WEST v. WELLS FARGO AUTO

Filing 10

MEMORANDUM AND OPINION. SIGNED BY HONORABLE KAREN S. MARSTON ON 1/17/23. 1/17/23 ENTERED & E-MAILED. NOT MAILED TO WEST. (fdc)

Case 2:22-cv-04405-KSM Document 10 Filed 01/17/23 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CIVIL ACTION

KIQUON WEST,
Plaintiff,

NO. 22-4405-KSM

v.
WELLS FARGO AUTO,
Defendant.
MEMORANDUM
MARSTON, J.

January 17, 2023

Pro se Plaintiff Kiquon West sues Defendant Wells Fargo Auto for violations of the Fair
Debt Collection Practices Act (“FDCPA”) and Truth in Lending Act (“TILA”). (Doc. No. 1.)
Defendant filed a motion to dismiss, arguing that the claims are barred by one year statutes of
limitations, that Plaintiff fails to state a TILA right to rescind claim because the right to rescind
does not apply to auto loans, and that Plaintiff has not pleaded sufficient facts to support a
FDCPA claim. (Doc. No. 5.) Plaintiff opposes the motion. (Doc. Nos. 7, 9.)
For the reasons discussed below, the Court grants the motion.
I.

Factual Background
Accepting all of Plaintiff’s allegations as true, the relevant facts are as follows.
A. The Retail Installment Sale Contract
On May 19, 2021, Plaintiff entered into a Retail Installment Sale Contract (“RISC”) with

Autopia Motors, LLC1 to purchase a used 2017 Dodge Challenger. (See Doc. No. 5-4.) The

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Under the RISC, Autopia assigned its interest in the contract to Wells Fargo Auto. (Doc. No. 5-4 at 6.)
Plaintiff also alleges that the RISC was assigned to Wells Fargo Auto. (See Doc. No. 1-1 at 15
(Plaintiff’s letter to Wells Fargo Auto, stating, “On the 26th day of May 2021 I signed [sic] entered into a
Consumer Credit Transaction with Autopia Motors dealership that was later assigned to Wells Fargo

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RISC provides that the annual percentage rate, meaning “[t]he cost of [Plaintiff’s] credit as a
yearly rate,” was 5.64%. (Id. at 2.) The RISC also states that the amount financed, i.e., “the
amount of credit provided to [Plaintiff] on [his] behalf,” was $52,412.28, and the finance charge,
i.e., “the dollar amount the credit will cost [Plaintiff],” was $9,489.00. (Id.) The total sale price,
including Plaintiff’s cash down payment of $300, amounted to $62,201.28. (Id.)
Plaintiff alleges that Wells Fargo violated Section 1605(a) of the TILA when it took the
$300 cash down payment. (Doc. No. 1 at 4; see also id. at 6 (alleging that he “is aware and has
proof . . . that WELLS FARGO AUTO is in violation of 15 USC 1605. A finance charge is in
the sum of all charges in a consumer credit transaction and it does not include cash. WELLS
FARGO AUTO in fact took cash”); Doc. No. 1-1 at 5 (“[A]ffiant is aware and has proof . . . that
Wells Fargo Auto is in violation of 15 USC 1605(a). The finance charge in a Consumer Credit
Transaction is determined as the sum of all charges and does NOT include charges of a type
payable in a comparable cash transaction. Wells Fargo Auto in fact took a $300 cash down
payment and therefore has committed a crime pursuant to 15 USC 1611.”).) He also claims that
Wells Fargo “willfully and knowingly failed to disclose clearly and conspicuously [his] right to
rescind in the initial contract,” in violation of the TILA. (Doc. No. 1 at 4; see also Doc. No. 1-1
at 5.) In addition, Plaintiff alleges that he “is aware and has proof . . . that WELLS FARGO
AUTO is in violation of 15 USC 1692e(2),” the FDCPA. (Doc. No. 1 at 6.)
B. Communications Between Plaintiff and Defendant
On June 1, 2021, Plaintiff sent Defendant an invoice for $19,978, claiming that
Defendant owed him $1,000 for “FDCPA Violation 15 USC 1692e(2)” and $18,978 for “TILA
violations 15 USC 1605 & 1611.” (Doc. No. 1-1 at 3.) At another point, Plaintiff sent

Auto to purchase a Dodge Challenger . . . for $52,412.”).

