Joseph v. Bank of America, N.A. et al

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Emile Joseph,
Plaintiff,
v.
Bank of America, N.A., Bank of America
Auto Trust 2023-1, Rudy Luther Hopkins
Honda, Assurant RA/AWS GAP, and
11th Hour Recovery,
Defendants.
Case No. 25-cv-893 (PJS/DLM)
REPORT AND
RECOMMENDATION
In 2022, Plaintiff Emile Joseph bought a Honda Accord from Defendant Rudy
Luther Hopkins Honda. He asserts that he made payments on the car as required by an
installment contract with Bank of America, N.A., but that it was wrongly repossessed by
Defendant 11th Hour Recovery, then sold for far less than its value (leaving him with a
deficiency balance of almost $20,000). In response to these events, Mr. Joseph sued each
of the above entities, as well as Bank of America Auto Trust 2023-1 (to whom the vehicle
installment contract was assigned) and Assurant RA/AWS GAP (who Mr. Joseph alleges
was supposed to provide Guaranteed Asset Protection (“GAP”) coverage to offset any
deficiency balance). (See generally Doc. 72.)
This matter is before the Court on Defendants Bank of America, N.A.,1 Rudy Luther
Hopkins Honda, Assurant RA/AWS GAP, and 11th Hour Recovery’s (collectively
1Bank of America asserts that Bank of America Auto Trust 2023-1 is “not a proper entity,”
the implication being that Bank of America is. (Docs. 76 at 1, 109 at 1 n.1.) Plaintiff asserts
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“Defendants”) Motions to Dismiss. (Docs. 74 (Bank of America N.A.’s Motion to
Dismiss), 81 (Rudy Luther Hopkins Honda’s Motion to Dismiss), 86 (Assurant RA/AWS
GAP’s Motion to Dismiss), 94 (11th Hour Recovery’s Motion to Dismiss), 76 (Bank of
America’s Memorandum in Support), 82 (Rudy Luther Hopkins Honda’s Memorandum in
Support), 90 (Assurant RA/AWS GAP’s Memorandum in Support), 96 (11th Hour
Recovery’s Memorandum in Support).) Defendants each move to dismiss Plaintiff’s
Complaint in its entirety. Plaintiff has filed memoranda opposing dismissal as to each
Defendant. (Docs. 101 (Memorandum in Opposition to Rudy Luther Hopkins Honda’s
Motion to Dismiss), 102 (Memorandum in Opposition to Assurant RA/AWS GAP’s
Motion to Dismiss), 103 (Memorandum in Opposition to 11th Hour Recovery’s Motion to
Dismiss), 104 (Memorandum in Opposition to Bank of America, N.A.’s Motion to
Dismiss).) Each defendant timely filed reply memoranda. (Docs. 106 (Assurant RA/AWS
Reply), 107 (Rudy Luther Hopkins Honda Reply), 108 (11th Hour Recovery Reply), 109
(Bank of America N.A. Reply).)
The case has been referred to the undersigned United States Magistrate Judge for a
Report and Recommendation pursuant to 28 U.S.C. § 636 and District of Minnesota Local
Rule 72.1. For the reasons stated below, the Court recommends granting each Defendant’s
Motion to Dismiss.
that the trust is a proper entity because it holds “legal title” to a contract that forms the basis
for many of Plaintiff’s claims and is a necessary party to provide Plaintiff complete relief.
(Doc. 104 at 5.) However, Plaintiff does not suggest the Court should treat claims against
the trust any differently than claims against Bank of America, and the Court independently
concludes that its analysis of claims against Bank of America is equally applicable to the
trust.
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BACKGROUND
On March 7, 2025, pro se Plaintiff Emile Joseph filed his initial Complaint against
Defendants. (See generally Doc. 1.) Defendants Bank of America, N.A. (“BANA”), Rudy
Luther Hopkins Honda (“Luther”), Assurant RA/AWS GAP (“Assurant”), and 11th Hour
Recovery (“11th Hour”) each moved to dismiss Mr. Joseph’s initial Complaint. (Docs. 4,
13, 23, 44.) On April 25, 2025, Mr. Joseph moved for leave to amend his Complaint (Doc.
32), which the Court denied without prejudice because Plaintiff still maintained the right
to amend his pleadings without leave. (Doc. 39.) On June 3, 2025, Mr. Joseph filed his first
Amended Complaint (Doc. 72) which the Court accepted as the operative pleading,
therefore terminating the four pending motions to dismiss. (Doc. 73.)
