Kenon v Waldorf Ford, Inc.

Filing 12

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 3/7/2025. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ALEXIS KENON
:
v.

:

Civil Action No. DKC 24-1793

:
WALDORF FORD, INC.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this Fair Credit
Reporting Act (“FCRA”) case are the motion to dismiss filed by
Defendant Waldorf Ford, Inc. (“Waldorf Ford” or “Defendant”) (ECF
No. 4), and the motion for leave to file an opposition to the
motion to dismiss filed by Plaintiff Alexis Kenon (“Plaintiff”)
(ECF No. 10).

The issues have been briefed, and the court now

rules, no hearing being deemed necessary.

Local Rule 105.6.

For

the following reasons, Plaintiff’s motion for leave to file an
opposition will be granted and Defendant’s motion to dismiss will
be granted in part and denied in part.
I.

Background
A. Factual Background 1
On December 15, 2023, at approximately 12:00 a.m., Plaintiff

saw an advertisement on Carfax.com for the sale of a 2018 Alfa

1

The following facts are set forth in the complaint and
construed in the light most favorable to Plaintiff.

Romeo Giulia (the “Vehicle”) with 42,951 miles on it located at
Waldorf Ford.

(ECF No. 1 ¶ 9).

Plaintiff emailed Defendant to

inquire about the Vehicle’s availability.

On December 15, 2023,

at approximately 9:14 a.m., Plaintiff received a text message from
Aiza Marquez, an agent of Waldorf Ford, who explained that the
Vehicle was available, and that Plaintiff could go see the Vehicle
that same day.

(Id. ¶ 10).

Plaintiff responded that she could

not go to Waldorf Ford that day but asked if she could start the
application process early to see if she would be approved for the
Vehicle.

(Id.).

Plaintiff completed the application and received

a text message from Aiza Marquez telling Plaintiff that she was
pre-approved for the Vehicle and would be required to pay a
$2,000.00 downpayment.

(Id. ¶ 11).

On December 16, 2023, Plaintiff went to Waldorf Ford to
purchase the Vehicle.

Plaintiff test drove the Vehicle with Caleb

Davis (“Mr. Davis”), a salesman.

(Id. at ¶ 13).

Mr. Davis

informed Plaintiff that Defendant had obtained financing for her
from Flagship Credit Acceptance, LLC (“Flagship”), but she was now
required

to

insurance.

make

a

downpayment

(Id. at ¶ 14).

of

$3,010.00

and

to

purchase

Plaintiff completed all the required

paperwork to finalize the sale with someone named “Preston,”
Waldorf

Ford’s

finance

manager.

Preston

read

the

terms

and

conditions of the sale to Plaintiff, signed the documents, put all

2

the executed documents on a USB, and collected the down payment of
$3,100.00.

(Id. at ¶ 15).

On December 21, 2023, Preston called Plaintiff and told her
that she needed to contact Flagship to complete her welcome letter
and to finalize the loan by verifying the information in her
application.

(Id. at ¶ 16).

On or about December 27, 2023, Plaintiff contacted Flagship
and verified the required information.

(Id.).

Flagship told

Plaintiff that it was waiting for her employer verification and
that she would need to wait for her welcome information and account
number to come in the mail.

(Id. at ¶ 17).

Plaintiff contacted Mr. Davis regarding an extended warranty
offered on the Vehicle.

Mr. Davis told Plaintiff that he would

reach out to Preston to get that information for her.

Mr. Davis

later called Plaintiff and told her that he was terminated by
Waldorf Ford and that “he didn’t think Preston was going to contact
[her] regarding her extended warranty because their entire team
was fired and replaced.”

(Id. at ¶ 19).

After that, Plaintiff

called Waldorf Ford to confirm the finalization of her financing
with Flagship but was continuously forwarded to an empty desk.
(Id. at ¶ 20).

Plaintiff contacted Flagship to pay her monthly

installment early but was told that Flagship could not locate her
file and that she should contact Defendant.

3

(Id. at ¶ 21).

Plaintiff called Defendant daily but received no response.
Plaintiff called another Ford dealership in Arlington, Virginia,
to speak to their financing department.

The finance manager at

the Arlington location told Plaintiff that she needed to get in
contact with the general sales manager at Waldorf Ford.

(Id. at

¶ 22).
Plaintiff immediately called Waldorf Ford and asked to speak
to the general sales manager.

Plaintiff was connected to someone

named “Alashair,” who asked if Plaintiff had possession of the
Vehicle to which Plaintiff responded in the affirmative.
¶ 23).

