Dixon v. Ally Bank ( 2021 )

Case: 20-30299 Document: 00515948975 Page: 1 Date Filed: 07/22/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 22, 2021
No. 20-30299 Lyle W. Cayce
Summary Calendar Clerk
Landry Dixon,
Plaintiff—Appellant,
versus
Ally Bank, Improperly Named as Ally Financial Corporation; Frank W.
Hobbs; Jeffery J. Brown; Jennifer Laclair; Ms.
Samantha,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:19-CV-11344
Before King, Ho, and Duncan, Circuit Judges.
Per Curiam:*
Landry Dixon, proceeding pro se, filed a complaint against Ally Bank
(Ally), Franklin W. Hobbs, Jeffrey J. Brown, Ms. Samantha, and Jennifer
LaClair. Dixon raised claims that Ally and its employees were in violation of
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-30299
the predatory lending provisions of the 2010 Dodd-Frank Act, the Consumer
Financial Protection Act of 2010, and the Louisiana Unfair Trade Practices
Act (LUTPA). The district court granted the defendant’s motions to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6), finding that Dixon
failed to state a claim for relief. Dixon now appeals.
We review de novo a district court’s dismissal pursuant to Rule
12(b)(6). In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.
2007). A plaintiff fails to state a claim upon which relief can be granted when
the claim does not contain “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).
In his brief, Dixon argues that the district court erred in failing to
acknowledge that he argued in his opposition to the motions to dismiss that
the defendants were in violation of the Louisiana Unfair Trade Practices and
Consumer Protection Law, the Michigan State Consumer Protection Act,
the Consumer Credit Protection Act, the Truth in Lending Act, Regulation
Z of the Federal Regulation Board, Title 15 U.S.C. Sections 1601 to 1667, and
Federal Chapters 41 to 58 of Title 15. He further asserts that the court erred
in failing to direct the defendants to respond to his allegation that $8,000
included in the contract was theft by bank lending fraud.
Because Dixon did not raise these arguments in his complaint and
instead raised them for the first time in a pleading filed in response to the
motions to dismiss, the arguments are not properly before this court.
See Cutrera v. Bd. of Sup’rs of Louisiana State Univ., 429 F.3d 108, 113
(5th Cir. 2005) (“A claim which is not raised in the complaint but, rather, is
raised only in response to a motion for summary judgment is not properly
before the court.”). To the extent Dixon argues that the district court should
have construed his opposition to the motions to dismiss as a motion to amend
his complaint, his argument is without merit. He did not expressly request
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Case: 20-30299 Document: 00515948975 Page: 3 Date Filed: 07/22/2021
No. 20-30299
an amendment of his complaint, see United States ex rel. Willard v. Humana
Health Plan of Tex. Inc., 336 F.3d 375, 387 (5th Cir. 2003), and the amendment
would have been futile, see Wright v. Allstate Ins. Co., 415 F.3d 384, 391
(5th Cir. 2005).
The district court found that Dixon’s claims involved an alleged
disparity between a verbal conversation and the terms of a written agreement
and, thus, were barred by the Louisiana Credit Agreement Statute. The court
further determined that Dixon failed to allege facts showing that he has a
private right of action under the Consumer Financial Protection Act of 2010
and the predatory lending provisions of the 2010 Dodd-Frank Act. Regarding
his claims arising under the LUTPA, the court determined that Ally was a
federally-insured financial institution, and that, therefore, LUTPA was
inapplicable to Ally. As to claims raised against the individual defendants,
the court found that Dixon failed to allege facts that would show the
defendants had a personal duty towards Dixon; thus, liability could not be
assigned to corporate officers under Louisiana law.
On appeal, Dixon does not address the court’s reasons for dismissal;
he has, therefore, abandoned his claims. See Yohey v. Collins, 985 F.2d 222,
224–25 (5th Cir. 1993); see also Brinkmann v. Dallas Cnty. Deputy Sheriff
Abner, 813 F.2d 744, 745, 748 (5th Cir. 1987) (concluding pro se appellant’s
failure to identify “any error in [court’s] legal analysis or its application to
[appellant’s] suit . . . is the same as if [appellant] had not appealed that
judgment”).
The judgment of the district court is AFFIRMED.
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