Mr. Joseph’s Amended Complaint stems from his purchase of a 2019 Honda Accord
on June 8, 2022, from Rudy Luther Hopkins Honda. (Doc. 72 ¶ 10.) According to the
Amended Complaint, the purchase was financed through a Retail Installment Sales
Contract (“RISC”) between Mr. Joseph and Defendant Luther. (Id. ¶ 11.) Mr. Joseph alleges
that he was “led to believe that Defendant BANA was the sole creditor and servicer of the
RISC.” (Id. ¶ 12.) And that “[u]known to Plaintiff, the receivable was securitized and
transferred into the Bank of America Auto Trust 2023-1, with beneficial ownership no
longer held by BANA.” (Id. ¶ 13). Mr. Joseph alleges that the Trust and its trustee were not
disclosed in the original RISC. (Id. ¶14.) The Amended Complaint goes on to describe that
on November 8, 2024, Defendant 11th Hour repossessed the vehicle, which Mr. Joseph
alleges violated his rights under Article 9 of the Uniform Commercial Code (“UCC”). (Id.
¶ 15.) On February 20, 2024, Plaintiff received a post-sale deficiency notice from BANA,
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claiming a balance allegedly owed after the auction sale. (Id. ¶ 16.) Mr. Joseph alleges in
his Amended Complaint that this deficiency notice failed to comply with the UCC and that
BANA lacked standing or ownership to issue the notice. (Id. ¶17.) Mr. Joseph also alleges
that Defendant Assurant “failed to apply GAP coverage to offset the deficiency despite its
role in administering the product.” (Id. ¶18.) He further alleges that Defendants “knowingly
acted in concert to collect, report, and enforce a debt that had been transferred to a
securitized trust, misleading Plaintiff and violating federal and state law.” (Id.¶ 22.)
In all, Mr. Joseph’s Amended Complaint raises eight claims against the various
defendants. In Count I, Mr. Joseph alleges that BANA violated the Federal Debt
Collections Practices Act (“FDCPA”), 15 U.S.C. §§1692e-f, by attempting “to collect debt
they no longer owned after transferring the asset into a securitized trust” and
“misrepresent[ing] the character and legal status of the debt” and then “issu[ing] collection
communications without proper validation.” (Doc. 72 ¶¶ 23, 24.) In Count II, Mr. Joseph
claims that BANA violated the Federal Credit Reporting Act (“FCRA”), 15 U.S.C. §1681s-
2, when it reported inaccurate and misleading information about Plaintiff’s account and
failed to reasonably investigate and continued to furnish false tradelines after receiving
disputes. (Id. ¶¶ 26, 27.) Next, in Count III, Plaintiff alleges that BANA and Luther violated
the Truth in Lending Act (“TILA”), 15 U.S.C. §§1631, 1638, by failing to disclose material
terms of the credit transaction. (Id. ¶ 29.) In Count IV, Mr. Joseph raises a state law breach
of contract claim against all Defendants for allegedly failing “to honor terms relating to
validation, repossession procedures, GAP coverage, and notice.” (Id. ¶¶ 30-31.) Mr. Joseph
raises a state law unjust enrichment claim against all Defendants in Count V, based on
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allegations that Defendants “collected retained or benefitted from Plaintiff’s payments
post-repo proceeds, and GAP premiums while failing to provide contractually obligated
services.” (Id. ¶ 33.) In Count VI, Mr. Joseph alleges that BANA and 11th Hour violated
UCC Article 9 (codified into state law at Minn. Stat. §§336.9-609, 336.9-616), based on
his claim that “the repossession lacked advanced notice and was not conducted in a
commercially reasonable manner.” (Id. ¶ 35.) Mr. Joseph also claims that the “post-sale
deficiency letter” included no “itemized charges, sale terms, or Plaintiff’s right to redeem
or contest.” (Id. ¶ 36.) In Count VII, Mr. Joseph raises a Civil Conspiracy claim against
BANA, Luther, and Assurant based on allegations that “Defendants acted in concert to
create a deceptive financing structure” and then “shared revenues from bundled GAP
securitization fees, and false deficiency charges.” (Id. ¶¶ 37-38.) Next, in Count VIII, Mr.
Joseph claims that BANA and Luther violated the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. §§1962(c), 1962(d), by allegedly “[u]sing mail and
wire to distribute false deficiency balances”; “structuring shell contracts and securitization
filings”; and “[m]isrepresenting the owner of the debt to regulatory and credit reporting
agencies.” (Id. ¶ 40.) Finally, Plaintiff requests injunctive and declaratory relief, wrongly
styled as causes of action under Counts IX and X. (Id. ¶¶ 42, 43.) Mr. Joseph also seeks
compensatory damages, punitive damages, and treble damages, as well as a litany of other
forms of relief. (Id. at 8-9.)
Defendants each moved to dismiss Mr. Joseph’s Amended Complaint in its entirety.