(Id. at

Alashair connected Plaintiff to someone named “Milek” or

“Malek,” the general finance manager.

Milek told Plaintiff that

he was unaware of the sale of the Vehicle or the financing, but he
was upset that Waldorf Ford did not receive payment for the
Vehicle.

Milek said he would contact Flagship the next day

regarding Plaintiff’s loan.

Plaintiff informed Milek that Preston

had run her credit around five times, and that she did not
authorize further credit checks.

Milek told Plaintiff that he

”had a few tricks up [his] sleeve” and that he would be in touch
with her.

(Id. at ¶ 24).

Roughly two weeks later, Plaintiff called Milek to follow up
on the status of her loan, at which point she found out from
Experian.com that she had new “hard” credit inquiries.

Milek told

Plaintiff that he was trying to get a loan for her but was having
4

no luck.

Plaintiff asked Milek about the status of her loan with

Flagship because she was already approved.

Milek told Plaintiff

that her credit score was not as high as some of the creditors
wanted and that some creditors wanted more money down, a cosigner,
or a higher monthly payment.

Milek said he did not present those

offers to Plaintiff because he felt that they were “ridiculous.”
(Id. at ¶ 25).
Plaintiff

called

Flagship

and

spoke

with

manager

Chris

Mcgreevly (“Mr. Mcgreevly”), who informed her that the loan expired
on January 15, 2024, but that Mr. Mcgreevly had extended the
deadline a few days to receive additional documents from Defendant.
While Plaintiff was on the phone with Mr. Mcgreevly, she received
five more auto financing inquiry alert emails from Experian.com.
Plaintiff contacted Milek to inform him of her conversation
with Mr. Mcgreevly.

When Milek called Plaintiff the next day he

told her he was unable to speak to Mr. Mcgreevly and that Plaintiff
would need to return the Vehicle if she was not approved for
financing.

The next day, Milek called Plaintiff again and told

her that Flagship requested her original documents back but that
he could only send them via mail.

Milek also told Plaintiff that

Flagship was unlikely to approve a new application for the Vehicle
because Plaintiff’s credit score had declined since she initially
applied.

5

Two weeks later, Flagship told Plaintiff that Milek sent her
paperwork to the wrong Flagship location.

Plaintiff continued

receiving alerts of new credit inquiries for Waldorf Ford.
The next week, Milek emailed Plaintiff asking that she either
return the Vehicle or purchase another vehicle.
refund Plaintiff’s $3,010.00 down payment.
made

twenty-five

credit

inquiries,

Milek offered to

In total, Defendant

twenty-four

of

which

were

unauthorized, dropping Plaintiff’s credit score by 121 points.
Plaintiff received several denial letters from creditors for new
financing applications.

Plaintiff requested that Defendant remove

the inquiries, but it has not.
On February 14, 2024, Plaintiff purchased a 2022 Acura IXL
from Darcars Kia in Temple Hills, Maryland.

Due to the 121 point

decrease in Plaintiff’s credit, she was not “eligible for a loan
with any outside banks or needed a cosigner and more cash down.”
Plaintiff’s car note was higher and required an increased down
payment of $4,500.00.

On February 17, 2024, Plaintiff returned

the Vehicle to Waldorf Ford.
B. Procedural Background
Plaintiff filed a complaint on June 20, 2024 (ECF No. 1).

On

July 12, 2024, Defendant filed a motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6) (ECF No. 4).

On July 30, 2024, Plaintiff

filed a consent motion for time to extend the July 26, 2024
opposition deadline to August 9, 2024 (ECF No. 6), which was
6

granted on July 30, 2024 (ECF No. 7).

On August 10, 2024,

Plaintiff filed an opposition to Defendant’s motion to dismiss
(ECF

No. 8),

and

an

unopposed

opposition (ECF No. 10). 2

motion

for

leave

to

file

her

Defendant replied on August 22, 2024

(ECF No. 11).
II.

Standard of Review
A motion to dismiss under Rule 12(b)(6) tests the sufficiency

of the complaint.

Presley v. City of Charlottesville, 464 F.3d

480, 483 (4th Cir. 2006).

“[T]he district court must accept as

true all well-pleaded allegations and draw all reasonable factual
inferences in plaintiff’s favor.”
299 (4th Cir. 2021).
standard

of

Rule

Mays v. Sprinkle, 992 F.3d 295,

A plaintiff’s complaint need only satisfy the
8(a)(2),

which

requires

a

“short

and

plain

statement of the claim showing that the pleader is entitled to
relief.”

