Diane Wells v. Craig & Landreth Cars, Inc., et al


Per Curiam OPINION filed: AFFIRMED, decision not for publication pursuant to local rule 206. Damon J. Keith; Boyce F. Martin , Jr. and Julia Smith Gibbons, Circuit Judges.

Download PDF
Case: 10-6514 Document: 006111264880 Filed: 04/04/2012 Page: 1 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 12a0364n.06 No. 10-6514 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED DIANE WELLS Plaintiff - Appellant v. CRAIG & LANDRETH CARS, INC.; J.P. MORGAN CHASE BANK, N.A., Auto Finance; KENTUCKY TELCO FEDERAL CREDIT UNION; FIRST AMERICAN CREDCO; TRANS UNION, LLC, Defendants, and CAPITAL ONE AUTO FINANCE, INC. Defendant - Appellee. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Apr 04, 2012 LEONARD GREEN, Clerk ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY Before: KEITH, MARTIN, and GIBBONS, Circuit Judges. PER CURIAM. Diane Wells, a pro se Kentucky resident, appeals a district court order that dismissed her claims against Capital One Auto Finance, Inc. (Capital One), alleging violations of the Kentucky Consumer Protection Act, Ky. Rev. Stat. § 367.170, the Kentucky Uniform Electronic Transactions Act, Ky. Rev. Stat. § 369.105, the Fair Credit Reporting Act, 15 U.S.C. § 1681b, and the Equal Credit Opportunity Act, 15 U.S.C. § 1691. Wells sued a car dealership (Craig & Landreth), a credit reporting company, and several lending institutions, including Capital One. Wells had signed a purchase order for an automobile with Craig & Landreth. However, Wells alleged that she never completed a credit application with Case: 10-6514 Document: 006111264880 Filed: 04/04/2012 Page: 2 No. 10-6514 -2the dealership and that she told the dealership that she would seek financing from her credit union. Nevertheless, Craig & Landreth made an electronic application for credit on her behalf with several lending institutions, including Capital One. Capital One declined to extend Wells credit after making an inquiry into her credit history. The district court granted Capital One’s motion for dismissal on November 19, 2010. See Fed. R. Civ. P. 12(b)(6). Wells then filed a timely appeal. We review the dismissal of Wells’s claims against Capital One de novo. See Grinter v. Knight, 532 F.3d 567, 571-72 (6th Cir. 2008). “[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007). However, the complaint must provide “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. Wells’s claims were wholly conclusory insofar as she alleged that Capital One violated the Kentucky Consumer Protection Act and the Kentucky Uniform Electronic Transactions Act. In this regard, the district court properly noted that Wells had not alleged any facts that might support an inference that Capital One acted in an unfair, false, misleading, or deceptive manner, as required for consumer-protection claims under Kentucky law. See Ky. Rev. Stat. § 367.170; Sparks v. Re/Max Allstar Realty, Inc., 55 S.W.3d 343, 348 (Ky. Ct. App. 2000). Wells now argues that she has a viable claim under Kentucky common law regarding her right to privacy. She did not, however, raise a privacy claim against Capital One in her amended complaint. We do not address a claim that is presented for the first time on appeal unless failure to do so would result in a miscarriage of justice. See Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002). No such miscarriage of justice would occur in this case. Case: 10-6514 Document: 006111264880 Filed: 04/04/2012 Page: 3 No. 10-6514 -3The district court properly found that Wells had not alleged that Capital One discriminated against her for any of the reasons that are proscribed by the Equal Credit Opportunity Act, 15 U.S.C. § 1691(a). Instead, Wells alleged that Capital One violated that Act by failing to use one of the model application forms that are set forth in an appendix to the corresponding regulations. This claim is unavailing because the cited regulation plainly states that “[a]ll forms contained in this appendix are models; their use by creditors is optional.” 12 C.F.R. § 202, App. B. In her remaining claim, Wells alleged that Capital One violated the Fair Credit Reporting Act by accessing her credit report without her written authorization. See 15 U.S.C. § 1681b(a)(2). The Act allows disclosure of credit information to an entity that “intends to use the information in connection with a credit transaction” that involves extending credit to the consumer. 15 U.S.C. § 1681b(a)(3)(A). There is nothing in Wells’s amended complaint which might show that Capital One had reason to believe that she did not wish the dealership to file an application on her behalf. Thus, her allegations are insufficient because they do not indicate that Capital One intended to violate her rights under the Act or that it did so recklessly. Finally, Wells argues that the district court should have allowed her more time to discover evidence. However, Wells did not move for additional time for discovery or seek more time to respond to Capital One’s motion to dismiss. The district court acted within its discretion by ruling on the dismissal motion in light of the allegations in Wells’s second amended complaint. The district court’s judgment is affirmed.

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?