Although Defendants are uniquely situated, each largely argues the same: that Mr. Joseph’s
Amended Complaint fails to meet the pleading threshold set by Rule 8(a) of the Federal
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Rules of Civil Procedure and fails to state a valid claim for relief under Rule 12(b)(6). Mr.
Joseph responds in turn that each of his claims is properly pled and moves the Court to
dismiss Defendants’ Motions. (See generally Doc. 104.)
STANDARD OF REVIEW
Federal Rule of Civil Procedure 8 requires that a civil complaint present “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). A defendant may challenge the sufficiency of a complaint in several ways under
Federal Rule of Civil Procedure 12. See Fed. R. Civ. P. 12. One of Rule 12’s primary
challenges, Rule 12(b)(6), requires dismissal when a complaint fails “to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Braden v. Wal-Mart
Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal quotations omitted)). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly,
550 U.S. at 556). “Determining whether a complaint states a plausible claim for relief is ‘a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.’” Montgomery v. Compass Airlines, LLC, 98 F. Supp. 3d 1012, 1026
(D. Minn. 2015) (quoting Iqbal, 556 U.S. at 678). In applying this standard, the Court
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accepts the factual allegations as true and views them most favorably to Plaintiff. Hager v.
Ark. Dep’t of Health, 735 F.3d 1009, 1013 (8th Cir. 2013).
When a complaint raises a claim of fraud, a plaintiff must meet the heightened
pleading requirement imposed by Federal Rule of Civil Procedure 9(b) to “state with
particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). While
the requisite degree of particularity is not fixed and may change depending on the nature
of the case, “conclusory allegations that the defendant’s conduct was fraudulent or
deceptive do not satisfy Rule 9(b). Instead, as to the alleged fraud, the complaint must set
forth the who, what, when, where, and how.” Cleveland v. Whirlpool Corporation, 550 F.
Supp. 3d 660, 673 (D. Minn. 2021) (citing E-Shops Corp. v. U.S. Bank Nat’l Ass’n, 678
F.3d 659, 663 (8th Cir. 2012)).
Finally, the Court notes that Mr. Joseph is acting pro se in this matter, meaning he
is representing himself without help from a lawyer. When assessing the sufficiency of a
complaint by a pro se plaintiff, courts should apply “less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976); citing Fed R. Civ. P. 8(f)). “If the
essence of an allegation is discernible . . . then the district court should construe the
complaint in a way that permits the layperson’s claim to be considered within the proper
legal framework.” Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015) (quoting Stone v.
Harry, 364 F.3d 912, 914 (8th Cir. 2004)). Even so, a pro se plaintiff “still must allege
sufficient facts to support the claims advanced.” Stringer v. St. James R-1 Sch. Dist., 446
F.3d 799, 802 (8th Cir. 2006) (quoting Stone, 364 F.3d at 914). Courts are not required to
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“assume facts that are not alleged, just because an additional factual allegation would have
formed a stronger complaint.” Stone, 364 F.3d at 915. Additionally, while a pro se plaintiff
is entitled to some leeway, they are expected to abide by the same standards of candor to
the Court as attorneys.2
ANALYSIS
I. DEFENDANT BANA’S MOTION SHOULD BE GRANTED IN FULL.
The Court first addresses Defendant BANA’s Motion to Dismiss Mr. Joseph’s
Amended Complaint. (Doc. 74 (Motion), Doc. 76 (Memorandum).) BANA argues that Mr.
Joseph’s Amended Complaint is impermissibly threadbare under Rule 8(a) because he
advances only conclusory allegations without furnishing any supportive fact. It also argues
that three of Mr. Joseph’s claims—those for unjust enrichment, civil conspiracy, and
RICO—are subject to, and fail under, Rule 9(b)’s heightened pleading standard for fraud-
based claims. Finally, BANA argues that each claim against it fails to state a claim under
Rule 12(b)(6). Mr. Joseph responds that his claims are properly pled, and that the Court
may take judicial notice of his attached exhibits.
A. Defendant BANA’s Motion to Dismiss should be granted as to Count I.
Mr. Joseph alleges that BANA violated the FDCPA, 15 U.S.C. §§1692e-f, when
“Defendants attempted to collect a debt they no longer owned after transferring the asset
into a securitized trust[]”; when they “misrepresented the character and legal status of the
2 On this front, the Court notes that Mr. Joseph’s pleadings include quotations of authority
that do not exist, violative of the duty of candor expected of litigants. (See, e.g., Doc. 104
at 5 (including nonexistent “quote” from In re Application of O’Keefe, 2015 WL 5039723
(D.N.J. Aug. 26, 2015).)