Fed.R.Civ.P. 8(a)(2).

“[W]here the well-pleaded facts

do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show[n]’—
‘that the pleader is entitled to relief.’”

Ashcroft v. Iqbal, 556

U.S. 662, 679 (2009) (quoting Fed.R.Civ.P. 8(a)(2)).

A Rule

8(a)(2) “showing” requires “stat[ing] a claim to relief that is
plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

2

The opposition was filed only one day late, purportedly
because of ongoing settlement discussions.
As noted, Defendant
does not oppose this motion and it will be granted.
7

570 (2007).

“A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable
inference that defendant is liable for the misconduct alleged.”
Mays, 992 F.3d at 299-300 (quoting Iqbal, 556 U.S. at 663).
In reviewing a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the court may consider allegations in the complaint, matters of
public record, and documents attached to the motion to dismiss
that are integral to the complaint and authentic.

Faulkenberry v.

U.S. Dep’t of Def., 670 F.Supp.3d 234, 249 (D.Md. 2023).

The court

may also consider documents attached to the complaint.

CACI Int’l

v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154 (4th Cir.
2009).

Although the complaint refers generally to documents, none

were attached, and Defendant did not attach anything to its motion
to dismiss.
Plaintiff

attached

two

exhibits

to

her

response

in

opposition, her own declaration and a Retail Sale Contract between
herself and Waldorf Ford which she argues is relevant to Count II.
(ECF Nos. 8-1; 8-2).

Plaintiff may not amend her pleading by

attaching documents to her opposition.

See Lindsey-Grobes v.

United Airlines, Inc., No. GJH-14-00857, 2014 WL 5298030, at *5
(D.Md. Oct. 14, 2014) (“An affidavit attached to an opposition to
a motion to dismiss, however, is no place for [the plaintiff] to
add

material

facts

to

a

deficient

complaint.”).

Similarly,

Defendant attached an exhibit to its reply brief, the purchase
8

order for the Vehicle.

(ECF No. 11-1).

Because Defendant’s

exhibit

its

there

is

attached

to

reply

brief,

has

been

no

opportunity for Plaintiff to challenge the authenticity of the
document.

See Faulkenberry, 670 F.Supp.3d at 249.

Accordingly,

at the motion to dismiss stage, the court will not consider
documents outside the complaint.
III. Analysis
A. Count I: Violation of 15 U.S.C. § 1681
In Count I, Plaintiff alleges that Waldorf Ford violated 15
U.S.C.

§ 1681b(f)

by

obtaining

Plaintiff’s

credit

report

approximately twenty-four times without authorization, decreasing
her credit score by 121 points.

(ECF No. 1 ¶¶ 41-43).

Defendant

argues that Plaintiff fails to state a claim because it had a
permissible

purpose

to

obtain

Plaintiff’s

consumer

reports

pursuant to 15 U.S.C. §§ 1681b(a)(3)(A) and 1681b(a)(3)(F)(i).
(ECF No. 4-1, at 3).
15 U.S.C. § 1681b(f) states:
A person shall not use or obtain a consumer
report for any purpose unless—
(1) the consumer report is obtained for a
purpose for which the consumer report is
authorized to be furnished under this section;
and
(2) the purpose is certified in accordance
with section 1681e of this title by a
prospective user of the report through a
general or specific certification.

9

15 U.S.C. § 1681b(f).

Section 1681b(a) enumerates the permissible

circumstances under which a consumer reporting agency may furnish
a consumer report, stating in relevant part:
Subject to subsection (c), any consumer
reporting agency may furnish a consumer report
under the following circumstances and no
other:
. . .
(3) To a person which it has reason to believe(A) intends to use the information in
connection with a credit transaction involving
the consumer on whom the information is to be
furnished and involving the extension of
credit to, or review or collection of an
account of, the consumer; or
. . .
(F) otherwise has a legitimate business need
for the information—
(i) in connection with a business transaction
that is initiated by the consumer . . . .
15 U.S.C. § 1681b(a).

The United States Court of Appeals for the

Fourth Circuit has instructed that § 1681b applies both to consumer
agencies and to users.

Korotki v. Thomas, Ronald & Cooper, P.A.,

131 F.3d 135, 1997 WL 753322, *2 (4th Cir. 1997) (Table).

Thus, a

user

purpose

may obtain

a

consumer

enumerated in § 1681b.

report

for

a

permissible

See id. (citing Yohay v. City of Alexandria

Emps.’ Credit Union, Inc., 827 F.2d 967, 972 (4th Cir. 1987) (citing
Hanson v. Morgan, 582 F.2d 1214, 1216 (9th Cir. 1978))).
Plaintiff argues, however, that 15 U.S.C. § 1681b(c) applies
because she did not initiate the January 2024 credit transactions.
10

(ECF No. 8 at 3).

