (Doc. 1-1 at 2–4.) In
support of this claim, Plaintiff provided photographs of the vehicle, a document purporting
to show that the vehicle failed engine and emissions testing, and a mechanic’s initial work
order dated October 11, 2024. (Doc. 52 at 22–34, 50–59). Plaintiff has not provided any
evidence showing when the alleged damage occurred. See generally (doc. 52.)
B. Procedural Background.
On April 1, 2025, Plaintiff, proceeding pro se, filed a Complaint against Defendant
in the Maricopa County Superior Court. (Doc. 1-1 at 3.) On May 7, 2025, the action was
removed to the District of Arizona.6 (Doc. 1 at 6.) On July 15, 2025, the Parties consented
to Magistrate Judge jurisdiction. (Doc. 20.)
Plaintiff filed three motions for leave to amend the Complaint. (Doc. 11); (doc. 26);
2 “The release . . . does not include, and [Plaintiff] expressly reserves notwithstanding any
other provision of this Agreement, solely those claims and causes of action related to
property damage to the Vehicle, including without limitation body, mechanical, electrical,
or cosmetic damage, that arise from the repossession of the Vehicle on or about November
16, 2024. This reservation does not include economic or emotional damages.” (Doc. 47-1
at 2–3.)
3 “This Agreement constitutes the entire agreement between the Parties, and no other
understandings, agreements, or representations, verbal or otherwise, exist or have been
made in connection with the subject matter hereof or may be relied upon, other than as set
forth herein, by the Parties. Furthermore, this Agreement cannot be changed, amended, or
terminated except pursuant to a written agreement executed by the Parties.” (Doc. 47-1 at
5.)
4 The certificate of title is dated April 28, 2025. (Doc. 52 at 46). Plaintiff’s last payment
pursuant to the Agreement was apparently made on January 16, 2025. See (Doc. 52 at 11–
14) (pictures of receipts purporting to show all payments made by Plaintiff).
5 The “inconsistencies” alleged are: (1) an inaccurate odometer reading; (2) incorrect dates;
and (3) “blank or unfilled fields.” (Doc. 52 at 4.)
6 The instant action is before the Court on diversity jurisdiction, see (Doc. 1 at 3–4), with
all claims arising under Arizona law. See generally (Doc. 1-1.)
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(doc. 37). The first was denied for failure to comply with LRCiv 15.1 and because Plaintiff
used fictional cases likely generated by Artificial Intelligence. (Doc. 25 at 1–2.) The second
and third were denied as futile. (Doc. 35 at 1); (doc. 40 at 1.) The latter motion was denied
with prejudice: the Court held “that Plaintiff shall not be permitted further leave to amend
his Complaint.” (Doc. 40 at 11.) Given the apparent deficiencies in Plaintiff’s original
Complaint, the Court ordered Plaintiff to explain why his claims should not be summarily
dismissed. (Id.) On February 26, 2026, Plaintiff filed his Response to Order & Opposition
Against Dismissal (“Response”). (Doc. 46.)
On March 30, 2026, Defendant filed its Motion for Summary Judgment (Doc. 48),
which was accompanied by a Statement of Facts. (Doc. 47.) On May 1, 2026, Plaintiff filed
a Memorandum in Opposition to Summary Judgment (Doc. 51), a Response to Defendant’s
Statement of Facts (Doc. 50), and a separate Statement of Facts. (Doc. 52.)
III. LEGAL STANDARD.
Summary judgment is appropriate if “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The Court is required to view the
evidence in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372,
378 (2007). A fact is material if it “might affect the outcome of the suit under the governing
law[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is
genuine “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id.
The moving party “bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477
U.S. at 323 (citation omitted). Summary judgment is also appropriate where a party “fails
to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322.
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IV. DISCUSSION.