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debt and issued collection communications without proper validation[]”; and when “the
post-repo deficiency was enforced by a party lacking standing, making the collection false
and deceptive.” (Doc. 72 ¶¶ 23, 25.) For its part, BANA argues that dismissal is appropriate
as to Count I for two primary reasons. First, it argues that Mr. Joseph fails to identify the
communications at issue. Second, it argues that the FDCPA only applies to entities whose
principal business is collecting debts and Mr. Joseph does not allege facts that BANA is
such an entity. For these reasons, says BANA, Mr. Joseph has failed to state a claim under
Rule 12(b)(6), requiring dismissal.
The FDCPA regulates debt collection with the purpose of eliminating debt
collectors’ abusive collection practices. See 15 U.S.C. §§ 1692e (“[i]t is the purpose of this
subchapter to eliminate abusive debt collection practices by debt collectors . . .”). To
establish civil liability under the FDCPA, a plaintiff must prove that: “(1) the plaintiff has
been the object of collection activity arising from a consumer debt; (2) the defendant is a
debt collector as defined by the FDCPA; [and] (3) the defendant has engaged in an act or
omission prohibited by the FDCPA.” Zelkowitz v. Avant, LLC, No. 25-cv-850
(SRN/DLM), 2025 WL 3237906, at *2 (D. Minn. Nov. 20, 2025) (quoting Mayfield v.
Portfolio Recovery Assocs., LLC, 553 F. Supp. 3d 676, 683 (D. Minn. 2021)).
The FDCPA distinguishes between debt collectors and creditors and generally does
not regulate the latter. Zelkowitz, 2025 WL 3237906, at *3 (“The FDCPA . . . does not
generally regulate creditors unless they use a false name in the course of collecting a debt.”)
(quoting Schmitt v. FMA All., 398 F.3d 995, 998 (8th Cir. 2005) (further citation omitted)).
Notably, “loan servicers that begin servicing prior to default are not debt collectors under
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the FDCPA.” Id. (citing Glover v. Tigani, 666 F. Supp. 3d 896, 902 (D. Minn. 2023)); see
also Motley v. Homecomings Fin., LLC, 557 F. Supp. 2d 1005, 1009 (D. Minn. 2008) (“[A]
debt collector does not include the consumer’s creditors, a mortgage servicing company,
or an assignee of a debt, as long as the debt was not in default at the time it was assigned.”).
To survive a motion to dismiss, a complaint must, as a threshold issue, allege facts that a
defendant meets the FDCPA’s definition of a “debt collector” or fail as a matter of law. See
Volden v. Innovative Financial Sys., Inc. 440 F.3d 947, 950 (8th Cir. 2006) (“[F]or if
[defendant] is not a debt collector for purposes of the FDCPA, the statute does not apply
and [plaintiff’s] federal claims fail.”).
Here, Mr. Joseph has pleaded no facts to plausibly allege that BANA meets the
statutory definition of a debt collector. Based on the Amended Complaint, BANA began
servicing the loan on Mr. Joseph’s Honda Accord before Mr. Joseph defaulted on the loan.
BANA could not, therefore, qualify as a debt collector under the FDCPA. Mr. Joseph
alleges no other facts to support a claim that BANA is a debt collector. Mr. Joseph’s
allegation that BANA attempted to collect a debt is insufficient to meet the definition of a
debt collector under the statute. See Motley, 557 F. Supp. 2d at 1009. Because Mr. Joseph
has failed to allege facts that BANA meets the statutory definition of a debt collector, his
claim fails as a matter of law.
Even if BANA were considered a debt collector under the FDCPA, Mr. Joseph’s
claim still fails because he furnishes no facts to allege that BANA engaged in activities or
omissions prohibited by the FDCPA. Mr. Joseph’s Amended Complaint is conclusory and
does nothing to support his allegation that BANA no longer owned the debt, that it
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misrepresented the debt’s character, or that it lacked standing to enforce the deficiency.
Merely reciting those allegations, without more, is insufficient to pass muster under Rule
8(a) and fails to state a plausible claim under Rule 12(b)(6). For these reasons, the Court
recommends that Count I be dismissed.
B. Defendant BANA’s Motion to Dismiss should be granted as to Count II.
BANA next moves to dismiss Count II. In Count II, Mr. Joseph alleges that BANA
violated the FCRA, 15 U.S.C. §1681s-2, when it “reported inaccurate, incomplete, and
misleading information regarding Plaintiff’s account” and when “[a]fter receiving disputes,
BANA failed to reasonably investigate and continued to furnish false tradelines.” (Id. ¶¶
26, 27.) Mr. Joseph also alleges that “the tradeline failed to reflect the securitization or
discharge of any obligation post-repo.” (Id. ¶ 28.) Defendant BANA argues that Count II
should be dismissed because Mr. Joseph fails to identify the statutory provision under
which he seeks relief, and because he fails to plead any element of this claim in a non-
conclusory fashion.