Section 1681b(c) concerns credit transactions

that are not initiated by the consumer:
A consumer reporting agency may furnish a
consumer report to any consumer pursuant to
subparagraph (A) or (C) of subsection (a)(3)
in connection with any credit or insurance
transaction that is not initiated by the
consumer only if—
(A) The consumer authorizes the agency to
provide such report to such person[.]
15 U.S.C. 1681b(c).
This court has explained:
To state a claim for an improper use or
acquisition
of
a
consumer
report,
[a]
[p]laintiff must plead the following elements:
(1) that there was a consumer report; (2) that
Defendant used or obtained it; (3) that
Defendant did so without a permissible
statutory purpose; and (4) that Defendant
acted with the specified culpable mental
state.
Bolden v. McCabe, Weisberg & Conway, LLC, No. 13-1265-DKC, 2013 WL
6909156, at *3 (D.Md. Dec. 31, 2013) (citations omitted).

“To

prevail on the theory of willful violation of the FCRA, the
plaintiff

must

‘show

that

the

defendant

knowingly

and

intentionally committed an act in conscious disregard for the
rights of the consumer.’”

Id. at n.5 (quoting Ausherman v. Bank

of Am. Corp., 352 F.3d 896, 900 (4th Cir. 2003) (internal citations
omitted)).
Plaintiff alleges that she only authorized the first credit
check that occurred in December and that the subsequent checks
11

were unauthorized.

(ECF No. 1 ¶ 41).

Plaintiff further alleges

that in early January 2024, after she told Defendant she did not
authorize additional credit checks, Defendant “willfully and/or
recklessly

and/or

maliciously

Plaintiff’s consumer report(s).”

ran

about

25

inquiries

on

(ECF No. 1 ¶ 42).

Defendant contends that the “credit inquiries were undertaken
to pursue financing for [P]laintiff’s purchase of a vehicle[.]”
(ECF No. 4-1, at 3-4).
inquiries

were

Defendant argues that the additional

necessary

§§ 1681b(a)(3)(A)

and

and

permissible

1681b(a)(3)(F)(i)

under

because

15

U.S.C.

“the

initial

financing was not completed” and “[P]laintiff still wanted the
vehicle.”

(ECF No. 4-1, at 3-4).

Plaintiff responds that the

December 15, 2023 transaction was initiated by Plaintiff and that
Plaintiff

believed

it

resulted

Flagship.

(ECF No. 8, at 4).

in

successful

financing

with

Plaintiff contends that 15 U.S.C.

§ 1681b(c) applies because the January 2024 credit inquiries were
unauthorized and separate from the December 15, 2023 transaction.
(Id. at 3-4).

Plaintiff contends that Defendant did not have a

permissible purpose under 15 U.S.C. § 1681b(c).
The facts, taken in the light most favorable to Plaintiff,
are that she initiated a credit transaction in December for which
a credit inquiry was conducted by Defendant. Once that application
for financing was approved by Flagship, however, there was no
longer any need for further inquiries and the transaction was
12

complete.

She

denies

initiating

any

credit

transaction

or

authorizing further credit inquiries by Defendant in January.
Defendant cites to a decision from the United States District
Court for the Eastern District of Wisconsin, Long v. Bergstrom
Victory Lane, Inc., 2018 WL 4829192 (E.D. Wis. 2018), to support
its proposition that “Plaintiff’s assertion that she did not
authorize credit checks beyond an initial inquiry does not negate
[Defendant’s] permissible purpose.” (ECF No. 4-1, at 4). In Long,
the court held that defendant’s decision to submit plaintiff’s
credit

report

to

multiple

financial

institutions,

despite

plaintiff’s instruction not to, was still a permissible purpose
under FCRA § 1681b(a)(3)(A).
similarly,

it

had

Id. at *2.

permissible

purposes

Defendant argues that
to

access

Plaintiff’s

credit report multiple times despite Plaintiff’s instruction not
to

access

her

credit

report

further.

Unlike

Long,

however,

Plaintiff alleges that Defendant told her she was approved for
financing with Flagship on December 16, 2023, and that in January
of 2024 Defendant accessed her credit report roughly twenty-four
times without authorization.

(ECF No. 1 ¶ 25).

