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Nitka v. Nelnet, Inc.

United States District Court, D. Colorado

February 23, 2018

GORDON NITKA, an individual, Plaintiff,
NELNET, INC., a Nebraska corporation, Defendant.



         This case comes before the court on Defendant Nelnet, Inc.'s “Motion to Dismiss” (Doc. No. 9 [Mot.], filed May 19, 2017). Plaintiff filed his response on June 22, 2017 (Doc. No. 12 [Resp.]), and Defendant filed its reply on July 6, 2017 (Doc. No. 15 [Reply]).


         Plaintiff, proceeding pro se, asserts claims for violations of the Fair Credit Reporting Act (“FCRA”), the Fair Debt Collection Practices Act (“FDCPA”), breach of contract, intentional infliction of emotional distress, and fraud and misrepresentation.[1] (See Doc. No. 1 [Compl.].) Plaintiff states he applied for and received Federal Direct Stafford/Ford Loans (“Sub/Unsub Loans”) and Federal Direct PLUS Loans (“PLUS Loans”) over a period of time from January 1, 2011, through January 18, 2013. (See id., ¶¶ 38.) Sometime in January and December 2011, Defendant Nelnet, Inc., contacted Plaintiff to inform him that it had been selected to be the servicer of his Sub/Unsub and PLUS Loans. (Id., ¶¶ 51, 61.) Plaintiff states repayment of the PLUS Loans was to begin December 1, 2013, and repayment of the Sub/Unsub Loans was to begin January 1, 2014. (Id., ¶¶ 55. 64.) Plaintiff alleges Defendant's records showed his PLUS Loans were overdue by ninety days as of March 17, 2014 and by 120 days as of April 21, 2014; and his Sub/Unsub Loans were overdue by ninety days as of April 21, 2014. (Id., ¶¶ 56, 66, 69.) Defendant reported the delinquencies to the credit reporting agencies. (Id., ¶¶ 57, 67.)

         Plaintiff states in May 2014, he contacted Defendant to discuss “possible improvements to or the complete rehabilitation of his account.” (Id., ¶ 75.) Plaintiff alleges he was offered and accepted an unemployment deferment, which temporarily excused him from his payment obligations on his loans. (Id., ¶¶ 76-77.) Plaintiff alleges the Defendant “offered to offset the account balance - bringing it to zero ($0) - and to back-date the deferment such that it would begin on January 1, 2014.” (Id., ¶ 79.) Plaintiff's states his deferment was “back-dated to January 1, 2014 and concluded on November 13, 2014.” (Id., ¶ 82.)

         Plaintiff alleges that, despite the deferment, Defendant's records continue to show that Plaintiff missed payments between January 1, 2014, and November 13, 2014. (Id., ¶ 84.) Because of this, Plaintiff alleges he has ten instances of damaging credit information concerning the Sub/Unsub Loans and eight instances of damaging credit information concerning the PLUS Loans. (Id., ¶¶ 86-87.) Plaintiff states on November 10, 2016, he emailed and faxed a letter to Defendant to alert it to the credit reporting errors. (Id., ¶ 88.) Plaintiff alleges Defendant refuses to conduct an investigation, to correct its records, and to provide accurate information to the credit reporting agencies. (Id., ¶¶ 90-91.)


         A. Pro Se Plaintiff

         Plaintiff is proceeding pro se. The court, therefore, “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint “to less stringent standards than formal pleadings drafted by lawyers”). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may not “supply additional factual allegations to round out a plaintiff's complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”). The plaintiff's pro se status does not entitle him to application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).

         B. Failure to State a Claim Upon Which Relief Can Be Granted

         Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6) (2007). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).

         “A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1198 (10th Cir. 1991). “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) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at 679-81. Second, the Court considers the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.

         Notwithstanding, the court need not accept conclusory allegations without supporting factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S at 678. Moreover, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does the complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.' ” Id. (citation omitted).


         A. Count I, FRCA Claim

         Defendant argues Plaintiff's Count I should be dismissed because (1) there is no private right of action against furnishers to enforce the obligations under 15 U.S.C. § 1681s-2(a) to provide accurate information to credit reporting agencies; and (2) Plaintiff alleges he contacted Defendant directly regarding the dispute. (Mot. at 4-6.)

         1. Section 1681s-2(a)

         Plaintiff alleges that Defendant, as a “furnisher of information to consumer reporting agencies[, ]” “violated 15 U.S.C.S. § 1681 when it furnished information relating to a consumer to the consumer reporting agencies that it knew was inaccurate or had ...

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