United States District Court, D. Minnesota
Jonathan L.R. Drewes, Esq., Bennett Hartz, Esq. and Drewes Law PLLC, 1516 West Lake Street, Suite 300, Minneapolis, MN 55408, counsel for plaintiff.
Ellen B. Silverman, Esq., Ashley M. DeMinck, Esq. and Hinshaw & Culbertson LLP, 333 South Seventh Street, Suite 2000, Minneapolis, MN 55402, counsel for defendant.
DAVID S. DOTY, District Judge.
This matter is before the court upon the motion to dismiss by defendant Wells Fargo Bank, N.A. doing business as Wells Fargo Home Mortgage doing business as Americas Servicing Company (Wells Fargo). Based on a review of the file, record and proceedings herein, and for the following reasons, the court grants the motion.
This consumer-protection dispute arises out of the information contained in the credit report of plaintiff Felicitas Camarena. Camarena discovered her credit report showed an unsecured second mortgage with a balance of $37, 488.00. Compl. ¶ 10. On November 11, 2013, Camarena informed nonparty TransUnion, LLC (TransUnion), a credit reporting agency, that "I am no longer liable for this account. This property was foreclosed on in 2008 and sold in short sale so please update my [report] to show $0 balance." Id . ¶ 11. TransUnion sent the dispute to Wells Fargo. Id . ¶ 12. Thereafter, the report showed a new, incorrect balance of $374, 788. Id . ¶ 14.
On January 14, 2014, Camarena filed a complaint, alleging violations of (1) the Fair Credit Reporting Act (FCRA) and (2) the Fair Debt Collection Practices Act (FDCPA). Wells Fargo moves to dismiss the FDCPA claim.
I. Standard of Review
To survive a motion to dismiss for failure to state a claim, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Braden v. Wal-Mart Stores, Inc. , 588 F.3d 585, 594 (8th Cir. 2009) (citations and internal quotation marks omitted). "A claim has facial plausibility when the plaintiff [has pleaded] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556 (2007)). Although a complaint need not contain detailed factual allegations, it must raise a right to relief above the speculative level. See Twombly , 550 U.S. at 555. "[L]abels and conclusions or a formulaic recitation of the elements of a cause of action" are not sufficient to state a claim. Iqbal , 556 U.S. at 678 (citation and internal quotation marks omitted).
The court does not consider matters outside the pleadings under Rule 12(b)(6). See Fed.R.Civ.P. 12(d). The court, however, may consider matters of public record and materials that do not contradict the complaint, as well as materials that are "necessarily embraced by the pleadings." See Porous Media Corp. v. Pall Corp. , 186 F.3d 1077, 1079 (8th Cir. 1999) (citations and internal quotation marks omitted). In this case, the credit reports and dispute are attached to the complaint, and are properly before the court.
Camarena alleges that Wells Fargo violated the FDCPA by misrepresenting the amount of the mortgage balance on her credit report. "A violation of the FDCPA is reviewed utilizing the unsophisticated-consumer standard which... protects the uninformed or naive consumer, yet also contains an objective element of reasonableness to protect debt collectors from liability for peculiar interpretations of collection [attempts]." Strand v. Diversified Collection Serv., Inc. , 380 F.3d 316, 317-18 (8th Cir. 2004) (citations and internal quotation marks omitted). "The unsophisticated consumer test is a practical one, and statements that are merely susceptible of an ingenious misreading do not violate the FDCPA." Peters v. Gen. Serv. Bureau, Inc. , 277 F.3d 1051, 1056 (8th Cir. 2002) (citations and internal quotation marks omitted).
Camarena argues that Wells Fargo violated 15 U.S.C. § 1692e(2)(A), which provides that "[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt... [including] [t]he false representation of... the character, amount, or legal status of any debt." Wells Fargo responds that Camarena's claim fails because any ...