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Defendant an invoice for $76,390.98, which was broken down as follows: $1,000 for “violation
of federal law 15 USC 1692j”; $1,000 for “violation of federal law 15 USC 1692e(8)”; $1,000
for “violation of federal law 15 USC 1692e(2)(a)”; $1,000 for “violation of federal law
1692b(2)”; $1,000 for “violation of federal law 15 USC 1692b(5)”; $18,978 for “twice
FINANCE CHARGE pursuant to 15 usc [sic] 1640”; and $52,412.98 for “credit positive balance
pursuant to 15 usc [sic] 1666d.” (Id. at 9.)
On October 19, 2021, Wells Fargo Auto sent Plaintiff a letter stating, “We are writing to
explain that effective 10/19/2021 your entire account balance of $53,651.39 became immediately
due and owing.” (Id. at 14.) Wells Fargo Auto explained that because Plaintiff’s account was
“seriously delinquen[t],” it had “exercised [its] right to accelerate the balance.” (Id.) At the
bottom of the letter, the following message appeared: “THE PURPOSE OF THIS LETTER IS
TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT
PURPOSE.” (Id.)
In a November 26, 2021 letter to Wells Fargo Auto, Plaintiff wrote that he “now
exercises his Right to Rescind and is not liable for any finance or other charge, and any security
interest[.]” (Id. at 6–7.) In his letter, Plaintiff referenced the letter he received from Wells Fargo
Auto, which stated, “The purpose of this letter is to collect a debt.” (Id. at 6.) He also stated that
he was “aware and has proof . . . that [he] has a positive account balance.” (Id.)
On November 29, 2021, Plaintiff sent Defendant a Notice of Right to Cancel. (Id. at 15.)
Plaintiff wrote that when he purchased the Dodge Challenger for $52,412, Wells Fargo Auto did
not disclose “that the finance charge is the sum of all charges which came to be $9,489” or that
he had the right to rescind. (Id.) He then stated, “I hereby exercise my Right to Cancel this
transaction pursuant to 15 USC 1635. I ask that you send my title lien free . . . and refund my

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down payment of $300 within 30 days . . . .” (Id.)
Plaintiff also sent Wells Fargo Auto a Cease and Desist Notice,2 in which he informed
Defendant that he “refuse[d] to pay this alleged debt” and “demand[ed] that [Wells Fargo Auto]
cease ALL forms of communication with [him] through ANY mediums.” (Id. at 8.) In the
Cease and Desist Notice that Plaintiff sent, he wrote, “Throughout the time frame of 6/15/2021
to the present day, your company has repeatedly contacted me, claiming that I owe a debt under
WELLS FARGO AUTO account number 9670294536. I do not owe this alleged debt, and I
have disputed it and allowed you appropriate time to show evidence of this debt to be valid, but
you have disregarded these repeated requests to valid [sic] the debt.” (Doc. No. 1-1 at 8.)
II.

Legal Standard
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quotation marks omitted). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. “Factual allegations must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
When reviewing a motion to dismiss, courts “must accept the allegations in the complaint
as true, but are not compelled to accept unsupported conclusions and unwarranted inferences, or
a legal conclusion couched as a factual allegation.” Castleberry v. STI Grp., 863 F.3d 259, 263
(3d Cir. 2017) (quotation marks omitted). “As a general matter, a district court ruling on a
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The notice is not dated.

