Clark v. JPMorgan Chase Bank, N.A., No. 4:25-cv-11195 (2025)

Case details
Country
United States
Jurisdiction
Federal
Decided
2025
Clark v. JPMorgan Chase Bank, N.A., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 2408194Only the Westlaw citation is currently available.United States District Court, E.D.Michigan, Southern Division.Latino CLARK, Plaintiff,v.JPMORGAN CHASE BANK, N.A., SGof Westlake, LLC, incorrectly identified as“Serpentini Chevrolet, Inc.,”1 and MichiganRecovery Services, Inc., Defendants.Case No. 4:25-cv-11195|Signed August 19, 2025Attorneys and Law FirmsLatino Clark, Taylor, MI, Pro Se.Emily L. Burdick, Dickinson Wright PLLC, Detroit, MI, forDefendant JPMorgan Chase Bank, N.A.Camerin Sharak, Nicholas J. Ranke, Eric R. Bowden,Colombo & Colombo, P.C., Bloomfield Hills, MI, forDefendant Serpentini Chevrolet, Inc.Mitchell G. Piper, Braun Kendrick Finkbeiner P.L.C.,Saginaw, MI, for Defendant Michigan Recovery Services,Inc.ORDER: (1) DENYING PLAINTIFF'S MOTION(ECF No. 40) TO STRIKE DEFENDANT SG OFWESTLAKE, LLC'S AMENDED AFFIRMATIVEDEFENSES (see ECF No. 29-1); (2) DIRECTINGTHE CLERK OF THE COURT TO STRIKEPLAINTIFF'S REPLY (ECF No. 44) AS TARDY;(3) STRIKING PLAINTIFF'S UNAUTHORIZEDSUR-REPLY (ECF No. 45); (4) DENYING ASMOOT DEFENDANT SG OF WESTLAKE,LLC'S MOTION TO STRIKE (ECF No. 46); (5)REQUIRING PLAINTIFF TO SHOW CAUSE; and,(6) SETTING A DEADLINE FOR DEFENDANTSG OF WESTLAKE'S STATUS REPORTAnthony P. Patti, UNITED STATES MAGISTRATE JUDGEA. Background*1 On April 25, 2025, Latino Clark (“Plaintiff”) initiated thisconsumer credit lawsuit in pro per concerning the purchaseof a Chevrolet Corvette from Serpentini Chevrolet withfinancing by Chase Auto, the subsequent repossession of thevehicle by Michigan Recovery Services (MRS), and a salescheduled for April 21, 2025. (ECF No. 1, ¶¶ 9-16.) (See alsoECF No. 1-1 [Retail Installment Sale Contract].)B. Prior Order Regarding Responsive PleadingsJudge Kumar has referred this case to me for all pretrialmatters. (ECF No. 6.) On June 25, 2025, the Court enteredan order (ECF No. 39), denying Plaintiff's June 18, 2025motions (ECF Nos. 33, 34, 35 & 37) regarding DefendantSerpentini Chevrolet's (i.e., Defendant SG of Westlake's) andDefendant Michigan Recovery Services' May 2025 answersand affirmative defenses (ECF Nos. 15, 16 & 26). Asreflected in that order, SG of Westlake's May 2025 answerand affirmative defenses (ECF Nos. 15, 16) were amended onJune 3, 2025 (ECF No. 29).C. Instant MotionsCurrently before the Court is Plaintiff's June 27, 2025 motion(ECF No. 40) to strike Defendant SG of Westlake's amendedaffirmative defenses (see ECF No. 29-1).2 SG of Westlake'sJuly 11, 2025 response (ECF No. 42) was timely under E.D.Mich. LR 7.1(e)(1)(A). Plaintiff's reply was due on or aboutJuly 18, 2025. See E.D. Mich. LR 7.1(e)(1)(B). Without filinga motion for extension of this deadline, Plaintiff filed a replyon July 31, 2025. (ECF No. 44.) Upon consideration, theClerk of the Court is DIRECTED to strike Plaintiff's reply(ECF No. 44) as tardy.3On August 18, 2025, I conducted an in person motionhearing (see ECF No. 43), at which Attorneys Nicholas J.Ranke (for Defendant SG of Westlake) and Emily L. Burdick(for Defendant JPMorgan Chase Bank, N.A.) appeared.Notwithstanding the Clerk of the Court sending a copy ofthe notice of hearing to Plaintiff on July 21, 2025 (see text-only certificate of service), Plaintiff did not appear on August18, 2025. To give Plaintiff the benefit of the doubt, the Courtwaited twenty (20) minutes past the time set for hearing, afterwhich it proceeded with the hearing and issued its ruling fromthe bench.D. Order*2 Upon consideration of the motion papers and counsels'arguments and representations at the hearing, and for all the
Clark v. JPMorgan Chase Bank, N.A., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.2reasons stated on the record by the Court, which are herebyincorporated by reference as though fully restated herein,Plaintiff's motion (ECF No. 40) is DENIED and found tobe frivolous. In particular, the Court notes several, generalobservations about Plaintiff's motion, including:• It does not certify compliance with E.D. Mich. LR 7.1(a)(“Seeking Concurrence in Motions and Requests.”).• Neither Plaintiff's motion to strike nor his relatedreply includes a “wet signature,” i.e., these filings areonly signed “/s/Latino Clark,” and the signature isunaccompanied by a date (see ECF No. 40, PageID.313;ECF No. 44, PageID.360-361), and neither filing isaccompanied by a certificate of service to indicate it wasserved upon Defendants by U.S Mail consistent withFed. R. Civ. P. 5(d)(1)(B). From here forward, PlaintiffSHALL: (1) sign his filings by hand consistent withFed. R. Civ. P. 11(a), unless he applies for and receivespermission to become an e-filer; (2) date his signatures;and, (3) attach certification of proper service by mailupon Defendants.