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Fleurisma v. Elan Auto Finance, LLC

United States District Court, S.D. Florida

November 8, 2017

SHELLA FLEURISMA, Plaintiff,
v.
ELAN AUTO FINANCE, LLC, Defendant.

          ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

          ROBIN L. ROSENBERG, JUDGE

         This matter is before the Court on Plaintiff's Motion for Summary Judgment [DE 15]. The motion has been fully briefed. For the reasons set forth below, the Motion is granted.

         Plaintiff, Shella Fleurisma, filed this case under the federal Electronic Fund Transfer Act (“EFTA”), 15 U.S.C. § 1693. Plaintiff alleges that Defendant used improper finance techniques in connection with the refinancing of her automobile loan. After filing suit, Plaintiff sent requests for admission to Defendant. See DE 15-5 at 1 n.1. Defendant did not respond.[1] Plaintiff then filed her Motion for Summary Judgment premised on Defendant's failure to respond to her requests for admission. Defendant did not respond to Plaintiff's Motion for Summary Judgment. As a result of Defendant's failure to respond, the Court issued an order to show cause. DE 16. Nineteen minutes before the deadline imposed by the Court's order to show cause, Defendant responded to Plaintiff's Motion for Summary Judgment. In that response, Defendant did not cite to any evidence.

         Plaintiff's claim under the EFTA is premised upon 15 U.S.C. § 1693k(1). That statute reads as follows:

No person may-
(1) condition the extension of credit to a consumer on such consumer's repayment by means of preauthorized electronic fund transfers Plaintiff must therefore show: (1) Plaintiff is a consumer, (2) who was extended credit by Defendant, and (3) Defendant's extension of credit was premised on Plaintiff's consent to a preauthorized electronic fund transfer.

         Because Defendant did not respond to Plaintiff's requests for admission, each of Plaintiff's requests for admission are deemed admitted pursuant to Federal Rule of Civil Procedure 36(a)(3).

         As a result, Plaintiff has cited evidence in support of her Motion for Summary Judgment that establishes the following:

1. Plaintiff is a consumer for the purposes of § 1693k. DE 15-1 at 1.
2. Defendant extended credit to Plaintiff. Id. at 1-2.
3. Defendant conditioned its extension of credit on Plaintiff's enrollment in an automatic payment plan-a preauthorized electronic fund transfer. Id.
4. Defendant withdrew funds from Plaintiff's bank account on multiple occasions. Id. at 5.
5. Defendant did not obtain any written authorization from Plaintiff before debiting funds from Plaintiff's bank account. Id.

         Plaintiff's citations to evidence are properly supported with citations to the record, and Plaintiff's evidence establishes a ...


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