Defendant has moved for summary judgment on all of Plaintiff’s claims. (Doc. 48
at 17.) The Complaint asserts that Defendant violated: (1) Arizona Revised Statutes
(“A.R.S.”) § 12-2509; (2) A.R.S. § 44-1522; (3) A.R.S. § 28-2131 and § 28-2134; (4)
A.R.S. § 28-2060; and (5) A.R.S. § 47-2718.7 (Doc. 1-1 at 5.) The Complaint also contains
vague assertions that Defendant: (1) breached the Agreement; (2) misrepresented the
vehicle’s condition; and (3) engaged in “negligence, malpractice, and deception.” (Id. at
5–7.)
Defendant argues that Plaintiff has abandoned all claims and arguments not
addressed in Plaintiff’s Memorandum. (Doc. 54 at 2–3.) The Ninth Circuit has held that a
plaintiff has “abandoned . . . claims by not raising them in opposition to the [defendant’s]
motion for summary judgment.” Jenkins v. Cnty. of Riverside, 398 F.3d 1093, 1095 n.4
(9th Cir. 2005); Shakur v. Schriro, 514 F.3d 878, 892 (9th Cir. 2008) (applying this rule to
a pro se plaintiff). Several district courts have held that “failure to respond to an argument
in an opposition brief may constitute a concession of the argument[.]” Sema Logistics Inc.
v. Alternative Heavy Towing Inc., No. CV-23-02098-PHX-KML, 2025 WL 460525 (D.
Ariz. Feb. 11, 2025) (citing Ramirez v. Ghilotti Bros. Inc., 941 F. Supp. 2d 1197, 1219 n.
7 (N.D. Cal. 2013)); see Spiecker v. Lewis, No. CV-23-08073-PCT-DLR, 2026 WL 496770
(D. Ariz. Feb. 23, 2026) (“[G]enerally the failure to respond to an argument is grounds for
deeming that claim abandoned or conceded.”).
Although Plaintiff’s Memorandum does not directly address many of Defendant’s
legal arguments, see generally (doc. 51), Plaintiff did attempt to address the merits of the
Complaint in his Response. See (doc. 46). The Court is also mindful that “[a] document
filed pro se is ‘to be liberally construed[.]’” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). In any event, Plaintiff’s claims do
not survive scrutiny. Therefore, the Court will address each allegation in the Complaint
7 Plaintiff has since conceded that A.R.S. § 47-2718 is inapplicable. (Doc. 46 at 4) (“The
Plaintiff agrees that the inclusion of this specific statute was futile.”). Thus, this claim is
dismissed without further discussion.
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and consider arguments in both the Response and the Memorandum.
A. A.R.S. § 12-2509.
The first statute at issue is part of Arizona’s adoption of the Uniform Contribution
Among Tortfeasors Act (“UCATA”). State Farm Ins. Cos. v. Premier Manufactured Sys.,
Inc., 172 P.3d 410, 412–13 (Ariz. 2007). The statute concerns the right to contribution
among joint tortfeasors.8 A.R.S. § 12-2509(A). On its face, the statute is inapplicable to
this case because Plaintiff has not alleged that Defendant is a joint tortfeasor or made any
other argument in support of the statute’s applicability. See Desert Palace, Inc. v. Costa,
539 U.S. 90, 98 (2003) (noting where “the words of a statute are unambiguous, the ‘judicial
inquiry is complete’”) (quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992));
State v. Serrato, 568 P.3d 756, 759 (Ariz. 2025) (“If a statute’s text is clear and
unambiguous, it controls unless it results in an absurdity or a constitutional violation.”).
Therefore, the Court will grant summary judgment as to Plaintiff’s UCATA claim without
further discussion.
B. A.R.S. § 44-1522.
The second statute at issue is part of the Arizona Consumer Fraud Act (“ACFA”).
Henderson v. Moskowitz, 579 P.3d 869, 870 (Ariz. 2025). This Court has twice stated that
the ACFA does not apply to settlement agreements:
Under Arizona law, the use of “any deception, deceptive or
unfair act or practice, fraud, false pretense, false promise,
misrepresentation, . . . with intent that others rely on such [act],
in connection with the sale or advertisement of any
merchandise . . . [is] unlawful. A.R.S. § 44-1522(A).