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motion to dismiss may not consider matters extraneous to the pleadings.” In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). “However an exception to the general
rule is that a document integral to or explicitly relied upon in the complaint may be considered
without converting the motion to dismiss into one for summary judgment.” Id. (cleaned up).
The court may also consider “matters of public record, orders, exhibits attached to the complaint
and items appearing in the record of the case.” Keystone Redevelopment Partners, LLC v.
Decker, 631 F.3d 89, 95 (3d Cir. 2011) (quotation marks omitted).
“While a plaintiff’s factual allegations must be enough to raise a right to relief above a
speculative level, complaints filed pro se must be liberally construed.” Muchler v. Greenwald,
624 F. App’x 794, 797 (3d Cir. 2015) (cleaned up); see also Smith v. Shop Rite, Civil Action No.
3:17-cv-0907, 2018 WL 2424136, at *2 (M.D. Pa. May 9, 2018) (noting that although “[a]
complaint by a pro se litigant is to be liberally construed,” “pro se litigants still must allege
sufficient facts in their complaint to support a claim” (cleaned up)); Strader v. U.S. Bank Nat’l
Ass’n, Civil Action No. 2:17-cv-684, 2018 WL 741425, at *5 n.8 (W.D. Pa. Feb. 7, 2018) (“It is
true that pro se plaintiffs are not held to the same standard as lawyers when the Court analyzes
formal pleadings, but any pleading must still contain sufficient factual allegations that, when
accepted as true, state a claim to relief that is plausible on its face.” (cleaned up)).
III.

Discussion
A. Right to Rescind under the TILA
Defendant argues that Plaintiff’s TILA claim must be dismissed to the extent it is based

on a failure to notify Plaintiff of his right to rescind because the right to rescind only applies to
residential mortgages, not auto loans. (See Doc. No. 5-3 at 7; Doc. No. 8 at 1–3.)
Congress intended for the TILA “to assure meaningful disclosure of credit terms” and “to
protect the consumer against inaccurate and unfair credit billing and credit card practices.” 15
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U.S.C. § 1601(a). “The TILA requires lenders to disclose the cost of credit to borrowers as a
dollar amount. This is done by disclosing, among other things, the amount financed, the finance
charge, the annual percentage rate, and the total sale price.” Shareef v. Chrysler Capital, Civil
Action No. 21-3858, 2022 WL 1045533, at *2 (E.D. Pa. Apr. 7, 2022) (citing 15 U.S.C.
§ 1638(a); 12 C.F.R. § 226.18). The sum of the “amount financed” and the “finance charge”
makes up the “total of payments.” 15 U.S.C. § 1638(a). “The ‘finance charge’ is the sum of all
charges, minus certain exclusions, payable by the borrower and imposed by the creditor incident
to the extension of credit.” Shareef, 2022 WL 1045533, at *2 (citing 15 U.S.C. § 1605(a)).
Plaintiff claims that Defendant violated the TILA by failing to clearly and conspicuously
inform him of his right to rescind the transaction. (See generally Doc. Nos. 1, 1-1.) He is
mistaken. The TILA “provides, with certain exceptions, ‘in the case of any consumer transaction
. . . in which a security interest . . . is or will be retained or acquired in any property which is
used as the principal dwelling of the person to whom credit is extended, the obligor shall have
the right to rescind the transaction.’”3 Hudson v. Scharf, Case No. C21-5827 JLR, 2022 WL
1227111, at *2 (W.D. Wash. Apr. 25, 2022) (quoting 15 U.S.C. § 1635(a)) (emphasis added).
Courts routinely hold that the right to rescind under § 1635(a) does not apply to the purchase of
motor vehicles. See, e.g., Stephens v. Regional Hyundai, LLC, Case No. 21-CV-0414-CVE-SH,
2022 WL 3139749, at *2 (N.D. Okla. Aug. 5, 2022) (“Plaintiff claims she should have been
notified that she had a right to rescind the contract under 15 U.S.C. § 1635. . . . The credit
agreement in this case was for the purchase of an automobile and § 1635 is inapplicable, and the

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“Regulation Z, which was promulgated to implement [the] TILA, likewise provides that, with certain
exceptions, ‘in a credit transaction in which a security interest is or will be retained or acquired in a
consumer’s principal dwelling, each consumer whose ownership interest is or will be subject to the
security interest shall have the right to rescind the transaction.’” Hudson v. Scharf, Case No. C21-5827
JLR, 2022 WL 1227111, at *2 (W.D. Wash. Apr. 25, 2022) (quoting 12 C.F.R. § 1026.23(a)(1)).

