United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES UNITED STATES DISTRICT JUDGE
case comes before the court on Defendant Wells Fargo Dealer
Services, Inc.'s(“Wells Fargo”) motion to
dismiss the claims stated against it in Plaintiff's
amended complaint (Doc. 35). The motion has been fully
briefed and is ripe for decision. (Docs. 36, 43, 52.) Wells
Fargo's motion is GRANTED for the reasons stated herein.
following facts are taken from the allegations in
Plaintiff's amended complaint. (Doc. 29.) In January
2017, Plaintiff applied for credit with Defendant KIA Motors
America, Inc. (“KIA”) in order to purchase a
vehicle at Lawrence KIA. There was also an unnamed
co-borrower that was a party to the transaction. After
reviewing the credit application, Plaintiff decided not to go
through with the purchase of the vehicle. Allegedly,
Defendant KIA funded the loan and directed Lawrence KIA to
release the collateral to an unnamed co-borrower. Defendant
KIA then sold or transferred the loan to Wells Fargo.
months later, the unnamed co-borrower defaulted on the loan.
Wells Fargo then reported negative marks on Plaintiff's
credit report. After Plaintiff became aware of the sale
transaction and the negative reporting, Plaintiff contacted
Wells Fargo. Defendants Equifax, Experian, and TransUnion
(the “Defendant credit reporting agencies”) had
notice of the dispute and all promptly removed the negative
reporting. Wells Fargo told Plaintiff that it would remove
the negative reporting after an investigation.
credit score increased significantly after the removal.
Shortly thereafter, the Defendant credit reporting agencies
changed Plaintiff's credit report to again reflect the
negative reporting. Plaintiff properly disputed the Wells
Fargo negative reporting with each of the Defendant credit
reporting agencies. Plaintiff disputed the negative reporting
on at least two occasions. Wells Fargo continued to report
incorrect information to the Defendant credit reporting
agencies in an attempt to cause Plaintiff to make payments.
Plaintiff alleges that Wells Fargo intentionally, recklessly,
and negligently failed to perform a reasonable investigation
as required by the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681, et seq.
Plaintiff alleges that he has suffered damages as a result of
Defendants' conduct and has been unable to obtain
has alleged two counts against Wells Fargo: violation of the
FCRA and of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692e. Wells Fargo
moves to dismiss both counts on the basis that they fail to
state a claim.
response to Wells Fargo's motion, Plaintiff has filed a
memorandum in opposition and attached two unauthenticated
exhibits: the results of Plaintiff's credit dispute from
Experian and a letter from Wells Fargo regarding
Plaintiff's dispute. (Doc. 43, Exhs. 1, 2.) On a motion
to dismiss, the court can only consider exhibits attached to
the amended complaint or exhibits that were incorporated into
the amended complaint by reference. See Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009). These
exceptions are not applicable as the exhibits were not
attached to the amended complaint and the exhibits are not
incorporated into the amended complaint by reference.
Therefore, because this is a motion to dismiss, the court
declines to consider the exhibits in ruling on the motion.
Brokers' Choice of Am., Inc. v. NBC Universal,
Inc., 861 F.3d 1081, 1103 (10th Cir. 2017) (“When
a party presents matters outside of the pleadings for
consideration, as a general rule ‘the court must either
exclude the material or treat the motion as one for summary
judgment.'”) (citing Alexander v.
Oklahoma, 382 F.3d 1206, 1214 (10th Cir. 2004)).
Motion to Dismiss Standards
order to withstand a motion to dismiss for failure to state a
claim, a complaint must contain enough allegations of fact to
state a claim to relief that is plausible on its face.
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 127 S.Ct. 1955, 1974 (2007)). All well-pleaded facts and
the reasonable inferences derived from those facts are viewed
in the light most favorable to Plaintiff. Archuleta v.
Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). Conclusory
allegations, however, have no bearing upon the court's
consideration. Shero v. City of Grove, Okla., 510
F.3d 1196, 1200 (10th Cir. 2007). Rule 12(b)(6) “does
not require that Plaintiff establish a prima facie case in
her complaint, but rather requires only that the Plaintiff
allege enough factual allegations in the complaint to set
forth a plausible claim.” Pueblo of Jemez v. United
States, 790 F.3d 1143, 1171-72 (10th Cir. 2015)
(internal citations omitted). In the end, the issue is not
whether Plaintiff will ultimately prevail, but whether
Plaintiff is entitled to offer evidence to support her
claims. Beedle v. Wilson, 422 F.3d 1059, 1063 (10th
alleges that Wells Fargo engaged in willful and negligent
noncompliance with 15 U.S.C. § 1681s-2(a) and (b) by
refusing to conduct an investigation, refusing to review
relevant information, failing to report accurate information,
and continuing to furnish and disseminate inaccurate credit
information to the agencies despite knowledge of the
inaccuracies. Wells Fargo asserts that there is no private
right of action under § 1681s-2(a) and that Plaintiff
has not stated a claim under § 1681s-2(b).
Wells Fargo argues that there is no private right of action
under § 1681s-2(a), which requires furnishers of
information to provide accurate information to consumer
reporting agencies and to investigate a dispute once they
have received notice of the dispute from the consumer
reporting agency. Pinson v. Equifax Credit Info. Servs.,
Inc., 316 Fed.Appx. 744, 750 (10th Cir. 2009).
Plaintiff's amended complaint attempts to state a claim
under § 1681s-2(a). That section, however,
“provides no private cause of action.”
Id. at 751 (citing Gorman v. Wolpoff &
Abramson, LLP, 552 F.3d 1008, 1014 (9th Cir. 2009)
(“Duties imposed on furnishers under subsection (a) are
enforceable only by federal or state agencies.”);
Aklagi v. Nationscredit Fin., 196 F.Supp.2d 1186,