Viewing the facts in the light most favorable to Plaintiff, the
Court finds that he has failed to present a viable ACFA claim
because, under the plain and unambiguous terms of the Act, it
does not apply to settlement agreements. . . . Turning to the text
of the ACFA, the Act only applies to advertisements and sales.
Id. Starting with advertisements, the Act defines an
advertisement as “the attempt by publication, . . . oral or
written, to induce directly or indirectly any person to enter into
any obligation or acquire any title or interest in any
merchandise.” A.R.S. § 44-1521(1). Next, the Act defines sales
8 For purposes of the statute, joint tortfeasors are persons “jointly or severally liable in tort
for the same injury to person or property or for the same wrongful death.” A.R.S. § 12-
2501(A).
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as “any sale, offer for sale or attempt to sell any merchandise
for any consideration, including sales, leases and rentals of any
real estate subject to any form of deed restriction imposed as
part of a previous sale.” A.R.S. § 44-1521(7). So, on its face,
the ACFA is clear that a settlement agreement—and the
negotiations leading to that agreement—is neither an
advertisement nor a sale.
(Doc. 35 at 9–10); (doc. 40 at 7.)
Since Plaintiff has made no new arguments in support of the ACFA’s applicability,
the Court finds no reason to deviate from its prior holding. Accordingly, the Court will
grant summary judgment as to Plaintiff’s ACFA claim.
C. A.R.S. § 28-2131 and § 28-2134.
The next statutes at issue are Arizona’s “titled vehicle statutes,” which constitute
the “generally applicable law” concerning the perfection of vehicle liens. In re Lloyd, 511
B.R. 657 (Bankr. D. Ariz. 2014). The statute’s provisions apply to liens on vehicles such
as Plaintiff’s. See A.R.S. § 28-2131 (“[The provisions apply to] a certificate of title
retention instrument or any other instrument affecting or evidencing title to, ownership of
or reservation of title to a vehicle required to be issued a certificate of title and
registered[.]”). Plaintiff’s claim depends on § 28-2134, which states in relevant part:
If a holder of a lien or encumbrance who possesses a certificate
of title as provided in this article refuses or fails to surrender
the certificate of title to the person who is legally entitled to
possession of the certificate of title on that person’s request and
within fifteen business days after the holder receives payment
in full satisfaction of the holder’s lien or encumbrance, after an
opportunity for an administrative hearing, the department may
impose and collect a civil penalty from the holder of the lien or
encumbrance to be deposited . . . in the state highway fund[.]
A.R.S. § 28-2134(C).
Plaintiff argues that § 28-2134 is relevant because it “presents the statutory duty of
the Defendant to release the title within the reasonable time of 15 business days of
satisfaction of the agreement” and thus establishes “Defendant’s lack of reasonable care
when dealing with the Plaintiff.” (Doc. 46 at 7.) However, as an initial matter, Plaintiff has
failed to provide any evidence that Defendant is a lienholder. Although Defendant held a
lien against Plaintiff’s vehicle before the Settlement Agreement, (doc. 47-1 at 1), all
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available evidence suggests that Defendant subsequently gained title to the vehicle and
entered a new relationship with Plaintiff that did not involve a lien or encumbrance. See
(Doc. 52 at 4) (“Defendant became the titled owner of the vehicle after repossession.”);
(Id. at 56) (a certificate of title dated April 28, 2025, that lists Defendant as “Owner” and
does not list any liens). Given the evidence in the record, no reasonable factfinder could
conclude that this matter involves a lienholder.
Furthermore, Plaintiff has not presented sufficient evidence that the alleged
“inconsistencies” in the title are at all relevant. Plaintiff asserts that the certificate of title
has (1) an inaccurate odometer reading9; (2) incorrect dates10; and (3) unfilled fields.11 (Id.
at 4.) But Plaintiff has failed to establish that these alleged inconsistencies relate to A.R.S.
§ 28-2134 or entitled Plaintiff to relief under any other statute.12
Therefore A.R.S. § 28-2134 is inapplicable on its face, and the Court will grant
summary judgment as to Plaintiff’s claims under A.R.S. § 28-2131 and § 28-2134.