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disclosures were not deficient due to an alleged failure to notify plaintiff of a right to rescind the
contract.”); Hudson, 2022 WL 122711, at *3 (“Because the consumer transaction Mr. Hudson
seeks to rescind is a vehicle purchase that does not have any alleged connection to his principal
dwelling, he cannot state a claim for relief under section 1635 or its implementing regulations.”);
Jeffries v. Wells Fargo Bank, NA, No. 10-cv-5889, 2011 WL 5023396, at *4 (N.D. Ill. Oct. 19,
2011) (“Here, the Federal Truth-in-Lending Disclosures section of the contract affirmatively
states that Wells Faro ‘will have a security interest in the vehicle being purchased.’ Jeffries is
not entitled to rescind the contract under 15 U.S.C. § 1635 because the contract was secured by
the vehicle rather than real property that Jeffries used as her principal dwelling.”).
Accordingly, Plaintiff does not have a right to rescind his purchase of the Dodge
Challenger under 15 U.S.C. § 1635 and thus, fails to state a claim for violations of § 1635.
B. Statute of Limitations for the TILA and FDCPA
Defendant also argues that Plaintiff’s TILA and FDCPA claims are time-barred by the
statutes’ respective one year limitations periods. (Doc. No. 5-3 at 6–7; Doc. No. 8 at 3–4.) The
Court addresses each in turn.
1. TILA Claim
Most TILA claims must be brought within one year of the alleged violation.4 See 15
U.S.C. § 1640(e) (“Except as provided in the subsequent sentence, any action under this section
may be brought . . . within one year from the date of the occurrence of the violation . . . .”). “In a
case where the alleged violation was the failure to make timely disclosures, the date of the
violation is deemed to be the date that the loan was consummated, which is characterized as

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Certain TILA claims have a three year limitations period instead. See 15 U.S.C. § 1640(e) (“Any action
under this section with respect to violation of section 1639, 1639b, or 1639c of this title may be brought
. . . before the end of the 3-year period beginning on the date of the occurrence of the violation.”).

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when the consumer becomes contractually obligated on a credit transaction. Essentially, the
violation occurs at the point in time when the disclosures should have been made but were not.”
Alejandro v. Freedom Mortg. Corp., Civil Action No. 22-897, 2022 WL 2068247, at *4 (E.D.
Pa. June 8, 2022) (cleaned up). “A statute of limitations defense may be raised where the
expiration of the limitations period appears on the face of the complaint. A court may dismiss a
complaint for failure to state a claim based on the statute of limitations when it is clear from the
face of the complaint that it is time-barred.” Shareef, 2022 WL 1045533, at *2 (cleaned up).
Here, Plaintiff alleges that Defendant violated TILA by failing to inform him of his right
to rescind and taking his $300 cash down payment, both of which appear to have occurred at the
time the parties entered into the contract on May 19, 2021. Accordingly, Plaintiff’s TILA claim
expired on May 19, 2022 and is untimely, as he did not initiate this lawsuit until November 4,
2022. Further, Plaintiff has not alleged any facts showing that equitable tolling applies.
Accordingly, the Court grants Defendant’s motion to dismiss Plaintiff’s TILA claim as timebarred.5 See Shareef, 2022 WL 1045533, at *2–3 (“According to his complaint, Shareef entered
into a retail installment sale contract with Foulke on April 15, 2014 in connection with the sale of
a used car. He avers that Chrysler violated the TILA because it did not include certain amounts
in the finance charges, did not disclose his right of recission, and advised him that it was not
required to provide him with insurance. It appears from the complaint that the alleged violations
took place when Shareef entered into the sales contract on April of 2014. The statute of