The FCRA governs the responsibilities of “furnishers of information to consumer
reporting agencies” and proscribes the provision of information known to be inaccurate.
15 U.S.C. §1681s-2. There is no private cause of action under subpart (a) of that statute.
See Favors v. Chase Bank, No. 18-cv-3303 (JNE/LIB), 2019 WL 13219549, at *4 (D.
Minn. Sept. 18, 2019), R. & R. adopted, 2019 WL 13219555 (D. Minn. Oct. 18, 2019)
(citing 15 U.S.C. § 1681s-2(c); 15 U.S.C. § 1681s-2(d) (providing that subsection (a) “shall
be enforced exclusively . . . by the Federal agencies and officials and the State officials
identified in section 1681s of this title”). And subpart (b) of the statute provides a private
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right to relief but “applies only after a consumer . . . has notified a credit bureau that he
disputes the accuracy of the information provided by a creditor . . . and, in turn, the credit
bureau has advised the creditor . . . of the dispute.” Thulin v. EMC Mortg. Corp, No. 06-
cv-3514 (RHK/JSM), 2007 WL 3037353, at *6 (D. Minn. Oct. 16, 2007).
Here, Mr. Joseph’s claims are patently conclusory. Mr. Joseph claims that Defendant
BANA reported inaccurate information and failed to reasonably investigate after receiving
disputes, but he supplies no facts in support of these allegations. Without more, Mr.
Joseph’s claim falls well below the standards set by the Federal Rules 8(a) and 12(b)(6)
and thus cannot survive Defendant’s motion to dismiss. The Court thus recommends that
Count II be dismissed.
C. Defendant BANA’s Motion to Dismiss should be granted as to Count III.
The Court turns next to Count III of Plaintiff’s Amended Complaint. In Count III,
Mr. Joseph alleges that BANA violated TILA, 15 U.S.C. § 1640(e), when Defendants
BANA and Luther “failed to disclose material terms of the credit transaction, including . .
. [t]hat the loan would be immediately assigned into a trust; . . . [t]hat Luther acted as a
creditor and received financial compensation from the securitization chain; . . . [and][t]hat
post-repo obligations would be manipulated through external third parties.” (Doc. 72 ¶ 29.)
Defendant BANA, for its part, argues that this claim is barred by TILA’s 1-year statute of
limitations.
TILA requires any action “be brought in any United States district court, or in any
other court of competent jurisdiction, within one year from the date of the occurrence of
the violation.” 15 U.S.C. § 1640(e). To dismiss a complaint on statute-of-limitations
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grounds, “the face of the pleading must ‘clearly indicate that the claims are untimely.’” In
re Dividend Solar Fin., LLC, No. MDL 24-3128 (KMM/DTS), 2025 WL 2430484, at *7
(D. Minn. Aug. 22, 2025) (quoting Doe v. Anoka Cnty., No. 21-cv-2649 (ECT/TNL), 776
F. Supp. 3d 756, 773 (D. Minn. 2025) (cleaned up), appeal filed, No. 25-1568 (8th Cir.
Mar. 21, 2025)). But a plaintiff may avoid dismissal on these grounds if there is a basis
under which to toll the statute of limitations. Id. at *8. “Courts have found that a plaintiff
may toll the statute of limitations on a TILA claim with a showing that a defendant engaged
in concealment or fraud.” Id. (citing McAnaney v. Astoria Fin. Corp., 357 F. Supp. 2d 578,
587 (E.D.N.Y. 2005) (further citations omitted)).
Mr. Joseph’s TILA claim is time-barred. Plaintiff entered the installment contract
when he purchased the Honda on June 8, 2022 (Doc. 72 ¶ 10) and did not file this action
until nearly three years later, on March 7, 2025 (see Doc. 1). Though Mr. Joseph alleges
that BANA “failed to disclose the material terms of the credit transaction” (Doc. 72 ¶ 29),
he alleges no concealment or fraud to exempt him from TILA’s statute of limitations.
Accordingly, the Court concludes Count III is time-barred by TILA’s statute of limitations
and should be dismissed.
D. Defendant BANA’s Motion should be granted as to Count VII.
Defendant BANA moves to dismiss Count VII because, it argues, Mr. Joseph’s
allegations are impermissibly threadbare and conclusory and fail to state a claim for relief.
In Count VII, Mr. Joseph alleges that Defendant BANA, along with Defendants Luther and
Assurant, were involved in a civil conspiracy when they “acted in concert to create a
deceptive financing structure” by sharing “revenues from bundled GAP, securitization fees,
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and false deficiency charges” and that “[e]ach participant committed overt acts in
furtherance of the scheme.” (Doc. 72 ¶¶ 37-39.)