D. A.R.S. § 28-2060.
The next statute at issue reads in relevant part:
A. Except as provided in [a subsection of the statute concerning
liens], when the title or interest of an owner of a registered
vehicle passes to another other than by voluntary transfer, the
transferee shall obtain a transfer of registration within thirty
9 Plaintiff appears to be correct that the odometer readings are inconsistent. A photograph
dated November 11, 2023 shows an odometer reading of 115,395 miles, (doc. 52 at 59),
but the listed mileage on the certificate of title dated April 28, 2025 is 93,991 miles. (Id. at
56.)
10 Plaintiff correctly noted that the date of sale and the issue date are not the same. See
(Doc. 52 at 4, 56.) Plaintiff has not explained how this is an “inconsistency.” See generally
(Doc. 52).
11 The certificate of title does not appear to have any unfilled fields. (Doc. 52 at 56.)
12 Plaintiff noted that federal and state statutes require the seller of a vehicle to accurately
state the vehicle’s mileage. See (doc. 46 at 8); 49 U.S.C. § 32705 (requiring milage
disclosures in vehicle title transfers), 49 U.S.C. § 32710 (creating a private right of action
for violations committed “with intent to defraud”); A.R.S. § 28-2058 (similar statute in
Arizona). But Plaintiff has not presented any evidence showing that Defendant
intentionally violated these statutes to defraud Plaintiff. See Bodine v. Graco, Inc., 533
F.3d 1145, 1151–52 (9th Cir. 2008) (confirming that “the private right of action covers
prohibited acts that are committed with fraudulent intent and excludes cases where some
fraudulent act happens to coincide with a violation of a regulation but the violative act is
done for reasons other than to perpetrate a fraud”) (quoting Ioffe v. Skokie Motor Sales,
Inc., 414 F.3d 708, 712 (7th Cir. 2005)). Indeed, Plaintiff was in a better position than
Defendant to know the correct odometer reading because only Plaintiff has driven the
vehicle.
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days after the passing of the title or interest.
B. Within thirty days after passing of the title or interest of an
owner of a registered or unregistered vehicle, the transferee of
the vehicle shall obtain a new certificate of title on proper
application and presentation of the last certificate of title, if
available, and such instruments or documents of authority or
certified copies of the instruments or documents that are
sufficient or required by law to evidence or effect a transfer of
title or interest in or to chattels that pass to another other than
by voluntary transfer.
A.R.S. § 28-2060(A)–(B).
Under the plain language of the statute, transferees—i.e., people receiving title—
are required to take various actions when title to a registered vehicle is transferred. Id. Here,
the Parties agree that Plaintiff is the transferee. See (doc. 46 at 7); (doc. 48 at 6.) Moreover,
the passing of title from Defendant to Plaintiff appears to be a “voluntary transfer” because
the Parties consented to this arrangement in the Agreement. See A.R.S. § 28-2060 (Title:
“Transfer of ownership by operation of law”). Indeed, Plaintiff has conceded that
Defendant did not violate the statute. (Doc. 46 at 7) (“The statute is not one that the Defense
broke[.]”).
Instead, Plaintiff’s argument appears to be that Defendant’s “pattern of bad faith
dealing” caused Plaintiff to violate the statute. (Id.) But Plaintiff has made no legal
arguments in support of his claim that he is entitled to relief, under a statute that he violated,
from a third party. See generally (doc. 46.) Thus, the Court finds that A.R.S. § 28-2060 is
inapplicable and will grant summary judgment as to Plaintiff’s claim under it.
E. Breach of Contract.
The Complaint alleges that Defendant breached the Agreement by delivering the
vehicle in a damaged condition and failing to timely transfer title. See (Doc. 1-1 at 7.)
Under Arizona law, a party alleging breach of contract “must show that an enforceable
contract exists, that it was breached, and that the plaintiff suffered damages.” Williams v.