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Plaintiff’s reliance on 15 U.S.C. § 1635(f) is misplaced. (See Doc. No. 7 at 1.) First, for the reasons
discussed above, Plaintiff cannot state a claim for rescission under § 1635. Second, the three years
referenced in the § 1635(f) refers to the time limit for exercising the right to rescind, not the time limit for
bringing a claim for TILA violations. See 15 U.S.C. § 1635(f) (“An obligator’s right of rescission shall
expire three years after the date of consummation of the transaction or upon the sale of the property,
whichever comes first.”).

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limitations for TILA claims is subject to equitable tolling. Nothing in Shareef’s complaint
suggests any grounds for excusing his failure to file his claim within the statute of limitations.
Therefore, because Shareef did not file this action until August of 2021, his TILA claims are
time-barred.”); McCoy v. Merck Sharp & Dohme Fed. Credit Union, Civil Action No. 21-CBV4550, 2022 WL 138071, at *4 (E.D. Pa. Jan. 14, 2022) (“Here, Plaintiff’s allegations regarding
Defendant’s violations of the TILA concern Defendant’s conduct at the execution of loan
agreement. The loan agreement appended to Plaintiff’s Amended Complaint shows that it was
executed on December 26, 2018. Therefore, under TILA’s one-year statute of limitations,
Plaintiff had until December 26, 2019 to file suit. But, he did not do so until October 14, 2021,
and has not alleged that equitable tolling applies. Accordingly, his TILA claims must be
dismissed.”); Perez v. Ardent Credit Union, Civil Action No. 21-4729, 2022 WL 118225, at *1
(E.D. Pa. Jan. 11, 2022) (“As confirmed by the loan documents plaintiff attached to her amended
complaint, plaintiff obtained the auto loan from defendant on September 15, 2018 and the
personal loan on May 15, 2019. According to plaintiff, they contained inaccurate disclosures in
violation of the TILA. The action was not filed until October 20, 2021. Plaintiff filed this claim
too late. It will be dismissed.”).
2. FDCPA Claim
An FDCPA claim must be brought “within one year from the date on which the violation
occurs.” 15 U.S.C. § 1692k(d). As noted above, a statute of limitations defense may be raised
on a motion to dismiss when the expiration of the limitations period appears on the face of the
complaint. Shareef, 2022 WL 1045533, at *2; see also Mickman v. Phila. Professional
Collections, Inc., Civil Action No. 21-4221 2022 WL 2974897, at *2 (E.D. Pa. July 26, 2022).
Here, Plaintiff does not address the FDCPA statute of limitations argument in his

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opposition brief.6 Nor does Plaintiff necessarily make clear in his Complaint how Defendant
violated the FDCPA.
However, in one of the affidavits attached to his Complaint, Plaintiff wrote that he was
“aware and ha[d] proof in the attachment labeled as Exhibit A that WELLS FARGO AUTO is in
violation of 15 USC 1692e(2).” (Doc. No. 1 at 6.). In Exhibit A, which is the RISC, Plaintiff
circled the “total of payments” he owes, $61,901.28, drew a line, and wrote in, “Violation of 15
USC 1692e(2).” (See Doc. No. 1-1 at 1.) Under 15 U.S.C. § 1692e(2), a debt collector may not
falsely represent “(A) the character, amount, or legal status of any debt; or (B) any services
rendered or compensation which may be lawfully received by any debt collector for the
collection of a debt.” To the extent that Plaintiff claims the RISC was a false representation of
the amount he owed, Plaintiff’s FDCPA claim is time-barred. The RISC was signed on May 19,
2021, and this suit was not filed until November 4, 2022—well over a year later.
In a different affidavit, Plaintiff averred that he was “aware and ha[d] proof in attachment
labeled as Exhibit B that Wells Fargo Auto is in violation of 15 USC 1692j for designing a
contract that deceptively lures the customer into believing he owes such a debt to Wells Fargo
Auto.” (Doc. No. 1-1 at 6.) Plaintiff also wrote that he was “aware and ha[d] proof in the
attachment[s] labeled as Exhibit[s] B and D that Wells Fargo Auto is in violation of 15 USC
1692e(2)(A) for displaying . . . the amount financed as $52,412.28 which is a false representation
of the character and amount of this debt. The amount listed is showing a positive balance.” (Id.)
Exhibit B is the RISC. (See id. at 11.) Again, the RISC was dated May 19, 2021 and
therefore, any FDCPA claim based on the RISC itself is barred by the one year statute of

