United States District Court, D. Kansas
GARY L. ABRAHAM, Plaintiff,
CENTRIS FEDERAL CREDIT UNION, Defendant.
MEMORANDUM AND ORDER
Kathryn H. Vratil, United States District Judge.
September 16, 2019, pro se plaintiff Gary L. Abraham filed
suit against Centris Federal Credit Union. Complaint
(Doc. #1). As best the Court can ascertain, plaintiff
alleges that defendant engaged in predatory lending relating
to a home loan, and brings his claims under the Truth in
Lending Act (“TILA”), 15 U.S.C. § 1601 et
seq., and the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq.
This matter is before the Court on plaintiff's Motion
To Stay Collection Payment To Defendant (Doc. #6) filed
September 18, 2019, plaintiff's Request For Entry Of
Default By The Clerk (Doc. #14) filed October 18, 2019,
defendant's Motion To Transfer Venue And Motion To
Dismiss For Failure To State A Claim (Doc. #15) filed
October 21, 2019 and plaintiff's Motion For Entry Of
Default Judgment Against Defendant By The District Clerk
(Doc. #26) filed October 29, 2019. For reasons stated below,
the Court sustains defendant's motion in part and does
not rule on plaintiff's motions.
the Court can ascertain, plaintiff alleges the following:
about May 21, 2019, plaintiff contacted defendant's
mortgage department to inquire about eligibility requirements
for home loans. Defendant ultimately denied plaintiff a loan
because he did not satisfy its debt ratio guidelines.
about May 24, 2019, plaintiff again contacted defendant to
discuss loan options. Defendant advised plaintiff that to
lower his debt ratio, he should refinance existing loans, pay
off credit cards and trade both of his cars for a more
economical option. With the understanding that defendant
would lower his debt ratio to allow him to obtain a home
loan, plaintiff used $29, 000 from his savings. Although it is
unclear to the Court, it appears that defendant ultimately
granted plaintiff a loan.
obtaining his loan, plaintiff did not understand the forms
that he signed, including the terms and conditions,
disclosures, amount financed and finance charges. After he
expressed concern to defendant, defendant sent new documents.
Plaintiff did not receive them, however, for several weeks.
When plaintiff then attempted to cancel the loan, defendant
avoided his calls. Once defendant responded, it explained
that it had already disbursed the funds, despite
plaintiff's prior instructions by email and voice
messages to cancel the deal. Weeks later, defendant pressured
plaintiff to pay off the loan.
28 U.S.C. § 1404(a), defendant requests that the Court
transfer this case to the District of Nebraska pursuant to a
valid forum selection clause that governs plaintiff's
claims. A forum selection clause in a freely-entered contract
is presumptively valid. See Bowen Eng'g, Corp. v.
Pac. Indem. Co., 83 F.Supp.3d 1185, 1190 (D. Kan. 2015).
Accordingly, the Court will enforce a forum selection clause
unless the party challenging it “clearly show[s] that
enforcement would be unreasonable and unjust, or that the
clause was invalid for such reasons as fraud or
overreaching.” Kufahl v. Spaulding Decon Indus.,
Corp., No. 19-1036-EFM, 2019 WL 5424791, at *2 (D. Kan.
Oct. 23, 2019) (citing Niemi v. Lasshofer, 770 F.3d
1331, 1351 (10th Cir. 2014)).
valid forum selection clause governs plaintiff's claims.
On June 7, 2012, plaintiff became a member of defendant by
signing a Membership Application Account Card. By doing so,
plaintiff agreed to “the terms and conditions of the
Membership and Account Agreement.” Account
Card (Doc. #17-2) filed October 21, 2019 at 4. The
Account Agreement clearly states that it “covers
[plaintiff's] rights and responsibilities concerning
[his] accounts, ” and that “any legal action
regarding this Agreement shall be brought in the county in
which the Credit Union is located, ” which is Douglas
County, Nebraska. Account Agreement (Doc. #17-2) at
5, 10. Plaintiff does not argue that enforcing the forum
selection clause would be unreasonable or unjust, or that the
clause was invalid for reasons such as fraud or overreaching.
Accordingly, absent argument to the contrary, the Court finds
that plaintiff agreed to a valid forum selection clause that
governs his claims.
defendant files a motion under 28 U.S.C. § 1404(a) and
presents a valid forum selection clause, the Court
“should ordinarily transfer the case to the forum
specified in that clause.” Atl. Marine Constr. Co.
v. United States Dist. Court, 571 U.S. 49, 52 (2013). As
the Supreme Court explained, “[w]hen parties agree to a
forum-selection clause, they waive the right to challenge the
preselected forum as inconvenient or less convenient for
themselves or their witnesses, or for their pursuit of
litigation.” Id. Accordingly, the Court
“should transfer the case unless extraordinary
circumstances unrelated to the convenience of the parties
clearly disfavor a transfer.” Id. To determine
whether such extraordinary circumstances exist, the Court
“does not give any weight to plaintiff's choice of
forum and should only consider arguments related to
public-interest factors.” Kufahl, 2019 WL
5424791, at *2 (citing Atl. Marine Constr. Co., 571
U.S. at 62). These factors include: (1) administrative
difficulties of courts with congested dockets which can be
caused by cases not being filed at their place of origin; (2)
the burden of jury duty on members of a community with no
connection to the litigation; (3) the local interest in
having localized controversies decided at home; and (4) the
appropriateness of having diversity cases tried in a forum
that is familiar with the governing law. Id. The
Supreme Court explained that because public-interest factors
“will rarely defeat a transfer motion, ” the
practical result is that forum selection clauses should
control except in unusual cases. Atl. Marine Constr.
Co., 571 U.S. at 64.
plaintiff has not shown extraordinary circumstances that
would override the valid forum selection clause to which he
agreed. Indeed, plaintiff does not address any
public-interest factors. He merely complains about the
inconvenience of litigating outside of Kansas, where he and
his witnesses live. As the Supreme Court has made clear,
however, convenience for plaintiff and his witnesses is
simply irrelevant when he agreed to a valid forum selection
clause. See id. at 52. Accordingly, plaintiff has
failed to satisfy his burden of showing extraordinary
circumstances preventing transfer of venue. See id.
at 64 (plaintiff bears burden of establishing that transfer
to forum to which parties agreed is unwarranted).
apparently argues that defendant waived its right to transfer
this case because it did not timely answer his complaint.
This argument was the basis for two separate motions in which
plaintiff asked the Court clerk to enter default against
defendant. Request For Entry Of Default By The Clerk
(Doc. #14); Motion For Entry Of Default Judgment Against
Defendant By The District Clerk (Doc. #26).
Plaintiff's argument is frivolous. Although he served his
original complaint on September 18, 2019, he served an
amended complaint on October 7, 2019. See Notice Of Proof
Of Service Of Plaintiff Amended Complaint To Defendant
(Doc. #11). Pursuant to Fed.R.Civ.P. 15(a)(3), defendant had
until October 21, 2019 to respond. Defendant complied with
Rule 15(a)(3), filing its motion to transfer or dismiss on
October 21, 2019. See Motion To Transfer Venue And Motion
To Dismiss For Failure To State A Claim (Doc. #15).
Thus, defendant did not default or waive the right to request
disregard for these rules in filing multiple default motions
is worth noting, particularly in light of the warning that he
received from this Court on a different matter just last
year. On September 7, ...