Alhambra Sch. Dist. No. 68, 234 F. Supp. 3d 971, 984–85 (D. Ariz. 2017) (citing Graham
v. Asbury, 540 P.2d 656, 657 (Ariz. 1975)).
Defendant concedes that the Agreement is a valid and enforceable contract. (Doc.
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47 at 2); see Emmons v. Super. Ct. in & for Cnty. of Maricopa, 968 P.2d 582, 585 (Ariz.
App. 1998) (“Construction and enforcement of settlement agreements, including
determinations as to the validity and scope of release terms, are governed by general
contract principles.”); see also Hisel v. Upchurch, 797 F. Supp. 1509, 1518–19 (D. Ariz.
1992) (“An agreement to settle a legal dispute is a contract governed by the principles of
contract law.”).
But Defendant argues that “[t]he only obligation of [Defendant] under the
Agreement related to the release of the vehicle was to coordinate its return . . . because the
vehicle was not held by [Defendant], but by an independent auction house.”13 (Doc. 48 at
7.) From the plain language of the agreement, Defendant is correct. See Emps. Mut. Cas.
Co. v. DGG & CAR, Inc., 183 P.3d 513, 518 (Ariz. 2008) (“When ‘the provisions of the
contract are plain and unambiguous upon their face, they must be applied as written, and
the court will not . . . expand [the contract] beyond its plain and ordinary meaning or add
something to the contract which the parties have not put there.’”) (quoting D.M.A.F.B. Fed.
Credit Union v. Emps. Mut. Liab. Ins. Co. of Wis., 396 P.2d 20 (Ariz. 1964)). No provision
of the Agreement requires Defendant to take any other action related to the vehicle’s return
or the transfer of title. See generally (Doc. 47-1). And Plaintiff does not dispute that
Defendant fulfilled its sole obligation: both Parties agree that Plaintiff took possession of
the vehicle on July 25, 2024. (Doc. 47 at 2); (doc. 52 at 3.) Indeed, Plaintiff has conceded
that “the breach was not of the explicit language” of the agreement. (Doc. 46 at 3.)
Instead, Plaintiff argues in his Response that Defendant breached the implied
covenant of good faith and fair dealing. (Id.) “The law implies a covenant of good faith
and fair dealing in every contract.” Rawlings v. Apodaca, 726 P.2d 565 (Ariz. 1986). This
covenant “prohibits a party from doing anything to prevent other parties to the contract
from receiving the benefits and entitlements of the agreement.” Wells Fargo Bank v. Ariz.
Laborers, Teamsters & Cement Masons Loc. No. 395 Pension Tr. Fund, 38 P.3d 12 (Ariz.
13 Plaintiff has not presented any evidence from which a reasonable factfinder could
question the vehicle’s location during the relevant period. See, e.g., (doc. 52 at 61–62)
(suggesting that Plaintiff’s personal belongings, not his vehicle, were stored at a different
location).
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2002). “A party may breach the implied covenant even in the absence of a breach of an
express provision of the contract by denying the other party the reasonably expected
benefits of the agreement.” Nolan v. Starlight Pines Homeowners Ass’n, 167 P.3d 1277
(Ariz. App. 2007).
Here, Plaintiff has presented no evidence that Defendant did anything to deny
Plaintiff the reasonably expected benefits of the Agreement. Defendant followed through
on its promise to “coordinate the release” of the vehicle. (Doc. 47-1 at 2.) Nothing in the
record suggests that Plaintiff reasonably expected that a promise to “coordinate” the
vehicle’s return implicitly contained a promise that the vehicle would be returned in a
particular condition. Indeed, Plaintiff admits that the implied benefit of the Agreement was
“repossession reversal.” (Doc. 46 at 3.) And Plaintiff did, in fact, gain possession of the
vehicle. (Doc. 47 at 2); (doc. 52 at 3.) Moreover, the carve-out in the contract allowing
Plaintiff to sue for damage to the vehicle suggests that Plaintiff understood it was possible
that the car, once delivered, could be damaged. See (doc. 47-1 at 2–3.)