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Ordinarily, the Court would find the argument waived, since Plaintiff failed to address it; however,
because Plaintiff is proceeding pro se, we consider the argument in its entirety.

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limitations. Next, Exhibit D is largely illegible and appears to be an undated document
providing “Payment History Details” on the auto loan. (See id. at 13.) To the best the Court can
discern, the posting date for the “New Loan” appears to be either May or June 25, 2021. (See
id.) Accordingly, to the extent that Plaintiff’s FDCPA claim is based on Exhibit D, it is timebarred.
In the same affidavit, Plaintiff wrote that he was “aware and has proof in the attachment
labeled as Exhibit E that Wells Fargo Auto is in violation of 15 USC 1692e(8) by reporting to
Consumer reporting agencies negative and false credit information.” (Id. at 6.) Plaintiff also
averred that he was “aware and has proof that Wells Fargo is in violation of 15 USC 1692b(2) by
stating in a letter labeled as Exhibit E . . . that ‘The purpose of this letter is to collect a debt’
implying that [Plaintiff] owes a debt.” (Id.) Further, Plaintiff stated that he is “aware and has
proof in the attachment labeled as Exhibit E that Wells Fargo is in violation of 15 USC 1692b(5)
because a symbol is in the contents of the letter from Wells Fargo Auto that indicates they are in
the debt collection business.” (Id.)
Exhibit E is a letter dated October 19, 2021, in which Wells Fargo Auto informed
Plaintiff that his account was seriously delinquent and the entire account balance of $53,651.39
became due. (Id. at 14.) The letter also stated that Defendant “reported to consumer reporting
agencies (also known as credit bureaus) [Plaintiff’s] account as ‘unpaid balance reported as a
loss (charge off) by credit grantor.’” (Id.) The letter is dated October 19, 2021 and therefore, to
the extent Plaintiff wished to file a FDCPA claim based on this letter, he should have done so by
October 19, 2022. He did not. Accordingly, any FDCPA claim based on this letter is barred by
the statute of limitations.

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In sum, the Court concludes that Plaintiff’s FDCPA claim is time-barred.7
***
Because the Court finds that Plaintiff’s TILA and FDCPA claims are barred by the
respective one year statutes of limitations, we do not address Defendant’s remaining
arguments—namely, whether Plaintiff fails to state a FDCPA claim and whether Plaintiff fails to
state a TILA claim to the extent it is based on Plaintiff’s contention that Section 1605 prohibits
Wells Fargo Auto from taking a cash down payment.
IV.

Conclusion
For the foregoing reasons, the Court grants Defendant’s motion to dismiss.
An appropriate Order follows.

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Although equitable tolling is available in FDCPA suits, Plaintiff has not alleged any facts indicating that
equitable tolling applies here. See Mickman, 2022 WL 2974897, at *2 (“Equitable tolling is available in
FDCPA suits. It is used sparingly, when either the defendant has actively misled the plaintiff respecting
his or her cause of action, the plaintiff has been prevented from asserting his or her rights in some
extraordinary way, or when the plaintiff has timely asserted his or her rights mistakenly in the wrong
forum. Here, Mickman has alleged no special circumstances. She offers no factual bases to excuse her
late filing. Therefore, her FDCPA claim is barred by the statute of limitations.”).

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