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Brittani Perry v. Drivehere.Com

July 27, 2011


The opinion of the court was delivered by: Joyner, C.J.


Presently pending before this Court is the Motion for Dismissal of Plaintiff's Amended Complaint filed by the Defendants,, Inc., Peoples Commerce, Inc., and (Doc. No. 18) pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons outlined in the following paragraphs, the Motion is denied.


According to the allegations of the Amended Complaint,*fn1 Plaintiff, Brittani Perry, entered into a Lease agreement with Peoples Commerce, Inc. to lease a 1999 Buick Regal on November 21, 2009. Plaintiff alleges that Defendants and Peoples Commerce are in the business of selling and/or leasing older high mileage automobiles to consumers at inflated prices. (Amended Complaint, ¶ 1). As part of the sale/lease transaction, Defendants frequently enroll consumers in their credit repair service, operated under the name The purpose of this service is to improve and repair a consumer's credit record. Defendant advertises on its website that it "specializes in establishing or reestablishing our client's credit . . . We help with any bad credit entry with the credit bureau for you." (Amended Complaint, ¶s 2 - 3).

Plaintiff's lease terms called for 154 weekly payments of $65.00, totaling $10,075.00 and $974.99 due at signing, which included the first weekly payment of $65.00. In addition to the car lease, Plaintiff entered into a separate agreement with to help repair her credit. Plaintiff signed a limited Power of Attorney with to allow the company to complete this service. The lease and delivery of the vehicle, the financing of the lease, and the credit repair were all entered into on the same day, at the same location, and were all part of one transaction.

On June 24, 2010, Plaintiff returned the leased vehicle and terminated the lease because the car had mechanical issues. Even though Plaintiff terminated the lease, Defendant reported to the credit bureaus that the car was repossessed.

Plaintiff initiated this lawsuit alleging violations of the Federal Credit Repair Organization Act, 15 U.S.C. §1679, et. seq. (Count I), Pennsylvania's Credit Services Act, 73 P.S. §2181 et. seq., (Count II), the Federal Consumer Leasing Act, 15 U.S.C. §1667 (Count III), and a breach of fiduciary duty (Count IV, mislabeled as second Count III). Plaintiff is seeking to recover actual and punitive damages, attorney's fees and costs, and such other relief as this Court deems appropriate. Defendants move to dismiss these claims on the grounds that Plaintiff has failed to state a claim upon which relief may be granted pursuant to Fed. R. Civ P. 12(b)(6).


Under Rule 8 of the Federal Rules of Civil Procedure, a plaintiff's complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). Under this Rule, a pleading "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed 2d 868, 883 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964, 167 L. Ed. 2d 929, 940 (2007)). Although detailed factual allegations are not required, a complaint that "tenders 'naked assertion[s]' devoid of 'further factual enhancement"' is not sufficient. Id. (citing Twombly, 550 U.S. at 555).

Federal Rule of Civil Procedure 12(b)(6) states that a complaint may be dismissed for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12 (b)(6). In order to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570). In Iqbal, the Supreme Court outlined a two-part analysis that district courts must conduct when reviewing a complaint challenged under Rule 12(b)(6). Flower v. UPMC Shadyside, 578 F. 3d 203, 210-11 (3rd Cir. 2009). The district court must first separate the "factual and legal elements of a claim" and "accept all of the complaint's well pleaded facts as true, but may disregard any legal conclusions." Id. (quoting Iqbal, 129 S. Ct. at 1949). Second, the district court must determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." Id. (quoting Iqbal, 129 S. Ct. at 1950).


1. Federal Credit Repair Organization Act - Count I

The Credit Repair Organization Act (CROA) was enacted in 1996 in response to the trend of "credit repair" companies to use deceitful practices to take advantage of debtors looking to improve their credit scores. Federal Trade Commission v. Gill, 265 F.3d 944, 947 (9th Cir. 2001). The purpose of the statute was to "ensure that prospective buyers of the services of credit repair organizations are provided with the information necessary to make informed decisions regarding the purchase of such services" and "to protect the public from unfair or deceptive advertising and business practices by credit repair organizations." 15 U.S.C. §1679(b)(1), (2).

The CROA defines a "credit repair organization" as

[A]ny person who uses any instrumentality of interstate commerce or the mails to sell, provide, or perform (or represent that such person can or will sell, provide, or perform) any service, in return for the payment of money or other ...

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