United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge
Anthony Ellis brings this lawsuit against defendant Chase
Bank, NA (“Chase”), asserting three claims in his
First Amended Complaint-Count I seeks declaratory relief,
Count II arises under the Fair Credit Reporting Act, and
Count III alleges defendant's attempts to collect a debt
from plaintiff were “Deceptive and Unconscionable
Acts” that violated the Kansas Consumer Protection Act
(“KCPA”), Kan. Stat. Ann. §§ 50-623,
et seq. Doc. 7.
matter comes before the court on defendant's Motion for
Partial Dismissal of Plaintiff's First Amended Complaint
pursuant to Fed.R.Civ.P. 12(b)(6). Doc. 8. Defendant moves to
dismiss only Count III-plaintiff's third claim under the
KCPA. Id. For reasons explained below, the court
grants defendant's motion.
following facts are taken from plaintiff's First Amended
Complaint (Doc. 7) and the court views them in the light most
favorable to him. S.E.C. v. Shields, 744 F.3d 633,
640 (10th Cir. 2014) (“We accept as true all
well-pleaded factual allegations in the complaint and view
them in the light most favorable to the [plaintiff].”)
as a national bank, solicits, engages in, or enforces
consumer transactions in the ordinary course of its business.
Plaintiff opened an account with defendant sometime before
2015. Defendant reported this account as having a past-due
balance sometime before 2015.
early 2016, defendant canceled the account and decided to
stop collection efforts, consistent with defendant's
internal policies. Defendant sent the IRS and plaintiff
notice that it had cancelled plaintiff's account.
Plaintiff's 2015 taxes increased because defendant
cancelled the debt on the account. Plaintiff paid a
significantly higher tax rate because he realized income from
debt cancellation. Plaintiff's disability forced him into
retirement in 2015, and also contributed to his incurring a
higher tax rate.
plaintiff had a second and third account with defendant.
Plaintiff settled an unpaid portion of both his second and
third accounts. Defendant accurately reported the second and
third accounts as ones with no balance due. Defendant
continued to demand payment on plaintiff's first account
and asserted it would continue to report the amount due until
plaintiff paid defendant.
Civ. P. 8(a)(2) provides that a complaint must contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Although this Rule
“does not require ‘detailed factual allegations,
'” it demands more than “[a] pleading that
offers ‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of
action'” which, as the Supreme Court explained,
“will not do.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
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.'”
Id. (quoting Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). “Under this
standard, ‘the complaint must give the court reason to
believe that this plaintiff has a reasonable
likelihood of mustering factual support for these
claims.'” Carter v. United States, 667
F.Supp.2d 1259, 1262 (D. Kan. 2009) (quoting Ridge at Red
Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th
the court must assume that the factual allegations in the
complaint are true, it is “‘not bound to accept
as true a legal conclusion couched as a factual
allegation.'” Id. at 1263 (quoting
Iqbal, 556 U.S. at 678). “‘Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice'” to
state a claim for relief. Bixler v. Foster, 596 F.3d
751, 756 (10th Cir. 2010) (quoting Iqbal, 556 U.S.
evaluating a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the court may consider not only the complaint itself, but
also attached exhibits and documents incorporated into the
complaint by reference. Smith v. United States, 561
F.3d 1090, 1098 (10th Cir. 2009) (citing Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308 (2007))
(further citations omitted). A court “‘may
consider documents referred to in the complaint if the
documents are central to the plaintiff's claim and the
parties do not dispute the documents'
authenticity.'” Id. (quoting Alvarado
v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007))
(internal quotation omitted).