In brief, Plaintiff has not presented evidence from which a reasonable factfinder
could conclude that Defendant breached the Agreement. The Court will grant summary
judgment as to Plaintiff’s breach of contract claim.
F. Misrepresentation.
The Complaint alleges that “[t]here was a misrepresentation of the vehicle
condition.” (Doc. 1-1 at 8.) Plaintiff asserts that “[o]n or about June 24, 2024, Defendant’s
counsel sent Plaintiff photographs of the vehicle” and that these photographs “showed the
vehicle in a clean condition.” (Doc. 52 at 2); see (doc. 46 at 6) (conceding that the
photographs were sent by opposing counsel during settlement negotiations). Plaintiff
alleges that the photographs were taken in November 2023 and were sent to hide the
vehicle’s true condition from Plaintiff. (Doc. 52 at 2.)
This Court has already noted that to the extent Plaintiff has stated any claim related
to fraud14 or misrepresentation, the claim fails because the alleged misrepresentation was
14 To state a claim for fraud under Arizona law, a party must plead: (1) a representation,
(2) its falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity or ignorance of
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provided by Defendant’s counsel during settlement negotiations. (Doc. 35 at 8 n.5); see
Linder v. Brown & Herrick, 943 P.2d 758, 765 (Ariz. App. 1997) (“[A]s a matter of law
and common sense, [Plaintiff] had no right to rely on statements made by the attorneys
opposing [him].”). In his Response, Plaintiff disputes this finding, arguing that “Plaintiff
did not rely on the Defendant’s opinion during litigation [as in Linder] . . . but instead relied
on the Defendant’s statement of fact while the Defendant maintained exclusive control over
the property.” (Doc. 46 at 6.) But the Linder rule applies to settlement negotiations as well.
See Safeway Ins. Co. v. Guerrero, 106 P.3d 1020, 1022–23, 1029 (Ariz. 2005) (applying
the Linder rule that “[a] party to a lawsuit generally may not premise a fraud claim on
alleged misrepresentations by adverse counsel” to statements made during settlement
negotiations).
Furthermore, even if Defendant’s counsel misrepresented the condition of the
vehicle to induce Plaintiff to agree to a settlement, a separate lawsuit before this Court is
not the appropriate remedy. See Knight v. Elias, No. 1 CA-CV 25-0618, 2026 WL 812049
(Ariz. App. Mar. 24, 2026) (noting that a litigant deceived by opposing counsel “had to
pursue her remedies in the earlier litigation”); see also Linder, 943 P.2d at 406–07 (noting
“other remedies” for a litigant deceived by opposing counsel, such as a Rule 60 motion for
relief from final judgment); Safeway, 106 P.3d at 1030 (noting that a party may pursue
sanctions or professional discipline against lawyers who make misrepresentations).
Since Plaintiff has presented no alternative basis for a fraud claim, the Court will
grant summary judgment as to Plaintiff’s allegations of misrepresentation.
G. Negligence.
The Complaint alleges that Defendant was negligent. (Doc. 1-1 at 6.) To prove
negligence in Arizona, a plaintiff must show: “(1) a duty requiring the defendant to
its truth, (5) the speaker’s intent that it be acted upon by the recipient in the manner
reasonably calculated, (6) the hearer’s ignorance of its falsity, (7) the hearer’s reliance on
its truth, (8) the right to rely on it, and (9) a consequent and proximate injury. SPUS8
Dakota LP v. KNR Contractors LLC, 641 F. Supp. 3d 682, 691 (D. Ariz. 2022) (citing
Arnold & Assocs., Inc. v. Misys Healthcare Sys., a div. of Misys, PLC, 275 F. Supp. 2d
1013, 1027 (D. Ariz. 2003)). The Complaint does not appear to allege each element. See
(doc 1-1); (doc. 35 at 8).
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conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a
causal connection between the defendant’s conduct and the resulting injury; and (4) actual
damages.” Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007).
