Camarena v. Wells Fargo Bank, N.A.

Filing 17

ORDER granting 5 Motion to Dismiss (Written Opinion). Signed by Senior Judge David S. Doty on 8/14/2014. (PJM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 14-131(DSD/JJG)
Felicitas Camarena,
Plaintiff,
ORDER

v.
Wells Fargo Bank, N.A., doing
business as Wells Fargo Home
Mortgage, doing business as
Americas Servicing Company,
Defendant.

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.

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.

BACKGROUND
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.”
TransUnion sent the dispute to Wells Fargo.

Id. ¶ 12.

Id. ¶ 11.

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.1

DISCUSSION
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

1

Initially, Camarena failed to submit a memorandum in
opposition to the instant motion.
On April 7, 2014, the court
issued an order canceling the April 11, 2014, hearing on the motion
and informing the parties that the court would consider an award of
attorneys’ fees pursuant to Local Rule 7.1(g)(4). See ECF No. 10.
Thereafter, Camarena submitted a memorandum in opposition to the
instant motion and a memorandum addressing the possibility of
attorneys’ fees. In the latter memorandum, counsel for Camarena
stated that he “cannot deny the reasonableness of an award of
attorney’s fees for the actual damages caused, though that award
should justly be made against ... counsel rather than [Camarena]
herself.” ECF No. 12, at 2. To date, the court has received no
correspondence from Wells Fargo regarding its position on possible
attorneys’ fees or a reasonable amount for any such award. As a
result, the court takes no action regarding the imposition of
reasonable attorneys’ fees at this time.
2

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).
facial

plausibility

when

the

plaintiff

[has

“A claim 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.

3

II.

FDCPA
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

peculiar interpretations of collection [attempts].”

for

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

4

because any such false representation was not “in connection with
the collection of any debt.”2

The court agrees.

Here, Camarena alleges that, after she disputed her credit
report, Wells Fargo reported an incorrect balance to the credit
agency.

Camarena, however, points to no authority suggesting that

a debt collector’s response to a credit report dispute is “in
connection with the collection of” a debt. Indeed, such actions do
not amount to “collection of ... debt” for purposes of a similar
provision of the FDCPA. Edeh v. Midland Credit Mgmt., Inc., 748 F.
Supp. 2d 1030, 1036 (D. Minn. 2010) (internal quotation marks
omitted). Moreover, the mortgage at issue had been extinguished by
the 2008 foreclosure and short sale, so there was no existing debt
for Wells Fargo to attempt to collect.

Compl. ¶ 11; see Miller v.

Bank of Am., Nat’l Ass’n, 858 F. Supp. 2d 1118, 1123 (S.D. Cal.
2012) (dismissing FDCPA claim because “allegedly false statements
[in credit report] cannot be deemed to be ‘in connection’ with a
present debt collection proceeding,” as short sale had already
occurred).

As a result, Wells Fargo’s communication with the

credit reporting agency was not in connection with the collection
of a debt, and dismissal is warranted for this reason alone.

2

Wells Fargo also argues that it is exempt from the FDCPA
because it is not a “debt collector.” The court need not reach
such argument, however, because it finds that the actions at issue
were not in connection with the collection of a debt.
5

Further,

even

if

the

alleged

misrepresentations

were

in

connection with the collection of a debt, a false statement must be
material in order to be actionable under the FDCPA.

Neill v.

Bullseye Collection Agency, Inc., No. 08–5800, 2009 WL 1386155, at
*2 (D. Minn. May 14, 2009).

Representations are material if they

“frustrate a consumer’s ability to intelligently choose his or her
response.”

Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1034

(9th Cir. 2010) (citation omitted). Here, Camarena has not pleaded
that any misrepresentation affected her ability to intelligently
choose her response.

For this additional reason, dismissal of the

FDCPA claim is warranted.

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that the
motion to dismiss [ECF No. 5] is granted.
Dated:

August 14, 2014
s/David S. Doty
David S. Doty, Judge
United States District Court

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