• There are difficulties with many of Plaintiff's casecitations, such as references to citations that do notexist – e.g., “United States v. Provident Bank, 2021 WL1985046, at 2 (E.D. Mich. May 18, 2021),” “Gibson v.Rosati, 2017 WL 1155765 (N.D.N.Y. Mar. 27, 2017),”“Jones v. TransUnion LLC, 2022 WL 407915 (E.D.Mich. Feb. 10, 2022),” – or to a case that does notaddress the principle for which it is cited – e.g., Beaudryv. TeleCheck Servs., Inc., 579 F.3d 702 (6th Cir. 2009).As to these observations, the Court suspects sloppy legalresearch or the use of artificial intelligence (which thecourt discourages for this reason) and reminds Plaintiffthat Fed. R. Civ. P. 11(b) (“Representations to theCourt”) requires accuracy in matters filed with thisCourt.The Court also notes several observations about the substanceof Plaintiff's motion, such as:• It seeks to strike “all affirmative defenses,” (ECFNo. 40, PageID.313 1); yet, it fails to provideany individualized basis for striking the bulk of thedefenses, and, in several instances where the motionwas specific, it mentions affirmative defenses notactually pleaded by Defendant SG of Westlake inthe amended affirmative defenses at issue (see ECFNo. 29-1), e.g., “statute of limitations,” “interveningacts,” “collateral source,” “good faith,” “waiver,” etc.Thus, Plaintiff's characterization of Defendant SG ofWestlake's affirmative defenses as “boilerplate” (seeECF No. 40, PageID.310) is off the mark; rather, theCourt observes that it is Plaintiff's own motion to strikethat is largely boilerplate.• To the extent Plaintiff challenges Defendant SG ofWestlake's assertion that the complaint “fails to statea claim” (Affirmative Defense No. 1) (see ECF No.29-1, PageID.105) as lacking “factual specificity” (seeECF No. 40, PageID.311), the Court refers back to itsJune 25, 2025 order (ECF No. 39) regarding DefendantSG of Westlake's initial, May 27, 2025 affirmativedefenses (ECF No. 16) and reiterates what is stated in theprevious order, namely, that “claims and defenses withinthe pleadings are ordinarily tested and explored viadispositive motion practice” and motions to strike “ ‘areviewed with disfavor and are not frequently granted.’” (ECF No. 39, PageID.308-309) (quoting Bommaritov. Equifax Information Servs., LLC, 340 F.R.D. 566,568-569 (E.D. Mich. 2022) (internal citations omitted)).*3 • To the extent Plaintiff challenges the “legalimpossibility of several defenses,” based on his claimsunder the federal consumer protection statutes and thestate fraud statutes (see ECF No. 40, PageID.311-312),Plaintiff pleads causes of action against SG of Westlakebased on the Truth in Lending Act (TILA) (15 U.S.C.§§ 1601, et seq.) [Count 3] and conversion [Count 6]and violation of Michigan's Consumer Protection Act(MCPA) (Mich. Comp. Laws § 445.903) [Count 8], anddeclaratory relief (28 U.S.C. § 2201) [Count 9] (see ECFNo. 1, PageID.2-4 ¶¶ 20-37). As such, his argument that“assumption of risk” and “contributory negligence” –and perhaps even “unclean hands” – are “tort defenses,not applicable to statutory violations under 15 U.S.C.§§ 1681n and 1681o[,]” (ECF No. 40, PageID.312), areunavailing. Conversion is an intentional tort.• To the extent Plaintiff argues that affirmative defensesmust, but did not meet the level of “factual particularity”required by Bell Atlantic v. Twombly, 550 U.S. 544(2007) and Ashcroft v. Iqbal, 550 U.S. 662 (2009) forcomplaints, the supporting case cited by Plaintiff (U.S.v. Provident Bank) does not appear to be retrievable orexistent, either by using the citation supplied by Plaintiffor by looking it up by case name (in either Westlaw orLexis).4 In any case, as this Court found in ReliableCarriers v. Moving Sites, LLC, No. 17-cv-10971, 2018WL 9963862, at *1 (E.D. Mich. Sept. 21, 2018) (Grand,