To state a claim for civil conspiracy, Mr. Joseph “must allege sufficient facts to allow
a reasonable inference that defendants agreed to accomplish an unlawful purpose and took
concerted actions to achieve that purpose.” Tatone v. SunTrust Mortg., Inc., 857 F. Supp.
2d 821, 838 (D. Minn. 2012). Defendants’ actions must be “based on an underlying tort.”
Id. (citing Marty H. Segelbaum, Inc. v. MW Cap., LLC, 673 F. Supp. 2d 875, 880 (D. Minn.
2009)). Furthermore, “[Mr. Joseph] must allege with sufficient particularity and
demonstrate with specific material facts that the parties reached some agreement and
conspired together” to injure him. Tatone, 857 F. Supp. 2d at 839 (quoting Gometz v.
Culwell, 850 F.2d 461, 464 (8th Cir. 1988)).
Here, Mr. Joseph’s Amended Complaint falls well below the required pleading
standard. His allegations are conclusory and supply no facts to plausibly state a claim that
Defendants’ alleged conduct meets the elements of civil conspiracy. Mr. Joseph’s allegation
that BANA, Luther, and Assurant shared revenues from the aggregated “GAP,
securitization fees, and false deficiency charges” alone is insufficient to plausibly allege
civil conspiracy to commit an underlying tort. As a result, the Court recommends that
Count VII be dismissed in its entirety.
E. Defendant BANA’s Motion should be granted as to Count VIII.
Next, the Court turns to Count VIII. In Count VIII, Mr. Joseph alleges that
Defendants BANA and Luther “engaged in a pattern of racketeering by . . . [u]sing mail
and wire to distribute false deficiency balances; . . . [s]tructuring shell contracts and
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securitization filings to avoid liability; . . . [and][m]isrepresenting the owner of the debt to
regulatory and credit reporting agencies.” (Doc. 72 ¶ 40.) He also claims that “[t]he
enterprise was an association-in-fact involving BANA, Luther, and affiliates, designed to
profit from deceptive debt-based transactions.” (Id. ¶ 41.) Defendant BANA argues that
Count VIII should be dismissed because Mr. Joseph has failed to allege any racketeering
activity. Additionally, even if racketeering activity were assumed, says BANA, Mr. Joseph
would still fail to state a claim as he has failed to allege any pattern of conduct.
To allege a RICO violation, there must a showing of “(1) conduct (2) of an enterprise
(3) through a pattern (4) of racketeering activity.” Crest Const. II, Inc. v. Doe, 660 F.3d
346, 353 (8th Cir. 2011) (quoting Nitro Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 428
(8th Cir. 2009)) (further citation omitted). Failure to present adequate evidence on any one
of these elements is fatal to the entire claim. UMB Bank, N.A. v. Guerin, 89 F.4th 1047,
1053 (8th Cir. 2024). Racketeering activity consists of the commission of predicate acts,
including conduct indictable as mail or wire fraud. Id. at 1053. Where pled as predicate
acts, mail and wire fraud “require a showing of: (1) a plan or scheme to defraud, (2) intent
to defraud, (3) reasonable foreseeability that the mail or wires will be used, and (4) actual
use of the mail or wires to further the scheme.” Id. (quoting Wisdom v. First Midwest Bank,
of Poplar Bluff, 167 F.3d 402, 406 (8th Cir. 1999)). When a plaintiff alleges mail or wire
fraud as a predicate act for a RICO claim, the particularity requirement of Rule 9(b) applies.
Nitro, 565 F.3d at 428-29 (citing Murr Plumbing, Inc. v. Scherer Bros. Fin. Servs. Co., 48
F.3d 1066, 1069 (8th Cir. 1995)); see also Allstate Ins. Co. v. Linea Latina De Accidentes,
Inc, 781 F. Supp. 2d 837, 845 (D. Minn. 2011).
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Mr. Joseph has failed to plead adequate facts to support a claim of RICO violation
under Rule 8’s pleading standard. This means his claim also fails the heightened pleading
standard of Rule 9(b). Mr. Joseph alleges that Defendants engaged in a pattern of racketing
by using mail and wire to distribute false deficiency balances, by structuring shell contracts
and securitization, and misrepresenting the owner of the debt to regulatory and credit
reporting agencies. (See Doc. 72 ¶ 40.) But alone, these are naked allegations that provide
no adequate or specific facts to meet the requisite pleading standard. Accordingly, Count
VIII should be dismissed.
II. DEFENDANT LUTHER’S MOTION TO DISMISS SHOULD BE
GRANTED.
The Court next turns to Mr. Joseph’s federal claims against Defendant Luther, the
car dealership from which he purchased the 2019 Honda Accord. Mr. Joseph brings claims
for violations of TILA (Count III); Civil Conspiracy (Count VII) and violations of RICO
(Count VIII) against Defendant Luther. For its part, Luther argues that it has no part in Mr.
