Toliver v. Navy Federal Credit Union et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TONYELL T. TOLIVER 	CIVIL ACTION
VERSUS 	NO. 25-1420
NAVY FEDERAL CREDIT UNION,
ET AL.
SECTION “R” (3)
ORDER AND REASONS
Before the Court is plaintiff Tonyell Toliver’s motion for leave to file an
amended complaint. 1 	For the following reasons, the Court denies the
motion.
I. 	BACKGROUND
Toliver sued Navy Federal Credit Union (Navy Federal); Weltman,
Weinberg & Reis Co., LPA (Weltman); and A Professional Law Corporation
(APLC) for fraud and concealment, violations of the Federal Debt Collection
Practices Act, fraud on the court, commercial dishonor and fiduciary breach,
unjust enrichment and unauthorized securitization, and declaratory relief. 2
This Court dismissed Toliver’s claims against Navy Federal and APLC with
1 	R. Doc. 37.
2 	R. Doc. 1. For a full recitation of the facts in this case, see R. Doc. 30.
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prejudice as abandoned.3 	This Court dismissed Toliver’s claims against
Weltman without prejudice for lack of subject matter jurisdiction. 4
Toliver now moves to amend her complaint against Navy Federal,
APLC, and Weltman.5
The Court considers the motion below.
II. 	LEGAL STANDARD
Leave to amend “shall be freely given when justice so requires,” Fed. R.
Civ. P. 15(a), but “is by no means automatic.” Wimm v. Jack Eckerd Corp., 3
F.3d 137, 139 (5th Cir. 1993) (quotation omitted). While there is a bias in
favor of granting leave to amend, it is within the court’s discretion to deny a
motion to amend if it is futile. Stripling v. Jordan Prod. Co., LLC, 234 F.3d
863, 872-73 (5th Cir. 2000) (quotations and citations omitted). 	The Fifth
Circuit interprets “futility” to mean that the amended complaint would fail
to state a claim upon which relief could be granted. 	Id.; see also Briggs v.
Mississippi, 331 F.3d 499, 508 (5th Cir. 2003). 	To determine futility, the
court applies the same standard of legal sufficiency as applies under Rule
12(b)(6). Id.
3 	R. Docs. 30, 38.
4 	R. Doc. 40.
5 	R. Doc. 33.
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The question therefore is whether the plaintiff pled enough facts to
“state a claim to relief that is plausible on its face.” 	Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” 	Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). 	The Court must accept all well-pleaded
facts as true and must draw all reasonable inferences in favor of the plaintiff.
Lormand v. US Unwired, Inc., 565 F.3d 228, 239, 244 (5th Cir. 2009).
Dismissal under Rule 12(b)(6) is appropriate when it is evident from the
pleadings that the action is barred by the statute of limitations and there is
no basis for tolling. Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003).
III. 	DISCUSSION
As an initial matter, the Court denies Toliver’s request for leave to
amend as to Navy Federal and APLC. This Court dismissed Toliver’s claims
against those defendants with prejudice.
Only 	Toliver’s 	claims 	against 	Weltman 	were 	dismissed 	without
prejudice. In the proposed first amended complaint, Toliver asserts that she
received a debt collection phone call from Weltman in April 2023, after
which she did not receive any written notice as required under 15 U.S.C.
§ 1692(e) and (g). 	She asserts that she has continued to suffer unspecified
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harm because of the confusion the lack of written notice caused. This is the
only violation she asserts.
Here, dismissal under Rule 12(b)(6) would be appropriate because
Toliver’s claim is time-barred. 	Jones, 339 F.3d at 366. 	Claims under the
FDCPA have a one-year statute of limitations. Rotkiske v. Klemm, 589 U.S.
8, 9 (2019). The alleged phone call transpired in April 2023, more than two
years before Toliver sued in this Court. Toliver did not file suit until July 10,
2025.
Because dismissal of the proposed amended complaint under Rule
12(b)(6) 	would 	be 	proper, 	this 	Court 	finds 	that 	Toliver’s 	proposed
amendment is futile. 	Therefore, the Court denies plaintiff’s motion to
amend.
IV. 	CONCLUSION
For the foregoing reasons, the Court DENIES plaintiff’s motion to
amend the complaint.
New Orleans, Louisiana, this 28th day of October, 2025.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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