Clark v. JPMorgan Chase Bank, N.A., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.3M.J.), “ ‘affirmative defenses should not be strickenfor failure to satisfy the Twombly/Iqbal standard’ ” inthe absence of “ ‘clear direction from the from theSixth Circuit ....’ ” (quoting Int'l Outdoor, Inc. v. Cityof Southgate, No. 2:11-CV-14719, 2012 WL 2367160,at *9 (E.D. Mich. Apr. 26, 2012) (Komives, M.J.)(surveying cases), report and recommendation adopted,No. 11-14719, 2012 WL 2367170 (E.D. Mich. June 21,2012) (Rosen, C.J.).)• To the extent Plaintiff challenges Defendant SG ofWestlake's assertion that Plaintiff “failed to mitigatehis damages” (Affirmative Defense No. 6) (seeECF No. 29-1, PageID.106) as inapplicable “tostatutory liquidated damages or punitive damages underFCRA[,]” (see ECF No. 40, PageID.312), Plaintiff doesnot bring his FCRA cause of action (Count 2) againstDefendant SG of Westlake, i.e., he only brings the FCRAclaim against Chase Auto.Additionally, it is a waste of the Court's and defense counsel'stime when Plaintiff asks the Court to strike a filing and doesnot appear for the related, noticed hearing. Given Plaintiff'sfailure to appear in my courtroom on August 18, 2025 and myfinding that his motion to strike (ECF No. 40) is frivolous, nolater than Friday, August 29, 2025, Plaintiff SHALL showcause, in writing, as to: (1) why he did not appear for thehearing; (2) why he did not seek concurrence with defensecounsel prior to filing his motion to strike (ECF No. 40), asrequired by E.D. Mich. LR 7.1; and, (3) why he should nothave to pay Defendant SG of Westlake's costs and expenses asa sanction under Fed. R. Civ. P. 16(f) for having to respond tothe motion and appear for oral argument on August 18, 2025.Failure to timely respond to this order to show causemay result in dismissal of this case.*4 Finally, no later than Friday, August 29, 2025,Defendant SG of Westlake SHALL file a status report,clarifying whether it intends to file a motion to dismiss orproceed with discovery, after which the Court will enter eithera briefing schedule or a scheduling order.IT IS SO ORDERED.5All CitationsSlip Copy, 2025 WL 2408194Footnotes1Defendant Serpentini Chevrolet's June 3, 2025 filing explains that Defendant SG of Westlake, LLC was“incorrectly identified in the Complaint as ‘Serpentini Chevrolet, Inc.'[.]” (ECF No. 29, PageID.97.)2Defendant JPMorgan Chase Bank's June 10, 2025 motion to dismiss (ECF No. 30) – as to which aresponse (ECF No. 36) and a reply (ECF No. 41) have been filed – will be addressed under separatecover. Although Plaintiff filed a sur-reply (ECF No. 45), it is, hereby, STRICKEN, because the Court didnot authorize one. As the Undersigned's practice guidelines explain: “The Court adheres to E.D. Mich LR5.1 and 7.1 regarding format, length, and form of motions and briefs, and the type of briefs required andpermitted. Additional briefing, including sur-replies, will NOT be permitted unless requested by the Court.The Court will strike any improperly filed sur-replies or other briefing not contemplated by the Local Rules.”Seewww.mied.uscourts.gov.3On August 12, 2025, SG of Westlake filed a motion (ECF No. 46) to strike the reply (ECF No. 44) as untimely;however, the Court notes that the certificate of service does not certify that a copy of the order was mailed tothe Plaintiff at his address (see ECF No. 46, PageID.370), and Plaintiff is not an electronic filer. In any event,because the Court already has stricken the brief sua sponte as unauthorized, Defendant SG of Westlake'smotion (ECF No. 46) is DENIED AS MOOT.4The Court believes it likely that Plaintiff used Artificial Intelligence (“AI”) in his research. “At this point, it ‘is nosecret that generative AI programs are known to ‘hallucinate’ nonexistent cases, and with the advent of AI,
Clark v. JPMorgan Chase Bank, N.A., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.4courts have seen a rash of cases in which both counsel and pro se litigants have cited such fake, hallucinatedcases in their briefs.’ ” Seither & Cherry Quad Cities, Inc. v. Oakland Automation, LLC, No. 23-11310, 2025WL 2105286, at *1 (E.D. Mich. July 28, 2025) (Behm, J.) (quoting Sanders v. United States, 176 Fed. Cl. 163,169 (2025)). AI chatbots “are designed to mimic patterns of words, probabilistically. When they are ‘right,’ itis because correct things are often written down in the dataset they were trained on, not because they canindependently fact-check themselves in the same way a human would.” Id. This is a very risky practice, aspro se litigants and attorneys are still subject to the requirements of Fed. R. Civ. P. 11(b)(2) with respect topleadings, motions and other documents they sign and submit to the Court, and, even in the absence of badfaith, Rule 11 sanctions for use of AI generated phantom cases may be warranted. See id. at *2 (awardingsanctions).5The attention of the parties is drawn to Fed. R. Civ. P. 72(a), which provides a period of fourteen (14) daysafter being served with a copy of this order within which to file objections for consideration by the districtjudge under 28 U.S.C. § 636(b)(1).End of Document© 2025 Thomson Reuters. No claim to original U.S. Government Works.
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