The Court previously ordered Plaintiff to answer two questions related to this claim:
“What duty did [Defendant] owe you under Arizona Law? And how did Defendant breach
that duty?” (Doc. 40 at 10.) Plaintiff argues in his Response that Defendant breached a duty
of reasonable care in the custody and preservation of the vehicle. (Doc. 46 at 4–5, 9.)
Plaintiff cites A.R.S. § 47-9207, which states: “[A] secured party shall use reasonable care
in the custody and preservation of collateral in the secured party’s possession.” A.R.S. §
47-9207(A).
But Plaintiff has not provided any evidence from which a reasonable factfinder
could conclude that Defendant breached a duty of care, regardless of whether a duty
existed. As an initial matter, Plaintiff has not provided sufficient evidence that there is a
genuine dispute of material fact as to the condition of the vehicle. The purported damage
to the vehicle is supported by two sets of photographs (one allegedly shown to Plaintiff
during settlement negotiations, the other allegedly revealed during discovery) that appear
to show the vehicle in essentially the same condition. See (doc. 52 at 22–34.) The latter
photographs allegedly “show dirt, debris, or diminished appearance not reflected in the
initial photographs.” (Id. at 2.) Undoubtedly it is frustrating to recover one’s car after a
long period and find that it is covered in dirt and debris. However, a dirty car does not give
rise to a cognizable legal claim. See Wis. Dep’t of Revenue v. William Wrigley, Jr., Co.,
505 U.S. 214, 231 (1992) (confirming that the common law maxim de minimis non curat
lex—“the law cares not for trifles”—is the default rule); Skaff v. Meridien N. Am. Beverly
Hills, LLC, 506 F.3d 832, 839–40 (9th Cir. 2007) (same).
Furthermore, Plaintiff’s assertions regarding the vehicle’s alleged mechanical
damage are not supported by the record. Plaintiff has not provided any evidence to support
his claim that the vehicle suffered more than $25,000 in mechanical damage. See generally
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(doc. 52.) And absent evidence of the vehicle’s condition prior to the repossession,15 the
documents purporting to show that the vehicle failed emissions testing and required
repairs16 do not establish that the alleged damage occurred during the relevant period. See
(doc. 52 at 51–54). A reasonable factfinder thus cannot conclude that any damage, if
present, was caused by Defendant.
Moreover, Plaintiff has not presented any evidence that Defendant physically
possessed the vehicle at any point. See (doc. 51 at 2–3) (conceding that the evidence
suggests a third party recovered the vehicle). Therefore, even if the vehicle was damaged
by Swift or another party during the repossession, Plaintiff has not established that
Defendant is legally responsible for this damage. See Wiggs v. City of Phoenix, 10 P.3d
625, 627 (Ariz. 2000) (noting the general rule that “an employer is not liable for the
negligence of an independent contractor”); Rand v. Porsche Fin. Servs., 167 P.3d 111, 118
(Ariz. App. 2007) (holding that an automobile repossession company is an independent
contractor for purposes of vicarious liability). If Plaintiff’s vehicle has truly suffered
damage, the party that physically caused that damage is the appropriate party to sue. Here,
Defendant is not that party.
Since Plaintiff has failed as a matter of law to establish that a duty has been
breached, the Court will grant summary judgment as to Plaintiff’s negligence claim.
V. CONCLUSION.
For the foregoing reasons, Plaintiff has failed to meet his burden of establishing a
genuine dispute of material fact as to any of his claims. Therefore, Defendant’s Motion for
Summary Judgment is granted as to all claims in Plaintiff’s Complaint.
//
//
//
15 Given that the vehicle is 15 years old, it seems likely that some or all of the alleged
damage was present before the repossession.
16 The mechanic’s initial work order cited by Plaintiff does not contain the mechanic’s
findings or an estimate for any needed repairs. It contains only a description of the issues
reported by Plaintiff and an estimate—$120.98—for the initial inspection. See (doc. 52 at
53–54.)
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Accordingly,
IT IS ORDERED that Defendant’s Motion for Summary Judgment (Doc. 48) is
GRANTED.
Dated this 25th day of June, 2026.
Honorable John Z. Boyle
United States Magistrate Judge
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