Joseph’s claims regarding the repossession and financing of the Honda Accord. Defendant
asserts that Mr. Joseph merely purchased the Honda from Luther, which is insufficient to
state a plausible claim for relief.
Mr. Joseph has alleged no unique facts against Defendant Luther to distinguish those
claims from his identical claims against Defendant BANA. Thus, for the reasons explained
above, the Court recommends dismissal as to these Counts as well.
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III. DEFENDANT ASSURANT’S MOTION TO DISMISS SHOULD BE
GRANTED.
Mr. Joseph next brings claims against Defendant Assurant, the company that
provided debt coverage, for breach of contract, unjust enrichment, and civil conspiracy.
Assurant also moves to dismiss Mr. Joseph’s Amended Complaint. (Doc. 86 (Motion), Doc.
90 (Memorandum).) Assurant argues that its role in this matter was narrow and defined,
limited to the administration of GAP coverage. And as to that limited role, asserts Assurant,
Mr. Joseph alleges no plausible facts that support liability for any cause of action.
The sole federal claim against Assurant alleges civil conspiracy. In his Amended
Complaint, Mr. Joseph provides no unique facts alleging Assurant’s participation in a civil
conspiracy. Rather, his allegations against Assurant are general to all Defendants. Because
the Court determines that the generalized allegations in Mr. Joseph’s civil conspiracy claim
fail under Rule 8 and Rule 12, and because Mr. Joseph furnishes no fact against Assurant
to distinguish its analysis, the Court recommends that Mr. Joseph’s civil conspiracy claim
be dismissed against Defendant Assurant.
IV. COUNTS IX AND X SHOULD BE DISMISSED AS TO ALL
DEFENDANTS BECAUSE THEY ARE NOT INDEPENDENT CAUSES OF
ACTION.
Mr. Joseph brings claims for declaratory and injunctive relief. (Doc. 72 ¶¶ 42, 43.)
Through Count IX, Mr. Joseph seeks “a declaration that no enforceable deficiency exists,
and that any enforcement right was severed upon securitization.” (Id. ¶ 42.) Through Count
X, he “seeks a permanent injunction barring further collection, credit reporting, or
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assignment related to the subject account.” (Id. ¶ 43.) These counts are brought against all
Defendants, and each move to dismiss.
Counts IX and X are not causes of action but rather, requests for relief. Neither a
request for declaratory relief nor injunctive relief represents an independent cause of action.
Alera Grp. Agency, LLC v. Delta Dental of Minnesota, No. 24-cv-252 (PAM/DLM), 2024
WL 2091992, at *2 (D. Minn. May 9, 2024) (dismissing injunctive and declaratory relief
claims because “[a] claim for declaratory or injunctive relief is not an independent cause
of action but is rather a request for relief”); Est. of Lane v. CMG Mortg., Inc., No. 14-cv-
3299 (JRT/LIB), 2015 WL 2195176, at *7 (D. Minn. May 11, 2015.) Because neither Count
IX nor Count X present a valid cause of action, the Court recommends that both Counts be
dismissed.
V. PLAINTIFF’S FEDERAL CLAIMS SHOULD BE DISMISSED WITHOUT
PREJUDICE.
Courts generally have discretion to decide whether to dismiss an action with
prejudice or without prejudice. Orr v. Clements, 688 F.3d 463, 465 (8th Cir. 2012).
Dismissal for failure to state a claim is “commonly” done with prejudice, see, e.g., Phoenix
Ent. Partners, LLC v. Star Music, Inc., No. 16-cv-4078 (PJS/FLN), 2017 WL 5714021, at
*5 (D. Minn. Nov. 28, 2017), and the “Federal Rules of Civil Procedure themselves suggest
that dismissal with prejudice is the default rule.” Miles v. Simmons Univ., 514 F. Supp. 3d
1070, 1080 (D. Minn. 2021). That said, at least one Court in this District has noted that
“decisions from the Eighth Circuit and this Court generally favor dismissals under Rule
12(b)(6) without prejudice, at least where there is no evidence of persistent pleading
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failures.” Milliman v. Cnty. of Stearns, No. 13-cv-136 (DWF/LIB), 2013 WL 5426049, at
*16 (D. Minn. Sept. 26, 2013).
The Court harbors serious doubt about whether Mr. Joseph could cure his pleading
deficiencies as to his federal claims, and further notes that he has already tried
unsuccessfully to do so. After being served with Mr. Joseph’s original Complaint,
Defendants BANA, Luther, and Assurant RA/AWS GAP moved to dismiss many of the
same federal claims that are now at issue. (See Docs. 4, 7 (BANA Motion to Dismiss and
Memorandum in Support), 13, 14 (Luther Motion to Dismiss and Memorandum in
Support), 23, 26 (Assurant RA/AWS GAP Motion to Dismiss and Memorandum in
Support).) In response, Plaintiff filed a Motion for Leave to File First Amended Complaint,
which provided “additional factual detail and specificity to all ten causes of action.” (Doc.