Because Defendant

told Plaintiff she was approved, Defendant’s permissible purpose
pursuant to 15 U.S.C. § 1681b(a) ended on December 16, 2023.
Plaintiff

alleges

she

did

not

authorize

further

credit

transactions so the only permissible purposes would be under 15

13

U.S.C. § 1681b(c).

Defendant has not argued that any provision of

15 U.S.C. § 1681b(c) applies.
The motion to dismiss will be denied as to this count.
B. Count II: Unfair or Deceptive Trade Practices
In Count II, Plaintiff alleges that Defendant violated MD.
Code, Comm. Law § 13-303 in two ways: (1) “when it promised to
obtain financing approval with the original credit application,
because instead, it ran multiple unauthorized credit checks to
obtain financing approval” and (2) when it “failed to provide
Plaintiff notice of denial or approval of her financing application
within four days.” (ECF No. 1 ¶¶ 50-51).

Defendant argues that

Count II should be dismissed because: (1) Defendant had permissible
purposes to obtain Plaintiff’s credit reports and (2) Plaintiff
received timely notice of the outcome of her financing application.
(ECF No. 4-1, at 6).
The

Maryland

Consumer

Protection

Act

(“MCPA”)

prevents

persons from “engag[ing] in any unfair, abusive, or deceptive trade
practice

. . .

in

. . .

[t]he

sale,

bailment of any consumer goods[.]”

lease,

rental,

loan,

or

Md. Code Ann., Com. Law § 13-

303(1). Section 13-301 defines unfair, abusive, or deceptive trade
practices, including:
(1)
False,
falsely
disparaging,
or
misleading oral or written statement, visual
description, or other representation of any
kind which has the capacity, tendency, or
effect of deceiving or misleading consumers;
14

. . . .
(9) Deception, fraud, false pretense, false
premise,
misrepresentation,
or
knowing
concealment, suppression, or omission of any
material fact with the intent that a consumer
rely on the same in connection with:
(i) The promotion or sale of any consumer
goods, consumer realty, or consumer service;
(ii) A contract or other agreement for the
evaluation, perfection, marketing, brokering
or promotion of an invention; or
(iii) The subsequent performance of a merchant
with respect to an agreement of sale, lease,
or rental[.]
Md. Code Ann., Com. Law § 13-301(1),(9).
The Maryland Transportation Code provides, in relevant part
“A dealer shall notify a buyer in writing if the terms of a
financing or lease agreement between a dealer and a buyer are not
approved by a third-party finance source within 4 days of delivery
of a vehicle to the buyer.”

Md. Code Ann., Trans. § 15-311.3.

A

violation of Md. Code Ann., Trans. § 15-311.3 by a dealer is “an
unfair and deceptive trade practice under Title 13” of the Maryland
Commercial Code.

Id. at 15-311.3(g).

Plaintiff’s complaint alleges that “Defendant made false or
misleading statements to [her] when it promised to obtain financing
approval with the original credit application and, instead, ran
multiple unauthorized credit checks to obtain financing approval.”
Defendant’s argument that this claim fails because there were no
unauthorized credit checks itself fails for the same reason Count

15

I survives.

Plaintiff, however, has not pleaded adequate facts to

support her claim that Defendant “failed to provide . . . notice
of denial or approval of her financing application within four
days.”

(ECF No. 1 ¶ 51).

First, the statute does not require

Defendant to provide notice of approval within four days, only
denial.

See Md. Code Ann., Trans. § 15-311.3.

Second, Plaintiff

alleges that she received the vehicle on December 16, 2023, and
that, on the same day, Defendant represented that “Plaintiff was
approved for financing” with Flagship.

(ECF No. 1 ¶ 15).

Plaintiff

her

alleges

Defendant

told

that

her

Because

financing

application was approved, Defendant was not required to provide
notice in writing pursuant to Md. Code Ann., Trans. § 15-311.3
within four days.
Accordingly, Defendant’s motion to dismiss will be denied as
to

the

portion

unauthorized
contrary.

of

credit

Count
checks

II

alleging

despite

that

making

it

ran

promises

multiple
to

the

However, Defendant’s motion will be granted as to the

portion of Count II alleging a violation Md. Code Ann., Trans. §
15-311.3.
IV.

Conclusion
For the foregoing reasons, Plaintiff’s motion for leave to

allow late filing will be granted, and Defendant’s motion to
dismiss will be granted as to the portion of Count II alleging a

16

violation of Md. Code Ann., Trans. § 15-311.3 and denied as to all
other counts.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

17