32 at 2.) The Court did not rule on Mr. Joseph’s Motion to Amend, because Mr. Joseph was
still permitted, at that time, to amend his complaint as of right. (Doc. 54.) That First
Amended Complaint—the one which Mr. Joseph asserted contained a more factual
assertions in response to three defendants’ motions to dismiss—is the one the Court now
finds subject to Rule 12 dismissal as to all federal claims.
Given Mr. Joseph’s failure to state facts in support of viable federal claims despite
his indication that the First Amended Complaint was intended to do just that (guided by
several motions to dismiss), the Court believes it would be well within its discretion to
dismiss Mr. Joseph’s federal claims with prejudice. That said, the Court is also mindful that
Mr. Joseph is proceeding pro se and is entitled to some leeway on this front. Accordingly,
the Court recommends that Mr. Joseph’s federal claims be dismissed without prejudice.
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VI. THE COURT SHOULD DECLINE TO EXERCISE SUPPLEMENTAL
JURISDICTION OVER ANY STATE LAW CLAIMS.
Finally, Mr. Joseph raises two state law claims against all Defendants: breach of
contract (Count IV); unjust enrichment (Count V). (Doc. 72 ¶¶ 30-34.) He also brings a
third state law claim alleging UCC Article 9 violations by BANA and 11th Hour Recovery
(Count VI). (Id. ¶¶ 35-36.)
“Under 28 U.S.C. § 1367, in any civil action in which the district courts have
original jurisdiction, they shall also have supplemental jurisdiction over all other claims so
related to the claims in the original jurisdiction that they form part of the same case or
controversy.” Gregoire v. Class, 236 F.3d 413, 419 (8th Cir. 2000). But federal courts may
decline to exercise supplemental jurisdiction over such a claim when “the district court has
dismissed all claims over which it has original jurisdiction[.]” 28 U.S.C. § 1367(c)(3); see
also Barstad v. Murray Cty., 420 F.3d 880, 888 (8th Cir. 2005) (“A federal district court
has discretion to decline jurisdiction if it has ‘dismissed all claims over which it has original
jurisdiction.’”). Indeed, the Eighth Circuit has “stress[ed] the need to exercise judicial
restraint and avoid state law issues wherever possible.” Gregoire, 236 F.3d at 420 (quoting
Condor Corp. v. City of St. Paul, 912 F.2d 215, 220 (8th Cir. 1990)).
Because the Court recommends dismissal of all Mr. Joseph’s claims over which this
Court has original jurisdiction, the Court also recommends declining to exercise
supplemental jurisdiction over Mr. Joseph’s state law claims, including his claim for breach
of contract, unjust enrichment, and UCC Article 9 violations as codified in Minnesota law.
See Ferguson v. Cnty. of Clearwater, No. 23-cv-0546 (PJS/LIB), 2024 WL 1255505, at *6
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(D. Minn. Mar. 25, 2024) (declining to exercise supplemental jurisdiction and dismissing
state law claims without prejudice).
RECOMMENDATION
Accordingly, based on all the files, records, and proceedings in this case, IT IS
RECOMMENDED that:
1. Defendant Bank of America, N.A.’s Motion to Dismiss Plaintiff’s First
Amended Complaint (Doc. 74) be GRANTED;
2. Defendant Rudy Luther Hopkins Honda’s Motion to Dismiss Plaintiff’s First
Amended Complaint (Doc. 81) be GRANTED;
3. Defendant Assurant RA/AWS GAP’s Motion to Dismiss Plaintiff’s First
Amended Complaint (Doc. 86) be GRANTED;
4. Defendant 11th Hour Recovery’s Motion to Dismiss Plaintiff’s First
Amended Complaint (Doc. 94) be GRANTED; and
5. Plaintiff Emile Joseph’s First Amended Complaint (Doc. 72) be
DISMISSED WITHOUT PREJUDICE.
Date: January 16, 2026 s/Douglas L. Micko
DOUGLAS L. MICKO
United States Magistrate Judge
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of
Appeals. Under Local Rule 72.2(b)(1), “a party may file and serve specific written
objections to a magistrate judge’s proposed findings and recommendations within 14 days
after being served with a copy” of the Report and Recommendation.
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A party may respond to those objections within 14 days after being served a copy of the
objections. See Local Rule 72.2(b)(2). All objections and responses must comply with the
word or line limits set forth in Local Rule 72.2(c).
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